The opinion
JUSTICE RARICK, dissenting:
I respectfully dissent.
The majority appears to hold that it is not enough for a claimant to merely proffer some medical evidence of permanent and total disability in order to shift the burden to the employer, but that the Commission must actually make a factual finding of permanent and total disability based upon such evidence. The majority’s holding ignores the analytical framework set forth by our supreme court in Valley Mould & Iron Co. v. Industrial Comm’n 84 Ill. 2d 538 , 419 N.E.2d 1159 (1981), and, in my opinion, effectively eliminates the "odd-lot” category.
Our supreme court had defined permanent and total disability as follows:
"[A] person is totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists. [Citations.] Conversely, if an employee is qualified for and capable of obtaining gainful employment without seriously endangering health or life, such employee is not permanently and totally disabled. [Citations.]” E.R. Moore Co. v. Industrial Comm’n, 71 Ill. 2d 353, 361-62 , 376 N.E.2d 206, 210 (1978).
Under Aero Mayflower Transit Company of Illinois if an employee’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 on the employee to establish the unavailability of employment to a person in his circumstances. If, on the other hand, the employee can establish a prima facie case that although not totally incapacitated for work, he is so handicapped that he will not be employed regularly in any well-known branch of the labor market, he falls into what is termed the "odd-lot” category, and the burden remains on him to establish the unavailability of employment to a person in his circumstances. He may do this in one of two ways: (1) by showing diligent but unsuccessful attempts to find work, or (2) by showing that because of his condition, age, education, training, and experience, he is unfit to perform any but the most menial tasks for which no stable market exists. Valley Mould & Iron Co. v. Industrial Comm’n, 84 Ill. 2d 538 , 419 N.E.2d 1159 (1981), citing A.M.T.C. of Illinois, Inc., Aero Mayflower Transit Co. v. Industrial Comm’n, 77 Ill. 2d 482 , 397 N.E.2d 804 (1979); Sterling Steel Casting Co. v. Industrial Comm’n, 74 Ill. 2d 273 , 384 N.E.2d 1326 (1979); E.R. Moore Co. v. Industrial Comm’n, 71 Ill. 2d 353 , 376 N.E.2d 206 (1978); Interlake Steel Corp. v. Industrial Comm’n, 60 Ill. 2d 255 , 326 N.E.2d 744 (1975). A prima facie case is one in which a party has brought forth sufficient evidence such that a finding in that party’s favor could be supported if contrary evidence were ignored. See Shelter Mutual Insurance Co. v. Bailey, 160 Ill. App. 3d 146 , 513 N.E.2d 490 (1987). Black’s Law Dictionary 1353 (4th ed. 1968).
As Valley Mould makes clear, a claimant need only make out a prima facie case that he falls into the "odd-lot” category in order to shift the burden of proof to the employer. The majority’s position, however, is that the medical evidence must prove permanent and total disability in order to shift the burden. But if the medical evidence is such that it proves a claimant to be totally and permanently disabled, then there would be no need to apply the "odd-lot” analysis to determine whether the claimant is permanently and totally disabled because the medical evidence has already proven this.
I would hold that the opinions of Dr. Chmell and Dr. Hejna coupled with claimant’s testimony were sufficient to shift to the employer the burden of demonstrating that some kind of suitable work was regularly and continuously available. For these reasons, I dissent.