2014 IL App ( 2d ) 130532 WC N o . 2

- 13

- 0532 WC Opinion filed September 30, 2014
IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT Workers’ Compensation Commission Division

_____________________________________________________________________________ WALTER MATUSZCZAK , ) Appeal from the Circuit Court of ) Du Page County. Appellee, ) ) v. ) No. 1 2

- MR

- 1 631 ) THE ILLINOIS WORKERS’ ) COMPENSATION COMMISSION et al. ) Honorable ) Bonnie M. Wheaton, ( Wal

- Mart, Appell ant). ) Judge, Presiding.

______________________________________________________________________________ JUSTICE HARRIS delivered the judgment of the court , with opinion

. Justices Hoffman, Hudson, and Stewart concurred in the judgment and opinion

. Presiding Justice Holdridge specially concurred, with opinion. O PINION ¶ 1 On March 26, 2010, claimant, Walter Matuszczak, filed an application for adjustment of claimant pursuant to the Workers ’ Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2008)), seeking benefits from the employ er, Wal

- Mart. Following a hearing, the arbitrator determined claimant sustained accidental injuries that arose out of and in the course of his employment on March 7, 2010, a nd awarded him (1) 23 2 / 7 weeks’ temporary total disability (TTD) benefits from
Jun e 13 to November 22, 2011; (2) $14,227.41 in medical expenses; and (3) prospective medical expenses in the form of a surgical procedure recommended by one of claimant’ s doctors.2 014 IL A pp (2d) 130532WC

- 2

- ¶ 2 On review, the Illinois Workers ’ Compensation Commission (Com mission) vacated the arbitrator’ s TTD award but otherwise affirmed and adopted his decision. On judicial review, the circuit court of Du Page County reversed the portion of the Commission ’ s decisi on that vacated the arbitrator’ s TTD award. The employer appeals, arguing t he Commission correctly determined claimant was not entitled to TTD after June 12, 2011, the date of his for

- cause termination from employmen t. We affirm the circuit court’ s judgment, reversin g the portion of the Commission’ s decision that vacated the arb itrator’ s award. We reinstate the arbi trator’ s TTD award and remand to the Commission for further proceedings pursuant to Thomas v. Industrial
Comm ’ n , 78 Ill. 2d 327, 399 N.E.2d 1322 (1980). ¶ 3 I. BACKGROUND ¶ 4 At arbitration, claimant testified he worked for the employer for over three years as a full

time night stocker. His job duties included taking 5

- to 100

- pound boxes off skids and neatly placing products in proper areas. On March 7, 2010, claimant injured his neck, back, and right arm at work when seve ral fully stocked shelves of gl ass cleaner fell on top of him. ¶ 5 On March 9, 2010, claimant began seeking medical care. Thereafter, he received conservative treatment from various providers and was consistently given modified

- duty work restrictions. Follow ing his accident, claimant returned to work for the employer in a light

- duty capacity. On May 23, 2011, claimant saw Dr. Mark Lorenz , who recommended surgery on claimant’ s cervical spine. ¶ 6 Claimant testified, on June 12, 2011, he was terminated from his em ployment for an incident unrelated to his work injury. Thereafter, claimant remained unemployed. On cross

examination claimant agreed that, at the time of his termination, he prepared a handwritten statement acknowledging that he stole cigarettes from th e employer on June 3, 2011, and on a2 014 IL A pp (2d) 130532WC

- 3

- “ couple of days ” in May 2011. He agreed that, at the time he took the cigarettes, he understood that stealing is a crime and stealing from his employer could result in termination. Further, claimant acknowledged that, had he not stolen cigarettes, he might still have been working for the employer in a light

- duty capacity at the time of arbitration. Claimant asserted he had looked for work within his light

- duty restrictions but had not been successf ul. ¶ 7 On January 25, 2 012, the arbitrator issued his decision in the matter. As stated, he determined claimant sustained accidental injuries that arose out of and in the course of his employment on March 7, 2010, a nd awarded him (1) 23 2 / 7 weeks’ TTD benefits; (2) $14,227.41
in medical expenses; and (3) prospective medical expenses in the form of the surgery recommended by Dr. Lorenz. The arbitrator’ s TTD award extended from June 13, 2010, the day after claimant was terminated from his employment for stealing, to November 22, 2 011, the date of the arbitration hearing. With respect to TTD, the arbitrator noted claimant was subject to light

