IWCC Discusses Whether Employee’s Attendance Violations Constitute a Refusal to Work

7.13.2022 Blog

In Connely v. North American Lighting, Inc. 30 ILWCLB 48 (Ill. W.C. Comm. 2022), the Illinois Workers’ Compensation Commission discussed whether an employee’s termination for attendance violations could be construed as a “refusal to work” for purposes of cutting TTD.

The claimant was a materials handler who injured his right elbow and arm at work incident when he lost his grip on a tub of glue. His doctor placed light duty restrictions which the employer accommodated. A month later, while still working light duty, the claimant was terminated for attendance issues. The employer argued that the claimant refused his light duty work because he continuously called off work, which resulted in his termination, and that cutting TTD was therefore warranted.

The Arbitrator cited to two cases in support of finding in favor of the claimant.  First, Interstate Scaffolding v. IWCC, 236 Ill. 2d 132, 923 N.E.2d 266 (Ill. 2010) held that a claimant is entitled to benefits regardless of the reason for termination. Second, the Arbitrator cited to Matuszczak v. IWCC, 2014 IL App (2d) 130532WC for the proposition that the determinative inquiry for deciding entitlement to TTD benefits remains whether the claimant’s condition has stabilized.

The Act provides incentives for the injured employee to strive toward recovery and a return to gainful employment.  TTD benefits may be suspended or terminated if (a) the employee refuses to submit to medical, surgical, or hospital treatment essential to his recovery, (b) the employee fails to cooperate in good faith with rehabilitation efforts, or (c) the employee refuses work falling within the physical restrictions prescribed by his doctor.

In Connely, the claimant was placed on light duty work restrictions following his work accident, and he remained under those restrictions through his termination date. The claimant had not yet reached MMI and his condition had not stabilized. The Arbitrator concluded that at the time of the claimant’s termination, he continued to be temporarily totally disabled as a result of the work-related injury. The Arbitrator awarded TTD benefits from the date of petitioner’s termination through the date of Arbitration.

The Arbitrator in Connely also levied penalties against the respondent for failure to pay benefits.  On review, the Commission affirmed and adopted the decision of the Arbitrator, including penalties.

The Commission’s decision regarding TTD is not entirely unanticipated given the earlier decisions in Interstate Scaffolding and Matuszczak. However, we believe the employer presented a good faith argument against the imposition of penalties. Specifically, petitioner had violated the company’s attendance policy which resulted in his termination and, therefore, he could not work light duty.  The employer clearly offered a light duty position within petitioner’s light duty restrictions.

In Sharwarko v. Ill. Workers’ Com. Comm’n., 2015 IL App (1st) 131733WC, the Appellate Court considered TTD benefits for a claimant who voluntarily retired from the workforce when accommodated work was offered by the employer.  In denying benefits, the Court explained in Sharwarko that the purpose of the Act is to compensate an employee for lost earnings resulting from work related injuries. When, as in Sharwarko, work was refused due to voluntary retirement, continued payment of TTD benefits did not serve to further the purpose of the Act.

In Connely, the employee did not voluntarily retire. However, by calling off work on multiple occasions, the employee arguably committed a volitional act by removing himself from the workforce. The Commission in Connely did not discuss when – if ever – excessive attendance violations could be construed as a “refusal to work.”

From an employer’s perspective, navigating the termination of benefits can be complex. If you are unsure whether to terminate benefits based on an employee’s refusal to work, please feel free to reach out to our attorneys for assistance.

The NBKL blog is provided for informational purposes; we are not giving legal advice or creating an attorney/client relationship by providing this information.  Before relying on any legal information of a general nature, you may consider consulting legal counsel as to your particular facts and applications of the law.