Could Golfing Ironworker get PPD Benefits Despite Narrow Job Search?

What Do You Think?

Chicago, IL (WorkersCompensation.com) -- The “odd-lot” theory allows claimants to obtain permanent total disability benefits where they cannot find work, despite diligently searching. But what if the employee, while not working, gained new skills or a new college degree? Is he still being diligent if he looks only for higher paying jobs commensurate with his new resume?

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A case involving an ironworker who injured his shoulder at work in January 2008 addresses that question. By April 2010, the claimant underwent a functional capacity evaluation which released him to work at heavy physical demand level. By that time, the claimant had obtained a bachelor’s degree in finance, maintaining a 3.99 GPA. He had also been golfing daily and was maintaining a 12-14 handicap.

He did look for a job. But, given his new degree, he applied only for executive jobs earning between $80,000 to $100,000. The claimant also did not apply for jobs requiring physical labor. 

The claimant's vocational rehabilitation counselor advised the claimant to lower his salary expectations to the $50,000 to $60,000 salary range to increase the number of possible job opportunities. The counselor thought this a reasonable approach given that the claimant had neither an MBA nor recent business experience.

The Workers’ Compensation Commission Denied his claim for permanent total disability benefits under the odd-lot theory. The employee sued, claiming that the Commission erred.

The court explained that an employee is not entitled to PTD benefits if he is qualified for and capable of obtaining gainful employment without seriously endangering his health or life. 

The employee can establish, however, that he cannot work, by showing that he falls under the odd-lot category for purposes of PTD. The employee can do so in one of two ways:

Did the claimant fall into the odd-lot category?

A. No. He made his search too narrow.

B. Yes. Given his new degree, it made sense for him to look for a higher paying job.

If you selected A, you agreed with the court in Blankshain v. Illinois Workers’ Compensation Commission, No. 1-23-0526WC (Ill. App. Ct. 05/24/24), which held that because the claimant failed to establish he fell into the odd-lot category, he was not entitled to PTD benefits.

The court agreed with the Commission’s finding that the claimant's job search was not diligent due to how he limited his own search. Most significantly, he only applied for jobs earning between $80,000 and $100,000, despite the vocational rehabilitation consultant’s recommendation to lower his salary expectations.

The court noted that the claimant also placed limitations on his job search by not applying for any jobs requiring physical labor. This was despite the fact that the functional capacity evaluation released him back to work at a heavy duty level.

“The claimant's decision to disregard the recommendations of the vocational counselors and to eliminate multiple categories of potential jobs was an inappropriate limitation which effectively made his self-directed job search meaningless, and, therefore, not diligent,” the court wrote.

The court also rejected the argument that he fell into the odd-lot category because, due to his age, skill, training, and work history, he would not be regularly employed in a well-known branch of the labor market.

“As it was clear to the Commission, it is clear to us, the claimant is capable of obtaining gainful employment and contributing to industry sufficient to earn a wage,” the court wrote.

The court affirmed the Commission’s decision.

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