Permanent Total Disability Benefits

PTD

Mining excavator at sunset

Injured workers who are unable to return to any gainful work after their accident or occupational exposure are entitled permanent total disability (PTD) benefits in Illinois.

Section 8(f) of the Illinois Workers’ Compensation Act provides, in part:

In case of complete disability, which renders the employee wholly and permanently incapable of work, or in the specific case of total and permanent disability as provided in subparagraph 18 of paragraph (e) of this Section, compensation shall be payable at the rate provided in subparagraph 2 of paragraph (b) of this Section for life.

820 ILCS 305/8(f) Illinois General Assembly | IWCC PDF.

Medical Permanent Total Disability

“[A]n employee is totally and permanently disabled for the purpose of workmen’s compensation benefits when he is unable to make some contribution to industry sufficient to justify payment to him of wages.” A.M.T.C. of Illinois v. Industrial Commission, 77 Ill. 2d 482 (1979) Google Scholar.

Statutory Permanent Total Disability

Section 8(e)(18) of the Illinois Workers’ Compensation Act provides:

The specific case of loss of both hands, both arms, or both feet, or both legs, or both eyes, or of any two thereof, or the permanent and complete loss of the use thereof, constitutes total and permanent disability, to be compensated according to the compensation fixed by paragraph (f) of this Section. These specific cases of total and permanent disability do not exclude other cases.

820 ILCS 305/8(e)(18) Illinois General Assembly | IWCC PDF.

Odd-Lot Status

“[T]he employee need not be reduced to total physical incapacity before a permanent total disability award may be granted. Rather, a person is totally disabled when he is incapable of performing services except those for which there is no reasonable stable market.” Ceco Corp. v. Industrial Commission, 95 Ill. 2d 278 (1983) Google Scholar.

“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 prove by a preponderance of the evidence that he fits into the ‘odd-lot’ category-one who, though not altogether incapacitated to work, is so handicapped that he will not be employed regularly in any well-known branch of the labor market.” Westin Hotel v. Industrial Commission, 372 Ill. App. 3d 527 (2007) Google Scholar | Illinois Courts PDF.

“The claimant ordinarily satisfies his burden of proving that he 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 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 Commission, 372 Ill. App. 3d 527 (2007) Google Scholar | Illinois Courts PDF.

“Once the employee has initially established the unavailability of employment to a person in her circumstances, the burden then shifts to the employer to show that suitable work is regularly and continuously available to the employee.” Economy Packing Co. v. Illinois Workers’ Compensation Commission, 387 Ill. App. 3d 283 (2008) Google Scholar.

Calculating PTD Benefits

The permanent total disability benefit rate is typically equal to two thirds (2/3) of the injured worker’s average weekly wage. Section 8(f) of the Act provides:

In case of complete disability, which renders the employee wholly and permanently incapable of work, or in the specific case of total and permanent disability as provided in subparagraph 18 of paragraph (e) of this Section, compensation shall be payable at the rate provided in subparagraph 2 of paragraph (b) of this Section for life.

820 ILCS 305/8(f) Illinois General Assembly | IWCC PDF.

In turn, section 8(b)2 provides:

The compensation rate in all cases other than for temporary total disability under this paragraph (b), and other than for serious and permanent disfigurement under paragraph (c) and other than for permanent partial disability under subparagraph (2) of paragraph (d) or under paragraph (e), of this Section shall be equal to 66 2/3% of the employee’s average weekly wage computed in accordance with the provisions of Section 10, provided that it shall be not less than 66 2/3% of the sum of the Federal minimum wage under the Fair Labor Standards Act, or the Illinois minimum wage under the Minimum Wage Law, whichever is more, multiplied by 40 hours. This percentage rate shall be increased by 10% for each spouse and child, not to exceed 100% of the total minimum wage calculation, nor exceed the employee’s average weekly wage computed in accordance with the provisions of Section 10, whichever is less.

820 ILCS 305/8(b)2 Illinois General Assembly | IWCC PDF.

Accordingly, while most cases will result in a PTD benefit rate of two thirds (2/3) of the average weekly wage, this calculation must be compared with the minimum and maximum rates allowed by the Act.

Luckily, the Illinois Workers’ Compensation Commission publishes a benefit rate page on its website of the minimum and maximum rates. The published rates are listed under “DEATH, PERMANENT TOTAL DISABILITY, OR PERMANENT PARTIAL DISABILITY IF AMPUTATION OF A MEMBER OR ENUCLEATION OF AN EYE” and correspond to the date of accident or occupational exposure.

For example, for accidents occurring between January 15, 2017 and July 14, 2017, the minimum PTD rate is $538.19 per week and the maximum PTD rate is $1,435.17.

Returning or Able to Return to Work after PTD Award

Permanent total disability benefits are generally paid for life. However, section 8(f) of the Illinois Workers’ Compensation Act provides that weekly PTD benefits can be modified if the claimant has returned or is able to return to work:

If any employee who receives an award under this paragraph afterwards returns to work or is able to do so, and earns or is able to earn as much as before the accident, payments under such award shall cease. If such employee returns to work, or is able to do so, and earns or is able to earn part but not as much as before the accident, such award shall be modified so as to conform to an award under paragraph (d) of this Section. If such award is terminated or reduced under the provisions of this paragraph, such employees have the right at any time within 30 months after the date of such termination or reduction to file petition with the Commission for the purpose of determining whether any disability exists as a result of the original accidental injury and the extent thereof.

820 ILCS 305/8(f) Illinois General Assembly | IWCC PDF.

Further reading:

Economy Packing Co. v. Illinois Workers’ Compensation Commission, 387 Ill. App. 3d 283 (2008) (odd-lot PTD benefits available to undocumented alien) Google Scholar.

Bob Red Remodeling, Inc. v. Illinois Workers’ Compensation Commission, 2014 IL App (1st) 130974WC (finding that claimant could properly establish entitlement to PTD benefits under both the medical evidence and the odd-lot theory) Google Scholar | Illinois Courts PDF

Valley Mould & Iron Co. v. Industrial Commission, 84 Ill. 2d 538 (1981) (“[I]f 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.”) Google Scholar.

A.M.T.C. of Illinois v. Industrial Commission, 77 Ill. 2d 482 (1979) (“In arriving at a determination of an award for permanent and total disability, the Commission should consider the extent of the claimant’s injury, the nature of his employment, his age, experience, training and capabilities.”) Google Scholar.

This article does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.