                               2014 IL App (2d) 130532WC
                                    No. 2-13-0532WC
                             Opinion filed September 30, 2014
                    Modified upon denial of rehearing December 22, 2014

                                           IN THE

                            APPELLATE COURT OF ILLINOIS

                                    SECOND DISTRICT

                    Workers’ Compensation Commission Division
_____________________________________________________________________________

WALTER MATUSZCZAK,                     ) Appeal from the Circuit Court of
                                       ) Du Page County.
      Appellee,                        )
                                       )
v.                                     ) No. 12-MR-1631
                                       )
THE ILLINOIS WORKERS’                  )
COMPENSATION COMMISSION et al.         ) Honorable
                                       ) Bonnie M. Wheaton,
(Wal-Mart, Appellant).                 ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE HARRIS delivered the judgment of the court, with opinion.
       Justices Hoffman, Hudson, and Stewart concurred in the judgment and opinion.
       Presiding Justice Holdridge specially concurred, with opinion.

                                          OPINION

¶1     On March 26, 2010, claimant, Walter Matuszczak, filed an application for adjustment of

claimant pursuant to the Workers’ Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2008)),

seeking benefits from the employer, Wal-Mart. Following a hearing, the arbitrator determined

claimant sustained accidental injuries that arose out of and in the course of his employment on

March 7, 2010, and awarded him (1) 232/7 weeks’ temporary total disability (TTD) benefits from

June 13 to November 22, 2011; (2) $14,227.41 in medical expenses; and (3) prospective medical

expenses in the form of a surgical procedure recommended by one of claimant’s doctors.
2014 IL App (2d) 130532WC


¶2     On review, the Illinois Workers’ Compensation Commission (Commission) vacated the

arbitrator’s TTD award but otherwise affirmed and adopted his decision. On judicial review, the

circuit court of Du Page County reversed the portion of the Commission’s decision that vacated

the arbitrator’s TTD award.       The employer appeals, arguing the Commission correctly

determined claimant was not entitled to TTD after June 12, 2011, the date of his for-cause

termination from employment. We affirm the circuit court’s judgment, reversing the portion of

the Commission’s decision that vacated the arbitrator’s award. We reinstate the arbitrator’s TTD

award and remand to the Commission for further proceedings pursuant to Thomas v. Industrial

Comm’n, 78 Ill. 2d 327, 399 N.E.2d 1322 (1980).

¶3                                     I. BACKGROUND

¶4     At arbitration, claimant testified he worked for the employer for over three years as a full-

time night stocker. His job duties included taking 5- to 100-pound boxes off skids and neatly

placing products in proper areas. On March 7, 2010, claimant injured his neck, back, and right

arm at work when several fully stocked shelves of glass cleaner fell on top of him.

¶5     On March 9, 2010, claimant began seeking medical care.             Thereafter, he received

conservative treatment from various providers and was consistently given modified-duty work

restrictions. Following his accident, claimant returned to work for the employer in a light-duty

capacity. On May 23, 2011, claimant saw Dr. Mark Lorenz, who recommended surgery on

claimant’s cervical spine.

¶6     Claimant testified, on June 12, 2011, he was terminated from his employment for an

incident unrelated to his work injury. Thereafter, claimant remained unemployed. On cross-

examination claimant agreed that, at the time of his termination, he prepared a handwritten

statement acknowledging that he stole cigarettes from the employer on June 3, 2011, and on a



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2014 IL App (2d) 130532WC


“couple of days” in May 2011. He agreed that, at the time he took the cigarettes, he understood

that stealing is a crime and stealing from his employer could result in termination. Further,

claimant acknowledged that, had he not stolen cigarettes, he might still have been working for

the employer in a light-duty capacity at the time of arbitration. Claimant asserted he had looked

for work within his light-duty restrictions but had not been successful.

