Temporary total disability (TTD) benefits replace wages for injured workers in Illinois when they are unable to work until their medical condition stabilizes.
The start date of TTD benefit eligibility depends on how long the injured worker is unable to return to work. Section 8(b) of the Illinois Workers’ Compensation Act provides:
If the period of temporary total incapacity for work lasts more than 3 working days, weekly compensation as hereinafter provided shall be paid beginning on the 4th day of such temporary total incapacity and continuing as long as the total temporary incapacity lasts.
In cases where the temporary total incapacity for work continues for a period of 14 days or more from the day of the accident compensation shall commence on the day after the accident.
Maximum Medical Improvement (MMI)
The end date of TTD benefit eligibility is when the claimant is no longer totally incapacitated from returning to work:
It is a well-settled principle that when a claimant seeks TTD benefits, the dispositive inquiry is whether the claimant’s condition has stabilized, i.e., whether the claimant has reached maximum medical improvement.
Stated another way, an injured worker has reached maximum medical improvement (MMI) “until such time as he is as far recovered or restored as the permanent character of his injury will permit.” Archer Daniels Midland Co. v. Industrial Commission, 138 Ill. 2d 107 (1990) Google Scholar.
Further, “[t]o be entitled to TTD, a claimant must show not only that he did not work but that he could not work.” Residential Carpentry, Inc. v. Illinois Workers’ Compensation Commission, 389 Ill. App. 3d 975 (2009) Google Scholar | Illinois Courts PDF.
It is important to note that an injured worker’s treating physician and the employer’s IME physician may disagree on whether the injured worker has reached MMI. While the injured worker may certainly chose to rely on their doctor’s opinion that they are not ready to return to work, the employer is also generally allowed to rely on their doctor’s opinion and terminate TTD benefits.
Demanding TTD Benefits
Injured workers claiming TTD benefits should generally follow the procedures set forth by their employers and insurance companies, in regard to providing them work status/restriction/off duty/light duty notes and regular attendance rules.
When a worker is first injured and the employer knows of the inability to work, the employer is generally required to take action within 14 days under the administrative rules of the Illinois Workers’ Compensation Commission. Rule 9110.70(a) provides:
When an employee becomes unable to work due to an accidental or occupational disease arising out of or in the course of his or her employment, or alleges that he or she is unable to work, the employer, individually or by his or her agent, service company or insurance carrier, shall, within 14 calendar days after notification or knowledge of such inability or alleged inability to work:
1) begin payment of temporary total compensation, if any is then due; or
2) if the employer denies liability for payment of temporary total compensation for whatever reason, provide the employee with a written explanation of the basis for the denial; or
3) if the employer has insufficient information to determine its liability for payment of temporary total compensation, advise the employee in writing of the information needed to make that determination and provide in a written explanation why the requested information is necessary.
Once the injured worker is receiving TTD benefits, they must be informed in writing of any decision to terminate or suspend benefits and the reason for doing so:
When an employer begins payment of temporary total compensation and later terminates or suspends further payment before an employee in fact has returned to work, the employer shall provide the employee with a written explanation of the basis for the termination or suspension of further payment no later than the date of the last payment of temporary total compensation.
The administrative rules also set forth responsibilities of both the employee and employer for making TTD determinations:
When an employer takes the position that it has insufficient medical information to determine its liability for the initial payment of temporary total compensation, or the continuation of such payment, the employer shall have the initial responsibility to promptly seek the desired information from those providers of medical, hospital and surgical services of which the employer has knowledge.
The employee shall have the responsibility to provide or execute authorizations for release of medical information as the employer may reasonably request from time to time, and the employer shall promptly provide the employee or his or her representative, upon request, with copies of the complete medical records and reports it obtains with the authorizations.
Employers and insurance companies that violate these rules may be subject to an assessment of penalties and attorneys’ fees under the Illinois Workers’ Compensation Act. 820 ILCS 305/19(l) Illinois General Assembly | IWCC PDF; 820 ILCS 305/19(k) Illinois General Assembly | IWCC PDF; 820 ILCS 305/16 Illinois General Assembly | IWCC PDF.
Light Duty Accommodation
Typically, workers’ compensation claimants request work status notes from their treating physicians. These notes can include various work restrictions, such as taking the employee entirely off work for a period of time or providing light duty restrictions. Light duty restrictions might relate to various activities such as lifting or bending, not using an injured body part at all, or restricting the amount of time an employee can work.
The injured worker should present the work status to their employer and insurance company following their procedures. If the company can accommodate the restrictions – provide light duty work – the worker is expected to work that job and earn their regular wages rather than TTD benefits.
If the employee is earning less than the regular wages by working light duty, they may be entitled to temporary partial disability (TPD) benefits.
Calculating TTD Benefits
TTD benefits, which are fortunately not taxed, are generally equal to two thirds (2/3) of the injured worker’s average weekly wage. They are, however, subject to minimum and maximum rate rules.
Section 8(b)(1) of the Act provides:
The compensation rate for temporary total incapacity under this paragraph (b) of this Section shall be equal to 66 2/3% of the employee’s average weekly wage computed in accordance with Section 10, provided that it shall be not less 66 2/3% of the sum of the Federal minimum wage under the Fair Labor Standards Act, or the Illinois minimum wage under the Minimum Wage Law, whichever is more, multiplied by 40 hours.
