author: JUSTICE WOODWARD

text:
    REO MOVERS, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Charles Aikerson, Appellee).
    First District (Industrial Commission Division)
    No. 1—90—3650WC
    Opinion filed February 21, 1992.

      Galliani, Doell & Cozzi, Ltd., of Chicago, for appellant.
    Kaplan, Sorosky & Anderson, Ltd., of Chicago (James L. Kaplan and Cynthia A. Freund, of counsel), for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Respondent, Reo Movers, Inc. (REO), appeals from an order of the circuit court of Cook County confirming a decision of the Industrial Commission (Commission) awarding benefits to the claimant, Charles Aikerson. On appeal, REO raises two issues: whether a loaned employee relationship existed between REO and Aikerson at the time of his injury; and whether Aikerson provided notice of his injury to REO pursuant to section 6(c) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.6(c)). We affirm the decision of the circuit court.

At the arbitration hearing, Aikerson testified that he was working for Surety Trucking at the beginning of 1982 as a truck driver. One of the other drivers for Surety was Jonas Jones. Jones also owned trucks and operated as J. Jones Trucking. Aikerson told Jones that he had heard that REO was hiring trucks and suggested that Jones talk to REO. Jones informed Aikerson that he had gotten the job with REO.

Aikerson testified that the job with REO started around February 1982. Jones gave him a placard to place on the truck that said “REO Movers.” According to Aikerson, he and the other drivers would call REO at the end of each day to be instructed where to go the next day. He would speak either to Bob or Tom. Aikerson would be told what jobsite to go to, what type of substance he would be hauling and what route to take. The next morning, Aikerson would pick up a truck from Jones. Jones never came out to the jobsite. Aikerson never received an order of any kind on what he was to haul or where he was to haul it from anyone other than the people at REO.

Aikerson further testified that he would pick up a check from REO which would be made out to Jones; he would cash the check and pay the driver and give the balance to Jones. REO did not take any deductions out of the check. Aikerson was given a book in which to make daily entries of the loads transported. Each week, he would take that week’s pages out of the book, staple them together and turn them in to REO.

Aikerson further testified that on February 9, 1982, he was injured when a clod of dirt weighing between 300 and 500 pounds fell out of the truck and onto him, breaking his leg. He was hospitalized until February 13, 1982. On February 14, 1982, he received a visit at home from Jones, who told him he had been informed of Aikerson’s accident on the day it happened. He returned to work on April 2, 1982. Admitted into evidence was a letter dated August 31, 1982, from Aikerson’s attorney to REO enclosing a copy of Aikerson’s application for benefits form.

On cross-examination, Aikerson assumed but did not know for certain whether there was a written contract between Jones and REO. Jones and he made the arrangements as to how he would be paid. REO had no control over how much he would be paid. The only piece of equipment he used was the truck furnished to him by Jones. If Aikerson was not able to go to a jobsite, then one of Jones’ other drivers would go there in his place. When Aikerson would call to get instruction, he would identify himself as being from J. Jones Trucking. According to Aikerson, Jones did not determine which driver would take which truck, as each driver had a specific truck he drove.

Jonas Jones testified that he operated J. Jones Trucking, which consisted of trucks and a garage. While he was working for Surety Trucking, Aikerson told him he had heard that REO was hiring. Jones met with Bob Hughes. Because Jones was not licensed by the Illinois Commerce Commission (ICC), Hughes provided him with signs for Jones’ trucks so he could operate under REO’s ICC license.

Jonas further testified that initially he would call REO to get the information on the job but after that, the drivers did all the calling in. He never went out to any of the jobsites and did not direct Aikerson or any of the drivers to any jobsites other than where REO had told them to go. He did not direct the drivers to haul for anyone other than REO nor did he do business with any other companies during the same time period. He confirmed that Bob or Tom from REO would instruct the drivers. Jones had no direct contact with the drivers during the day. REO would pay him, and he would then pay his drivers.

Jones further testified that he spoke to Tom from REO about Aikerson’s accident, but he did not remember when the conversations took place.

On cross-examination, Jones testified that he chose the drivers for the REO job. Sometimes Aikerson would endorse and cash the REO checks for Jones. After the first week, the drivers began calling REO to get information on the next day’s work.

Thomas Littleton testified that he is the senior vice-president of REO. There was a written agreement for the hauling of dirt between REO and Jones Trucking, but Littleton had been unable to locate it. During the course of the agreement, Littleton would contact Jones Trucking as to how many pieces of equipment were needed and what site the drivers were to go to. He would talk to whoever answered the telephone; several times it was Jones, and he also spoke to Aikerson. REO also provided Jones with stickers showing REO’s ICC number on them.