¶7     On January 25, 2012, the arbitrator issued his decision in the matter. As stated, he

determined claimant sustained accidental injuries that arose out of and in the course of his

employment on March 7, 2010, and awarded him (1) 232/7 weeks’ TTD benefits; (2) $14,227.41

in medical expenses; and (3) prospective medical expenses in the form of the surgery

recommended by Dr. Lorenz. The arbitrator’s TTD award extended from June 13, 2010, the day

after claimant was terminated from his employment for stealing, to November 22, 2011, the date

of the arbitration hearing. With respect to TTD, the arbitrator noted claimant was subject to

light-duty restrictions that were being accommodated by the employer at the time of his

termination, he did not return to work after being terminated, and claimant testified that he tried

looking for work within his restrictions. He further stated as follows:

               “In Interstate Scaffolding Inc. v. Illinois Workers’ Compensation Commission,

       236 Ill[.] 2d 132, 923 N.E.2d 266 (2010), the court found that the employer was obligated

       to pay TTD benefits even when the employee has been discharged, whether or not the

       discharge was for cause, and that when an injured employee has been discharged by his

       employer the inquiry for deciding his entitlement to TTD benefits remains, as always,

       whether the claimant’s condition has stabilized. More to the point, the court noted that if

       the injured employee is able to show that he continues to be temporarily totally disabled

       as a result of his work[-]related injury, the employee is entitled to these benefits.”



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The arbitrator based his TTD award on findings that claimant had “remained under the same

light[-]duty restrictions imposed at the time of his termination.”      Further, he determined

claimant’s condition had not stabilized at the time of arbitration and claimant had not reached

maximum medical improvement (MMI).

¶8     On October 5, 2012, the Commission vacated the arbitrator’s award of 232/7 weeks’ TTD

benefits but otherwise affirmed and adopted his decision. It noted that a claimant’s benefits may

be terminated or suspended if he refuses work within his physical restrictions and agreed with

the employer’s position that claimant’s theft of cigarettes from the employer, coupled with

claimant’s knowledge that his theft could lead to termination, constituted a refusal of work

within his physical restrictions by claimant. The Commission further stated as follows:

       “We do not believe the Interstate Scaffolding court was proscribing all use of discretion

       in cases involving employment termination; rather, as stated previously, we believe the

       court was rejecting an analysis of the propriety of the discharge and rejecting an

       automatic suspension or termination of [TTD] benefits in cases involving employment

       termination.”

¶9     On April 23, 2013, the circuit court of Du Page County reversed the portion of the

Commission’s decision that vacated the arbitrator’s TTD award.

¶ 10   This appeal followed.

¶ 11                                    II. ANALYSIS

¶ 12   On appeal, the employer argues the Commission’s finding that claimant was not entitled

to TTD benefits following his June 2011 termination from employment was neither contrary to

law nor against the manifest weight of the evidence. It maintains that, although Interstate

Scaffolding prohibits the automatic suspension or termination of TTD benefits when a claimant



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2014 IL App (2d) 130532WC


is fired for reasons unrelated to his injury, it does “not proscribe all use of discretion [by the

Commission] when deciding whether an employer remains liable for TTD” following an

employee’s discharge. Thus, the employer contends the Commission was free to exercise its

discretion in the instant case to determine that claimant’s decision to steal from the employer

when he admittedly knew such action could result in his termination was the equivalent of

refusing work within his physical restrictions and a valid basis for suspending or terminating

TTD.

¶ 13   Claimant argues the analysis used by the Commission to deny him TTD benefits

following his termination from employment was contrary to law pursuant to Interstate

Scaffolding. He contends that case is factually similar to the present case and prohibits the

Commission from delving into the reasons for termination, which he alleges the Commission

impermissibly did in this case.

¶ 14   “A claimant is temporarily totally disabled from the time an injury incapacitates him

from work until such time as he is as far recovered or restored as the permanent character of his

injury will permit.” Westin Hotel v. Industrial Comm’n, 372 Ill. App. 3d 527, 542, 865 N.E.2d

342, 356 (2007). “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 [MMI].” Interstate Scaffolding, 236 Ill. 2d at 142, 923 N.E.2d at 271. 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 Comm’n, 389 Ill. App. 3d

975, 981, 910 N.E.2d 109, 115 (2009). TTD benefits may be suspended or terminated if the

employee (1) refuses to submit to medical, surgical, or hospital treatment essential to his

recovery; (2) fails to cooperate in good faith with rehabilitation efforts; or (3) refuses work



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falling within the physical restrictions prescribed by his doctor. Interstate Scaffolding, 236 Ill.

