What are Temporary Total Disability Benefits?

When an employee suffers an injury at work and is physically unable to perform his work duties, the employer is obligated to pay Temporary Total Disability (TTD) benefits equal to two thirds of the average weekly wage, plus all bills for customary, reasonable, injury related medical treatment. The Temporary Total Disability payments continue until the employee is able to return to regular or light duty work (if the employer provides light duty work).

Disputes with Independent Medical Examiner

Occasionally a dispute arises as to when an employee can return to work. Most often, this follows a visit by the employee to a company doctor for an independent medical examination (“IME”). “Independent” is a relative term however, as the doctor performing the examination has been selected and paid for by the workers compensation insurance carrier. Consequently, no doctor-patient relationship is established nor does the doctor have an allegiance to the employee based on medical or economic factors. Indeed, the IME doctor provides no medical treatment, and his purpose is limited to providing the employer's workers compensation insurance company with an opinion as to the employee’s ability to return to work.

What are the options for the employee?

The question arises then, what happens when the employee’s treating doctor continues to order him off work, but the IME doctor releases the employee to return to work? The Illinois Workers’ Compensation Act contemplates that reasonable minds can differ regarding the injured employee’s capacity to return to work. The company is entitled to rely on its hand-selected doctor’s opinion that an employee is able to return to work and to cease further Temporary Total Disability payments if the employee fails to attempt to return to work. What are the employee’s options in this difficult circumstance?

TTD Work Restrictions – Your Workmans Comp Options

First, the injured employee can try to return to work either with or without restriction, and see if he is able to perform work activities. A Return to Work order, either by the treating doctor or the IME doctor, is a prediction of what the doctor expects the employee’s experience to be in the work force. Like all predictions, actual experience will determine the accuracy. If the employee returns to work and is unable to perform his job assignment (again, either restricted or unrestricted) the employee needs to tell his supervisor that his injury prevents him from working, and immediately contact his treating doctor with the news of what happened. Given that the employee has made a good faith effort to perform his job activities, Temporary Total Disability benefits should then be restored.

Trial Under Section 19(b) of Workers' Compensation Act

A second option, if the injured employee does not want to attempt a return to work, is to proceed to trial under the provisions of Section 19(b) of the Workers’ Compensation Act. This section is not a true “emergency petition", but does allow access to the Court for a decision on whether the employee is able to return to work on a faster basis than a regular trial. (A closer remedy for an emergency trial is found under Section 19 (b) (1) of the Act (820 ILCS 305/19 (b)(1).

Is the Employee Currently Able to Return to Work?

The ultimate issue of determining the value of the injured worker’s workmans comp case under the permanent disability strand of workers’ compensation benefits is not heard at the 19(b) trial, which is limited to determining the single issue of whether the employee is/is not currently able to return to work. To make this decision, the Arbitrator will hear the employee’s testimony, review the employee’s medical records, and review either a report from the treating and IME doctors, or deposition testimony.

Do You Have the Time?

While a 19(b) trial is a straightforward procedure from the workers compensation lawyer’s point of view, the important tactical issue for the injured employee is one of time. Proceeding to trial under the provision of 19(b) generally takes about 60 days from point of filing. The Arbitrator must then issue a written decision, which often takes several weeks, and can be appealed by either party. In the meantime, the employee is out of work and not receiving TTD benefits. Often times, this time gap results in real financial hardship and forces the worker to return to work for practical financial considerations.

Reasonable Medical Evidence Required

The company’s decision to cut off TTD benefits must be based on reasonable medical evidence rather than on personality clashes or the interest of the insurance carrier to save money. Should the insurance company attempt to “flex its muscles” by improperly denying workmans comp benefits, the Workers’ Compensation Act provides for monetary sanctions that can be imposed against the insurance company.

Such sanctions are found under Sections 19(k) and 19(l) of the Act. Section 19(k) states that an employer who unreasonably denies benefits can be penalized in an amount up to 50% of the employee’s award. Section 19(l) provides that an employer that unreasonably denies benefits may be penalized up to $30.00 per day up to a total of $10,000.00. The determination of whether such sanctions are warranted is made by the Arbitrator following trial.

If your workers’ compensation benefits are cut off, your attorney should review and explain the significance of the above options to you, so that you can make the best decision for you and your family. A well informed client is a desirable and necessary goal in all phases of litigation.

Chicago, Illinois based Mitchell Lipkin is an experienced personal injury lawyer with an emphasis in automobile accidents, construction accidents, medical malpractice, nursing home abuse and workers compensation cases. For a free consultation, or to learn more about your legal rights, please contact Lipkin & Apter today.