February 01, 2012

Appellate Court Reverses Total Permanent Award

February 01, 2012

Professional Transportation, Inc. v. Illinois Workers’ Compensation Commission No. No. 3-10-0783WC

In a rare reversal, the Appellate Court struck down an ‘odd-lot’ permanent total disability award.  The petitioner, Barry Clarke, suffered a career-ending right knee injury which required several surgeries, including a total knee replacement.  He also developed a deep vein thrombosis after the total knee which prevented him from returning to a previous occupation as an air traffic controller.  The Arbitrator awarded specific loss of use of the right leg, noting that Clarke failed to demonstrate a diligent but unsuccessful job search.  Upon review, the Commission awarded PTD benefits on an ‘odd-lot’ theory.  The Commission found that Clarke had presented evidence that both supported and negated a finding of total permanent – he could likely find a sit-down or sedentary job given his transferable skills, however, his age and physical restrictions weighed heavier in the analysis.

At trial, the employer produced a labor market survey which identified nine cashier positions at local auto dealerships which could accommodate petitioner’s restrictions.  Per the survey, the cashier occupation was projected to increase by 9% in the State of Illinois and 6.2% in the Kankakee area over the next six years.  Clarke applied at all but none offered him a position; he continuously looked in the Sunday newspaper for a job, with no success.  Otherwise, he introduced no evidence to establish that there was no stable employment market for his services.

The Appellate Court reversed, holding that the award of a total permanent disability was contrary to the manifest weight of the evidence.  The Court emphasized that there are three methods by which total disability can be proved:

“A preponderance of medical evidence; by showing a diligent but unsuccessful job search; or by demonstrating that, because of age, training, education, experience, and condition, there are no available jobs for a person in his circumstance.” 

The Court went on to say that:

“an employee is totally disabled when he is unable to make some contribution to the workforce sufficient to justify the payment of wages.  The claimant need not, however, be reduced to total physical incapacity before a total permanent disability award may be granted.  Rather, a person is totally disabled when he is incapable of performing services except those for which there is no reasonable stable market.”

In Clarke’s case, there was no medical evidence to support a claim of total disability – a number of treating and examining physicians all voiced opinions that he could work with varying restrictions.  As for evidence that Clarke engaged in a diligent but unsuccessful job search, the Arbitrator found that Clarke failed to demonstrate that he made a diligent but unsuccessful attempt to find work and the Commission did not quarrel with that finding.  The court found Clarke’s effort to look for work “meager” and agreed with the Arbitrator.

Ruling out the first two methods, the court was left to decide whether Clark could have found regular employment.  The court noted that Clark was not obviously unemployable and thus had the burden of proving that he was so handicapped he could not be employed regularly in any well-known branch of the labor market.  But, whereas the employer produced the labor market survey which identified positions which would fit petitioner’s restrictions, Clarke failed to introduce evidence to the contrary.  Therefore, the court concluded that the Commission’s finding of an ‘odd-lot’ permanent total was against the manifest weight of the evidence.

Justice Stewart dissented from this holding.  The dissent focused on the Commission’s finding that there was evidence both to support and to negate a total permanent and that the Commission weighed this evidence before making its award.  Justice Stewart would have deferred to the Commission.


The Appellate Court rarely reverses a Commission award favorable to a claimant.  But the job search did not pass muster, and no doctor considered petitioner unable to work.  Therefore, despite being unable to perform totally sedentary work, he had to prove there was no stable labor market for his services, something generally done with expert testimony.  Since he failed to produce an expert and the employer introduced evidence on this subject, the cashier positions available, the claim failed.  The Commission obviously discounted the labor market survey as it commonly does when no job offers are made.  But there was evidence that these types of positions would become more available over time, so perhaps the court felt that Clark should have continued to search.  Had he done so, he may have shifted the burden to his employer to show that he was employable.

The claimant had a significant disability.  There were few positions open to him and he was precluded from performing work using his prior skills.  One speculates whether the result may have been different had he maintained his employer failed to fulfill its Section 8(a) obligation to provide rehabilitation services.  A labor market survey may not suffice in all cases, but did here.