Littleton further testified that as part of his duties, he would contact trucking companies, such as J. Jones Trucking. He was also responsible for writing out checks which were then signed by the president or the secretary. Robert Lewis, president of REO, signed the contract with J. Jones Trucking. When Littleton would contact the trucking companies, he would discuss where they were supposed to be and how many trucks were needed. He did not provide any other directions to them. REO provided no supervision of the trucks on the jobsites. The truck drivers would sometimes come to the REO office to pick up checks or to turn in work tickets.

Littleton further testified that under the agreement with J. Jones Trucking, REO could not terminate any individual driver but could only terminate the agreement with J. Jones Trucking. Jones provided his own trucks, but from time to time he might rent a trailer from REO, if necessary. REO did not pay any of Jones’ fuel expenses. REO did not enter into agreements with any individual drivers during this period.

On cross-examination, Littleton testified that the only way that Jones could haul dirt was to operate under someone else’s license, in this case, REO’s. Under its ICC license, if the drivers work directly for REO, Littleton would withhold taxes and pay for insurance for them. He would also have to certify that the drivers had the proper licenses to operate trucks. Even if he found that one of Jones’ drivers did not have the proper license, he could not tell Jones to fire the driver. All he could do was to cancel the agreement with Jones. However, the written agreement between Jones and REO did not specifically address that situation. In the event he had discovered one of Jones’ drivers drunk while driving a load under REO’s ICC license, he would have told Jones that he (Littleton) would fire Jones unless Jones did something about it.

Littleton further testified that on certain occasions, Jones would rent trailers from REO. Such trailers could be used in hauling dirt. The ticket books were supplied to Jones by REO but Jones sometimes used ticket forms that were not supplied by REO.

Charles Aikerson testified on rebuttal that he would call Tom at the end of the work day to get instructions as to where to go the next day, what time and what trucks were needed. Aikerson denied submitting ticket forms other than the ones REO supplied.

The arbitrator found that an employee-employer relationship existed between Aikerson and both J. Jones Trucking and REO and that there was proper notice to both employers. The arbitrator awarded benefits to Aikerson. On review, the Commission affirmed the decision of the arbitrator. The circuit court confirmed the decision of the Commission. This appeal followed.

REO contends that the Commission’s finding that a loaned employee relationship existed between REO and Aikerson at the time of his accident on February 9,1982, is clearly erroneous.

The issue of whether an employee has been borrowed by a second employer is a question of fact to be determined by the Commission. (County of Tazewell v. Industrial Comm’n (1989), 193 Ill. App. 3d 309, 313.) The test for determining the loaned employee’s status consists of two elements, namely, (1) whether REO had the right to direct and control the manner in which Aikerson performed the work; and (2) whether there existed a contract for hire between Aikerson and REO. (See County of Tazewell, 193 Ill. App. 3d at 313.) A court of review will not disturb the Commission’s finding on this question unless contrary to the manifest weight of the evidence. 193 Ill. App. 3d at 313.

REO takes the position that because the facts in this case are undisputed, this case hinges on a legal issue rather than one in which the Commission must choose between conflicting factual scenarios. However, even though the facts are undisputed, where such facts permit more than one reasonable inference, then a question of fact is presented, and the conclusion of the Commission on the fact will not be disturbed by a reviewing court unless it is against the manifest weight of the evidence. (Cary Fire Protection District v. Industrial Comm’n (1991), 211 Ill. App. 3d 20, 25.) A reviewing court will not overturn the Commission’s finding simply because different inferences could be drawn or otherwise substitute its judgment for that of the Commission. Cary Fire Protection District, 211 Ill. App. 3d at 25.

We are of the opinion that there was sufficient evidence in the record from which the Commission could properly infer that REO had the right to control and direct Aikerson’s work. REO points to the fact that Aikerson picked up a truck from Jones each morning to do the hauling for REO; that REO did not pay for the fuel for the trucks; that someone from REO would call Jones with the information about the next day’s work; that only Jones could have fired Aikerson or the other drivers; and that Aikerson was paid by Jones.

On the other hand, Aikerson testified that all of his instructions as to the performance of his job came from REO, including what material he was to haul, his destination and the route he was to take. Even though Jones testified that initially REO contacted him with the information, Jones merely served as a conduit for determinations previously made by REO. Aikerson’s truck had an REO sign to enable him to operate under REO’s ICC license. REO furnished the ticket books to keep track of the loads hauled and on the basis of which Aikerson would be paid. The ticket book was turned in to REO, not to Jones. Aikerson’s pay arrangement with Jones was for 33% of the gross amount received from REO. Often Aikerson would cash REO’s check and pay the other drivers and himself before turning the remaining proceeds over to Jones.

