News

November 01, 2011

Tim Hilton was injured while working for Otto Baum Company on August 6, 2008, after which he was taken off work.  After diagnostic workup, he was cleared for sedentary work.  Otto Baum offered a temporary position within his restrictions.  Hilton reported for work but exacerbated his condition on the second day back.  Thus, he discontinued working.

Otto Baum’s associate risk manager testified he contacted Hilton on September 2, 2008, to offer light duty work but was told that “he was blacking out because***his anti-depressants were mixing with whatever painkillers he was prescribed and he did not want to drive over.”  The risk manager also testified that Hilton declined another offer of light duty work on September 9th because it “hurt [him] to drive [his car]” the distance required for the commute. During this time, the work restriction remained in effect.

On October 23, 2008, Hilton’s physician took him off work completely for one week; on October 28th, he was released to modified duty.  Hilton testified further that on November 11th he was cleared for sedentary work and requested such work from Otto Baum, but it was not offered.  The risk manager testified that Hilton contacted him in late November or early December 2008 to request work and was told he should refer requests through his attorney.  Apparently, Otto Baum no longer would offer restricted work because Hilton had declined previous offers.  Also, union rules precluded him from seeking work elsewhere.

Following a December 8, 2008 exam and FCE, Otto Baum’s Section 12 examiner found Hilton a candidate for 4 to 6 weeks of work hardening during which time he could work modified duty and resume full duty thereafter.  Hilton agreed to attend work hardening but it was not authorized until some four weeks later on January 7, 2009.  Hilton did not receive this care.  Instead, Hilton continued seeking care with his treating doctor, who imposed work restrictions that remained in effect through the time of arbitration.

The Arbitrator awarded Hilton TTD benefits for the period from August 7 through August 25, 2008, and from October 23 through October 29, 2008.  On review before the Commission, the TTD award was extended to include an additional period from December 10, 2008 through February 18, 2009 – the date work hardening would have concluded.  The Commission found that Hilton had refused offers for light duty work on September 2nd and September 9th, and that Otto Baum had denied his request for light duty work in December 2008 due to his alleged refusal to work in the past.

On judicial review, the Circuit Court confirmed the Commission decision and Otto Baum appealed, claiming the Commission erred in awarding Hilton benefits from December 2008 to February 2009.  Otto Baum argued that the Commission decision was “clearly erroneous” because Hilton refused prior offers of employment within his restrictions.  The Court acknowledged that the “clearly erroneous” standard may apply to an administrative agency’s decision where there is a mixed question of law and fact involved.  But the court declined to apply this standard of review, opting for the “manifest weight” standard when reviewing factual findings of the Commission.  Citing the case of Interstate Scaffolding, the court stated that,

“the period during which a claimant is temporarily totally disabled is a question of fact to be resolved at the Commission, whose determination will not be disturbed unless it is against the manifest weight of the evidence.” 

The Court acknowledged that TTD benefits may be suspended or terminated if an employee refuses to accept work within the physical restrictions prescribed by his doctor, and agreed with Otto Baum that a an improper refusal of modified work may justify the termination of benefits.  However, the Commission had considered the evidence relating to Hilton’s refusal to work in September 2008 and ordered TTD for only the period preceding and following that refusal.  The Commission was also presented with evidence that Hilton eventually submitted himself for work in December 2008 and that Otto Baum refused to accommodate him at that time or even though its Section 12 examiner imposed work restrictions.  Given that evidence, the Court could not say that it was “clearly apparent” that Hilton was not entitled to benefits from December 10, 2008 to February 18, 2009 – the time of prescribed work hardening.  The Court did not consider it an abuse of the Commission’s discretion to suspend rather than terminate benefits due to his failure to accept work in September 2008.  Therefore, the award for TTD was affirmed.

Comment:

This decision is consistent with the holding in Interstate Scaffolding where a claimant terminated for cause was awarded TTD because he had been working with a restriction at the time of termination.  Here, petitioner was restricted throughout the period in question.  When he refused the offer in September, the Commission suspended benefits, reinstating TTD only when his doctor placed him totally off work.  Evidently, the refusal of light duty in September carried over and after this short period.  However, the court felt it unreasonable for the employer to refuse to offer restricted work thereafter merely because the claimant had declined previous offers.  Had the claimant not made the call in November and December, it is doubtful the Commission would have supported his claim for compensation after October 2008.

In summary, the decision shows that in concert with the holding in Interstate Scaffolding, TTD benefits may be suspended for the wrongful refusal of modified work.  Best practices suggest the offer of modified duty be reduced to writing and specify the date and time, and when necessary, where to report for work.