WCLA MCLE 6 21 12 Sham Job Offer

WCLA MCLE 6 -21 -12 Sham Job Offer: Is It or Isn’t It? Thursday June 21, 2012 Guest Speaker: Joseph Belmonte, Vocamotive 12: 00 pm to 1: 00 pm James R. Thompson Center Auditorium, Chicago, IL • 1 Hour General MCLE Credit • • •

Quick Legislative Update • HB 1084: Amends the Workers' Compensation Act. Provides that all arbitrators shall be appointed by the Governor with the advice and consent of the Senate (currently the initial appointments of arbitrators made under P. A. 97 -68 are made by the Governor with the advice and consent of the Senate, with all appointments thereafter being made by the “full Commission. ” Passed both Houses and Sent to Governor 6 -15. • SB 2958: Amends the Department of Central Management Services Law of the Civil Administrative Code of Illinois and the State Finance Act. Provides that the chief procurement officer for the needs of State agencies shall procure one or more private vendors to administer, beginning January 1, 2013, the workers' compensation program with respect to State employees. Passed both Houses and sent to the Governor 6 -6. • HB 2891: Will County Forest Preserve District/Hollywood Casino. Amendment recommended “do adopt” by Executive Committee. Bill on 3 rd Reading in Senate.

Appellate Court Cases • City of Springfield v. IIC, 216 Ill. App. 3 d 1027 (1991): Commission awards PTD because City offered job but would not pay wage-differential and would charge sick days (not bona fide with these conditions); App. Ct. reverses: Commission finding that offer was not bona fide was contrary to the manifest weight of the evidence because conditions were not enforceable; PTD taken away • Smith v. IIC, 308 Ill. App. 3 d 260 (1999): Arbitrator holds that it was “sham” for Respondent to increase wages to avoid 8(d)1; Commission reverses and awards 30% MAW; App. Ct. reverses: “employer raised wages to avoid a WD award; ” 8(d)1 reinstated

Appellate Court Cases • Reliance Elevator v. IIC, 309 Ill. App. 3 d 987 (1999): Appellate Court affirms PTD award; job offer made by Respondent was a “sham”: offered after Arbitration hearing ; not “economically justifiable; ” previous refusals to offer RTW; “Such practice must be strongly discouraged and even condemned. ” • Yellow Freight v. IIC, 351 Ill. App. 3 d 789 (2004): Cir. Ct. reverses Commission award of PPD and remands with instruction to award 8(d)1; App. Ct. affirms 8(d)1: Petitioner takes lower paying security guard job ok’d by Respondent VE; Petitioner not qualified for jobs “offered” by Respondent; no high school diploma; never “actually offered; ” disparaging reference to “this type of tactic”

Appellate Court Cases Rule 23 • Azemi v. IWCC, No. 2 -10 -0763 WC (2011): Arbitrator awards PTD; Commission reverses and awards 75% MAW; App. Ct. affirms: Respondent Menard’s HR guy says we accommodate “any” work restriction; offer “was a legitimate, existing light-duty position available at one of the employer’s facilities, not a sham position created or modified specially” • Nador v. IWCC, No. 5 -10 -0409 WC (2012): Arbitrator originally awards PTD; Commission reverses and orders Petitioner back into voc rehab; Arbitrator later awards 30% MAW; App. Ct. affirms: voc expert testifies that position offered was “legitimate; ” previously held by two others; advertised externally and somebody hired; “timing of a job offer is certainly relevant to the determination of legitimacy”: 19 days(? ) before?

Commission Decisions • Louellen Harrington v. Park Properties, 07 IWCC 1530: “With regard to the issue of total disability, the arbitrator finds that the petitioner has, in fact, been offered a job. The petitioner testified that Catalyst RTW had offered a job as a customer service associate/survey worker. The petitioner testified she had two telephone interviews with officials from that company and that such a job had been offered. She declined to accept it. The respondent's vocational expert testified that the petitioner was placeable in this job and that it did fall within her restrictions. It offered flexible hours, no lifting and the ability to work from home. The hourly rate clearly exceeds what the petitioner earned being a mobile home park manager…. She was offered and declined the job with Catalyst RTW. She did not even attempt to perform this job. She therefore has not proven that she is unable to do it, merely that she decided she did not wish to. ” 65% each hand; 5% arm; 5% foot

Commission Decisions • • • Carl Hill v. General Electric, 09 IWCC 0067 “The Courts have found that a Petitioner may be found disabled if the Respondent offers the injured employee work that is obviously a sham and designed to avoid liability…The Petitioner may be found disabled as if no job offer had been made at all. Reliance Elevator…This Arbitrator finds the All Facilities job was not a legitimate job offer and was outside Petitioner's restrictions as well and will consider this matter as if no job offer has been provided. ” PTD awarded. The Commission strikes the portion of the Arbitrator's Decision regarding a "sham job offer“. . . Instead, the Commission finds, that viewing the evidence in the light most favorable to Respondent, after six months of unsuccessful job search activities, directed by a vocational rehabilitation provider of Respondent's choosing, at best Respondent has showed a sedentary job existed that Petitioner could perform at home and with accommodations, four hours a day. Assuming Petitioner could have done this work, it does not satisfy Respondent's burden of showing a reasonably stable labor market for jobs Petitioner was capable of performing. The Commission concludes Respondent's finding of one sedentary job, on a part-time basis with accommodation, is not sufficient to meet Respondent's burden of proof, in light of Petitioner's previous cooperation with vocational rehabilitation, Petitioner's age, work experience, education, and physical limitations. (Dissent: only worked Catalyst 11 days)

