workers compensation commission that we're asking that the court reverse the judgment of the appellate court and reinstate the judgment of the circuit court of firming the commission's award of compensation for temporary total disability  the issue as we've framed it is whether an employer may disqualify an injured worker from receiving tempering total disability benefits merely by firing him for reasons that were arguably pretext fired for a graffiti infraction that protection perhaps not but there's considerable evidence in the record that the real basis for the firing might have been that he had complained about what he felt was a dubious payroll deduction threatened during this conversation he called the police the police arrived and it was only then that he was fired and i think if the court would even take a look at the incident report of jim coffee who was the individual the communicat or that communicated the president's desire to fire the petitioner i believe it was response exhibit seven one could just as easily conclude that he was being fired because of the  and in fact the commission found that the petitioner was entitle to compensation for tempering total disability ops to the date of arbitration based upon the fact that his condition had stabilized to point a maximum medical improvement  memphis way standard of review in the commission could have drawn inferences from this record that the petitioner was fired for reasons that had nothing to do with the basis that was alleged by the respond if one assumes that he was fired for misconduct i think what happens is we're placing the commission in a position of having to evaluate issues that are not within its purview  particularly in a case like this where there was no finding by either the arbitrator or the commission that there was a firing for misconduct that was something that was inserted by the was for misconduct no matter how profoundly disabled this man might be and no matter how insignificant the misconduct it seems to me based on the support of course the citizen of the commission is going to be bound to deny temporary total disability were there were incidents of of graffiti in this workplace prior to the time mr urban was fired there is no evidence that those individuals were disciplined let alone fire now there was there were obscene drawings on the shelves and on the op rights there was a there was a an unflattering drawing of i believe the owner's son  but i do know that there was that and i think it's uncontroverted in this record that there was no there's no evidence that anybody was ever disciplined for graffiti done i think what mr irving was accused of and what he agreed he did was writing religious screw feeding on the walls namely jesus is the word and the way and the life and it's not what is seen but what is on scene now in addition to what he wrote on the end he doesn't deny that or i really i after jump in here i really think although very interesting in the facts or perhaps the retaliatory discharge claim i have down here tell me where i'm wrong the court found appellate court there allowing an employee to collect p t p benefits from his employer after he was removed from the workforce as a result of unrelated to his injury would not advance the goal of compensating an employee for a work related injury is is that regard list of why he was let go regardless of the facts of this case isn't isn't that you should be for the court maybe i'm wrong because so far the only thing we've been talking about are the facts related to the fire i think it begs the question because i don't think it's clear from this record that he engaged in this strike that i don't think it's clear from this record that the basis for the firing was a volitional act of misconduct there was an individual in this plant or in this at this facility who was charged with sexual harassment nor place that individual did not have a worker's comp claim was not an injured worker and he wasn't fired mr durban drew graffiti on the walls which supervisory people knew about for six weeks did nothing about it didn't ask him to clean it up didn't ask him to paint over it taking the position that he was fired for something related to his injury i think based upon this record the commission could have drawn that inference and i think under the manifest weight standard of review deference is due to the commission and i would remind the court the commission awarded t t d through the date of arbitration and nowhere in the commission's decision or the arbitrator's decision was there a factual finding that this man was fired for great case well we've argued in the alternative that if there's going to be a rule permitting a respondent to refuse to reinstate t t d following a firing it's prime aphasia affirmative defense the employer would have to show that under the seagraves approach and under the just on of us the side that the injured worker violated a rule or policy that was not shown in this case he was never that there was no stablished policy secondly that he was fired for violation of their rule or policy again it's not clear from this record what the basis of the firing was again crawford's memel if the court would take a look at they out it's one could just as easily conclude that he was fired for having an argument over his paycheck thirdly and for then he had to go back to justice thomas question if if this court answers that question we're given an advisory opinion are we i don't know your theory i don't see how i because you're saying there was no i mean suppose court because i think on this record again on the memphis weight standard of review one that the commission is entitle to draw reasonable inferences from the record and the issue is going to be whether there's evidence in this record supporting the co have i believe no i don't with all due respect to the court i don't think so i think the court would be compelled to reinstate the commission's decision provided there are sufficient evidence in the up in the record from which those inferences could be drawn the inference being in this case assuming that that's not the lawyer on her that the petitioners condition is not reach maximum medical improvement law going back to his we cited cases dating back to nine hundred twenty and that's always been the law in illinois the the  t and would you then say that regardless of the reasons for the fire well i suppose one could come up with an outrageous example you know if an individual came into i mean you know the drill team in the workplace but you know with the machine gun i'm just trying to get to the point of whether we're looking at the reasons for the firing here i don't think the court has to has to do that in this particular case