- duty restrictions that were being accommodated by the employer at the time of his termination, he did not return to work after being terminat ed, and claimant testified that he tried looking for work within his restrictions. He further stated as follows:

“ In Interstate Scaffolding Inc. v. Illinois Workers ’ Compensation Commission , 236 Ill[.] 2d 132, 923 N.E.2d 266 (2010), the court found that t he employer was obligated to pay TTD benefits even when the employee has been discharged, whether or not the discharge was for cause, and that when an injured employee has been discharged by his employer the inquiry for deciding his entitlement to TTD bene fits remains, as always, whether the cla imant’ s condition has stabilized. More to the point, the court noted that if the injured employee is able to show that he continues to be temporarily totally disabled as a result of his work[

- ]related injury, the emp loyee is entitled to these benefits.”2 014 IL A pp (2d) 130532WC

- 4

- The arbitrator based his TTD award on findings that claimant had “ remained under the same light[

- ]duty restrictions imposed at the time of his termination.” Further, he determined claimant’ s condition had not stabiliz ed at the time of arbitration and claimant had not reached maximum medical improvement (MMI). ¶ 8 On October 5, 2012, the Commission vacated the arb itrator ’ s award of 23 2 / 7 weeks’ TTD benefits but otherwise affirmed and adopted his deci sion. It noted that a claimant’ s benefits may be terminated or suspended if he refuses work within his physical restrictions and agreed with the em ployer's position that claimant’ s theft of cigarettes from the employer, coupled with claimant’ s knowledge that his theft could lea d to termination, constituted a refusal of work within his physical restrictions by claimant. The Commission further stated as follows:

“ We do not believe the Interstate Scaffolding court was proscribing all use of discretion in cases involving employment termination; rather, as stated previously, we believe the court was rejecting an analysis of the propriety of the discharge and rejecting an automatic suspension or termination of [ TTD] benefits in cases involving employment termination. ” ¶ 9 On April 23, 2013, the circuit court of Du Page County reverse d the portion of the Commission’ s decision that vacated the arbitrator ’ s TTD award. ¶ 10 This appeal followed. ¶ 11 II. ANALYSIS ¶ 12 On appeal, the e mployer argues the Commission’ s finding that claimant was not entitled to TTD benefits following his June 2011 termination from employment was neither contrary to law nor against the manifest weight of the evidence. It maintains that, although Interstate Scaffolding prohibits the automatic suspension or termination of TTD benefits when a claimant2 014 IL A pp (2d) 130532WC

- 5

- is fired for reasons un related to his injury, it does “ not proscribe all use of discretion [by the Commission] when deciding whether an employer remains liable fo r TTD” following an employee’ s discharge. Thus, the employer contends the Commission was free to exercise its discretion in the instant case to determine that claimant’ s decision to steal from the employer when he admittedly knew such action could result in his termination was the equivalent of refusing work within his physical restrictions and a valid basis for s uspending or terminating
TTD. ¶ 13 Claimant argues the analysis used by the Commission to deny him TTD benefits following his termination from employm ent was contrary to law pursuant to Interstate Scaffolding . He contends that case is factually similar to the present case and prohibits the Commission from delving into the reasons for termination, which he alleges the Commission impermissibly did in thi s case. ¶ 14 “ A claimant is temporarily totally disabled from the time an injury incapacitates him from work until such time as he is as far recovered or restored as the permanent chara cter of his injury will permit.” Westin Hotel v. Industrial Comm’ n , 372 Ill . App. 3d 527, 542 , 865 N.E.2d 342, 356 (2007). “ It is a well

- settled principle that when a claimant seeks TTD benefits, the dispositive inquiry is whether the claimant ’ s condition has stabilized, i.e. , whether the claimant has reached [MMI] .” Interstate Scaffolding , 236 Ill. 2d at 142 , 923 N.E.2d at 271. Further, “ [t]o be entitled to TTD, a claimant must show not only that he did not w ork but that he could not work.” Residen tial Carpentry, Inc. v. Illinois Workers’ Compensation Comm’ n , 389 Ill. App. 3d 975, 981, 910 N.E.2d 109, 115 (2009). TTD benefits may be suspended or terminated if the employee (1) refuses to submit to medical, surgical, or hospital treatment essential to his recovery; (2) fails to cooperate in good faith with rehabilitation effort s; or (3) refuses work2 014 IL A pp (2d) 130532WC

- 6

- falling within the physical restrictions prescribed by his doctor. Interstate Scaffolding , 236 Ill