This percentage rate shall be increased by 10% for each spouse and child, not to exceed 100% of the total minimum wage calculation, nor exceed the employee’s average weekly wage computed in accordance with the provisions of Section 10, whichever is less.
Section 8(b)(4) of the Act provides:
From July 1, 1977 and thereafter such maximum weekly compensation rate in death cases under Section 7, and permanent total disability cases under paragraph (f) or subparagraph 18 of paragraph (3) of this Section and for temporary total disability under paragraph (b) of this Section and for amputation of a member or enucleation of an eye under paragraph (e) of this Section shall be increased to 133-1/3% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.
Thankfully, the Illinois Workers’ Compensation Commission publishes a helpful benefit rate page on its website to make sense of these provisions. Injured workers should note that the published rates reflect:
- the date of accident or occupational exposure; and
- the total number of children under 18 and/or spouse (on the date of accident or occupational exposure).
Minimum TTD Rates
The minimum TTD rate is the lower of the injured worker’s average weekly wage or the published rate on the Commission’s website. In other words, the minimum rate rules do not allow injured workers to receive weekly TTD benefits greater than their average weekly wage.
For example, Commission’s website shows the following minimum rates for accidents occurring between January 1, 2017 and July 14, 2017, based on the total number of children under 18 and/or spouse:
0 – $220.00
1 – $253.00
2 – $286.00
3 – $319.00
4 – $330.00
If the claimant’s average weekly wage was $400.00, the first step to calculate the base TTD rate would be to multiply $400.00 by 2/3, which is equal to $266.67.
If this claimant was not married and had no children, the base TTD rate of $266.67 would apply because it is greater than the minimum of $220.00.
But if this claimant was married with 1 child, the minimum rate of $286.00 would apply because is greater than $266.67.
If, however, the claimant’s average weekly wage was $300.00, the base rate would be $300.00 multiplied by 2/3, which is equal to $200.00.
If this claimant was not married and had no children, the minimum published rate of $220.00 would apply.
If this claimant was married with 1 child, the minimum published rate of $286.00 would apply.
But if this claimant was married with 2 children, the minimum published rate of $319.00 would not apply because it is greater than the average weekly wage of $300.00. In this case, the average weekly wage of $300.00 would be the weekly TTD benefit rate.
Maximum TTD Rates
The maximum TTD rate rules are much easier because there is simply one maximum rate that applies to all cases in a given time period.
For example, for accidents or occupational exposures occurring between January 1, 2017 and July 14, 2017, the maximum TTD rate is $1,435.17. IWCC. This means that all workers whose average weekly wage is above $2,152.75 will receive TTD benefits equal to the maximum rate of $1,435.17.
While the methods for calculating average weekly wage under the Workers’ Occupational Diseases Act differ from the Workers’ Compensation Act, the equations for calculating temporary and permanent disability rates based on the average weekly wage are the same, including the minimum and maximum benefit rate rules. Owen Corning Fiberglas Corporation v. Industrial Commission, 198 Ill. App. 3d 605 (1990) Google Scholar.
Suspending or Terminating TTD Benefits
In the leading TTD case, Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Commission, 236 Ill. 2d 132 (2010) Google Scholar | Illinois Courts PDF, the Illinois Supreme Court considered whether TTD benefits could be terminated before the claimant had reached maximum medical improvement if they were terminated for conduct unrelated to the injury.
The Illinois Supreme Court completely rejected the employer’s argument:
Looking to the Act, we find that no reasonable construction of its provisions supports a finding that TTD benefits may be denied an employee who remains injured, yet has been discharged by his employer for “volitional conduct” unrelated to his injury.
A thorough examination of the Act reveals that it contains no provision for the denial, suspension, or termination of TTD benefits as a result of an employee’s discharge by his employer.
Nor does the Act condition TTD benefits on whether there has been “cause” for the employee’s dismissal. Such an inquiry is foreign to the Illinois workers’ compensation system.
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.
The Court did find, however, three instances where TTD benefits could be terminated or suspended:
- the employee refuses to submit to medical, surgical, or hospital treatment essential to their recovery
- the employee fails to cooperate in good faith with rehabilitation efforts
- the employee refused work falling within the physical restrictions prescribed by his doctor.
Matuszczak v. Illinois Workers’ Compensation Commission, 2014 IL App (2d) 130532WC (finding that termination for stealing from employer did not amount to a refusal to work light duty and the claimant was entitled to TTD benefits after his termination until his condition stabilized) Google Scholar | Illinois Courts PDF.
Westin Hotel v. Industrial Commission, 372 Ill. App. 3d 527 (2007) (“In determining whether a claimant has reached MMI, a court may consider factors such as a release to return to work, medical testimony or evidence concerning the claimant’s injury, the extent of the injury, and, most importantly, whether the injury has stabilized.”) Google Scholar | Illinois Courts PDF.
City of Granite City v. Industrial Commission, 279 Ill. App. 3d 1087 (1996) (claimant denied TTD benefits beyond date of disability retirement where there was no evidence that claimant could not return to light duty work) Google Scholar.
Land & Lakes Company v. Industrial Commission, 359 Ill. App. 3d 582 (2005) (claimant entitled to TTD benefits after retiring because he was still physically unable to work and he needed the retirement income, and so he did not “voluntarily” stop working) Google Scholar | Illinois Courts.