2d at 146, 923 N.E.2d at 274.

¶ 15   “Before a reviewing court may overturn a decision of the Commission, the court must

find that the award was contrary to law or that the Commission’s factual determinations were

against the manifest weight of the evidence.”           Beelman Trucking v. Illinois Workers’

Compensation Comm’n, 233 Ill. 2d 364, 370, 909 N.E.2d 818, 822 (2009). Generally, the period

during which a claimant is entitled to TTD benefits is a factual determination for the

Commission and its decision will not be disturbed unless it is against the manifest weight of the

evidence.   Westin Hotel, 372 Ill. App. 3d at 542, 865 N.E.2d at 356.            However, “if the

Commission relies on a legally erroneous premise to find a fact, the resulting decision is contrary

to law and must be reversed.” Franklin v. Industrial Comm’n, 211 Ill. 2d 272, 282-83, 811

N.E.2d 684, 691 (2004). “On questions of law, review is de novo, and a court is not bound by

the decision of the Commission.” Beelman Trucking, 233 Ill. 2d at 370, 909 N.E.2d at 822.

¶ 16   Here, the parties disagree on whether the Commission utilized the correct legal analysis

in vacating the arbitrator’s award of TTD benefits following claimant’s termination from his

employment. This issue presents a question of law and is subject to de novo review.

¶ 17   In Interstate Scaffolding, 236 Ill. 2d at 136, 923 N.E.2d at 268, the claimant sustained

work-related injuries to his head, neck, and back but was able to return to work for the employer

in a light-duty capacity. Following his return to work, a conflict arose between the claimant and

the assistant to the employer’s president, culminating in the claimant’s termination from

employment. Interstate Scaffolding, 236 Ill. 2d at 136-37, 923 N.E.2d at 268-69. The stated

reason for the claimant’s dismissal was defacement of the employer’s property due to the

claimant writing religious graffiti in the employer’s storage room. Interstate Scaffolding, 236 Ill.



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2d at 137-38, 923 N.E.2d at 269. Although the claimant admitted to writing religious slogans in

the storage room, he did not believe those writings were the reason for his dismissal, stating

other employees had written on the shelves or walls of the storage room without repercussion.

Interstate Scaffolding, 236 Ill. 2d at 138-39, 923 N.E.2d at 269-70.

¶ 18   Following a hearing, the arbitrator determined the claimant was not entitled to TTD

benefits subsequent to his termination. Interstate Scaffolding, 236 Ill. 2d at 139, 923 N.E.2d at

270. The Commission modified that portion of the arbitrator’s decision, finding the claimant’s

condition had not stabilized as of the date of arbitration and he was entitled to TTD benefits for

the period of time between his termination and the arbitration hearing. Interstate Scaffolding,

236 Ill. 2d at 140, 923 N.E.2d at 270. On appeal, this court reversed the Commission’s award of

TTD benefits, “holding that an employer may cease paying TTD benefits if the injured employee

commits a volitional act of misconduct that serves as justification for his termination.” Interstate

Scaffolding, 236 Ill. 2d at 142, 923 N.E.2d at 271 (citing Interstate Scaffolding, Inc. v. Illinois

Workers’ Compensation Comm’n, 385 Ill. App. 3d 1040, 1047, 896 N.E.2d 1132, 1139 (2008)).

¶ 19   Ultimately, the supreme court reversed this court’s decision and reinstated the

Commission’s TTD award, holding “that when an employee who is entitled to receive workers’

compensation benefits as a result of a work-related injury is later terminated for conduct

unrelated to the injury, the employer’s obligation to pay TTD workers’ compensation benefits

continues until the employee’s medical condition has stabilized and he has reached [MMI].”