. 2d at 146, 923 N.E.2d at 274. ¶ 15 “ Before a reviewing court may overturn a decision of the Commission, the court must find that the awar d was contrar y to law or that the Commission’ s factual determinations were against the manifest weight of t he evidence.” Beelman Trucking v. Illinois Workers’ Compensation Comm’ n , 233 Ill. 2d 364, 370, 909 N.E.2d 818, 822 (2009). Generally, the period du ring which a claimant is entitled to TTD benefits is a factual determination for the Commission and its decision will not be disturbed unless it is against the manifest weight of the evidence. Westin Hotel , 372 Ill. App. 3d at 542 , 865 N.E.2d at 356. How ever, “ if the Commission relies on a legally erroneous premise to find a fact, the resulting decision is contrary
to law and must be reversed.” Franklin v. Industria l Comm’ n , 211 Ill. 2d 272, 282

- 83 , 811 N.E.2d 684, 691 (2004). “ On questions of law, revi ew is de novo , and a court is not bound by the decision of the Commission.” Beelman Trucking , 233 Ill. 2d at 370, 9 09 N.E.2d at 822. ¶ 16 Here, the parties disagree on whether the Commission utilized the correct legal anal ysis in vacating the arbitrator’ s awar d of TTD benefits following claimant’ s termination from his employment. This issue presents a question of law and is subject to de novo review. ¶ 17 In Interstate Scaffolding , 236 Ill. 2d at 136, 923 N.E.2d at 268, the claimant sustained work

- related injuries to his head, neck, and back but was able to return to work for the employer in a light

- duty capacity. Following his return to work, a conflict arose between the claimant and the assistant to the employer ’ s president, culminating in the claimant ’ s terminat ion from employment. Interstate Scaffolding , 236 Ill. 2d at 136

- 37, 923 N.E.2d at 268

- 69. The stated reason for the claimant ’ s dismissal was defacement of the employer ’ s property due to the claimant writing religious graffiti in the employer ’ s storage ro om. Interstate Scaffolding , 236 Ill.2 014 IL A pp (2d) 130532WC

- 7

- 2d at 137

- 38, 923 N.E.2d at 269. Although the claimant admitted to writing religious slogans in the storage room, he did not believe those writings were the reason for his dismissal, stating other employees had writte n on the shelves or walls of the storage room without repercussion. Interstate Scaffolding , 236 Ill. 2d at 138

- 39, 923 N.E.2d at 269

- 70. ¶ 18 Following a hearing, the arbitrator determined the claimant was not entitled to TTD benefits subsequent to his termina tion. Interstate Scaffolding , 236 Ill. 2d at 139, 923 N.E.2d at 270. The Commission modified that portion of the arbitrator’ s d ecision, finding the claimant’ s condition had not stabilized as of the date of arbitration and he was entitled to TTD benefits for the period of time between his termination and the arbitration hearing. Interstate Scaffolding , 236 Ill. 2d at 140, 923 N.E.2d at 270. On appeal, thi s court reversed the Commission’s award of TTD benefits, “ holding that an employer may cease paying TTD benefits if the injured employee commits a volitional act of misconduct that serves as jus tification for his termination.” Interstate Scaffolding , 236 Ill. 2d at 142, 923 N.E.2d at 271 (citing Intersta te Sca ffolding, Inc. v. Illinois Workers’ Compensa tion Comm’ n , 385 Ill. App. 3d 1040, 1047, 89 6 N.E.2d 1132, 1139 (2008)). ¶ 19 Ultimately, the supreme court reversed this court's decision and reinstated the
C ommission's TTD award, holding “ that when an employee who is entitled to receive workers ’ compensation benefits as a result of a work

- related injury is later terminated for conduct unrela ted to the injury, the employer’ s obligation to pay TTD workers’ compensation benefits continues until the employee ’ s medical condition has stabilized and he has reached [ MMI]. ” Interstate Scaffolding , 236 Ill. 2d at 135

- 36, 923 N.E.2d at 268. In reaching its decision , the court rejected this court’ s finding that the critical in quiry in determining a claimant’ s entitlement to TTD benefits when leaving the workforce was wh ether the departure was voluntary. Interstate Scaffolding , 236 Ill. 2d at 143

- 45, 923 N.E.2d at 272

- 73. The court noted that2 014 IL A pp (2d) 130532WC

- 8

- “worker’s com pensation is a statutory remedy” and “ [a]ny action taken by the Commission must be spec ifically authorized by statut e.” Interstate Scaffolding , 236 Ill. 2d at 145, 923 N.E.2d at
273

