I am asked this question all the time. We had a reader send us a brilliant article by an excellent Illinois defense attorney, Jessica Bell, that was published in the Illinois Association of Defense Trial Counsel Quarterly. I salute her hard work and acumen in this growing area of U.S. workers’ compensation law.

Eugene Keefe

This situation arises when an employee is injured at work and cannot immediately return to his former job due to medical restrictions resulting from the work injury.

The employer or claims manager assumes the work restrictions are temporary and should be lifted as the worker’s medical condition improves, enabling the employee to return to his former job at the same employer or possibly another available position.

In the interim, some employers — particularly in union settings — have many hurdles to accommodate restricted work.

Getting the injured worker back to any work is better than letting him sit home and watch the television. In my experience, many injured workers try to “disappear” and stay out of view.

This “charity-volunteer-job” situation offers benefits to the employer and the employee, ranging from reduced workers’ compensation for the employer to getting an injured work to take a shower, travel to work with others and remain somewhat off the dole. To me, the concept is a win-win for everyone.

The article mentioned above reviewed whether an Illinois employer may effectively offer transitional light-duty work through another entity, say, such as a charity, while also paying temporary total disability. Many claimants' attorneys support the concept and want their clients to cooperate. Sadly, some claimants' attorneys are willing to fight over it to see what the arbitrator and Illinois Workers' Compensation Commission might do.

Other states have examined this scenario, and several have adopted what is commonly referred to as temporary transitional employment provisions, whereby the employer is permitted to return the employee to light-duty work with another business while the employee’s condition heals.

Ms. Bell’s research documented that at least eight states have already adopted specific TTE or similar programs via statute, while other states permit TTE programs based on their workers’ compensation statute’s current wording. We hope the secret-powers-that-control-the-IWCC consider enacting legislation to incorporate or delineate a rule about it, and avoid confusion and unnecessary litigation.

One important aspect of this TTE concept is to consider obtaining the opinions of a certified vocational rehab counselor or CRC who is familiar with the idea and can provide an expert report backing up the concept. The CRC report doesn’t need to be 500 pages; short and to the point works best.

Please remember that the Illinois Workers' Compensation Act contemplates a “120-day” voc rehab rule, requiring both sides to agree on a voc plan to get a moderate-to-severely injured worker back to any work. The plan is supposed to be considered by both sides and approved via the arbitrator.

Anyone off 120 days on a continuous basis after an accident is, in my view, a moderate-to-seriously injured worker. If you have an expert report from a CRC or certified rehab consultant confirming that the worker can and should be doing something, even in a charity setting and get them off their couch, you have a much better shot at arbitrator approval.

The article carefully chronicles widely differing outcomes, and this concept is going to remain a transitional idea in our nutty state for the time being. Under the current administration, I do feel a well-documented TTE offer could work, and many arbitrators might informally confirm their concerns or formally deny disputed TTD benefits if the worker remains adamant about staying home with his TV remote and won’t volunteer at a charity while getting TTD.

I am somewhat sad to report that if a Democrat moves into the governor’s mansion in the fall, TTE may disappear for four years.

Eugene Keefe is a founding partner of Keefe, Campbell, Biery and Associates, a Chicago-based workers' compensation defense firm. This column was reprinted, with permission, from the firm's client newsletter.