Interstate Scaffolding, 236 Ill. 2d at 135-36, 923 N.E.2d at 268. In reaching its decision, the

court rejected this court’s finding that the critical inquiry in determining a claimant’s entitlement

to TTD benefits when leaving the workforce was whether the departure was voluntary.

Interstate Scaffolding, 236 Ill. 2d at 143-45, 923 N.E.2d at 272-73. The court noted that



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2014 IL App (2d) 130532WC


“worker’s compensation is a statutory remedy” and “[a]ny action taken by the Commission must

be specifically authorized by statute.” Interstate Scaffolding, 236 Ill. 2d at 145, 923 N.E.2d at

273-74. Further it stated as follows:

               “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.” Interstate Scaffolding, 236 Ill. 2d at 146, 923 N.E.2d at 274.

¶ 20   The supreme court held “that an employer’s obligation to pay TTD benefits to an injured

employee does not cease because the employee had been discharged—whether or not the

discharge was for ‘cause’ ” and “[w]hen an injured employee has been discharged by his

employer, the determinative inquiry for deciding entitlement to TTD benefits remains, as always,

whether the claimant’s condition has stabilized.” (Emphasis added.) Interstate Scaffolding, 236

Ill. 2d at 149, 923 N.E.2d at 276. Further, the court stated as follows:

               “It remains the law in Illinois that an at-will employee may be discharged for any

       reason or no reason. [Citation.] Whether an employee has been discharged for a valid

       cause, or whether the discharge violates some public policy, are matters foreign to

       workers’ compensation cases. An injured employee’s entitlement to TTD benefits is a

       completely separate issue and may not be conditioned on the propriety of the discharge.”

       Interstate Scaffolding, 236 Ill. 2d at 149, 923 N.E.2d at 276.



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2014 IL App (2d) 130532WC


¶ 21   Cleary, the supreme court’s holding in Interstate Scaffolding prohibits the automatic

denial of TTD benefits to an injured employee when the employee has been discharged from

work by the employer. However, that is not the extent of the court’s holding. In addition to

proscribing the denial of TTD based solely on an employee’s discharge, the court also clearly

held that when an employee who is entitled to benefits under the Act is terminated for conduct

unrelated to his injury, the employer’s TTD obligation continues “until the employee’s medical

condition has stabilized.” Interstate Scaffolding, 236 Ill. 2d at 135-36, 923 N.E.2d at 268. This

is true even in cases of for-cause dismissal. In so holding, the court expressly rejected an

interpretation of the Act that would support a denial of TTD where an employee’s volitional

conduct was the basis for termination.

¶ 22   Here, the employer agrees claimant sustained a compensable work injury on March 7,

2010. Also, it is undisputed that claimant was discharged by the employer for acts unrelated to

his injury. Thus, the appropriate inquiry for the Commission was whether claimant’s medical

condition had stabilized at the time of his termination. As to that issue, the undisputed facts

show claimant was placed on light-duty work restrictions following his accident and he remained

under light-duty restrictions after his June 2011 termination.         Both the arbitrator and the

Commission determined claimant was entitled to prospective medical expenses for surgery

necessary to treat his work injury, that claimant had not reached MMI, and that claimant’s

condition had not stabilized. These findings are not challenged on appeal. Thus, the evidence

was sufficient to show, at the time of his termination, claimant continued to be temporarily

totally disabled as a result of his work-related injury. Such a showing entitled him to TTD

benefits from the time of his termination to the date of arbitration. Interstate Scaffolding, 236 Ill.

2d at 149, 923 N.E.2d at 276 (“If the injured employee is able to show that he continues to be



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2014 IL App (2d) 130532WC


temporarily totally disabled as a result of his work-related injury, the employee is entitled to

TTD benefits.”).

