Vocational Rehabilitation / Maintenance & Odd-Lot Permanent Disability WCLA September 10, 2015 Vocational Rehabilitation / Maintenance & Odd-Lot Permanent Disability

TOPICS OF DISCUSSSION When is Petitioner entitled to vocational rehabilitation? When is Petitioner entitled to maintenance benefits? Brief review of the elements of proving Odd-Lot Permanent Total Disability.

VOCATIONAL REHABILITATION Section 8(a) – The employer shall provide and pay… for all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury… The employer shall also pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto. Vocational rehabilitation may include, but is not limited to, counseling for job searches, supervising a job search program, and vocational retraining including education at an accredited learning institution. The employee or employer may petition to the Commission to decide disputes relating to vocational rehabilitation and the Commission shall resolve any such dispute, including payment of the vocational rehabilitation program by the employer.

VOCATIONAL REHABILITATION National Tea 73 Ill.Dec. 575 (IL 1983) – Commission award of vocational rehabilitation affirmed. A claimant is generally entitled to vocational rehabilitation when: He sustains a work-related injury that causes a reduction in earning power and There is evidence rehabilitation will increase his earning capacity. The appropriateness of vocational rehabilitation* *The Court provided a framework, but no determination of appropriateness of a program, as this issue was remanded to the Arbitrator.

VOCATIONAL REHABILITATION National Tea 73 Ill.Dec. 575 (IL 1983) – Commission award of vocational rehabilitation was affirmed. Petitioner 42 years of age Testing revealed low-average intelligence Experience included 20 years as a meat cutter Treating physician indicated petitioner could not perform activities that would cause stress to lower back and should not return to prior job 1) Loss of earning capacity: Petitioner sustained a lumbar injury, had a laminectomy, and his restrictions precluded him from returning to prior job. He attempted to RTW with Respondent but could not continue. Petitioner found employment with AMOCO, but the job ended. The Court did not give great weight to the argument that this was a general layoff as no other employees were laid off and noted that it was “at least as probable that claimant’s age, training and medical condition accounted for his unsuccessful attempts to secure employment.” He made “numerous attempts” to secure employment and there was discussion of some employers asking for medical condition in applications for employment. 2) Evidence that rehabilitation will increase his earning capacity: Petitioner presented vocational expert opinion that “he was unaware of any job claimant could obtain, without training, in which he would be compensated at a rate similar to his pre-injury earnings.” Respondent “failed to produce any evidence that vocational rehabilitation is unnecessary.” 3) Appropriateness of vocational rehabilitation: The Court in National Tea Co. discussed the “necessity” of vocational rehabilitation and “appropriateness of rehabilitation programs” as a related question. The Commission had remanded the case to the Arbitrator to “consider an appropriate rehabilitation program.” The Court identified that the legislature has given little guidance on the issue of appropriate rehabilitation program and notes Rule 7110.10 as a step in the right direction. The Court also indicates that there should be a cost-benefit analysis in considering the reasonableness of the rehabilitation award in the relative costs and benefits, work-life expectancy, and ability and motivation to undertake the program.

VOCATIONAL REHABILITATION Rules Governing Practice Before the Commission Section 7110.10 – (a) The employer or his representative, in consultation with the injured employee and, if represented, with his or her representative, shall prepare a written assessment of the course of medical care, and, if appropriate, rehabilitation required to return the injured worker to employment when it can be reasonably determined that the injured worker will, as a result of the injury, be unable to resume the regular duties in which engaged at the time of injury, or when the period of total incapacity for work exceeds 120 continuous days, whichever first occurs. (b) The assessment shall address the necessity for a plan or program which may include medical and vocational evaluation, modified or limited duty, and/or retraining, as necessary.

Vocational Rehabilitation A claimant is generally entitled to vocational rehabilitation when: He sustains a work-related injury which causes a reduction in earning power and There is evidence rehabilitation will increase his earning capacity. The appropriateness of vocational rehabilitation* * The Court provided a framework, but no determination of appropriateness of a program, as this issue was remanded to the Arbitrator.

MAINTENANCE When Petitioner and Respondent agree upon a vocational rehabilitation program, it is clear that Petitioner is entitled to maintenance benefits during the completion of said program. Petitioner is also entitled to maintenance benefits during the time he has undertaken a self-directed job search, as it takes the place of a prescribed vocational rehabilitation program. Related question: Is Petitioner entitled to maintenance benefits once he has demanded that Respondent provide vocational rehabilitation, which is not initiated, and Petitioner has not initiated his own vocational rehabilitation efforts?

Maintenance When Petitioner and Respondent agree upon a vocational rehabilitation program, it is clear that Petitioner is entitled to maintenance benefits during the completion of said program. Section 8(a) – The employer shall provide and pay… for all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury… The employer shall also pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto. Vocational rehabilitation may include, but is not limited to, counseling for job searches, supervising a job search program, and vocational retraining including education at an accredited learning institution. The employee or employer may petition to the Commission to decide disputes relating to vocational rehabilitation and the Commission shall resolve any such dispute, including payment of the vocational rehabilitation program by the employer.