- 74. Further it stated as follows:

“ Looking to the Act, we find that no reasonable construction of its provisions supports a finding that TTD benefits may be denied an employee who remains injured, yet has been discharged by his employer for ‘ volitional conduct ’ unrelated to his injury. A thorough examination of the Act reveals that it contains no provision for the denial, suspension, or termination of TTD benefits as a result of an employe e's discharge by his employer. Nor does the Act condition TTD bene fits on whether there has been ‘cause’ for the employee ’ s dismissal. Such an inquiry is foreign to the Illinois workers’ compensation system.” Interstate Scaffolding , 236 Ill. 2d at 146, 923 N.E.2d at 274. ¶ 20 The supre me court held “that an employer’ s obligation to pay TTD benefits to an injured employee does not cease because the employee had been discharged

— whether or not the discharge was for ‘cause’ ” and “ [w]hen an injured employee has b een discharged by his employer, the determinative inquiry for deciding entitlement to TTD benefits remains, as always, whether the claimant’ s condition has stabilized .” (Emphasis added.) Interstate Scaffolding , 236 Ill. 2d at 149, 923 N.E.2d at 276. Fur ther, the court stated as follows:

“ It remains the law in Illinois that an at

- will employee may be discharged for any reason or no reason. [Citation.] Whether an employee has been discharged for a valid cause, or whether the discharge violates some publi c policy, are matters foreign to workers’ compensation cases. An injured employee ’ s entitlement to TTD benefits is a completely separate issue and may not be conditioned on the propriety of the discharge.” Interstate Scaffolding , 236 Ill. 2d at 149, 923 N.E.2d at 276.2 014 IL A pp (2d) 130532WC

- 9

- ¶ 21 Cleary, the supreme court ’ s holding in Interstate Scaffolding prohibits the automatic denial of TTD benefits to an injured employee when the employee has been discharged from work by the employer. However, that is not the extent of the cour t ’ s holding. In addition to proscribing the denial of TTD based solely on an employee ’ s discharge, the court also clearly held that when an employee who is entitled to benefits under the Act is terminated for conduct unrelated to his injury, the employer' s TTD obligation continues “ until the employee ’ s medical condition has stabilized. ” Interstate Scaffolding , 236 Ill. 2d at 135

- 36, 923 N.E.2d at 268. This is true even in cases of for

- cause dismissal. In so holding, the court expressly rejected an inter pretation of the Act that would support a denial of TTD where an employee ’ s volitional conduct was the basis for termination. ¶ 22 Here, the employer agrees claimant sustained a compensable work injury on March 7, 2010. Also, it is undisputed that claimant was discharged by the employer for acts unrelated to his injury. Thus, the appropriate inquiry for the Commission was whether claimant’ s medical condition had stabilized at the time of his termination. As to that issue, the undisputed facts show claimant wa s placed on light

- duty work restrictions following his accident and he remained under light

- duty restrictions after his June 2011 termination. Both the arbitrator and the Commission determined claimant was entitled to prospective medical expenses for surg ery necessary to treat his work injury, that claimant had not reached MMI, and that claimant’ s condition had not stabilized. These findings are not challenged on appeal. Thus, the evidence was sufficient to show, at the time of his termination, claimant continued to be temporarily totally disabled as a result of his work

- related injury. Such a showing entitled him to TTD benefits from the time of his termination to the date of arbitration. Interstate Scaffolding , 236 Ill. 2d at 149, 923 N.E.2d at 276 (“ If the injured employee is able to show that he continues to be2 014 IL A pp (2d) 130532WC

- 10

- temporarily totally disabled as a result of his work

- related injury, the employ ee is entitled to TTD benefits.” ). ¶ 23 Neverth eless, despite finding claimant’ s condition was not stabilized, the Commission determined it had discretion to find the co nduct that resulted in claimant’ s termination amounted to a refusal of light

- duty work and was, therefore, a sufficient basis for denying TTD benefits. In Interstate Scaffolding , 236 Ill. 2d at 146

- 47, 923 N.E.2d at 274, the supreme court acknowledged that TTD benefits may be suspended or terminated when a claimant refuses work within his physical restrictions; however it also determined such a situation did not exist in the case before it

