Defending the Claim for an Odd-Lot Permanent Total Disability

By: Richard Hannigan of Hannigan & Botha

Professional Transportation v. Illinois Workers' Compensation Commission 2012 IL App (3d) 100783WC is a case that was filed January 19, 2012 but not published until March 1, 2012 by the Illinois Appellate Court Illinois Workers' Compensation Division. In this case the Commission awarded the injured worker permanent total disability benefits based upon the odd-lot theory.

The petitioner was 64 years of age at the time of his injury and previously worked as an air traffic controller. His job with Professional was that of a driver transporting railroad workers to and from railroad yards. He was also required to clean out the vans. On March 26, 2003, while cleaning out the van he stepped down from the vehicle onto a frozen clump of ice and rock and twisted the right knee. He underwent surgery to the right knee on April 8, 2003. In July 2003 he returned to work and lasted four hours before his right knee began to swell. His surgeon referred him to a Dr. Milton Smit who recommended a total right knee replacement. He was then referred to Dr. Cole who indicated the claimant was a candidate for a total right knee replacement and the petitioner was referred to Dr. Sheinkop. In June 2004, the petitioner noticed swelling and pain in his left knee and believed it was from favoring his leg while walking. Dr. Sheinkop diagnosed him as having suffered from posttraumatic arthritis of the right knee which resulted from the work accident and determined that he was a candidate for replacement surgery for both the right and left knees. He underwent bilateral knee replacement surgery on October 27, 2004 and developed a pulmonary embolism while in the hospital. He had the pulmonary embolism in his left lung requiring hospitalization for a total of 12 days. Dr. Sheinkop testified that phlebitis resulting in a pulmonary embolism is a known complication of knee replacement surgery and necessitated the prolonged hospitalization and anticoagulant treatment.

Dr. Sheinkop testified that the claimant was permanently restricted from squatting, kneeling, frequent use of stairs, climbing and lifting or carrying in excess of 40 pounds. There were no restrictions on driving other than the use of a vehicle with an automatic transmission. He could stand for two hours per day. He could sit for six to eight hours. He would be precluded from driving for long periods of time because it would put him at risk for another pulmonary embolism. He was also evaluated by Dr. James Cohen at the request of the employer. Dr. Cohen testified that the bilateral knee arthritis would have ultimately required bilateral knee replacements even in the absence of his work-related accident. He believed that Dr. Sheinkop's restrictions were reasonable but saw no reason why the claimant could not return to work as a van driver due to the total knee replacements or based upon his risk of developing pulmonary emboli. Dr. Sheinkop testified that the right knee condition was the result of the work-related accident and the left knee condition was due to his arthritic disease.

 On September 27, 2005 the claimant had a Functional Capacity Evaluation which demonstrated he could work at a physical capability and tolerance in the light and medium-light categories.

The claimant's attorney had him examined by Dr. Fletcher in September 2005. Dr. Fletcher found the claimant had poor lower extremity strength and he was not capable of returning to work as an air traffic controller which requires getting up and down on a regular basis and not capable of driving commercial vehicles as he is unable to climb in and out of a truck. He recommended claimant be permanently restricted to sit-down, sedentary work.

A labor market study was performed by a vocational rehabilitation counselor employed by Professional. He opined that based upon the claimant's physical restrictions as set forth in the FCE, his age, his education and the claimant's work experience he could not return to his employment as a van driver for Professional. The vocational counselor concluded that the claimant has no clear transferable skills. He believed that the claimant could perform as an entry-level cashier for an employer that would accommodate the restrictions as to standing, walking, climbing, stooping, reaching and lifting. He identified nine automobile dealerships as potential employers. The claimant contacted those nine dealerships and was not offered employment. His job search was then limited to the Sunday newspaper.

In May 2007, the arbitrator found that the claimant sustained accident injuries on March 27, 2003 which arose out of and in the course of his employment. He found that the condition of ill-being as it relates to the right knee and the pulmonary embolism were causally related to the accident but there was no causal connection as to the claimant's left knee condition. The arbitrator awarded permanent partial disability benefits of 65% loss of use of the right leg. He found that the claimant failed to prove permanent total disability benefits either on the basis of medical evidence or an odd-lot theory. He noted that the claimant failed to demonstrate a diligent but unsuccessful job search or in the alternative he was unfit to perform any but the most menial tasks for which no stable job market exists. He also awarded medical expenses.