way the commission look at it and i don't know but it was a very perfunctory decision as you know that merely reversed the arbitrators denial of t t t through the date of arbitration and even the arbitrator's decision address the basis of the firing he merely and i know we're not supposed to quote from decisions but very briefly the arbitrator stated notwithstanding the divisive conflicting testimony regarding the arguments and confrontations and the unusual basis for the terminations petitioner the arbitrator finds that he's not entitled to tempering total disability so the arbitrator really just sort of glossed over what the basis was for the firing and simply found that the man wasn't temporarily totally disabled the commissioner reversed finding that he was other this is really a policy call for this or that well in a way it's a policy call for been a situation where an employer could create a trumped up reason for take an individual back to light duty on a temporary basis then create a trumped up reason to discharge him in order to be able to not reinstate his compensation for temporary total disability and clearly i mean this can have profound consequences as the court knows because we're talking about people who feed your nobler feeding mr urban is an individual who  is is disabled is not able to return his pre injury drive needs a neck fusion and he's going to be destitute as a result of this it is not as if he went in and assaulted someone or committed embezzle i forgot the second point of the justice thomas i forgot my question for you are the cases from other jurisdictions they've gone both ways but in many not all but some of those states  the defense for statutory in illinois it's not statutory if the general simply wants to create a defense of this nature they've amended the act many times they can amend it again but under existing law we believe that the commission and i see amount of time the red line ok well sir no further questions i thank you for attention for your attention and we would request that the decision the commission be reinstated and i thank you more injustice is counsel my name is tony can chill and i'm here in behalf of the happily interstate scaffolding and we're asking the court to affirm the decision of the appellate court if the analysis they go through seagraves with the before part of the test required of the employer and then burden shifting back employee is unnecessary and it's our position is unfair to employers  commission is well equipped to hear evidence and distinguish between terminations for misconduct and those that are pretextual for example if the commission is able to decide whether employers job offer is a sham it can also adequately decide whether a terminations terminations from light duty is a sham or pretextual if the commission is able to weigh evidence and as to whether an employee cooperate with occasional rehabilitation and job placement and these types of hearings go on every day in front of the commission then the commish can also weigh evidence whether the employer was fired from a light duty job for his own volitional misconduct or because the employer restrictions from the work related injury prevent him from securing employment at pre injury levels i submit to you that an employee will be able to meet this burden one hundred percent of the time because the very reason that he's on light duty is because he has medical restrictions so following his term a nation for misconduct he's still going to have this the restrictions in case then doesn't that doesn't that collapse the first in other words does it make any difference it well our position is that the if you use the second part of the of the seagraves test then that essentially would erase the whole test you might as well even have the test because the employee is going to be able to show i submit those employees who committed militia lax misconduct and are terminated should not be rewarded for such conduct i've argued in my brief that that could potentially have effect of actually encouraging misconduct it the implore can still have him evaluated by physicians yes bring that back before the commission and establish that he's no longer this able to extend your team players able to prove to the commissioner able to when that when this person male or female goes out to find were then to be able to find the full range of what they would have been able to find if they don't think they have some least arguably some diminished ability to find meaningful employment my response a question would be but for that employee's misconduct he or she would still be working for misconduct is part of the calculus in determining whether or not this man is going to get benefits how can we deny him the right to question the correctness of the finest finding that this w decided factor that this was wishful misconduct when we tried the case we put on evidence as and he gave reasons for his fiery the one thing i can say that is he had an opportunity that time to offer evidence to the arbitrator that he was fired for some other earlier i believe the unlike the opponent my opponent the commission is equipped and they make these decisions on employment issues day in and day out they decide whether my clients offering a job whether it's a bump bonafide like you off or whether it's a sham this is an extension of that they're out there deciding whether the firing was was related to the work injury or due to misconduct and and the arbitrator the commission can can no he i would say that was implied but it was not in the body of his decision and he did not say fired for cause now so  the facility in the end just as my issue with the secret case isn't so much what the employer has to show it's that last prong of the test where it basically what the employee then has to show simply obliterates the test it you might as well even have the test because i can i can put on evidence a trial and show the michael it was it was a good firing a legitimate firing a wasn't related to work injury and all the employee has to do then is come in and show that you can't you can't return a pre injury levels i mean it's not even tested from my perspective isn't the reverse also true though the employer is just as easily manufactured their own which is why i believe that the arbitrator in the commission could hear witnesses and there's there's a lot in the breeze about there's no discovery and you know we put on discovery we put on witnesses every day the arbitrator here here's evidence both sides are free to subpoena witnesses they can subpoena personnel files they can call people in and find out who else has been fired they can find out the company's policy i'm  terminations so that's why i think it's it's something