This recent case illustrates one facet of the limits of the Respondent’s ability to mitigate TTD exposure prior to a claimant reaching MMI. In Sunny Hill of Will County. v. Illinois Workers’ Comp. Comm’n, 2014 IL App (3d) 130028WC, the claimant’s ownership of and contributions to a business that was run with her two daughters did not represent “a return to work” and did not preclude TTD. The Third District Appellate Court relied on the fact that the claimant did not follow a regular schedule, did not draw a paycheck, did not keep track of her hours, and did not distribute any of the profit from the store to herself.
The claimant had suffered two separate injuries to her right shoulder, in September of 2007 and on December 5, 2008, and had undergone three surgeries. She had been restricted from working continuously and was still restricted at the time of arbitration. The claimant opened the flower store with her daughters in 2007. The claimant owned a 53% share of the business and was present at the store at least three days a week, with duties that consisted of answering the phone, taking the orders, taking faxes, assisting with preparing arrangements, and babysitting her grandchildren. However, the Court noted that when the business had its first profitable year in 2010, the profits were distributed to her daughters, and also found that she had not taken a salary or income of any kind as of the time of Arbitration, in June of 2011. The Court also emphasized the fact that her schedule was erratic and unrecorded.
The Respondent argued that the Commission failed to apply the “stable market test,” specifically whether there was a reasonably stable market for the claimant to work in. However, the Court found that this issue was not pertinent, as, “the essence of the TTD determination is…whether the claimant’s condition has stabilized.” The Court acknowledged that a claimant’s ability to work may be an indicator that they have reached MMI with a stabilized condition, depending on the physical demands of the type of work that they are doing. The Court also responded to cited language from City of Granite City v. Indus. Comm’n (1996), 279 Ill. App. 3d 1087, at 1090, “to show entitlement to TTD benefits, claimant must prove not only that he did not work, but that he was unable to work,” finding that while a literal application of language would require TTD denial when a claimant was working, the Court declined apply the rule in such a way, stating that evidence that a claimant is working is only a factor in determining whether a claimant’s condition has stabilized.
The Court’s ruling here indicates that a claimant who is restricted from working one position is still entitled to TTD even if they are working at another, less physically demanding job so long as it is clear that their condition has not stabilized. While the Court did not address temporary partial disability (TPD) here, likely because the claimant did not earn any wages from her work at the flower shop, the customary approach to such a situation would be to use TPD benefits. It should also be noted that the similar cases cited in the decision that involved alternative employment and entitlement to TTD were all from before 2005, when the Illinois Workers’ Compensation Act was amended to include TPD.
Thanks to Attorney Micahel Bantz for this excellent summary.