MAINTENANCE Petitioner is also entitled to maintenance benefits during the time he has undertaken a self-directed job search, as it takes the place of a prescribed vocational rehabilitation program. Roper Contracting 285 Ill.Dec. 476 (2004) – (Affirmed Commission’s award of maintenance benefits) Claimant suffered a work-related injury and the restrictions arising from injury impaired his earning capacity. He demanded vocational rehabilitation but it was not offered for four months. During the time he was not offered rehabilitation, he underwent his own self-directed job search. Contacted 21 potential employers and received responses of “maybe” and “later on.” He was 51 years old at the time of job search and had completed 9th grade plus GED. He had spent his entire life employed as a mechanic. Respondent contended that by failing to request vocational rehabilitation, Claimant waived maintenance. The Court determined that maintenance was specifically not waived as it was indicated as an issue on the stipulation sheet Respondent next contended that maintenance was to be paid only when in a prescribed rehabilitation program. This argument was not found persuasive and the Court cited section 8(a) of the act and concluded that the self-directed job search took the place of a prescribed program. The Court addressed Respondent’s argument that the self-directed job search did not suffice as a rehabilitation program noting that: The self-directed job vocational program through a job search did in fact increase his earning capacity as demonstrated by securing employment. The Court concluded that Claimant was properly awarded maintenance benefits “for the period of time he was undertaking his self-created and directed rehabilitation program.”

Maintenance Petitioner is also entitled to maintenance benefits during the time he has undertaken a self-directed job search, as it takes the place of a prescribed vocational rehabilitation program (cnt’d). Greaney 358 Ill.App3d 1002 (2005) – (Affirmed in part the decision of the Commission). Claimant not able to pursue his “usual and customary line of employment.” Restrictions arising from the injury impaired his earing power. The record established that Claimant’s self-created vocational program increased his earning capacity as demonstrated by the positive results of his job search. Awarded maintenance benefits for the period of time he was undertaking his self-created job search. The Court does not recite the exact job search efforts but seems to conclude that he searched during this time period and his efforts were proven by his success in securing employment. However, he claimed at arbitration a period of maintenance ending when he obtained initial employment through his search and did not claim a period after that employment failed and until he secured his final employment.

Maintenance (*) Maintenance with a mix of prescribed rehabilitation and subsequent claimant- directed search. Archer Daniels Midland 138 Ill.2d 107 (1990) The Supreme Court found that the Commission award of TTD (maintenance) after the completion of the locksmith course was not against the manifest weight of the evidence. Petitioner had shown reduction in earning capacity, chosen an agreed rehabilitation program to become a locksmith, completed said program, and it was determined that there were no jobs available as a locksmith. Petitioner carried initial burden of showing that there was an impairment in earning capacity, and that, given his physical abilities, further rehabilitation may improve same. The burden was then shifted to Respondent to show that employment did exist.

MAINTENANCE Is Petitioner entitled to maintenance benefits once he has demanded that Respondent provide vocational rehabilitation, which is not initiated, and Petitioner has not initiated his own vocational rehabilitation efforts? Jimenez 2012 IL App (2d) – (denying maintenance benefits for flawed or limited self directed job search) *Unpublished Appellate Court Decision not to be cited as authoritative but can be cited for persuasive value. Respondent provided labor market survey and an opinion that Petitioner was capable of obtaining employment within his restrictions. Given the “flawed or limited nature of Claimant’s self-directed job search” Petitioner visited a large number of employers BUT Not until almost seven months after being declared MMI Also did not choose jobs based on indication that they were hiring Did not look for help wanted signs or look in newspapers or elsewhere Simply visited businesses that offer work he thought he may be able to perform The Court concluded that: Petitioner did not establish that his work injury reduced earning power Did not present evidence suggesting that vocational rehabilitation would have increased his earning capacity Did not present evidence that he lacked skills to obtain employment without vocational assistance

Maintenance When Petitioner and Respondent agree upon a vocational rehabilitation program, it is clear that Petitioner is entitled to maintenance benefits during the completion of said program. Petitioner is also entitled to maintenance benefits during the time he has undertaken a self-directed job search, as it takes the place of a prescribed vocational rehabilitation program. Petitioner is not entitled to maintenance benefits where he has neither completed a diligent job search nor proven that he is in need of vocational rehabilitation.