that the commission is within their purview in looking at the advantage that the employer or the employee could take in this situation you do have the ability of the employer to have the employees submit to medical evaluation so he's pretending it continues top of this disability that could be refuted by medical testimony selected doctors selected by the employer but the same thing is not available to the employee except in the evidence free hearing on the basis  i don't believe there's a statutory basis of though i think that the decision of the appellate court follows a long line of cases that place limitations upon employees collection of temporary told disability benefits council have you believe that if your temporary totally disabled there's no argument you get your benefits there are limitations which i will go through all the cases but you have the city of granite city shmoes all all place limitations on case that didn't exist before it hit the court i don't believe that the the the arbitrator implied that he petitioner was terminated for misconduct w we read the records or anything that's going to tell us that other than other than that the employer's evidence of testimony and he was given terminations slip that said it was funny he was terminated for writing graffiti when we read the decision of the arbitrator is there anything  there are no specific words that he was terminated for misconduct mr urban's conduct of writing religious slogans on the walls with a permanent marker is not related to his work injury in any way shape or form should not be rewarded with a windfall of temporary told disability benefits as a decade earlier toward such benefits for volitional misconduct underlines the valuable concept of light duty programs could actually have the effect of encouraging bad behavior of those working on light to teach ops for these reasons as well as  additional arguments contained in the briefs i respect what requests this court affirmed the decision of the appellate court in unless you have any further questions yes this is my arguments complete thank you thank you very briefly regarding the well to justice co writes questions there are statutory defenses to t t d the legislature chose to insert those defenses really as almost an exception to the general rule that worker's comp is a no fault system as we've discussed in detail in our brief and that's how the system was designed for example the justice mention or or counsel mention vocational rehabilitation vocational rehabilitation is in the statute there's it's at least an implied understanding that both parties  provides that if the petitioner engages in a persistent injurious practice if he does something how awful to sulfa prolonging his disability is t t t benefits can be suspended section twelve as of mention provides for the right of on a ploy or to obtain a nigga medical examination of the petitioner if he doesn't show up his benefits will be suspended so that the legislature's created defenses they could create this defense if they were to choose to do so they haven't chosen to do so now regarding the seagraves test i strongly disagree that the the rebutt inability to find work is the disability or the misconduct and one can certainly imagine many examples of situations where the misconduct is the cause of the inability to obtain work for example if the cause of his ongoing disability rather than the misconduct being the cause and i think a fair reading of both seagraves and justice town of unst to sent will indicate that and i think that's correct and just to to briefly take a look at the facts of seagraves it involved an individual who during horseplay exposed her buttocks in the workplace and she was fired for having done so and as i recall i believe the north carolina approval of our industrial commission awarded compensation an intermediate court reversed and then the court of appeals or supreme court in north carolina held justice as justice donovan would have held that it's not enough that she was fired that's not enough to cut off her t t v of the question is again as the dissent the case whether the infraction was of a nature that it were gordon early justify a firing of a nine injured worker whether there was a policy in effect and so forth all those factors that we've discussed and none of those things were proven in this i won't say there's no evidence but there certainly have been a study was fired for other reasons there has to be a way to protect injured workers from the situation that we've described where an employer can offer light duty almost as a sham and then find some trumped up reason to discharge that individual some picayune allegation of misconduct and use it as a way to refuse to reinstate the individual's temporary total disability it's another way of starting out the injured worker which is what frankly the insurance industry and employers across the state have been looking for throughout the existence of the workers kind of system for the last ninety some odd years  the question was asked should we have the opportunity to offer evidence says as to the basis for the firing i think if i were going to adopt the secrets approach the answer is yes i also think that we did i think on this record the commission's decision can be affirmed because there was evidence that he was fired for reasons unrelated to the graffiti infraction and one might be able to infer from this record given the disparate treatment between the petitioner and his coworkers that in fact he was let go because he was injured and i believe jan crawford herself sent to the petitioner during that heated discussion on may twenty fifth and forgive the profanity but she said it's bullshit that ron follower even has you on this job now what does that mean that could mean that he doesn't deserve to be employed because he's impaired going to get into the issue of what is and what is not a fighter bill defense we're sensual turning the worker's comp commission into the department of employment security and we cited a department employ security case in i think our reply brief and essentially the law at the department of employment security is whatever the employer says goes if the employer says it's misconduct when it's misconduct and the case we cited involved an individual who made an obscene phone call from her personal phone to a coworkers personal phone during non business hours and the coworker played the voicemail for the employer and employee said well that's volitional misconduct you're  and as the court knows its social legislation the statute supposed to be construed liberally in favor of the injured worker if there are no further questions i think the court for its attention  seven eight five two will be taken