WCLA MCLE 6-21-12
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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
• HB1084: 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 3rd
Reading in Senate.
Appellate Court Cases
• City of Springfield v. IIC, 216 Ill. App. 3d 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.3d 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.3d 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.3d 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.2-10-0763WC (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.5-10-0409WC (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 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
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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 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, 11IWCC1102
• 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
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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?
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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
Commission Rule 7110.10
National Tea
Westin Hotel
VOCATIONAL
EVALUATION
KEY FACTORS IN VOCATIONAL EVALUATION
 Age
 Education
 Work Experience
 Residual Physical Capacity
 Transferable Skills
 Elements of Acquired Disability/Vocational Handicap
Age
 Younger Person (under age 50). SSA generally does
not consider that age will seriously affect ability to
adjust to other work.
 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.
 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
 Was any done or recommended?
 Was the test administrator qualified?
 What was measured? Is it relevant?
 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
 Skill: A specific capability or body of knowledge
developed via training, education or work experience
and which does not exist in the general population.
 Measurable via testing.
 Primary indicator of future earnings
 No transferable skills from unskilled employment
RESIDUAL PHYSICAL CAPACITY
Sedentary Work
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Exerting up to 10 pounds of force occasionally
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Negligible force frequently to lift, carry, push, pull, or
otherwise move objects, including the human body.
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Sedentary work involves sitting most of the time, but
may involve walking or standing for brief periods of time.
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Jobs are sedentary if walking and standing are
required only occasionally and all other sedentary
criteria are met.
Light Duty
 Exerting up to 20 pounds of force occasionally
 10 pounds of force frequently, or a negligible
amount of force constantly to move objects.
 Physical demand requirements are in excess of
those for Sedentary Work.
 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
 Exert 20 to 50 pounds of force occasionally
 10 to 25 pounds of force frequently
 Greater than negligible up to 10 pounds of force
constantly to move objects
FUNCTIONAL CAPACITIES EVALUATION
 FCE protocols are not all created equal
 Do not always assess workday tolerance
 Do not always assess standing/walking limitations
 Do not always contain validity testing
Residual Physical Capacity
Sedentary Work
 10-11% of all titles in Dictionary of Occupational
Titles
 Comprises 23% of work in Chicago metro area
 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
 Limited language skills
 Limited job seeking skills
 Social Security Disability Award
 Pre-existing illness or disability
Vocational Evaluation Outcomes
 Loss of Occupation
 EMPLOYABLE/PLACEABLE or TOTAL DISABILITY
 Wage Loss
 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:
 “Impossible” or non-existent medical release.
 Difficult Labor Markets.
 Unmotivated or Hopeless Attitude.
 Remote Areas.
Reports to Provide:
Evaluation and Transferable Skills Assessment.
Physician contact to obtain Medical Release.
 Training to perform Outbound Survey, Inbound
Telemarketing, Proof Reading and Data entry work.
Other Factors
Provides a video detailing “Sub Sedentary”
Workplace.
Worker must be productive 40 minutes per hour.
Work may be full or part-time.
Relationship with employing entity appears exclusive.
Fifth Grade Reading Level indicated.
Employee is on payroll with wages and benefits from
day one.
If employee performs per standard, they become
regular employees at end of subsidy period.
Facilitate outplacement if job is not a fit/fails.
Catalyst documents decline of offer for litigation
support.
Expense Parameters
Carrier subsidizes wage for 400-750 Hours.
$4450 for vocational interview (as needed), to obtain
release and includes case management.
$375 for orientation, setup, training.
$275 for phone installation.
Catalyst Additionally Charges
$400 for telephone equipment and work materials
Wage subsidy: $8-$12 per hour for duration of subsidy
$195/week for training, supervision, job coaching, problem
resolution
Monthly phone bills/materials $150 per month
USDOL:
Test for Unpaid Internships
 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.
 The internship experience is for the benefit of the
intern.
 The intern does not displace regular employees, but
works under close supervision of existing staff.
 The employer providing training derives no
immediate advantage from the activities of the
intern and on occasion its operations may actually be
impeded.
 The intern is not necessarily entitled to a job at the
conclusion of the internship.
 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
Job interview required.
Candidate is evaluated according to standard procedure.
Accommodation is evaluated for reasonableness and
necessity.
Is reproducible/accessible in general market.
Labor Market Survey
 There is no standard methodology. Empirical?
 Is the methodology defined?
 Does data address worker specific situational
factors?
 How is error accounted for?
 Given ADA, when will an employer say “No”?
Key Questions
 Has proper vocational evaluation been done to assess
employability?
 Has proper testing been done to assess the educational level,
aptitude, interest, temperament, etc. of the injured worker?
 Has the standard of care (burden of proof) been met?
 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