Key Strategies Employers Can Use to Defend Permanent Total Disability Claims

March 2026

Ashley L. Krenz

The Appellate Court recently issued a decision in the case of Standard Forwarding v. Illinois Workers’ Compensation Comm’n, 2026 IL App (5th) 250192WC-U. While this case is a Rule 23 finding, meaning that it does not create precedent for future cases, the outcome of the case provides important lessons that employers should consider in their defenses.

On September 25, 2019, the petitioner was working as a linehaul driver, when he tripped on a wheel chock and fell forward, hitting his head against a metal support going into the dock and catching his left arm while supporting himself with his right hand. The petitioner underwent a left rotator cuff repair, subacromial decompression, and removal of loose anchors followed by physical therapy. The petitioner was not improving with this treatment, and his treating provider opined that the petitioner was not a surgical candidate given his age. The petitioner was ordered to undergo a Functional Capacity Evaluation (FCE) at which he was found to be able to work at a medium physical demand level from waist and below. However, for above shoulder height, the petitioner was found to be able to work only at a sedentary level. As such, the petitioner could not reach his required job demands and was provided with permanent work restrictions.

Given his permanent restrictions, the petitioner began vocational rehabilitation on April 26, 2021, with a vocational counselor selected by the petitioner. The petitioner then underwent a transferable skills analysis and was provided with various positions that would be appropriate. The petitioner alleged that he applied for 1,511 jobs from May 25, 2021, through March 1, 2023. The petitioner had multiple interviews but received no job offers. This was noted to likely be due to a prior felony conviction as well as his age and employment gap. The respondent argued that the petitioner could find employment at a fast-food restaurant or retail store. However, it was noted that the job requirements for these jobs would exceed the petitioner’s permanent work restrictions. Based on the petitioner’s extensive attempt to apply for jobs without success, the vocational rehabilitation expert concluded that a viable and stable labor market did not exist for the petitioner.

The Arbitrator found the petitioner to be permanently and totally disabled and ordered respondent to pay permanent and total disability benefits weekly for the remainder of the petitioner’s life. The respondent appealed the decision, and it was affirmed and adopted by the Commission. The respondent again appealed, and the decision was again affirmed and adopted by the Appellate Court of Illinois Fifth District. The Court stated that the respondent’s assertion that the petitioner was able to work a fast-food or retail job was purely speculation as no actual job opportunities were provided. The Court further stated, “By failing to cite case law or legal authority for its propositions, employer has forfeited its various disjointed arguments.” This ultimately led to the Court finding in the petitioner’s favor.

What lessons can we take away from this case? Below, we discuss three key lessons and potential strategies to strengthen the defense.

Pursuant to Section 12 of the Illinois Workers’ Compensation Act, the respondent has the right to schedule the petitioner “for examination to a duly qualified medical practitioner or surgeon selected by the employer,” or also known as an Independent Medical Evaluation (IME). The IME expert can address issues including causation, need for medical treatment and work restrictions, and status of maximum medical improvement. In the case discussed above, a way to strengthen the defense would be to obtain an IME. While there is no promise that the IME expert will opine in the respondent’s favor, there is always the possibility that the IME expert’s opinions will differ from those of the treating provider. If the respondent in the above case had obtained an IME that found the petitioner’s permanent restrictions were not related to the alleged work injury, or opined to less stringent permanent restrictions, which in turn, would have allowed for greater readily available and stable labor market for the petitioner, this could have potentially provided a legal basis for the Courts to find that the petitioner was not permanently and totally disabled as a result of the alleged work accident.

Another strategy to strengthen the defense position is to obtain an Independent FCE Review. A physical therapist who has expertise in performing FCEs, will review the petitioner’s medical records and FCE Report. They evaluate key factors such as the petitioner’s effort at the time of FCE, whether an accurate job description was provided, and whether the proper tests were completed. Again, while not guaranteed, the Independent FCE Review may find that the FCE performed was invalid, and/or that the petitioner is capable of performing at a higher physical demand level, therefore, further strengthening the defense.

The final lesson is for employers to identify when there is a need to retain their own vocational rehabilitation experts. Throughout the case above, it was continuously noted that the petitioner retained a vocational rehabilitation expert. However, the respondent did not retain their own expert and simply made an assertion as to the petitioner’s ability to find a job based on speculation. A vocational rehabilitation expert is able to provide proof of a viable and stable labor market for the petitioner. If one exists, this creates a concrete defense based on data rather than speculation, further strengthening the respondent’s position. Furthermore, if the employer retains their own vocational rehabilitation expert with an alternative vocational rehabilitation plan, Section 8(a) of the Illinois Workers’ Compensation Act provides that “the employee or employer may petition to the Commission to decide disputes relating to vocational rehabilitation and the Commission shall resolve any such dispute, including payment of the vocational rehabilitation program by the employer.”

While not every case requires implementing these three strategies, employers should view them as tools for challenging a petitioner’s medical, functional, and vocational claims. Proactively obtaining an IME, securing an FCE Review, and engaging a vocational rehabilitation expert when appropriate can significantly strengthen the respondent’s position at trial. By grounding defense in credible expert testimony, rather than speculation, employers increase their ability to present a persuasive and legally sound argument, ultimately improving the likelihood of a successful outcome.