Litigating Employability

The employability or re-employability of a worker is much litigated in the area of workers' compensation. Whether a worker can return to his previous job, or, to any other job is a question that must be addressed in all phases of the litigation process. The issues addressed here is when is a worker totally and permanently disabled? The medical testimony, vocational, rehabilitated and educational testimony is important in all aspects of these cases.

PERMANENT AND TOTAL DISABILITY

There are two types of permanent and total disability that are recognized in Illinois, specific and non-specific total disability.

SPECIFIC PERMANENT AND TOTAL DISABILITY

The first is a specific total and permanent disability, which is found in the Statute. In general, proof of employability is not necessary to be shown in these types of cases. In general, proof of employability is not necessary to be shown in these types of cases. Section 8(e) is the "specific permanent total award" section. This Section provides that the specific case of loss or "permanent complete loss of the use of both hands, arms, feet, legs, eyes or any of two of them constitutes permanent total disability.

Specific loss of two members or their permanent and complete loss of the use in one accident is thus made a permanent and total disability as a matter of statutory law under this Section. An employee would be entitled to such an award even if he could return to different work so long as he is unable to return to his prior employment. (See National Lock Company v. Industrial Commission, 62 Ill.2nd 51, 338 N.E.2d 405. 1975).

NON-SPECIFIC PERMANENT AND TOTAL DISABILITY

The Industrial Commission can also find that a person is permanently and totally disabled although he does not meet any of the requirements in 8(e) or specific injuries. A person can be permanently and totally disabled for injuries to any part of the body such as the back, heart, lungs, or any other injury that causes a complete disability. The more non-specific total disability is found in Section 8(f) of the Act. (820 ILCS 305/8(f).

Almost any type of injury can cause an 8(f) permanent and total disability. The injury must not need to be a non-specific part of the body such as the back or head. It can be single body members such as an arm, hand or leg. The Supreme Court in Springfield Park District v. Industrial Commission, 49 Ill.2nd 67, 273 N.E.376 (1971) has found that particular specific injury could also be a cause of a permanent disability. In Springfield the employee underwent a series of operations to his arm that did not restore the use of his arm. While the employer contended the injury was confined to an arm and should be a specific loss under 8(e), the Commission and Court found that he was unemployable and could be determined to be permanently and totally disabled. The Supreme Court said:

Supreme Court has defined permanent and total disability as a person who cannot perform any services except for those for which no reasonably stable labor market exists. Conversely, if an employee is qualified for and capable of obtaining gainful employment without seriously endangering his health or life, the employee is not permanently and totally disabled. (E.R. Moore Company v. Industrial Commission, 71 Ill.Dec.353, 17 Ill.Dec. 207 (1978).

In A.M.T.C. of Illinois Inc. v. Industrial Commission, 77 Ill.2d 482, 34 Ill.Dec. 132, the Supreme Court addressed an 8(f) permanent and total disability. Here, the employee suffered a torn medial meniscus and other areas to his ankle and knee. He testified that he could not work and had not sought work because he could not go up an down stairs carrying heavy objects, which was what he did in his employment. The worker had some prior problems with his knee. The doctor in this case called the worker an "industrial crippled" but did not give any further information regarding his ability to return to any other type of employment.

The Supreme court re-established its position that an employee is totally and permanently disabled for the purpose of worker's compensation benefits when he is unable to make some contributions to the industry which were sufficient to justify payment to him of wages (C.P.R. Wikel v. Industrial Commission, 69 Ill.2d 273, 13 Ill.Dec. 678 (1977) Further, the injured party did not need to be reduced to a state of total physical or mental incapacity or helplessness but show that he cannot perform services except those that are so limited in quantity, dependability or quality that there is no reasonably stable market for them. (Sterling Steele Casting Company v. Industrial Commission, 1979, 74 Ill.Dec.2d 273, 24 Ill.Dec. 168) Here also, the Court said if an employee can take up some form of employment that does not seriously endangers his health or life he is not entitled to total and permanent disability compensation.