On Review the Commission found that the claimant was entitled to permanent total disability benefits on an odd-lot theory. The Commission specifically found "the claimant presented evidence that both supports and negates a finding of an odd-lot permanent total under Section 19(f) of the Act. It is unlikely that the claimant could find some sit-down/sedentary job and/or light-medium job given his transferable skills, education and experience. However, it appears that the claimant's age, Mr. Wolfe's opinion that claimant has no transferable skills, and his current physical restrictions and condition weigh heavier against finding that the claimant is employable in a regularly well-known branch of the labor market than does the possibility that he has potential transferable skills, education and experience that would weigh in favor of such employment."

As to the medical expense award, the Commission found that the current record was devoid of sufficient evidence to make a determination of what bills that were submitted pertained to the right knee as opposed to the left knee. It was remanded back to the arbitrator to hear evidence on that issue. Rather than hearing evidence on that issue, the arbitrator reviewed the record, did not hear additional evidence and awarded $131,626.31 in medical expenses incurred.

On appeal Professional argued that the decision of the Commission was against the manifest weight of the evidence and that the medical expenses violates the law of the case doctrine and is against the manifest weight of the evidence.

The court defined the three basic methods of securing a permanent total disability. The first way to prove that an individual is permanently and totally disabled is to present medical evidence that states that the petitioner is permanently and totally disabled. If you do not have that type of evidence then you can resort to the "odd-lot" theory as espoused in A.M.T.C. of Illinois v. Industrial Commission (1979), 77 Ill. 2nd 482, 489; E.R. Moore Co. v. Industrial Commission (1978) 71 Ill. 2nd 353, 357. These cases hold for the proposition that a claimant need not be reduced to a total physical incapacity before permanent total disability may be awarded. Rather a person is totally disabled when he is incapable of performing services except those for which there is no reasonably stable labor market. An employee is not entitled to total and permanent disability compensation if he is qualified for and capable of obtaining gainful employment without serious risk to his health or life. In determining a claimant's employment potential, his age, training, education and experience should be taken into account.

Under the odd-lot theory there are shifting burdens. As noted in A.M.T.C., if the claimant's disability is limited in nature so that he is not obviously unemployable, or if there is no medical evidence to support a claim of total disability, the burden is upon the claimant to establish the unavailability of employment to a person in his circumstances. Once the employee has initially established that he falls into the odd-lot category, then the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the claimant.

Another way of proving odd-lot permanent total disability is to show a diligent but unsuccessful job search.

In reversing the Illinois Workers' Compensation Commission in the Professional Transportation case, the Appellate Court noted that there was no medical evidence to support a claim of total disability. All of the doctors voiced opinions that the claimant could work with varying restrictions. The court did note that the arbitrator concluded the claimant failed to demonstrate that he made a diligent but unsuccessful attempt to find work and that the Commission on Review failed to take issue with that finding. The claimant's brief makes no argument that applying for a cashier's position at nine auto dealerships and looking in the Sunday paper constituted a diligent job search. The court went on to agree with the arbitrator that the evidence fails to support a finding that the claimant's meager efforts to find work constituted a diligent but unsuccessful job search.

The court was then left with the last alternative for proving permanent total disability benefits under the odd-lot theory. The issue then became whether or not there was sufficient evidence in the record to support the Commission's conclusion that, because of his age, training, education, experience and physical condition the claimant was not regularly employable in a well-known branch of the labor market.

I believe that it is critical to note that the claimant presented no evidence from a vocational counselor that would contradict the opinion of Professional Transportation's vocational rehabilitation expert. That expert testified that the claimant was capable of performing the duties of an entry-level cashier for an employer willing to accommodate the claimant's restrictions. The court stated: "In contrast, the claimant failed to introduce any evidence that there is no stable job market for a person of his age, skills, training, work history, and physical condition. In the absence of such evidence we hold that the Commission's finding that the claimant is entitled to PTD benefits as an odd-lot permanent total under Section 8(f) of the Act is against the manifest weight of the evidence."

There was a dissent by Justice Stewart. He quoted the decision of the Commission wherein the Commission specifically stated in its finding of fact that Professional Transportation's vocational rehabilitation advisor contradicted himself when he stated that, "In his report he based on claimant's 'work history and restrictions there are no clear transferable skills' and that the claimant's restrictions prevent him from doing any driver work similar to his last job. The vocational expert chose entry-level cashier as the job goal for the labor market survey and listed the car dealerships that he could apply to. The claimant testified that he contacted all those dealerships and no one offered him a job. The Commission weighed the facts in favor of the claimant specifically citing his age, training, education, experience and condition that prevented him from engaging in a stable and continuous employment. Since the Commission resolved the conflicting evidence of fact, the dissenting justice could not conclude that the Commission's findings were against the manifest weight of the evidence.

When either the petitioner or the respondent produce a vocational report contrary to the position of their opponent it would appear that it is incumbent upon the opponent to present evidence from a vocational expert that would support their theory of the case.