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An Illinois Workers' Entitlement to TTD Benefits -- Has Condition Stabilized?

A Nurse did not Lose her Entitlement to Temporary Total Disability Benefits for a Shoulder and Back Injury by Spending Time Helping her Daughters at a Flower Shop that they Owned, the Illinois Appellate Court Ruled

 

By: Anna M. Campbell

 

In Sunny Hill of Will County, the Illinois Appellate Court analyzed the circumstances for a claimant’s entitlement to Temporary Total Disability benefits.  Sunny Hill of Will County v. Ill. Workers’ Comp. Comm’n, 2014 IL App (3d) 130028WC, 14 N.E.3d 16 (Ill. App. 3rd Dist. 2014).  Claimant worked for Sunny Hill as nurse and in September 2007 suffered an injury to her right shoulder while working.  She underwent right shoulder surgery and the doctor later found she had reached maximum medical improvement and released her to return to full-duty work.  In December 2008 while working with lifting an obese patient, she injured her shoulder again and also felt pain in her back and neck.  She treated with an orthopedic surgeon for her shoulder and he performed another shoulder surgery and opined her injuries were causally connected to the December 2008 work accident.  She received treatment for her back as well.  The doctor released her to return to light-duty work in April 2009.  After returning to full duty work, claimant reported she aggravated her right shoulder apparently due to returning to full-duty too soon.  The doctor again put her on restricted work and found her injuries were part of the “injury spectrum” related to the December 2008 work accident.  She was released to return to light-duty work effective August 2009.

 

In September 2009 the doctor gave her another injection in the right shoulder and took her off work.  An MR arthrogram revealed a partial tear and another surgery was recommended.  Claimant went on to have another right shoulder arthroscopy with revision and as of the date of the arbitration hearing, remained in post-operative therapy and continued to treat with another orthopedic surgeon.  She had not yet been released to return to work.

 

In 2007, claimant opened a flower shop with her two daughters.  She owns a stake in the business, although her daughters run it full-time.  Following the December 2008 work accident, she has gone to the flower shop at least three days per week, but does not follow a regular schedule, she is not formally employed by the flower shop, she does not draw a paycheck and she does not keep track of her hours.  She testified she answers the phone sometimes, picks up fax sheets and occasionally assists with helping her daughters prepare flower arrangements.  She also watches over her grandchildren in a babysitting role at the flower shop.  She testified she does not do anything more physically taxing at the flower shop than she would do at her home during this time.  Employer introduced surveillance video of claimant’s activites at the flower shop while she was off work.

 

The Arbitrator found claimant’s conditions causally related to the December 2008 work injury and awarded TTD benefits.  The Commission and the circuit court affirmed this decision.  In looking to whether a claimant is entitled to TTD benefits, the appellate court noted it was a well-settled principle that the dispositive inquiry is whether the claimant’s condition has stabilized, i.e. whether the claimant has reached maximum medical improvement.  Once an injured employee’s physical condition stabilizes, he is not longer eligible for TTD benefits.  The court held the duration of TTD is controlled by the claimant’s ability to work and his continuation in the healing process.

 

On appeal, the Employer argued the Commission should have looked to whether claimant was working in a “stable labor market” in determining whether claimant was entitled to TTD benefits.  The court disagreed, and found the essence of the TTD determination is whether the claimant’s condition has stabilized, not the existence or nonexistence of a “stable labor market” for a particular job.  However, the court did note the fact a claimant has returned to work in some capacity may be relevant to whether and to what extent the claimant’s condition has stabilized.  To that extent, it may be appropriate to consider whether claimant got a release to return to work, any medical evidence regarding her prognosis, the type of work being performed, hours worked, and any income earned to ascertain whether the claimant’s condition has stabilized. 

 

The court held claimant’s “work” at the flower shop did not establish her condition had stabilized.  The court took note of the fact that her daughters run the business and claimant’s presence at the flower shop was the same both before and after the December 2008 work injury.  She primarily watches her grandchildren in a babysitting role while there and occasionally provides minor assistance and answers the phone and retrieves faxes and may make a “light” delivery at times.  The court pointed out claimant does no more at the flower shop than she would do at home.  She does not draw a pay check, have a regular schedule, or track her hours.  She has received no income from the flower shop business.

 

The court addressed that evidence of a return to some type of work may be probative of whether the employee’s condition has stabilized which, according to the Supreme Court, is the proper focus of the TTD analysis.  Also, medical evidence including release to return to work by doctors is a very important indicator of whether claimant’s condition had stabilized.

 

Here, the court affirmed the award of Temporary Total Disability benefits stating claimant’s activities at the flower shop did not constitute a “return to work” and that she had not yet reached MMI nor been released to return to work.  The court pointed out whether claimant is working in some capacity is only one factor to consider in determining whether she is entitled to TTD.  This case is helpful for claimants in that a person who is injured but is still able to perform activities and engage in hobbies will not lose his or her right to receive TTD benefits.

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