The opinion
JUSTICE RARICK dissenting:
The majority concludes that the Commission’s determination that the medical evidence supported an award of permanent and total disability is against the manifest weight of the evidence. Because I disagree with this conclusion, I must respectfully dissent.
In claims arising under the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1989, ch. 48, par. 172.36 et seq.):
"It is the function of the Commission to resolve disputed questions of fact, including those of causal connection, to decide which of conflicting medical views is to be accepted and to draw permissible inferences. [Citation.] In the presence of conflicting medical opinion, the Commission’s determination is given substantial deference and will be upheld unless it is contrary to the manifest weight of the evidence. [Citation.] The Commission is the judge of the credibility of witnesses. [Citation.] It is the peculiar province of the Commission not only to determine the credibility of witnesses but also to weigh the testimony and to determine the weight to be given to the evidence. [Citations.] A reviewing court should neither overturn the Commission’s findings simply because a different inference could be drawn nor otherwise substitute its judgment for that of the Commission.” (Old Ben Coal Co. v. Industrial Comm’n (1991), 217 Ill. App. 3d 70, 83-84 , 576 N.E.2d 890, 899 .)
The manifest weight of the evidence is
"that which is the clearly evident, plain and indisputable weight of the evidence. In order for a finding to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent.” Caterpillar, Inc. v. Industrial Comm’n (1992), 228 Ill. App. 3d 288, 291 , 591 N.E.2d 894, 896 .
Stated differently, a decision is contrary to the manifest weight of the evidence only when, after viewing the evidence in a light most favorable to the agency, the court determines that no rational trier of fact could have agreed with the agency’s decision. Beeler v. Industrial Comm’n (1989), 179 Ill. App. 3d 463, 467 , 534 N.E.2d 408, 411 , citing Board of Trustees of Southern Illinois University v. Knight (1987), 163 Ill. App. 3d 289, 291 , 516 N.E.2d 991, 993 .
The Industrial Commission exercises original, rather than appellate, jurisdiction and is not bound by the arbitrator’s findings. (Paganelis v. Industrial Comm’n (1989), 132 Ill. 2d 468, 483 , 548 N.E.2d 1033 , citing Berry v. Industrial Comm’n (1984), 99 Ill. 2d 401, 405 , 459 N.E.2d 963 ; Presson v. Industrial Comm’n (1990), 200 Ill. App. 3d 876 , 558 N.E.2d 127 .) In this case, the Commission made no specific factual findings; rather, it adopted the findings of the arbitrator but attached a different legal significance thereto. The factual findings of the arbitrator and the evidence before the arbitrator must be examined to determine if such evidence and findings support the decision of the Commission. Nevertheless, it is the Commission’s decision which must be focused upon, and if that decision is not against the manifest weight of the evidence, it will be upheld regardless of whether a contrary decision by the arbitrator finds support in the record. Wagner Castings Co. v. Industrial Comm’n (1993), 241 Ill. App. 3d 584 , 609 N.E.2d 397 .
The arbitrator found that the testimony of Dr. Kahn and Dr. Sanjabi clearly demonstrated that Bial had developed pneumoconiosis as a result of his occupational exposure to coal dust and that their findings and conclusions outweighed the contrary conclusions of Dr. Selby. The arbitrator further found that Bial’s condition of ill-being arose out of and in the course of his employment with Old Ben.
With respect to the nature and extent of Bial’s condition, the arbitrator noted Bial’s uncontradicted testimony that he ceased working because his shortness of breath left him unable to adequately perform his required job duties. The arbitrator found Bial to be a candid and credible witness. Finally, the arbitrator found that the preponderance of the medical evidence established that Bial could not suffer further exposure to coal dust without endangering his health and that he was therefore disabled within the meaning of the Act. The arbitrator concluded that Bial was partially disabled to the extent of 15% of the man as a whole. The Commission, however, found that based upon such evidence, Bial was permanently and totally disabled.
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 totally and permanently disabled.” (E.R. Moore Co. v. Industrial Comm’n (1978), 71 Ill. 2d 353, 361-62 , 376 N.E.2d 206, 210 .)
Under A.M.T.C. of Illinois, Inc., Aero Mayflower Transit Co. v. Industrial Comm’n (1979), 77 Ill. 2d 482 , 397 N.E.2d 804 , 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 shifts to the employer to show that some kind of suitable work is regularly and continuously available. If the employee cannot make a prima facie case that he falls into the "odd-lot” category, then 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 (1981), 84 Ill. 2d 538, 547 , 419 N.E.2d 1159 , citing Sterling Steel Casting Co. v. Industrial Comm’n (1979), 74 Ill. 2d 273, 278 , 384 N.E.2d 1326 ; E.R. Moore Co. v. Industrial Comm’n (1978), 71 Ill. 2d 353, 361-62 , 376 N.E.2d 206 ; Interlake Steel Corp. v. Industrial Comm’n (1975), 60 Ill. 2d 255, 259 , 326 N.E.2d 744 .) 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 (1987), 160 Ill. App. 3d 146 , 513 N.E.2d 490 ; Black’s Law Dictionary 1353 (4th ed. 1968).
Given the medical evidence, along with Bial’s own testimony, I believe that the Commission could have properly concluded that Bial sufficiently established a prima facie case that he falls into the odd-lot category. Both Dr. Khan and Dr. Sanjabi testified that continued inhalation of coal dust would be injurious to Bial’s health, and both recommended against further exposure. Dr. Khan explained that coal workers’ pneumoconiosis is a chronic, irreversible, and incurable disease and stated that "[t]here is no cure except to remove the individual from the coal dust.” Bial testified that he had been a coal miner for most of his adult life. He was 72 years old at the time of arbitration. In my view, it reasonably can be inferred from Bial’s work history that he has no other significant skills or training upon which he can draw. The majority’s conclusion to the contrary is based upon the assumption that the skills Bial acquired working on mining equipment would be easily transferrable to different equipment in other fields, but there is no evidence in the record which would support this assumption. Bial is precluded by his condition from returning to work in the coal mines, his only meaningful work experience. Even without evidence of Bial’s lack of education, the remaining evidence clearly demonstrates that given his work-related condition and his lack of other meaningful work experience, Bial is unable to perform the tasks necessary to be gainfully employed in any well-known branch of the labor market.
Bial has sufficiently established a prima facie case that he falls into the odd-lot category, and it was therefore incumbent upon Old Ben to produce evidence that some type of suitable work was regularly and continuously available. No such evidence was produced. Accordingly, I believe that the Commission’s finding of total and permanent disability is not against the manifest weight of the evidence. Therefore, the circuit court improperly substituted its judgment for that of the Industrial Commission. (See Monterey Coal Co. v. Industrial Comm’n (1992), 241 Ill. App. 3d 386 , 609 N.E.2d 339 ; see also Zeigler Coal Co. v. Industrial Comm’n (1992), 237 Ill. App. 3d 213 , 604 N.E.2d 481 .) For these reasons, I respectfully dissent.