In A.M.T.C., the Court stated that the Commission should consider the extent of the claimant's injury, the nature of his employment, his age, experience and training and capabilities. It is stated that if the claimant's physical disabilities is limited in the nature so he is not obviously unemployable, then it is not unreasonable that the burden be upon him to establish the unavailability of work to a person in his circumstances. This burden can be met by showing that reasonable efforts were made to secure suitable employment the kind of employment that can be performed by a person in the circumstances. Hence, the Court found that the worker did not attempt to find other employment nor did he testify that he could not perform any other work other then a mover due to his inability or lack of training and skills. The court found that he had not met his burden of proof of total disability. It said that if a claimant's physical disability is limited in nature so that he is not obviously unemployable then it is not unreasonable that the burden be upon him to establish the unavailability of work to a person in his circumstances. This burden can be met by showing that reasonable efforts were made to secure suitable employment that can be performed by a person in his circumstances. (A.M.T.C. 490)

The burden, on the other hand, does not always remain on the employee. Now, if the employee can show that he does have substantial disability and has been disqualified from work by his or her employer, he may fall in to a "odd-lot". Which refers to those that are unemployable in only a limited capacity. A person can establish permanent and total disability in other ways.

The odd-lot category is a judicial creation, which is not found in the Act. The Supreme Court, in Valley Mould and Iron Company v. Industrial Commission, 84 Ill.2d, 538, 50 Ill.Dec. 710 addressed and established this "odd-lot" concept. Here, the worker suffered a stroke that was determined to be related to his job and left him partially paralyzed on the right side of his body. He did not testify regarding looking for other types of work education, skills or prior employment. Nevertheless, the Industrial Commission affirmed the Arbitrator's award of permanent and total disability. Here the Court found that once an employee has initially established that he falls in what has been termed "odd-lot" category, (one who, although not all together incapacitated for work, who is so handicapped that he will not be employed regularly in any well-known branch in the labor market), then the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the claimant. The court stated that it is encumbant upon the worker to show that his present condition. In light of his age, experience, training, and education, he is permanently and totally disabled by the definition. This burden may be met by showing diligent, but unsuccessful attempts to find work or by proof that because of the above mentioned qualities he is unfit to perform any but the most remedial tasks for which no stable market exists. It has previously been found that if the total disability is obvious or clearly established by the medical evidence that would be sufficient to show permanent and total disability. The issue was that if evidence demonstrated severe but perhaps not complete inability to work, could a person still be totally disable under the Act. Clearly, in such cases, the burden is on the employee to initially prove that his condition is such that he is unable to perform any services for which there is a reasonably stable market and then the burden shifts to the employer to show that some kind of suitable work is readily and continuously available.

It is sometimes easy to show that there is an injury and that there is a permanent disability. The issue often times is whether the disability is total. It is, therefore, recommended that on cases of total disability, that the practitioners for both sides explore vocational opportunities as well as undertake an active for jobs within restrictions set by the medical evidence.

In Contour Designs, Inc. v. Industrial Commission 255 Ill.App.3d 816, 627 N.E.2d 717, 194 Ill.Dec. 380, Fifth District 1994) the Court was asked to address whether or not a condition was permanent. In Contour, the petitioner sustained a substantial injury to his knee wherein he was required to wear a leg brace and there was some conflicting testimony as to whether or not he needed to use a cane to help in walking. There was no issue regarding the permanency of the knee injury, nor of accident, but only whether or not the worker was totally disabled. The employer had hired vocational expert to help find work for the employee. The vocational rehabilitation expert had given an opinion that the claimant could do light duty factory work, but she also testified that the employee was cooperative with the rehabilitation effort and responded to over 270 job openings. No employment was located for the employee within the restrictions set by the doctor and no job offers were made. A physical therapy center did perform a functional capacities evaluation on the employee which also stated that the employee should be employable in sedentary tasks only. It found that the employee met the criteria for sedentary and light work demand levels. Doctors for the employee testified that the petitioner was unable to work and was permanently and totally disabled. A second therapist found that the petitioner could perform only sedentary work and a vocational expert hired by the employee testified that the employee was unemployable in the labor market given his age, education, work history, and medical and psychological condition. The employee was 31 at the time of the accident and graduated from high school with a "D" average. The only jobs that he had ever performed were heavy jobs lifting objects as much as 100 pounds. He had no other experience in working other than in labor jobs.