Vocational Rehabilitation and Maintenance OTHER ISSUES TO BE AWARE OF: Benefits awarded during period of self-directed job search and subsequent self-directed completion of hair styling program. Sylvia Perez v. Brose Chicago 11 I.W.C.C. 0986 (2011) Commission affirmed and adopted the decision of the Arbitrator. Upon reaching completing an FCE and reaching MMI Petitioner, through counsel, sent letters to Respondent requesting vocational rehabilitation. Respondent did not provide assessment. The Arbitrator noted that Petitioner had completed several months of an unsuccessful job search and then enrolled in a hairstyling program. “The Petitioner was diligently pursuing her own vocational rehabilitation program.” (citing Greany). Not completely incapacitated from prior occupation but may be suffering loss of earning capacity; did not perform self-directed job search. Stanley Elinsky v. Walsh Construction 10 I.W.C.C. 1132 (2010) – Not completely incapacitated but “may be partially incapacitated in that could not perform some heavy highway construction carpentry.” The order was to perform a vocational assessment under Rule 7110.10 but is not entitled to maintenance until completion of same. Failure to cooperate with the program that is agreed to by the parties results in discontinued benefits. Joseph Schultz v. Master Brand 09 IL.W.C. 5992 (2011) – Denied maintenance benefits and rehabilitation because of failure to cooperate in good faith with retraining program that he agreed to. Failure to comply with professional job search program results in discontinued benefits. Gary Hanover v. Alrington 05 IL.W.C. 44088 (2011) – Commission affirmed Arbitrator’s denial of vocational rehabilitation services and maintenance. The Arbitrator denied these benefits due to “a substantial lack of cooperation with job search efforts.”

VOCATIONAL REHABILITATION AND MAINTENANCE When Petitioner has completed a vocational rehabilitation program and has not been able to secure employment, he may have proven the first element of an ODD-LOT claim. If Respondent provided the failed vocational rehabilitation program they may have proven both the first and second element of an ODD-LOT claim for you!

Odd-Lot Permanent Disability (brief review) Odd-Lot PTD – Employee need not be reduced to complete physical incapacity to be entitled to PTD benefits PTD is proper when the employee can make no contribution to industry sufficient to earn a wage The Odd-Lot category arises when “a claimant’s disability is limited in nature so that he is not obviously unemployable, or if there is no medical evidence to support a claim of total disability.” Claimant must show (1) a diligent but unsuccessful job search, or (2) show 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. If claimant establishes that he fits into the odd-lot category, the burden shifts to Respondent to prove that the claimant is employable in a stable labor market and that such a market exists.

Odd-Lot Permanent Disability Lenhart 2015 IL. App (3d) 2015 – The 3rd District Court of Appeals in Lenhart 2015 IL App (3d) 120743WC provided a concise outline of the prevailing case law establishing elements of odd-lot permanent total disability benefits. The determination of whether a claimant is PTD under section 8(f) is a question of fact for the Commission and should not be overturned unless against the manifest weight of the evidence with the opposite conclusion clearly apparent from the record on appeal. Economy Packing Co. 901 N.E.2d 915, 924 (2008); City of Springfield 901 N.E.2d 1066, 1081 (2009). An employee need not be reduced to complete physical incapacity to be entitled to PTD benefits Ceco Corp. 447 N.E.2d 842, 845 (1983). Instead a PTD award is proper when the employee can make no contribution to industry sufficient to earn a wage. Westin Hotel 865 N.E.2d 342, 357 (2007). “The focus of the Commission’s analysis must be upon the degree to which the claimant’s medical disability impairs his employability.” Alano 668 N.E.2d 21, 24 (1996). A person is not entitled to PTD benefits if he is qualified for and capable of obtaining gainful employment without seriously endangering his health or life. Interlake Inc. 427 N.E.2d 103, 107 (1981). The odd-lot category for purposes of a PTD award arises when “a claimant’s disability is limited in nature so that he is not obviously unemployable, or if there is no medical evidence to support a claim of total disability.” Valley Mould & Iron Co. 419 N.E.2d 1159, 1163 (1981). In these situations the claimant can establish that e is entitled to PTD benefits under the “odd-lot- category y proving the unavailability of employment to persons in his circumstances. Ameritech Services, Inc. 904 N.E.2d 1122, 1133 (2009). “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.” Westin Hotel 865 N.E.2d at 357 (2007). If the claimant establishes that he fits into the odd-lot category, the burden shifts to the employer to prove that the claimant is employable in a stable labor market and that such a market exists. Westin Hotel 865 N.E.2d at 357 (2007). Lenhart – The Appellate Court affirmed Commission’s finding that Petitioner lacked credibility given a perceived exaggeration of his condition evidenced by surveillance video. Petitioner presented medical opinions supporting his claim for PTD but the Commission found these opinions lacked credibility because they were based on the subjective reporting by Petitioner of exaggerated symptoms. Respondent presented, in addition to the video surveillance, medical and vocational opinions that were found credible. In finding this evidence credible the Commission skipped the assessment of what employer had shown as suitable work regularly and continuously available to claimant through their labor market survey and instead went to PPD. The Court finds that this is procedurally improper and remanded to the Commission for determination of wage loss based on the labor market survey.