The opinion of the court was delivered by: Justice Rakowski
Industrial Commission Division
Appeal from the Circuit Court of Cook County. Honorable Alexander P. White, Judge Presiding.
SUPPLEMENTAL OPINION AFTER REMAND
In an opinion rendered on July 20, 1999, we remanded this cause to the circuit court for the limited purpose of taking additional evidence on a departing commissioner's vote in order to ascertain whether the Industrial Commission's (Commission) decision was valid pursuant to Zeigler v. Industrial Comm'n, 51 Ill. 2d 137 (1972). *fn1 Upon remand, the departing commissioner submitted an affidavit indicating she participated in oral argument and subsequent thereto she and the majority commissioner reached an agreement, which was the agreement set forth in the Commission's decision. The circuit court concluded this was sufficient. We agree. Accordingly, we address the merits of claimant's appeal and conclude that the Commission's decision finding claimant failed to prove he was permanently and totally disabled because he failed to demonstrate he fell within the "odd-lot" category is not against the manifest weight of the evidence.
I. Validity of Commission Decision
As noted above, on remand departing Commissioner Hagan offered an affidavit in support of her vote prior to her departure. The affidavit averred that she and Commissioner Ketter reached an agreement, subsequent to oral argument and prior to her departure, on the merits of the case and that their agreement was embodied in the Commission's decision. The affidavit further established that Commissioner Hagan reviewed the Commission worksheet, which indicates her vote and upon which she had affixed her initials at the time of the decision.
We conclude that this affidavit is sufficient reliable evidence pursuant to the dictates of Zeigler v. Industrial Comm'n, 51 Ill. 2d 137 (1972), to show the decision of departing Commissioner Hagan. See also Alexander v. Industrial Comm'n, 306 Ill. App. 3d 1081 (1999). Because the affidavit is sufficient, we find the Commission's decision is valid and, therefore, address the merits of claimant's appeal.
II. Permanent Total Disability
Claimant contends the Commission decision finding he was not permanently and totally disabled because he failed to conduct a diligent job search and, therefore, failed to demonstrate he fell within the "odd-lot" category is against the manifest weight of the evidence. Claimant was awarded temporary total disability for 130 5/7 weeks at $495.34 per week and permanent partial disability to the extent of 50% of the person as a whole.
Following claimant's laminectomy and disectomy, he underwent a functional capacity evaluation, which indicated he could function at light to medium work. His treating doctor released him to work with permanent restrictions, including no lifting greater than 25 pounds, no bending, no squatting, and no repetitive stair climbing. Approximately one month later, the doctor revised the restrictions, stating claimant could perform only sedentary work.
Claimant began a job search in the summer of 1993. Thereafter, employer enlisted the vocational rehabilitation services of Ellis & Associates (Ellis) to work with claimant. Ms. Carla Fallon Turner was assigned to claimant. Turner's original evaluation indicated that claimant's ability to benefit from vocational rehabilitation would be fair based on his lack of education, a high pre-injury wage, a felony conviction, and his "unrealistic expectation of wanting to earn $18.00 per hour." She recommended that claimant be placed in a machine operation position in a manufacturing setting, a job related to his ability to use tools, or a cleaning position in the service sector. However, she did not address whether such positions would fit into claimant's restrictions. She assisted claimant in putting together a resume, instructing him on how to present himself, instructing him how to fill out an application, and providing him with contacts.
According to the record, claimant made 431 contacts from February 11, 1994, to May 20, 1994, some supplied by Ellis but most he made on his own. Claimant testified he kept logs of his contacts and submitted the logs to Turner. Claimant stated that through the contacts he received three or four interviews but no job offers. He terminated his job search when he was placed with Racine Electric Company in June of 1994.
Claimant testified that most of the duties required of him at Racine Electric were in direct conflict with his doctor's restrictions. Claimant testified he worked seven hours per day, for six days over a two-week period. According to him, on five of the days he was on his feet. Claimant worked one day and then took one day off due to pain. Claimant contends he was laid off from this job.
Mr. Jesse Smith, owner of Racine Electric, contradicted claimant's testimony. He testified he was aware of claimant's restrictions and advised claimant to work at his own pace. He stated that, after approximately two weeks, claimant contacted him and ...