April 05, 2007

Claimant Cannot Obtain “Odd Lot” Permanent Total Disability Award Without Supporting Evidence from a Rehabilitation of Vocational Counselor

April 05, 2007

Westin Hotel v. Industrial Commission No. 1-06-1728WC

On October 5, 1998, Theodoros Vakalidis, a hotel painter, was attempting to prevent a heavy cart from tipping over as it dropped six inches from the sidewalk.  Consequently, he experienced injuries to his back and left knee resulting in treatment by eight orthopedic surgeons over the next four years.  He never returned to work.  The arbitrator awarded four years of TTD benefits and also found that claimant was permanently and totally disabled under the “odd lot” theory.  Except for a reduction in the weekly wage finding, the Commission and the circuit court affirmed.

The appellate court concluded that the claimant had not carried his burden of establishing that he fell into the odd-lot category.  In describing the requirements, the court stated:

The claimant ordinarily satisfies his burden of proving that he falls into the odd-lot category in one of two ways: (1) by showing diligent but unsuccessful attempts to find work, or (2) by showing that because of his age, skills, training, and work history, he will not be regularly employed in a well-known branch of the labor market.  Whether a claimant falls into the odd-lot category is a factual determination to be made by the Commission, and that determination will not be set aside unless it is against the manifest weight of the evidence. 

Claimant did not present any evidence that he conducted any job search.  Moreover, the only witness to testify regarding claimant’s unemployability was Dr. Coe, a specialist in occupational medicine.  Dr. Coe testified that, to a reasonable degree of medical certainty, claimant is permanently and totally disabled from gainful employment.  Dr. Coe’s opinion was based on the history he took from claimant, claimant’s symptoms, claimant’s medical records, and Dr. Coe’s physical examination of claimant.  However, merely proffering medical evidence of permanency is insufficient to shift the burden to the employer.  Indeed, the most recent cases making an odd lot determination on the basis that there is no stable job market for a person of the claimant’s age, skills, training, and work history have required evidence from a rehabilitation services provider or a vocational counselor.

Editor’s Note:

The decision is unusual because of the reversal of the odd lot permanent total award by an appellate court.  This opinion differs from the Federal Marine case, described herein, which did include supporting evidence from the claimant’s vocational rehabilitation consultant that the claimant’s age, education, work experience and physical limitation rendered the claimant incapable of gainful employment.

Westin Hotel v. Industrial Commission, No. 1-06-1728WC, decided March 27, 2007

Frank J. Wiedner, Editor Wiedner & McAuliffe, Ltd One North Franklin, #1900 Chicago, IL 60606 (312) 855-1105