Fifth District denies claim for additional workers' compensation benefits for former coal worker

By John Breslin | May 10, 2019

MOUNT VERNON -- The Fifth District Appellate Court denied a former coal company worker's claim for increased workers' compensation benefits in a case that stretches back more than two decades.

Justice William Holdridge delivered the Rule 23 decision on May 2 with justices Thomas Hoffman, William Hudson, Peter Cavanagh and John Barberis concurring. They affirmed a ruling from St. Clair County Circuit Judge Stephen McGlynn, which was upheld by the Workers' Compensation Commission. 

"The commission’s decision was not contrary to law or against the manifest weight of the evidence," Holdridge wrote.

According to the appellate ruling, Allen Erb, a former worker with St. Louis-based Peabody Coal, has made various injury claims over the years and was awarded total temporary disability (TTD) while currently on permanent partial disability (PPD).

Erb, who was first injured in 1997, alleged he was entitled to more total temporary benefits -- for a two-year period ---  as well as permanent total disability (PTD) benefits.

However, Holdridge wrote that Erb has not worked since 1999 and has been on Social Security disability benefits beginning in 2000, indicating he was not looking for work. 

Erb's first claim in 1998 as a result of his 1997 injury was adjudicated by an arbitrator, who awarded him medical and TTD benefits, which are given until a worker is deemed fit again to work. Peabody Coal appealed but was denied.

Then in 2005 the present case began with a claim to the commission for additional TTD, medical. and permanent disability benefits, which are paid for life. Erb was awarded PPD, which is paid to workers who are injured but cannot find work at the same level because of the injury.

It was ruled that Erb was 50 percent incapacitated. Erb appealed but was denied both PTD and TTD benefits for a two-year period. This decision was affirmed by the circuit court and appellate court in 2009.

Erb, now 70, made a further claim to qualify as permanently and totally disabled. The commission found an additional 20 percent loss of body, increasing his benefits, and awarding additional total temporary disability payments.

The former worker applied for all additional benefits but this was denied in 2016. Erb also wanted penalties awarded against his onetime employer due to the "vexatious" denial of TTD benefits. He argued that more recent medical procedures entitled him to these temporary total disability benefits.

"The commission determined that the claimant had voluntarily removed himself from the workforce, not only because he had applied for Social Security disability benefits but also because the claimant had testified that he had not worked since 1999 and had not even looked for work at any time since 2000," Holdridge wrote.

"The commission further noted that the claimant had offered no evidence that his earning capacity had been adversely impacted by the most recent medical treatment," he added. 

This meant Erb is not entitled to further temporary total benefits. Further, his claim for permanent disability failed as his injuries were substantially the same as at the time of prior hearings, the appellate court ruled.

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