¶ 23   Nevertheless, despite finding claimant’s condition was not stabilized, the Commission

denied him TTD benefits. It noted, in Interstate Scaffolding, 236 Ill. 2d at 146-47, 923 N.E.2d at

274, the supreme court acknowledged TTD benefits may be suspended or terminated when a

claimant refuses work within his physical restrictions. The Commission found claimant’s “theft

of cigarettes amount[ed] to a refusal to work in the light duty position that [the employer] had

been providing for over a year.” Further, it stated as follows:

               “[Claimant] testified that he understood that stealing is a crime and that stealing

       from [the employer] could result in his employment termination.           [Claimant] also

       testified that but for his employment termination, he believed he would still be working

       in the light duty position with [the employer]. Under the circumstances of this case, we

       find that [claimant] refused [the employer’s] ongoing offer of work within his physical

       restrictions.”

¶ 24   Here, we find the Commission erred in determining claimant refused work within his

physical restrictions. First, while the Commission may examine the facts of a particular case and

find the claimant refused light-duty work offered by his employer, in doing so, it should consider

the claimant's conduct without reference to, or reliance on, his termination from employment.

As discussed, the simple fact that a claimant committed a voluntary act and, as a result, was

properly discharged is not a valid basis for terminating or suspending TTD.          In Interstate

Scaffolding, 236 Ill. 2d at 148-49, 923 N.E.2d at 275-76, the supreme court held as follows:

               “The appellate court below believed that a discharged employee should be

       automatically barred from receiving TTD benefits because ‘allowing an employee to



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       collect TTD benefits from his employer after he was removed from the work force as a

       result of volitional conduct unrelated to his injury would not advance the goal of

       compensating an employee for a work-related injury.’ [Citation.] This logic, however, is

       faulty.

                 It is a well-settled principle that the Act is a remedial statute and should be

       liberally construed to effectuate its main purpose—providing financial protection for

       injured workers.      [Citations.]   In our view, the Act’s purpose is not furthered by

       automatically denying TTD benefits to an injured employee simply because he has been

       discharged by his employer.

                 It remains the law in Illinois that an at-will employee may be discharged for any

       reason or no reason. [Citation.] Whether an employee has been discharged for a valid

       cause, or whether the discharge violates some public policy, are matters foreign to

       workers’ compensation cases. An injured employee’s entitlement to TTD benefits is a

       completely separate issue and may not be conditioned on the propriety of the discharge.”

In this case, claimant’s knowledge that his voluntary conduct, i.e., theft of cigarettes, conduct

inarguably unrelated to his injury, was a crime and could properly result in his termination was

not sufficient to support the Commission’s denial of TTD benefits.

¶ 25   Second, we find this case is factually similar to Interstate Scaffolding, 236 Ill. 2d at 146-

47, 923 N.E.2d at 274, where the supreme court determined it was not faced with a claimant’s

refusal of work falling within his physical restrictions.       The employer argues Interstate

Scaffolding is factually distinguishable because claimant in this case acknowledged that he knew

his conduct (stealing from the employer) could result in his termination. We disagree and find

that, like the claimant in Interstate Scaffolding, claimant in this case sustained compensable



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work-related injuries, returned to work in a light-duty capacity for the employer (for over a year

in the case at bar), and was terminated by the employer for conduct unrelated to his work injury.

Just as the facts of Interstate Scaffolding did not amount to a refusal of light-duty work, the facts

here also fail to present such a situation.

¶ 26    Additionally, we find nothing in the supreme court’s decision that would show the result

in Interstate Scaffolding was dependent upon the claimant’s knowledge, or lack thereof, as to

whether his conduct could result in termination. As the supreme court pointed out, in Illinois, an

at-will employee may be discharged for any reason or no reason and whether an employee is

justifiably discharged is a matter “foreign to workers’ compensation cases” and completely

separate from issues related to an injured employee’s entitlement to TTD. Interstate Scaffolding,