The court upheld the Commission's decision finding that the claimant had met his burden of proving the odd-lot. It went further to say that the record showed no reasonably stable labor market existed for persons in his circumstances and that the respondent did not prove that such work existed on a regular and continuous basis.

Establishing evidence regarding a job search and a stable labor market is a primary in determining whether or not the court's and the Commission will find an employee totally disabled. It is generally no longer sufficient to have only medical testimony regarding the total and permanent disability. In Alano v. Industrial Commission, 282 Ill.App.3d 531, 668 N.E.2d 21, 217 Ill.Dec. 836, First District, 1996) the First District addressed this issue. Here, a worker injured his right shoulder and was diagnosed as having a torn rotator cuff and arthritis. He also complained of having pain in his right hip. The employee presented medical evidence of the opinion that the claimant was totally and permanently disabled as a result of his injuries. The employer's doctor testified that the petitioner was totally and permanently disabled due to his work related accident and a pre-existing condition. The claimant testified that he had persistent pain in his knee, hip, and shoulder, and that he was able to perform many activities before the accident without pain. He had 2 years of high school education and had previously worked as a hotel doorman, car checker and cashier. The employee, who was 65 years at the time of his accident, did not look for work of any nature, nor was he offered any light duty by the employer.

Here, the court recognized that the focus of the Commission's analysis must be upon the degree to which the claimant's medical disability impairs his employability, and if an employee is qualified for and capable of obtaining gainful employment without seriously endangering his health or life. The court cited in A.M.T.C. and E. R. Moore, in stating that a claimant ordinarily satisfies his burden of proving he is not capable of obtaining gainful employment by showing either: (1) that work was not available, i.e. diligent but unsuccessful attempts to find work; or (2) that based upon his age, experience, training and education, he is unable to perform any but the most unproductive tasks for which no stable labor market exists. The court stated that merely proffering medical evidence of permanency is insufficient to shift the burden of employability to the employer. The Commission must make a finding of permanent and total disability based on the proffered evidence since the claimant did not attempt a job search, nor did he introduce any evidence to show that no stable job market existed for any of his services, that he would not be eligible for a total and permanent disability under the "odd-lot" theory. (Of interesting note, Justice Rarick in this dissent, felt that this decision, negated the odd-lot category for PTD cases. Rarick wrote that he would hold the opinions of the doctors coupled with the claimant's testimony sufficient to shift to the employer the burden of demonstrating some kind of suitable work was regularly and continuously available.)

What about the opposite of the above case? Vocational testimony alone is not sufficient, absent medical testimony, to support the vocational evidence in the file. In the same month as the Alano case, the Fifth District in Courier v. Industrial Commission, 282 Ill.App.3d 1, 668 N.E.2d 28, 217 Ill.Dec. 843, the Commission and Court were faced with just that issue. In Courier, the claimant was a 41 year old courier with a 9th grade education and was injured while carrying suitcases upstairs. She was diagnosed as having acute strain of low back and later with a herniated disc at L4-L5 and surgery was performed on her low back. Her doctor gave restrictions that precluded repeated lifting, bending, stooping and squatting, and had a 20 pound weight restriction and that she would have to take anti-inflammatory medication on a permanent basis. It was clear that she was not able to perform her prior occupational duties. Physicians for the respondent also felt that she had restrictions but could probably work in jobs of a sedentary or light duty nature. The employee testified that she tried to go back to work with her regular employer, but her pain increased. She did receive job counseling and placement services from the employer and applied for jobs as a cashier, cleaning jobs, and in the clothing stores, but received no offers. She quit looking for work after she was robbed while on a job interview and did not look for additional work because she could not handle going out and her husband was sick. She did receive treatment for a nervous breakdown after the robbery. Her prior employment experience included being a cashier, waitress, and a truck dispatcher.

