The Best Way to Find a Job is to Actually Look for One

Aug 13, 2018

 

In an effort to substantiate a claim for permanent total disability or wage differential, a claimant may embark on a self-directed job search, which can result in significant damage to Petitioner’s case.  Self-directed job logs, ledgers and spreadsheets created by a Petitioner should be heavily scrutinized, and can be critical in pointing to a claimant’s diminished credibility.

Under Section 8(d)1 of the Act, a Petitioner qualifies for a wage differential award by proving (1) partial incapacity which prevents him from pursuing his usual and customary line of employment and (2) an impairment of earnings.  Gallianetti v. Industrial Comm’n, 315 Ill. App. 3d 721, 730 (2000).  A Petitioner can qualify for odd-lot permanent total disability benefits 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 v. Industrial Comm’n, 372 Ill. App. 3d 527, 544 (2007).

As discussed by the Gallianetti court in the context of wage differential, a claimant is not required to embark upon a self-directed job search.  The Court stated that there was no affirmative requirement to undergo a job search under Section 8(d)1, and that a Petitioner only needs to demonstrate an impairment of earnings.  If a claimant decides to undergo the job search voluntarily, however, the logs will be subject to scrutiny.

There are no hard-and-fast rules regarding the method of creating job logs. Some petitioner’s attorneys have templates for their clients, outlining information to be included in the logs.  However, a Petitioner’s attorney cannot be expected to oversee a self-directed job search in its entirety, and by the time the logs are completed, both attorneys (assuming the Petitioner is represented) may be equally shocked by the results.

Plainly put, job logs that reflect a sincere motivation to work hold more weight.    The Appellate Court in Knezevich v. Illinois Workers’ Compensation Comm’n, 2017 IL App (3d) 160208WC, affirmed a Commission decision that characterized Petitioner’s job logs as “farcical.”  The Commission stated that it had thoroughly reviewed the logs, consisting of approximately 1200 entries.  The Commission was “troubled by the record” and pointed to the job logs as one of the reasons for determining that Petitioner was not credible.   For example, on September 4, 2010, Petitioner’s logs revealed that he contacted Arby’s, Baskin Robins, Cajun Café, Hot Dawg, Niro Japan, Panda Express, Sbarro, Subway and Taco Bell.  In logs of September 23, 2011, Petitioner applied for the six of the nine same positions at the same locations. There were days that the Petitioner applied to certain retail outlets only, such as floral shops, hotels or restaurants.  Petitioner testified that he found employers in the Yellow pages, and randomly called businesses.

In Knezevich, Petitioner’s vocational expert did not insulate him from the court’s finding that the job logs were invalid.  In fact, the Commission stated that it was “baffled” by the expert’s illusory conclusion that the Petitioner performed a valid job search.  The Court rejected Petitioner’s allegation that he fell into the odd-lot permanent total category.  In making such a conclusion, the Court noted that Petitioner’s complaints were largely subjective.  Since the Court greatly doubted the sincerity of Petitioner’s job search efforts, his subjective statements were “afforded no weight.” In Knezevich, it seems, the insincerity of the job logs had a direct impact on the Court’s credibility determination, which in turn undermined Petitioner’s entire case.

In Laurie Chapman v. Marion High School, (2015 IWCC 0885), Petitioner sought retrospective maintenance benefits at trial, and offered her job logs to support her case.  Petitioner’s vocational expert testified that her job logs were valid, and the Commission denied maintenance benefits after a certain date.  In support of the denial, the Commission noted that the job logs were prepared retrospectively in anticipation of trial, and were not tendered to the Respondent until days prior to trial.  Also, the Petitioner’s job search was limited to the field of education, and the Commission noted that Petitioner needed to show a good faith job search in the entire open labor market, not just the field of education.  Finally, Petitioner’s job search was not regular and consistent.  On the maintenance issue for that particular timeframe, the decision was affirmed, but the case later had a complicated procedural history, and is still pending. (see 17 IWCC 0767)

Practice Tips

Credibility:  There are a wide variety of ways to undermine the credibility of job logs.  Take a look at the consistency of employer contact, and timing of each entry.  Question the validity of the logs by calling the employers listed, and making contact with the individuals identified on the logs.  Note the penmanship, method of contact, and response from the employer.  Consider when you received the logs, and when the logs were tendered to Petitioner’s attorney.  Finally, consider what kinds of jobs the Petitioner is applying for, and whether those jobs are within Petitioner’s restrictions.  All of those factors can have a bearing on Petitioner’s credibility.

Blind Labor Market Survey:  If Petitioner has undergone a self-directed job search, and you suspect that the job logs are invalid or insincere, consider obtaining a vocational expert to weigh in on the validity of the logs.  A vocational expert can provide expertise on whether Petitioner put forth a good faith job search.  To determine the Petitioner’s transferable skills, ask your client for the original employment application, which may shed light on employment history.

Scrutinize the FCE:  What got us here in the first place? If Petitioner is alleging permanent restrictions as a result of a Functional Capacity Evaluation, take a close look at the FCE to determine the test’s reliability and validity.  A well-designed FCE should be case-specific, measuring physical capabilities with job requirements.  The reliability of an FCE will depend on consistency in measurement.  The FCE should include certain components, such as physical examination, physiological measurement and functional performance.    FCE’s can be long, and it may be tempting to jump to the “summary of conclusions” to determine the findings.  It is important to take a very close look at the FCE.  If you suspect that the FCE is compromised in any way, your client may consider getting an independent therapist to weigh in on the conclusions.

As a final reminder, although job logs may make your eyes sore, the information can be critical in undermining a Petitioner’s credibility.  Make sure to take the time to scrutinize job logs (as well as the original FCE) to defend your client against large-exposure cases for permanent total disability and wage differential.

 

The NBKL blog is provided for informational purposes; we are not giving legal advice or creating an attorney/client relationship by providing this information.  Before relying on any legal information of a general nature, you may consider consulting legal counsel as to your particular facts and applications of the law.

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