— a case where the claimant was entitled to benefits under the Act and had returned to light

duty work for the employer but was later terminated for conduct u nrelated to his injury. We find these circumstances are the same as those pres ented in the case at bar. ¶ 24 On appea l, the employer argues Interstate Scaffolding is factually distinguishable because claimant in this case acknowledged that he knew his conduct (stealing from the employer) could have resulted in his termination. We disagree. Like the claimant in Intersta te Scaffolding , claimant in this case sustained compensable work

- related injuries, returned to work in a light

duty capacity for the employer (for over a year in the case at bar), and was terminated by the employer for conduct unrelated to his work injury. Just as the facts of Interstate Scaffolding did not amount to a refusal of light

- duty work, the facts here also fail to present suc h a situation. ¶ 25 Additionally, we fi nd nothing in the supreme court’ s decision that would show the result
in Interstate Scaff olding was dependent upon the claimant’ s knowledge, or lack thereof, as to whether his conduct could result in termination. As the supreme court pointed out, in Illinois, an
at

- will employee may be discharged for any reason or no reason and whether an emp loyee is just ifiably discharged is a matter “ foreign to workers’ compensation cases” and completely2 014 IL A pp (2d) 130532WC

- 11

- separate from issues related to an injured employee's entitlement to TTD. Interstate Scaffolding , 236 Ill. 2d at 149, 923 N.E.2d at 276. Whether claimant was appropriately discharged, or knew he could be as a result of his conduct, was not an appropriate consideration for the Commission und er the circumstances presented. ¶ 26 The record shows claimant was entitled to benefits under the Act as a result of his wor k

related injury but was terminated from his employment for conduct unrelated to his injury. Per Interstate Scaffolding , the critical inquiry for the Commi ssion when determining claimant’ s entitlement to TTD was whether his medical condition had stabilize d and he had reached MMI. The Commission went beyond such considerat ions in vacating the arbitrator’ s award of TTD and its decision is contrary to law. ¶ 27 III. CONCLUSION ¶ 28 For the reasons stated, we affirm the circuit court’ s judgment, reversin g the portion of the Commission’ s decision w hich vacated the arbitrator’ s awar d. We reinstate the arbitrator’ s TTD award and remand to the Commission for further proceedings pursuant to Thomas , 7 8 Ill. 2d 327, 399 N.E.2d 1322. ¶ 29 Judgment affirmed and arbitrator’ s award r einstated ; cause remanded

. ¶ 30 PRESIDING JUSTICE HOLDRIDGE, specially concurring. ¶ 31 I agree that the judgment of the circuit court should be aff irmed and the arbitrator’ s award should be reinstated with the cause remanded to the Commission. I write separately i n order to clarify the majority’ s analysis of Intersta te Scaffolding, Inc. v. Illinois Workers’ Comp ensation Comm’ n , 236 Ill. 2d 132 (2010). In that case, a majority of this court held that an employer could cease payment of TTD benefits if the injured em ployee committed a volitional act of misconduct that justified his termination. Interstat e Scaffolding, Inc. v. Illinois Workers’2 014 IL A pp (2d) 130532WC

- 12

- Comp ensation Comm’ n , 385 Ill. App. 3d 1040, 1047 (2008). As the majority herein points out, our supreme court subsequently r ejected this ana lysis, holding that an employer’ s obligation to pay TTD benefits does not cease when an employee has been discharged. Interstate Scaffolding , 236 Ill. 2d at 145. Rather, “ the determinative inquiry for deciding entitlement to TTD benefits remains, as always, whether the claimant’ s condition has stabilized .” (Emphasis added.) Interstate Scaffolding , 236 Ill. 2d at 149

. ¶ 32 I write separately to point out that the appellate court's decision in Interstate Scaffolding was not unanimous. The diss ent pointed out that the determinative inquiry should not be whether the employer had just cause to terminate the emp loyee, but whether the employer’ s refusal to continue to pay TTD benefits after the termination was permissible under the Act.
Interstate Scaffolding , 385 Ill. App. 3d at 1052 (Donovan, J., dissenting, joined by Holdridge, J.). The dissent further pointed out that, even if the employer could establish that a claimant’ s employment was terminated for misconduct, the claimant should nonetheles s be allowed to establish that his work

- related inj uries and medical restrictions “ prevent[ed] him f ro m securing employ ment at pre

- injury work levels.” Id. If so, the dissent reasoned, he should be allowed to continue receiving TTD benefits. Id. While our supreme court did not expressly adopt the analysis articulated in the dissent, I maintain that the analysis in the dissent is fully consistent with the supreme co urt’s holding.