Must Petitioner Take a Transitional Job?

May 2019

By: Francis M. Brady

“The Act is meant to compensate a claimant for economic disabilities that diminishes his value in the labor market…” And of course “(it’s) remedial in nature.”

These statements and pronouncements of their ilk are familiar to Illinois employers and representatives. Made by the Commission or Courts, they instinctively lead to the sinking realization that: “We’ve lost another one.”

Thus, it comes as a shock, although a pleasant one, to read them in the Commission’s recent decision of Stegan v. Reladyne, 17 WC 7749, 19 IWCC 0174 where a unanimous panel found emphatically for the employer, turning the customary bromides against petitioner.

Stegan involved few factual disputes. Petitioner hurt his left shoulder on the job resulting in restrictions on his functionality as he recovered. Respondent couldn’t accommodate them. The single dispute was whether Respondent had to pay TTD. Respondent argued it did not because petitioner had been offered a suitable alternative position through a Transitional Work Program. Petitioner refused to take it, asserting he was obliged to go back to a job only with Respondent. The transitional job was with a separate entity. Moreover, petitioner pointed out that it was unpaid.

The Arbitrator supported Petitioner holding it is Respondent’s obligation to provide light duty for petitioner within its own company where petitioner remains under its control and supervision and not under the direction or supervision of an individual at another operation.

The Arbitrator failed to mention, however, that Respondent had assured petitioner it would pay his full salary while he worked the transitional job, even though it was officially an uncompensated position. Likewise, the Arbitrator failed to recognize the offer of the light duty came not from the separate entity but directly from Respondent. Finally, the offer also made clear that petitioner would “remain subject to Respondent’s human resources and attendance policy.”

Though the Arbitrator overlooked these facts, the Commission on review certainly did not. It catalogued them all in holding that there was no precedent “…hold(ing) or suggest(ing) that an injured employee remains entitled to TTD benefits if work within the prescribed restrictions can be found regardless of with whom…” The Commissioners were not “sympathetic to petitioner…” believing that he simply wished to avoid work while collecting two-thirds of his usual wage.

The Panel concluded that “…petitioner has no credible justification for declining to participate in the Transitional Work Program under the terms Respondent offered…” Accordingly, Respondent was within its rights terminating TTD effective the date petitioner failed to present to the alternative job.

What does the Stegan holding teach us about administering a transitional work program? Here are some thoughts:

1. Make sure petitioner’s condition is stabilized to the fullest extent possible. This means getting solid evidence of specific physical limitations which will be in place for a predictable period. Moreover, there should be little, if any, care left, and certainly no invasive procedures.
2. Ensure that the transitional work offered clearly matches petitioner’s precise medical restrictions.
3. Make accepting the transitional job merely like transferring to a different department within the employer.
4. The offer of the transitional work should come from the employer directly to petitioner and his attorney.
5. The employer should appoint a contact for petitioner who monitors his service in the transitional job.
6. The petitioner should know all questions or problems will be taken up with his contact person or other representatives of his employer.
7. The employee should be on full payroll while he works transitional duty (i.e., all compensation and benefits, etc.).
8. Petitioner’s pay should come to him direct from his regular employer.
9. The transitional work hours should mirror petitioner’s existing shift.
10. The transitional work should be in a location no harder to get to than petitioner’s job with his regular employer.