Courier v. Industrial Commission

JUSTICE RARICK, concurring in part and dissenting in part:

I concur with the majority’s conclusion that Whitis did not exceed her choice of medical providers under section 8(a) of the Act. However, I disagree with the majority’s "odd-lot” analysis. The case most often cited in "odd-lot” cases is Valley Mould. In addressing the "odd-lot” analysis, the court stated:

"Under A.M.T.C., if the 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, the burden is upon the claimant to establish the unavailability of employment to a person in his circumstances. However, once the employee has initially established that he falls in what has been termed the 'odd-lot’ category (one who, though not altogether incapacitated for work, is so handicapped that he will not be employed regularly in any well-known branch of the labor market (2 A. Larson, Workmen’s Compensation sec. 57.51, at 10 — 164.24 (1980)), then the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the claimant (2 A. Larson, Workmen’s Compensation sec. 57.61, at 10 — 164.97 (1980)).

In the case at bar, none of the medical experts testifying were of the opinion that claimant was permanently and totally disabled. They all agreed that he could return to some form of light physical work. The objective findings in the record indicate that he had a full range of motion in his right arm and leg despite the injury, although he had lost 'some control and strength’ in those limbs. Under these circumstances, the claimant could not be considered obviously unemployable. Since he had not made out a prima facie case that he fell into the odd-lot category, the burden remained upon him to show his inability to return to gainful employment. It was incumbent upon him to show that, considering his present condition, in light of his age, experience, training, and education, he is permanently and totally disabled within the definition stated in Moore set out above. This burden may be met by a showing of diligent but unsuccessful attempts to find work (A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, 490 [, 397 N.E.2d 804 ]), or by proof that because of the above-mentioned qualities he is unfit to perform any but the most menial tasks for which no stable market exists.” (Emphasis added.) Valley Mould, 84 Ill. 2d at 546-47, 419 N.E.2d at 1163.

Determining whether a claimant fits into the "odd-lot” category involves a two-step analysis. First, we look to see whether his disability is so great that he is obviously unemployable or whether there is any medical evidence that he is permanently and totally disabled. If either of these conditions is met, claimant need not show the unavailability of employment to one in his circumstances. The employer, of course, may offer evidence to rebut claimant’s prima facie case of total and permanent disability. If, on the other hand, the claimant is not obviously unemployable or if there is no medical evidence to support a claim that he is permanently and totally disabled, then claimant may be awarded permanent and total disability benefits if he shows that he fits into the "odd-lot” category. This triggers the second part of the analysis. Having failed to present a case for permanent and total disability based upon medical evidence supporting such a claim or by demonstrating that he is clearly unemployable, did claimant nevertheless show that he fit into the odd-lot category? An odd-lot claimant is one who is not altogether incapacitated for work but is so handicapped that he cannot be employed in any well-known branch of the labor market. Valley Mould, 84 Ill. 2d at 547, 419 N.E.2d at 1163. A prima facie case for odd-lot status may be established in one of two ways: (1) by showing diligent but unsuccessful attempts to find work or (2) by showing that because of his condition, age, training, education, and experience he is unfit to perform any but the most menial tasks for which no stable market exists. See Interlake, Inc. v. Industrial Comm’n, 86 Ill. 2d 168 , 178, 427 N.E.2d 103, 108 (1981). If the claimant shows he falls into the odd-lot category, then the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available. Valley Mould, 84 Ill. 2d at 547, 419 N.E.2d at 1163.

Jack Strader, a certified rehabilitation consultant, testified that, based upon his evaluation and the reports of Dr. Marrese, Whitis was not employable in any occupation. Based upon this, I would conclude that claimant presented a prima facie case for odd-lot status by introducing sufficient evidence to demonstrate that because of her age, training, skills, and work history she is unfit to perform any but the most menial tasks for which no stable market exists. As such, it was incumbent upon the employer to present evidence to show that some kind of suitable work was regularly and continuously available. The employer’s evidence of regularly and continuously available work consists of the 1989 and 1993 evaluations by CRA and the opinion of Dr. Randolph. With respect to the 1989 CRA report, it is of little relevance to claimant’s employability in 1993. There is no evidence that the labor market survey performed in 1989 was applicable when claimant was released by Dr. Marrese in 1993 or that the jobs listed in the survey were within Whitis’s physical restrictions. Indeed, in 1989, claimant was still under medical care, and her permanent restrictions were unknown. With respect to CRA’s 1993 report, I note that although the rehabilitation specialist concluded that there were 16 types of jobs claimant could perform, no labor market survey was performed to verify that such jobs were actually available. For the employer to meet its burden, it is not enough to show that claimant could work, but instead the employer must show that there are in fact jobs available which she could perform. I believe Lanter Courier failed to meet its burden. Accordingly, the circuit court correctly found that the Commission erred in failing to award claimant permanent and total disability benefits.

I also cannot agree with the contention of the majority that a claimant must make more than a prima facie case in order to shift the burden to the employer. In my view, the analysis employed by the court in Valley Mould clearly demonstrates that it used the terms "initially established” and prima facie synonymously.