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Knell & Poulos Workers’ Compensation – Trial Result

Case Name:  Arnoldo Garcia v. Leggett & Platt

IWCC No.:  05WC 23670

D/A:  3/23/05

Venue:  Geneva/Arbitrator Hennessy

Respondent’s Attorney:  Brad Knell

SUMMARY:

Respondent was successful in proving Petitioner did not meet the criteria to be deemed an “odd-lot” permanent total disability candidate. Petitioner alleged he was unable to obtain gainful employment after his compensable work injury. The arbitrator agreed with Respondent and issued an award under 8(d-2) for Petitioner’s low back injury, or $86,112.00.  Petitioner’s pre-trial demand was $250,000.00 based upon an odd-lot permanent total.

FACTS:

Petitioner was a 64-year-old employee who testified regarding his job duties as a machine operator for his employer.  He testified regarding the accident he sustained on March 23, 2005 and the course of treatment he underwent following the accident. At that time he was involved in a lifting accident and sustained a low back injury. An MRI revealed degenerative changes and mild bulging his low back. He underwent long-term conservative care which did not improve his overall condition significantly. Both his treating physician opined surgical intervention was unlikely to improve his condition and that he required permanent lifting restrictions up to 10-15 pounds.

Petitioner received TTD and maintenance benefits on an uninterrupted based from the date of injury to the date of hearing.

Petitioner was evaluated by a vocational rehabilitation counselor after a formal request for those benefits under the Act. That counselor opined Petitioner was capable of gainful employment. While the permanent restrictions would certainly limit the job opportunities available, Petitioner had a work history of over 40 years which was evidence of a good work ethic and transferable skills. Furthermore, despite the fact Petitioner’s native language was Spanish, he had been working in positions and communicating exclusively in English throughout his entire work history. During the vocational process, Petitioner worked on his resume, job search skills, completed applications with several employers and had one interview.

Petitioner was also evaluated by a vocational counselor at the request of his attorney. That counselor found Petitioner would be unable to find any gainful employment because of his age, communication skills, lack of transferable skills and permanent restrictions. On cross-examination, however, the counselor testified Petitioner was qualified for some light and sedentary duty positions if an employer accommodated the restrictions. Petitioner was capable of driving, delivering, working a register, and handling cash among other things.

RESULTS:

As indicated earlier, the pre-trial demand was $250,000.00 based upon the allegation that Petitioner could never return to his prior work and there was not a “stable job market” for this individual given his restrictions.  In response, we countered that Petitioner was employable in some degree and did not make a “good faith effort” in securing employment within his noted restrictions.  The employer did make several offers based upon a “Man as a Whole” loss exposure.  All “Man as a Whole” offers were rejected by Petitioner’s counsel.  Thus, given Petitioner’s health and age, we elected to take our chances at trial.  If the employer lost and a permanent total finding was awarded, the employer would simply pay Petitioner on a weekly basis until his death.

During the trial, the evidence did show that Petitioner was limited in his employment options and could not return to his prior job.  But, we did strongly argue that Petitioner was capable of securing a light duty job.  Arbitrator Hennessy agreed and awarded 60% man as a whole, or $86,112.00.  We believe that the 60% man as a whole was based upon the “Loss of Trade” theory.  However, “Loss of Trade” was not specifically mentioned in the Arbitrator’s Decision.  This new and vague method of finding a high “Man as a Whole” award based upon the Petitioner not being able to return to his or her former occupation; but is capable of working in another trade or job, baffles us.  We do not know of any Illinois Workers’ Compensation Statutory basis or of any case law precedent which allows the Commission to render such a finding.

SIGNIFICANCE:

Provided the fact that the award was one-third of the pre-trial demand, we believe that we can count this one as a victory.  Nevertheless, we do have concerns that this decision presents the Illinois employers with a daunting challenge.  How does one evaluate or assess “Loss of Trade” exposure?  Especially when the Act and prior court decisions fail to set forth a basis or guidelines in rendering such an award.  Nevertheless, we believe that the success of this case was due to several factors.  First, was the fact that the Respondent was not scared away by the high potential dollar figure involved with the permanent total disability claim.  In short, the employer was not backed into overpaying beyond what it felt was the actual value of the claim.

Secondly, the employer was vigilant in ensuring they properly explored vocational rehabilitation and looked beyond the fact that Petitioner had not actually secured employment.  This Arbitrator’s Decision appears to focus on the fact the odd-lot permanent total was not solely based upon whether Petitioner had actually secured employment within his restrictions, but rather what Petitioner could earn given his restrictions.  On a key note, it is important to note that when an employee claims to be in the odd-lot category, the employee has the burden of initially proving that his or her condition makes him or her unable to perform any services in which there is a reasonably stable job market.  Then, the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available (Sterling Steel Casting v. IIC, 74 IL 2nd 273, 24 IL Dec. 168, 384 NE 3rd 1326, 1979).  We believe that in this case at bar, the Petitioner did not meet his required burden.  Even assuming arguendo our employee did so, our employer did show that there was some kind of suitable work which was regularly and continuously available.  We believe that regardless of whether or not the Petitioner meets his or her noted burden, the employer must assume that the burden has shifted, and in turn, must show some kind of suitable work is regularly and continuously available.

If you should have any questions or insights to this Knell & Poulos update, please do not hesitate to contact the undersigned.

Very truly yours,

KNELL & POULOS, P.C.

Bradley C. Knell