Court of Appeals of Illinois, Second District, Workers' Compensation Commission Division
Modified upon denial of rehearing December 22, 2014.
Appeal from the Circuit Court of Du Page County. No. 12-MR-1631. Honorable Bonnie M. Wheaton, Judge, Presiding.
In proceedings arising from an arbitrator's award of temporary total disability benefits to claimant for the injuries he suffered while stocking shelves at his employer's store, the Workers' Compensation Commission's vacation of the award of TTD based on the termination of claimant's employment for stealing cigarettes was properly reversed by the trial court and the benefits were reinstated, since the record showed claimant had not yet reached maximum medical improvement, his condition had not yet stabilized and he was entitled to TTD benefits, and his right to those benefits was completely separate from and could not be conditioned on the propriety of his termination for stealing cigarettes, regardless of whether he was discharged for cause.
Catherine M. Levine and Justin T. Schooley, both of Wiedner & McAuliffe, Ltd., of Chicago, for appellant.
Stephen J. Smalling, of Capron & Avgerinos, P.C., of Chicago, for appellee.
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.
[¶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 employer, 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, and awarded him (1) 232/7 weeks' temporary total disability (TTD) benefits from June 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] On review, the Illinois Workers' Compensation Commission (Commission) 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 decision that vacated the arbitrator's TTD award. The employer appeals, arguing the Commission correctly determined claimant was not entitled to TTD after June 12, 2011, the date of his for-cause termination from employment. We affirm the circuit court's judgment, reversing the portion of the Commission's decision that vacated the arbitrator's award. We reinstate the arbitrator'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, 35 Ill.Dec. 794 (1980).
[¶3] I. BACKGROUND
[¶4] At arbitration, claimant testified he worked for the employer for over three years as a fulltime 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 several fully stocked shelves of glass 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. Following 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 employment 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 the employer on June 3, 2011, and on a
" 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 successful.
[¶7] On January 25, 2012, 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, and awarded him (1) 232/7 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, 2011, 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 terminated, and claimant testified that he tried looking for work within his restrictions. He further stated as follows:
" In Interstate Scaffolding, Inc. v. Ill. Workers' Comp. Comm'n, 236 Ill[.] 2d 132, 923 N.E.2d 266, 337 Ill.Dec. 707 (2010), the court found that the 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 benefits remains, as always, whether the claimant's condition has stabilized. More to the point, the court noted that if the injured employee is able to show that he ...