236 Ill. 2d at 149, 923 N.E.2d at 276. In its brief, the employer suggests “the issue presented

here is not whether [claimant’s] TTD benefits could be suspended after his discharge for cause,

but whether [claimant] knowingly engaged in conduct that is tantamount to a refusal to work,

which according to the [s]upreme [c]ourt’s holding in Interstate Scaffolding, provides a basis for

the termination of TTD benefits.” (Empahsis added.) We disagree with such an interpretation of

Interstate Scaffolding. In fact, the supreme court specifically considered and rejected an analysis

which included inquiry into whether the “ ‘employee has engaged in misconduct constituting a

constructive refusal to perform the work.’ ” Interstate Scaffolding, 236 Ill. 2d at 145, 923 N.E.2d

at 273 (quoting Interstate Scaffolding, 385 Ill. App. 3d at 1051-52, 896 N.E.2d at 1142

(Donovan, J., dissenting, joined by Holdridge, J.)).        Whether claimant was appropriately

discharged, or knew he could be as a result of his conduct, was not an appropriate consideration

for the Commission under the circumstances presented.




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¶ 27   The record shows claimant was entitled to benefits under the Act as a result of his work-

related injury but was terminated from his employment for conduct unrelated to his injury. Per

Interstate Scaffolding, the critical inquiry for the Commission when determining claimant’s

entitlement to TTD was whether his medical condition had stabilized and he had reached MMI.

The Commission went beyond such considerations in vacating the arbitrator’s award of TTD and

its decision is contrary to law. Further, the circumstances presented did not amount to a refusal

of work within his physical restrictions by claimant and the Commission’s finding to the contrary

was against the manifest weight of the evidence.

¶ 28                                   III. CONCLUSION

¶ 29   For the reasons stated, we affirm the circuit court’s judgment, reversing the portion of the

Commission’s decision which vacated the arbitrator’s award. We reinstate the arbitrator’s TTD

award and remand to the Commission for further proceedings pursuant to Thomas, 78 Ill. 2d 327,

399 N.E.2d 1322.

¶ 30   Judgment affirmed and arbitrator’s award reinstated; cause remanded.

¶ 31   PRESIDING JUSTICE HOLDRIDGE, specially concurring.

¶ 32   I agree that the judgment of the circuit court should be affirmed and the arbitrator’s

award should be reinstated with the cause remanded to the Commission. I write separately in

order to clarify the majority’s analysis of Interstate Scaffolding, Inc. v. Illinois Workers’

Compensation Comm’n, 236 Ill. 2d 132 (2010). In that case, a majority of this court held that an

employer could cease payment of TTD benefits if the injured employee committed a volitional

act of misconduct that justified his termination. Interstate Scaffolding, Inc. v. Illinois Workers’

Compensation Comm’n, 385 Ill. App. 3d 1040, 1047 (2008). As the majority herein points out,

our supreme court subsequently rejected this analysis, holding that an employer’s obligation to



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pay TTD benefits does not cease when an employee has been discharged. Interstate Scaffolding,

236 Ill. 2d at 145. Rather, “the determinative inquiry for deciding entitlement to TTD benefits

remains, as always, whether the claimant’s condition has stabilized.”           (Emphasis added.)

Interstate Scaffolding, 236 Ill. 2d at 149.

¶ 33   I write separately to point out that the appellate court’s decision in Interstate Scaffolding

was not unanimous. The dissent pointed out that the determinative inquiry should not be

whether the employer had just cause to terminate the employee, but whether the employer’s

refusal to continue to pay TTD benefits after the termination was permissible under the Act.

Interstate Scaffolding, 385 Ill. App. 3d at 1052 (Donovan, J., dissenting, joined by Holdridge, J.).

The dissent further pointed out that, even if the employer could establish that a claimant’s

employment was terminated for misconduct, the claimant should nonetheless be allowed to

establish that his work-related injuries and medical restrictions “prevent[ed] him from securing

employment at pre-injury work levels.” Id. If so, the dissent reasoned, he should be allowed to

continue receiving TTD benefits. Id. While our supreme court did not expressly adopt the

analysis articulated in the dissent, I maintain that the analysis in the dissent is fully consistent

with the supreme court’s holding.




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