REO argues that REO could not discharge or fire Aikerson and, therefore, he could not be deemed to be an employee of REO. However, the power to discharge is but one of the factors to be considered in determining the employer’s responsibility. (County of Tazewell, 193 Ill. App. 3d at 315.) REO also cites Becke v. Fred A. Smith Lumber Co. (1973), 9 Ill. App. 3d 563, for the proposition that the mode of payment is a factor to be considered in determining whether a loaned employee relationship existed. We note, however, that Becke is a personal injury case. (See County of Tazewell, 193 Ill. App. 3d at 316.) Moreover, our supreme court has held that the primary factor to be considered in the determination of whether an employee was loaned is the right to control the manner in which the work is done. A.J. Johnson Paving Co. v. Industrial Comm’n (1980), 82 Ill. 2d 341, 348.

REO points out that if for some reason Aikerson was unable to go to the jobsite Jones could send another driver in his place. It has been held that a continuation of general employment is indicated by the fact that the general employer can properly substitute another servant at any time. (Robinson v. McDougal-Hartmann Co. (1971), 133 Ill. App. 2d 739.) However, as indicated in the above case, the ability to substitute is one factor to be considered. Moreover, in Robinson, like Jay-Cee Warehouse, Inc. v. Industrial Comm’n (1984), 129 Ill. App. 3d 89, the test for determining whether a loaned employee situation existed was whether the employee became wholly subject to the borrowing employer’s control and freed during such time from the direction and control of his master. (Robinson, 133 Ill. App. 2d 739.) As we have previously stated, that test is not applicable in workers’ compensation actions. County of Tazewell, 193 Ill. App. 3d at 316.

We are further of the opinion that there was sufficient evidence in the record from which the Commission could properly infer that a contract for hire existed between Aikerson and REO. To establish such a contract, there must be at least an implied acquiescence by the employee in the relationship. (County of Tazewell, 193 Ill. App. 3d at 315.) The evidence established that Aikerson was aware he was hauling materials for REO; that he received his instructions from REO; that the truck he drove displayed an REO sign, and he took no instructions from Jones as to the performance of the job. These factors establish that Aikerson acquiesced in the relationship with REO. See County of Tazewell, 193 Ill. App. 3d at 315.

Finally, REO argues that the Commission’s reliance on a Commerce Commission regulation in finding that REO was a borrowing employer was misplaced, as that regulation pertains to leased vehicles, and there is no evidence that REO leased vehicles from Jones. The regulation in question provides in pertinent part as follows:

“Section 1360.40 Written Lease Requirements
* * *
c) Exclusive possession and responsibilities. The lease shall provide that the authorized carrier lessee shall have exclusive possession, use, control and responsibility for the equipment during such periods as the equipment is operated by or for him as the lessee of said equipment.”
“Section 1360.50 Exemptions from these Leasing Regulations
* * *
* * *
* * *
5) There must be a written agreement between the authorized carriers covering the equipment as follows:
A) It must be signed by the parties or their authorized representatives.
B) It must provide that control and responsibility for the operation of the equipment shall be that of the lessee from the time possession is taken by the lessee and the receipt required under Section 1360.30(b) is given to the lessor until possession of the equipment is returned to the lessor and the receipt required under Section 1360.30 (b) is received by the authorized carrier.” (92 Ill. Adm. Code §§1360.40(c), 1360.50(c)(5) (1985).)

REO points out that at the time the above regulation was admitted into evidence at the arbitration hearing the following section was omitted:

“Section 1360.10 Applicability
This Part applies to the following actions by motor carriers holding permanent or temporary operating authority from the Illinois Commerce Commission to transport property:
a) The leasing of equipment with which to perform transportation regulated by this Commission.
b) The leasing of equipment to private carriers of property by motor vehicle or shippers.
c) The interchange of equipment between motor common carriers in the performance of transportation regulated by this Commission.” (92 Adm. Code §1360.10 (1985).)

Based upon section 1360.10, REO argues that the Commerce Commission regulation relied on by the Commission is not applicable because no lease existed between Jones and REO. We disagree.

Although there is no dispute that a written contract existed between REO and Jones, REO did not produce the written contract at the arbitration hearing. When asked what efforts were made to locate the written contract, Thomas Littleton testified:

“I had two warehouse people go through — which we have large crates that we store all of our old records in. I had them go through and look for them and so far they have not been able to come up with the carton that has the certificate of insurance and plus the contracts that were written at that time.”

