The opinion
JUSTICE RARICK, specially concurring in part and dissenting in part:
While I agree with the majority’s conclusion with respect to the validity of the Commission’s decision, I must disagree with its conclusion as to permanent and total disability. The majority relies on the “odd-lot” analysis set forth in Lanter Courier v. Industrial Comm’n, 282 Ill. App. 3d 1 , 668 N.E.2d 28 (1996). As I noted in my dissent in that case, I believe the “odd-lot” analysis therein is an inaccurate interpretation of the analytical framework set forth in Valley Mould & Iron Co. v. Industrial Comm’n, 84 Ill. 2d 538 , 419 N.E.2d 1159 (1981).
In the present case, there is no medical evidence that Alexander is permanently and totally disabled. Thus, the burden remained upon him to demonstrate that he fell into the “odd-lot” category. See Valley Mould, 84 Ill. 2d at 546-47 , 419 N.E.2d at 1163 . Aprima facie case of “odd-lot” status can be shown by a diligent but unsuccessful job search or if, because of his condition, age, training, education, and experience, he was unfit for any but the most menial tasks for which no stable market exists. See Valley Mould, 84 Ill. 2d at 547-48 , 419 N.E.2d at 1163 .
As Commissioner Tanser noted in his dissent, the arbitrator’s findings, which were adopted by the Commission, demonstrate that Alexander established a prima facie case that he fell into the “odd-lot” category based not only upon a diligent job search, but also because his age, education, training and experience left him unfit for any but the most menial tasks. The burden then shifted to the employer to show the availability of suitable employment. The only evidence introduced by the employer to rebut Alexander’s prima facie case, however, was the availability of work at Racine Electric. The testimony of Jesse Smith, Racine’s owner, demonstrates that this job was not within Dr. Redondo’s restrictions. In my view, this was wholly insufficient to rebut Alexander’s prima facie case.
As the majority notes, the Commission’s findings of fact are to be accorded great deference by a reviewing court. Complete deference is not required, however, and it is our duty to reverse a factual determination that is contrary to the manifest weight of the evidence. See Montgomery Elevator Co. v. Industrial Comm’n, 244 Ill. App. 3d 563 , 613 N.E.2d 822 (1993). Reviewing the record, I believe that the Commission’s determination that Alexander’s job search was not diligent is contrary to the manifest weight of the evidence.
The arbitrator gave four reasons for finding Alexander’s job search to be inadequate. The first was that Alexander failed to comply with Ellis & Associates’ required number of job contacts per day. Ellis & Associates required 12 to 15 job contacts per day. The record reveals that Alexander contacted “only” seven to eight potential employers per day. Rather than making her own determination of whether this constituted a diligent effort, the arbitrator simply deferred to Ellis & Associates’ arbitrary requirements. In essence, the arbitrator simply allowed the employer’s vocational expert to determine what was diligent and, in so doing, abrogated her responsibility. Moreover, I do not believe that any rational finder of fact could say that Alexander’s job search was inadequate.
Other reasons given by the arbitrator for finding the job search inadequate are that “some” of the job contacts were for jobs for which Alexander was not qualified, that Ellis & Associates was unable to verify “some” of the contacts listed in his job search log, and that after vocational rehabilitation services were terminated, Alexander recontacted some of the employers he had contacted earlier. None of these can be reasonably said to demonstrate that Alexander’s job search was inadequate. I find it inconceivable that any rational trier of fact could find that a job search consisting of over 430 contacts over a three-month period was not diligent.
Even in the absence of any job search, there is sufficient evidence that because of his age, training, education, and experience, Alexander was unfit for any but the most menial tasks for which no stable market exists. According to the record, Alexander was a 47-year-old cement finisher with an eighth-grade education. His entire employment history is one of unskilled manual labor. He sustained a serious work-related injury which, according to the medical evidence, left him able to do only sedentary work. His job search efforts notwithstanding, this evidence was sufficient to establish a prima facie case of “odd-lot” status and, again, the employer failed to adequately rebut Alexander’s prima facie case.
In any event, I believe the overwhelming weight of the evidence demonstrates that not only did Alexander make his prima facie case of “odd-lot” status, which was unrebutted by the employer, he demonstrated by a preponderance of the evidence that he fell into the “odd-lot” category and was permanently and totally disabled.
For these reasons, I concur in part and dissent in part.