# Alano v. Industrial Commission

> Appellate Court of Illinois · June 7, 1996 · 282 Ill. App. 3d 531

URL: https://www.frixlaw.com/law-library/cases/9526581

## Case

- **Full name:** JACK ALANO, Appellant, v. THE INDUSTRIAL COMMISSION Et Al. (The County of Cook, Appellee)
- **Court:** Appellate Court of Illinois
- **Decided:** June 7, 1996
- **Citations:** 282 Ill. App. 3d 531; 217 Ill. Dec. 836; 668 N.E.2d 21
- **Precedential status:** Published
- **Opinion:** Concurrence by Colwell
- **Judges:** Holdridge, Colwell, Rarick
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

JUSTICE COLWELL, specially concurring:
Although I agree with the majority’s holding, I write separately to address factors which I believe are essential to our analysis.
A claimant is entitled to permanent total disability (PTD) benefits if he is obviously unemployable. See Schoon v. Industrial Comm’n, 259 Ill. App. 3d 587, 590 (1994). Whether a claimant is obviously unemployable is a factual determination to be made by the Commission, and that determination will not be set aside unless it is against the manifest weight of the evidence. Peabody Coal Co. v. Industrial Comm’n, 259 Ill. App. 3d 356, 358 (1994).
If the claimant’s disability is limited in nature so that he is not "obviously unemployable,” the claimant can prove he is entitled to PTD benefits by presenting medical evidence, which the Commission finds credible, that he is permanently and totally disabled. See Rowe Construction Co. v. Industrial Comm’n, 128 Ill. App. 3d 365, 370 (1984). The employer, of course, might submit conflicting medical evidence that claimant is not permanently and totally disabled. If this occurs, which it did in the present case, it is for the Commission to determine which medical opinion is more worthy of belief, and that determination will not be set aside unless it is against the manifest weight of the evidence. Rowe, 128 Ill. App. 3d at 370 .
The claimant argues that merely proffering medical evidence of permanency, whether credible or not, shifts the burden to the employer. If we were to accept the claimant’s argument, the longstanding principle that "it is for the Commission to choose between conflicting medical evidence” would simply be words without substance. Furthermore, accepting the claimant’s argument would eliminate black letter law that "the claimant has the burden of proving the permanence of his injury by a preponderance of the evidence” because, under the claimant’s argument, a claimant could be awarded PTD benefits even though the Commission does not find claimant’s medical evidence credible.
The dissent filed herein posits that the majority’s holding effectively eliminates the "odd-lot” category of PTD. I disagree with the dissent. Odd-lot only comes into play when the claimant’s disability is limited in nature so that he is not obviously unemployable and when there is no medical evidence to support a claim of PTD. See Valley Mould, 84 Ill. 2d at 546-47. If those two conditions are present, as in the present case, the claimant has the burden of proving 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). Old Ben Coal Co. v. Industrial Comm’n, 261 Ill. App. 3d 812, 814 (1994). The claimant can meet his burden that he falls into the odd-lot category by 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. See Meadows v. Industrial Comm’n, 262 Ill. App. 3d 650, 653-54 (1994). Whether a claimant falls into the odd-lot category is a factual determination to be made by the Commission, and that determination will not be set aside unless it is against the manifest weight of the evidence. City of Green Rock v. Industrial Comm’n, 255 Ill. App. 3d 895, 902 (1993).
If a claimant meets his burden that he falls into the odd-lot category, the burden of proof shifts to the employer to produce evidence that some type of regular and continuous employment is available to the claimant. E.R. Moore Co. v. Industrial Comm’n, 71 Ill. 2d 353, 362 (1978). Once again, the determination of whether the employer met his burden is a factual determination that the Commission makes, and that determination will not be set aside unless it is against the manifest weight of the evidence. City of Green Rock, 255 Ill. App. 3d at 902 .
The odd-lot category of PTD is not eliminated by the majority’s opinion. In the present case, the Commission specifically found that the claimant failed to prove that he fell into the odd-lot category. The fact that claimant failed to prove that he fell into the odd-lot category in this case does not mean that the odd-lot category of PTD is eliminated. Odd-lot was available to the claimant. The Commission simply did not believe that the claimant proved, by a preponderance of the evidence, that he fell into the odd-lot category.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9526581. Public record. Not legal advice.