08 Jan 2024

The Claimant was diagnosed with a lumbar disc injury/hernia from an undisputed work accident on December 14, 2010.  He underwent surgery in March 2011, and despite receiving conservative follow-up care, his condition worsened. Respondent obtained an IME who agreed that Claimant needed additional surgery in November. In September 2012, Claimant was deemed at MMI with a permanent 40-pound lifting restriction and light medium to medium demand level. He was unable to return to his previous employment as a janitor. Despite a long vocational rehabilitation effort, this was the beginning of a years-long search for work in which Claimant produced the minimum required documentation of his job contacts each week. In several instances it appeared that he had secured employment with strong earnings, but the jobs never materialized.  In one case, he claimed to have landed a high paying job driving a truck.  However, the start-date was supposedly pushed back for over a year. When IFMK received the file, we issued a subpoena to the supposed employer, and found that they had no record of the Claimant. The HR director testified at deposition there was no job offer nor any application received. Claimant eventually accepted a position with another employer earning $9 per hour. 

At arbitration, the arbitrator adopted the IFMK Law attorneys’ arguments denying a wage differential, and made an award for 40% person-as-a-whole. Regarding weekly TTD and maintenance, the arbitrator found the claimant was not credible and had not participated in good faith in the vocational rehabilitation process. He ruled Claimant was not entitled to about 2 ½ years of weekly maintenance benefits which he had received, while leading everyone on for a job that never existed. This ruling resulted in a massive credit for maintenance overpayment, which, when applied, left a balance on the award of less than $10,000 for a fused claimant with permanent light medium duty restrictions.   The matter was reviewed before the Illinois Workers Compensation Commission, which overruled the earlier cut-off of maintenance, finding that Claimant had not acted in bad faith in the job search process. Both parties then filed cross appeals to the Circuit Court. 

Just recently, IFMK Law received a Circuit Court decision rejecting the Claimant’s argument for a maximum rate wage differential award, rather than 40% MAW, and affirming the Commission decision on permanency, as supported by the Record and not against the manifest weight of the evidence. On our separate appeal seeking reversal of the Commission’s award of an additional 2 ½ years of maintenance, the judge agreed, and held this part of the Commission decision was in fact contrary to the Record, and against the manifest weight of the evidence, and he reinstated the arbitrator’s award. Claimant has now appealed to the Appellate Court.