Commission Decisions • Kevin Bunselmeyer v. Menard Correctional Center, 11 IWCC 1102 • Commission: We further find that Petitioner may have declined a valid job offer. Although Petitioner testified that he never received or declined a job offer, the job search logs show that Petitioner received an offer for a sales job from a company called "Direct Marketing Specialists. " Petitioner wrote on the logs, "It was a total commission and a 1099 job with no taxes taken out. It was a nonconsistent and non-legitimate job offer. " A job is not a sham merely because it is classified as an independent contractor position with a commission-based salary. However, we are unable to determine whether this position was appropriate for Petitioner without testimony from Petitioner and supporting evidence from a vocational rehabilitation professional. 50% MAW affirmed.

Commission Decisions • Charles Robinson v. Meridian Express, 12 IWCC 0157 • Arbitrator: It is very obvious that the job offer made to the Petitioner was a sham and was designed to avoid liability under the Act. The offer included duties that may not have even been available, i. e. , cleaning bathrooms or cleaning a yard that did not belong to the Respondent. Furthermore, the job offered was at a rate of compensation far higher than was economically justifiable. It is unreasonable to believe that the testimony regarding the job offer was credible. The job offer also conflicts with the medical reports of Petitioner's treating physician, Dr. Hurley… The Arbitrator finds that Dr. Hurley's report of August 25, 2009 is more credible than Dr. Salehi's recommendation that Petitioner can return to light duty and the testimony of Mr. James lends no credence to the fact that this was a real job offer. …Based on the following, the Arbitrator finds that the job offer made to the Petitioner by the Respondent was a sham offer and that Petitioner is entitled to temporary total disability benefits…” • Commission affirmed

Vocamotive How to Think About Sham Job The Vocational Perspective

Criteria Viable Stable Gainful Well Known Sector of the Economy

Is All Vocational Expertise Equal? • • • Daubert v. Merrell Dow Pharmaceuticals Joiner v. General Electric Kumho v. Carmichael Frye v. United States Federal Rules of Evidence

Vocational Rehabilitation is a Soft Science Data Process Outcome

Case Law and Rules Ø Commission Rule 7110. 10 Ø National Tea Ø Westin Hotel

VOCATIONAL EVALUATION

KEY FACTORS IN VOCATIONAL EVALUATION Ø Age Ø Education Ø Work Experience Ø Residual Physical Capacity Ø Transferable Skills Ø Elements of Acquired Disability/Vocational Handicap

Age Ø Younger Person (under age 50). SSA generally does not consider that age will seriously affect ability to adjust to other work. Ø Closely Approaching Advanced Age (age 50 -54): Age along with severe impairment and limited work experience may seriously affect ability to adjust to other work. Ø Advanced Age (age 55 or older): Age significantly affects ability to adjust to other work.

Education High School Education Considered Limited Education by USDOL.

Unemployment Rate-Less Than High School 2010 --13. 9 -15. 9% 2011 --13. 3 -14. 9% May 2012— 13%

Testing Ø Was any done or recommended? Ø Was the test administrator qualified? Ø What was measured? Is it relevant? Ø What do the results mean?

Language/Ethnicity Unemployment Rate Age 16 and Over Hispanic/Latino 2010 12. 1 - 13. 2% 2011 11. 3 - 12. 0% 2012 - 11% African-American 2010 15. 2% - 16. 7% 2011 15. 0 - 16. 7% 2012 -13. 6%

With Disability 2009 --14. 5% Men = 15. 1% African-American = 22. 1% Hispanic = 19. 0% White = 13. 3% 2012— 14% for Men 16 and Over

Work Experience Specific Vocational Preparation • Unskilled-Semiskilled-Skilled. • Accurate work history is key.

Transferable Skills Ø Skill: A specific capability or body of knowledge developed via training, education or work experience and which does not exist in the general population. Ø Measurable via testing.

Ø Primary indicator of future earnings Ø No transferable skills from unskilled employment

RESIDUAL PHYSICAL CAPACITY

Sedentary Work Ø Exerting up to 10 pounds of force occasionally Ø Negligible force frequently to lift, carry, push, pull, or otherwise move objects, including the human body. Ø Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Ø Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.

Light Duty Ø Exerting up to 20 pounds of force occasionally Ø 10 pounds of force frequently, or a negligible amount of force constantly to move objects. Ø Physical demand requirements are in excess of those for Sedentary Work. Ø Even though the weight lifted may be only negligible amount, a job should be rated Light Work when:

- Requires walking or standing to a significant degree. - Requires sitting most of the time but entails pushing or pulling of arm or leg controls. - Requires working at production rate pace entailing constant pushing or pulling of materials even though the weight of those materials is negligible.