The employee did have a certified vocational rehabilitation counselor testify on her behalf who testified that based upon his familiarity with the labor market, it was his opinion that the claimant was not employable in any occupation. Here, the court felt that the Commission was correct in making its decision that the employee was not obviously unemployable where there was no medical evidence that the claimant was totally disabled. The claimant had not met her burden of proof of showing that employment was unavailable to a person in her circumstances. Even though there was vocational testimony that she was unemployable, the Commission was not obligated to accept that opinion without further supporting evidence from the medical testimony. Again, Justice Rarick, in his dissent, argued that there was evidence from the petitioner that she was unemployable based on the vocational testimony. Therefore, the burden should have shifted to the employer to show some kind of suitable work is regularly and continuously available to the employee.

The Appellate Court was in agreement most recently in Waldorf Corporation v. Industrial Commission, 303 Ill.App.3d 477, 708 N.E.2d 476, 236 Ill.Dec.890 (First District, 1999). In Waldorf, the employee developed a condition called fibromyalgia. It was determined by the medical testimony that her condition was such that she was unable to perform her prior job working on an assembly line and stack cartons into a large canister above her head. There was no medical evidence to support a claim of total disability although the employee did undertake a job search for work within her restrictions during which she contacted a total of 106 prospective employers. The court held that if, as in this matter, a claimant's disability is limited in nature so that he is not obviously unemployable or there is no medical evidence to support a claim of total disability, claimant bears the burden to establish the unavailability of employment to a person in her circumstances. The court found that her job search did present evidence of unemployability and that there was no stable labor market at the time. Once the petitioner has presented such evidence, the burden shifted to the employer, which was unable to prove that a stable market existed for her. Accordingly, the court upheld the Commission's decision that the employee did meet her burden of proof to show that she was permanently and totally disabled under the "odd-lot" theory.

PRACTICE TIPS

It is now understood that several things must be shown by an employee to be considered totally and permanently disabled. First there must be medical testimony that the petitioner is unable to perform her previous job and has some rather substantial restrictions. Obviously, it is beneficial to have the testimony that the petitioner is unable to perform any substantial gainful employment, although most doctors are not anxious to make those kind of vocational claims, but are more likely to give particular restrictions.

Vocational testimony is an absolute necessity. It is recommended that a vocational counselor be hired by the employee to determine his employability. This may not be necessary when a vocational counselor is employed by the respondent. In those situations, if the vocational counselor is unable to find a job within the restrictions, that evidence is powerful before the Commission. A problem arises when all that is done by the employer's vocational counselor is to perform a labor market survey. A labor market survey only establishes certain jobs that are found to technically be within the restrictions of the employee. When that occurs, it is recommended that the employee apply for those jobs identified in the labor market survey so that he can later testify that those jobs are not available to him as he did not receive the job offer.

The most important thing that is necessary in the establishment of permanent total disability is the job search itself. A job search should be well documented with the dates and the place of contact. Most of the jobs that are applied for should be jobs within their restrictions given the medical testimony. If most of the jobs looked for are outside of the restrictions, the job search may be considered not to be a valid job search. When there is a real job search, the Commission will be hard pressed to penalize a worker for looking for jobs even though they are not particularly within his restrictions, if there were along the same type of work that he has done in the past. Recently, in Miller v. Continental General Tire 98-IIC-919, the employee was terminated for failing to take a drug test after a machine fell and smashed his hand. He was in a reverse knuckle bender and was unable to use his hand for a lengthy period of time and after the termination. Once he was released to one-handed, light duty work, the employer cut off his temporary total disability. The employee did perform a job search within the same types of jobs that he had done before as a mechanic, and, of course, he did not find work. The employer argued that the type of work that the employee worked for was outside his restriction. Here, the Commission determined that it was obvious that the employee was not employable in many types of jobs because he was wearing the reverse knuckle bender on his hand. Although the job search did not include exclusively one-handed jobs, the employee was not going to be penalized for looking for work that he may not have been able to do and was not going to be offered.

The same type of analysis should be used for those cases where a person is temporarily totally disabled but discharged from his work for some other reasons. Again, medical testimony and an adequate job search are going to be necessary to continue the TTD benefits after they have been terminated when there has been at least a release to return to work on a light duty status.