Archive for: ‘May 2012’

Why is my neighbor going fishing when he is off on workers’ compensation?

May 16, 2012 Posted by Steve Hanagan

Nothing seems to irritate people more than to see someone drawing workers’ compensation benefits and still getting some enjoyment out of life.  We consistently hear about employers and insurance carriers having videotape evidence that a client went fishing, hunting, was doing yard work, or grocery shopping with their spouse.  Normally these activities aren’t really significant, but this situation does emphasize the common misconception that a worker needs to be bed-ridden and helpless before they are legally entitled to draw benefits.  They don’t.

When an employee is off-work due to an injury they are entitled to draw Temporary Total Disability (TTD) benefits so long as their medical condition is (1) temporary and (2) totally disables them from returning to the job at which they were injured.  “The fundamental purpose of the Act is to provide injured workers with financial protection until they can return to the work force. Therefore, when determining whether an employee is entitled to TTD benefits, the test is whether the employee remains temporarily totally disabled as a result of a work-related injury and whether the employee is capable of returning to the work force.” Interstate Scaffolding, Inc. v. Illinois Workers’ Comp. Comm’n, 236 Ill. 2d 132, 146, 923 N.E.2d 266, 274, 337 Ill. Dec. 707, 715, (2010).  You see, it really doesn’t matter that the worker can go fishing, or shopping, or carry on with other activities unless those activities demonstrate that worker is capable performing the physical requirements of their job.

When people complain about seeing a worker doing activities they think are inconsistent with being off-work, it is usually based on the belief that the worker is claiming to be incapable of all but the very basic activities of daily living.  Normally, this isn’t true. There are a number of legitimate reasons why an injured worker may remain off work even though they appear to be very active.

First, when an employee is recovering from an injury it is very common for their doctor to not take them “off-work,” but to instead place work restrictions on them such as no lifting greater than 25 pounds, or no stooping, bending or lifting.  This leaves the option open for the employer to bring the employee back to work within those restrictions.  If the employer is willing to provide accommodations, the employee is obligated to return to work or lose the right to continued TTD benefits. Hartlein v. Illinois Power Co., 151 Ill.2d 142, 166, 176 Ill.Dec. 22, 601 N.E.2d 720 (1992); However, if the employer is not willing to provide accommodation for the restrictions, the employee is entitled to continue to receive TTD benefits.  So, in a rapidly increasing number of cases, the decision of whether or not to keep the employee off-work really is made by the employer rather than the doctor or the worker.  Just because someone is off-work and drawing workers’ compensation benefits you can’t jump to the conclusion that it was their decision or desire to be off-work.

Second, even if the activity the worker is engaged in appears similar or even greater than the requirements of their normal duties, it still does not necessarily equate with their normal work duties day in and day out, or even for a single work shift.  Again, the question is whether the worker can return to their job, and short or limited bursts of activity usually are not an accurate way to answer that question.

Third, at times the worker’s doctor has actually suggested the worker engage in physical  activities for therapeutic reasons.  It helps them regain the endurance to be able to return to work.  Over the years we have had doctors suggest that employees go out and play golf, tennis, and a whole host of other activities for this very reason, all while they were still kept off-work.

Fourth, with painful injuries, the worker may be physically able to return to work but, because of their need for narcotic pain medication their employer is unable to return them to work.  That is, the employer’s anti-drug policy also prohibits those taking medication by prescription from working.

As should be apparent, a worker is not required to be bed-ridden or reduced to a state of total helplessness before they are entitled to draw workers’ compensation benefits.  There are a number of legitimate reasons why it is still perfectly proper and necessary that they remain off-work even though they may appear to be healthy and very active.

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Hanagan & McGovern is a Mt. Vernon, Illinois, workers’ compensation and personal injury law firm serving southern and central Illinois.   If you have questions concerning this article or have other workers compensation questions, please contact us.