Medium Duty Ø Exert 20 to 50 pounds of force occasionally Ø 10 to 25 pounds of force frequently Ø Greater than negligible up to 10 pounds of force constantly to move objects

FUNCTIONAL CAPACITIES EVALUATION Ø FCE protocols are not all created equal Ø Do not always assess workday tolerance Ø Do not always assess standing/walking limitations Ø Do not always contain validity testing

Residual Physical Capacity Sedentary Work Ø 10 -11% of all titles in Dictionary of Occupational Titles Ø Comprises 23% of work in Chicago metro area Ø 2% or less of sedentary work is unskilled

Complicating Factors Standing, walking, workday tolerance limitations Always Problematic

Elements of Acquired Disability/Vocational Handicap • Limited geographical labor market • Transportation problems • Impairment secondary to pain • Impairment secondary to medication use • Psychological impairment

Ø Limited language skills Ø Limited job seeking skills Ø Social Security Disability Award Ø Pre-existing illness or disability

Vocational Evaluation Outcomes Ø Loss of Occupation Ø EMPLOYABLE/PLACEABLE or TOTAL DISABILITY Ø Wage Loss Ø Rehabilitation Necessary

Possible Indicators for Sham Job 1. Job cannot be determined to exist in any other company in any form accessible to a regular applicant on a standard or modified (reasonably accommodated) basis. 2. Job offers wages clearly inconsistent with wage level for the same job in similar environments. 3. Job offers wages clearly inconsistent with what worker is qualified to earn based upon job duties, level of education, language skills, experience, skill sets.

Possible Indicators for Sham Job 5. 6. Job is full-time hours but does not offer sufficient duty responsibilities (i. e. make work or nonessential functions) associated with the work as it generally exists in the economy. The experience or training the worker will receive will not qualify them to be otherwise employable with any other entity on a current/future basis.

7. The worker is not evaluated for performance or subject to any salary increase based upon performance, cost of living, union contract, or other objective criteria as may apply to other workers in the organization. 8. Comprehensive vocational evaluation strongly indicative of total disability. 9. Comprehensive vocational rehabilitation has otherwise failed.

Catalyst RTW 2006 A privately owned organization which facilitates the placement of seriously injured individuals with insurmountable return to work barriers into specialized employment with a single employer

Literature Reports: Ø “Impossible” or non-existent medical release. Ø Difficult Labor Markets. Ø Unmotivated or Hopeless Attitude. Ø Remote Areas.

Reports to Provide: ØEvaluation and Transferable Skills Assessment. ØPhysician contact to obtain Medical Release. Ø Training to perform Outbound Survey, Inbound Telemarketing, Proof Reading and Data entry work.

Other Factors ØProvides a video detailing “Sub Sedentary” Workplace. ØWorker must be productive 40 minutes per hour. ØWork may be full or part-time. ØRelationship with employing entity appears exclusive. ØFifth Grade Reading Level indicated.

ØEmployee is on payroll with wages and benefits from day one. ØIf employee performs per standard, they become regular employees at end of subsidy period. ØFacilitate outplacement if job is not a fit/fails. ØCatalyst documents decline of offer for litigation support.

Expense Parameters ØCarrier subsidizes wage for 400 -750 Hours. Ø$4450 for vocational interview (as needed), to obtain release and includes case management. Ø$375 for orientation, setup, training. Ø$275 for phone installation.

Catalyst Additionally Charges Ø$400 for telephone equipment and work materials ØWage subsidy: $8 -$12 per hour for duration of subsidy Ø$195/week for training, supervision, job coaching, problem resolution ØMonthly phone bills/materials $150 per month

USDOL: Test for Unpaid Internships Ø Internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment. Ø The internship experience is for the benefit of the intern.

Ø The intern does not displace regular employees, but works under close supervision of existing staff. Ø The employer providing training derives no immediate advantage from the activities of the intern and on occasion its operations may actually be impeded.

Ø The intern is not necessarily entitled to a job at the conclusion of the internship. Ø The employer and intern understand that the intern is not entitled to wages for the time spent in the internship. GOAL: Retool the Worker

Creating Accommodation ØJob interview required. ØCandidate is evaluated according to standard procedure. ØAccommodation is evaluated for reasonableness and necessity. ØIs reproducible/accessible in general market.

Labor Market Survey Ø There is no standard methodology. Empirical? Ø Is the methodology defined? Ø Does data address worker specific situational factors? Ø How is error accounted for? Ø Given ADA, when will an employer say “No”?

Key Questions Ø Has proper vocational evaluation been done to assess employability? Ø Has proper testing been done to assess the educational level, aptitude, interest, temperament, etc. of the injured worker? Ø Has the standard of care (burden of proof) been met? Ø Is evaluation consistent with guidelines of National Tea?

1. Is exposure for Total Disability evident? 2. Is the job the ONLY JOB which will mitigate wage loss exposure? 3. If TOTAL DISABILITY is evident: Is the Catalyst job (or other job) the ONLY JOB available? WHAT DOES THE PICTURE SHOW?

VOCATIO What is your calling? MOTUM Who do you serve?

Vocatio/Motum Vocamotive