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Divittorio v. Industrial Commission9/29/1998
s this court not to read the statute in a manner that permits substitution before proceedings have concluded, fearing that this policy somehow "allows the pursuit of benefits based upon speculation and conjecture as to the probable permanency of a deceased worker's injury." We disagree.
Despite the removal of the requirement that an award be determined before substitution, all claimants, whether substituted parties or not, still must prove permanency by the same burden of proof, namely, by a preponderance of the evidence. Chicago Park District v. Industrial Comm'n, 263 Ill. App. 3d 835, 842 (1994). Furthermore, workers' compensation provisions allowing substitution before proceedings begin are not uncommon among workers' compensation acts. See 4 A. Larson & L. Larson, Larson's Workers' Compensation Law ยง58.44, at 10-492.304 to 10-492.306 (1997). Therefore, we conclude that substitution of claimant in her deceased father's stead was permissible under section 8(e)(19).
C. The Permanency of Decedent's Leg Injury
Employer contends that the evidence was insufficient to prove that decedent suffered from a permanent injury. Specifically, employer argues that when the claim was before the arbitrator, the record showed that decedent had not been released to return to work after his second surgery and that the medical evidence failed to show that his leg injury reached a medically stable plateau.
"A claimant has the burden of proving the extent and permanency of his injury by a preponderance of the evidence; liability cannot be premised upon imagination, speculation or conjecture." Chicago Park District v. Industrial Comm'n, 263 Ill. App. 3d 835, 843 (1994). Determination of " he extent and permanency of a claimant's disability are question of fact, and the Commission's factual determinations will not be overturned unless they are against the manifest weight of the evidence." Chicago Park District, 263 Ill. App. 3d at 843.
"It is the province of the Commission to weigh and resolve conflicts in testimony, including medical testimony, and to choose among conflicting inferences therefrom. [Citations.] It is only when the decision of the Commission is without substantial foundation in the evidence or its finding is manifestly against the weight of the evidence that the findings of the Commission should be set aside." Dexheimer v. Industrial Comm'n, 202 Ill. App. 3d 437, 442-43 (1980).
When reviewing a decision by the Commission, the court "will assess whether there was sufficient factual evidence in the record to support the decision." Cassens Transport Co. v. Industrial Comm'n, 262 Ill. App. 3d 324, 331 (1994). "The test is not whether this or any other tribunal might reach the opposite Conclusion, but whether there was sufficient factual evidence in the record to support the Commission's determination." Beattie v. Industrial Comm'n, 276 Ill. App. 3d 446, 450 (1995). "A reviewing court cannot reject or disregard permissible inferences drawn by the Commission because different or conflicting inferences may also be drawn from the same facts nor can it substitute its judgment for that of the Commission unless the Commission's findings are against the manifest weight of the evidence." Martin v. Industrial Comm'n, 227 Ill. App. 3d 217, 219 (1992). For a " 'finding to be contrary to the manifest weight of the evidence, an opposite Conclusion must be clearly apparent.' " Drogos v. Village of Bensenvile, 100 Ill. App. 3d 48, 54 (1981), quoting In re Application of County Collector, 59 Ill. App. 3d 494, 499 (1978).
In this case, claimant presented sufficient testimony and evidence for the Commission to find, by a preponderance of the evidence, t
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