Surveillance Video Sinks Ohio Claimant’s Odd-Lot Claim

Surveillance video spanning a period of almost three years that showed that the claimant, a former dockworker and truck driver, engaged in numerous physical activities, including riding a motorcycle, attending football games, yard work, and some lifting and bending activities supported the Commission’s findings that the worker was not permanently and totally disabled under an odd-lot theory, held an Illinois appellate court [Lenhart v. Illinois Workers’ Comp. Comm’n, 2015 IL App (3d) 130743WC, 2015 Ill. App. LEXIS 188 (Mar. 20, 2015)]. Noting that one doctor, after viewing the video, concluded that the claimant could return to work with a 25-pound lifting restriction, the court found that although the claimant was entitled to a wage differential award—he suffered a partial incapacity that prevented him from pursuing his usual and customary line of employment—he could not recover PTD indemnity.

Odd-Lot Theory

Illinois, like a number of other jurisdictions, does not require an employee to show that he or she has been reduced to complete physical incapacity to be entitled to PTD benefits. In Illinois, a claimant ordinarily satisfies the burden of proving that he or she falls into the odd-lot category in one of two ways:

1. by showing diligent but unsuccessful attempts to find work, or
2. by showing that because of the claimant’s age, skills, training, and work history, he or she will not be regularly employed in a well-known branch of the labor market. [see Westin Hotel v. Industrial Comm’n, 372 Ill. App. 3d 527, 865 N.E.2d 342, 310 Ill. Dec. 18 (2007)].

If the claimant establishes that he or she fits into the odd-lot category, the burden shifts to the employer to prove that the claimant is employable in a stable labor market and that such a market exists.

In the instant case, the court indicated that it and the Commission had viewed the surveillance videos. The Commission had made detailed findings based on the contents of the video footage. The court concluded that the videos supported the Commission’s findings. Moreover, the Commission had compared the claimant’s self-reported limitations with the activities depicted in the surveillance videos and had concluded that the claimant’s activities shown in the videos were not “the activities of a man who is unable to stand or sit without great pain.” The court added that the Commission found that the claimant significantly exaggerated his reporting of the extent of his injury and that he was not credible. Since the assessment of the claimant’s credibility and the weight to be given to his testimony was solely within the province of the Commission, the court affirmed the Commission’s decision.