Injured workers can establish entitlement to Permanent Total Disability benefits under the Illinois Workers’ Compensation Act in one of three ways: (1) medical evidence showing an inability to work; (2) a diligent but unsuccessful job search; or (3) demonstrating that, because of his age, training, education, experience, and condition, there are no jobs available for a person in his circumstances. This third option is referred to as “odd-lot” permanent total disability. The process for proving an odd-lot claim was established in the ‘80s: the injured worker must prove that s/he is unable to perform services for which there is a reasonably stable labor market; once the claimant does so, the burden of proof shifts to the employer to demonstrate that some kind of suitable work is regularly and continuously available to the claimant.
A workers’ compensation claimant recently successfully pursued a claim under the odd-lot theory in Alliance Coal Co. v. Illinois Workers’ Compensation Commission, 2015 IL (5th) 140239WC-U. The injured employee in that case was a mechanic who sustained a severe crush injury to his lower left leg while working in the employer’s mine; as a consequence of that work accident, he was left with multiple nerve disorders as well as vascular deficiencies. After years of treatment, including multiple surgeries, the treating physician determined that the claimant would permanently suffer from intermittent swelling, unremitting pain, and muscle weakness and difficulty walking on uneven surfaces due to ankle weakness; because of this, the doctor concluded that the injured employee was permanently restricted to light sedentary work, with the need to frequently elevate his foot to relieve the swelling. The employer’s hired physician similarly imposed significant and severe permanent work restrictions. The vocational evidence unanimously showed that the injured worker would be unable to find employment: the employer’s hired vocational consultant concluded the permanent restrictions alone, “by definition” precluded the claimant from any work; the employer’s benefit coordinator testified that the employee was “unable to even perform sedentary physical demand level work” and was “excluded from all work by definition of the U.S. Department of Labor” and the physical restrictions; and the employee’s chosen vocational consultant determined that the claimant was not able to secure and maintain employment in the open labor market and would not be able to secure employment in the normal course of business in any market situation. Upon review of the evidence, the Commission found that the injured employee had successfully established entitlement to odd-lot permanent total disability benefits by proving he was unable to perform any services for which there is a reasonably steady labor market, and the employer had not provided any persuasive evidence that some kind of suitable work is regularly and continuously available to the claimant. In so finding, the Commission highlighted the opinions of two vocational experts, one of whom was retained by the employer, both of which found that the claimant was unable to find work in a reasonably steady job market.
On appeal, the employer argued, among other things, that there was no medical evidence in support of the Commission’s finding that the claimant was unable to work. The court rejected that assertion, explaining that “the employer misapprehends the nature of the odd-lot theory of recovery.” Reiterating that the lack of medical opinion testimony is precisely why a claimant pursues the odd-lot theory, the court explained that, “The fact that there is no medical evidence regarding the permanent nature of the claimant’s injuries is, while true, irrelevant to the Commission’s determination.” Alliance Coal Co., 2015 IL App (5th) 140239WC-U, ¶19. This is an interesting case because it doesn’t appear from the court’s opinion that the employer offered any contrary evidence regarding the injured worker’s ability to obtain stable employment; thus, the employer clearly failed to meet its burden of proof. Instead, the employer’s defense was at least partially based on a misunderstanding of the decades-old law.