Where a party fails to produce evidence in his control, the presumption arises that the evidence would be adverse to that party. (Saunders v. Department of Public Aid (1990), 198 Ill. App. 3d 1076, 1082.) In Singh v. Air Illinois, Inc. (1988), 165 Ill. App. 3d 923, the court held that a jury should not be instructed on such a presumption where the evidence showed that there was a reasonable excuse for the failure to produce the evidence and that the evidence was equally available to the other side. However, in In re Marriage of Leff (1986), 148 Ill. App. 3d 792, the court allowed the presumption where the wife failed to present any evidence as to the value of her husband’s business even though she had clearly attempted to gather such evidence.

The missing evidence in this case is the written contract which was clearly in the control of REO. The contract was not “equally available” to Aikerson since the only other copy of the contract had been given to Jones, the other adversarial party. REO’s excuse for not producing the contract was not that it had been destroyed or lost, but that REO was still looking for it. However, Littleton’s explanation of REO’s efforts in searching for the missing contract was sketchy at best. Aikerson filed his notice of claim in August 1982. At the time of the filing of the claim, the contract between REO and Jones would hardly qualify as an “old record.” Apparently at some time after that, REO went out of the trucking business, and the trucking records were placed in storage. Littleton testified at the arbitration hearing in February 1985. Thus, REO had been aware since August 1982 of its potential liability in this case and the importance of the written contract between Jones and it. Therefore, we are of the opinion that in the absence of the written contract which was under the control of REO, a presumption arises that the terms of the contract would have been unfavorable to REO and that the written contract would have shown that the contract was for a lease of equipment between REO and Jones.

As a practical matter, even without the specific terms of the contract available to us, it would be difficult to term this arrangement as anything other than a lease of equipment. A lease is defined as “a contract by which one owning such property grants to another the right to possess, use and enjoy for a specific period of time in exchange for the payment of a stipulated price, referred to as rent.” (Black’s Law Dictionary 800 (5th ed. 1979).) The arrangement as established by the testimony at the arbitration hearing was that Jones let REO use his trucks for its hauling materials. A sign was placed in each truck stating “REO Movers.” Jones was paid compensation by REO for the use of the trucks.

Based upon the foregoing, we are of the opinion that there was sufficient evidence in the record from which the Commission could properly infer that a lease existed between REO and Jones. We note that REO does not dispute that if the Commerce Commission regulation admitted into evidence applies to the agreement between REO and Jones, it establishes that REO had control of Aikerson and that a loaned employee situation has been established.

We conclude therefore that the decision of the Commission that a loaned employee relationship existed between Aikerson and REO is not against the manifest weight of the evidence.

We do not address REO’s second issue, whether notice pursuant to section 6(c) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.6(c)) was given to REO, because REO has failed to provide any citation to authority in support of its argument. The issue as to notice is therefore waived. 134 Ill. 2d R. 341(e)(7).

The judgment of the circuit court is affirmed.

Affirmed.

McCULLOUGH, P.J., and LEWIS, STOUDER, and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A R A SERVICES, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (The Treasurer of the State of Illinois, as ex officio Custodian of the Injury Fund, et al., Appellees).
    First District (Industrial Commission Division)
    No. 1—90—3668WC
    Opinion filed February 21, 1992.

      Dowd & Dowd, Ltd., of Chicago (Joseph V. Dowd and Michael G. Patrizio, of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Claudia E. Sainsot, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Respondent, ARA Services, Inc. (ARA), appeals from an order of the circuit court of Cook County confirming the decision of the Illinois Industrial Commission (Commission) which found the claimant, John Maggiore (Maggiore), permanently and totally disabled under section 8(f) of the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(f) (Act)).

The facts here are largely undisputed. Maggiore had been employed by ARA since 1959. He completed one year of high school. In 1959, he suffered the loss of his left eye and had an artificial one in its place. In 1963, he suffered a low back injury. In 1966, he had surgery on his neck, and in 1969, he underwent a fusion of his lower spine.

In 1983, Maggiore was 51 years of age and working for ARA as a field mechanic traveling to various locations to repair vending machines. On December 22, 1983, he made a service call to Bedford Park. A vending machine, which was approximately 6 feet tall and weighed 700 to 900 pounds, had been damaged and knocked out of place. Maggiore went behind the machine and tried to push it forward. As he did so, he felt a little click in his neck. He developed stiffness and a little pain in his neck. He finished work that day. The next day, he could not turn his head. He reported the incident to his boss, who instructed him not to lift anything heavy. He continued to work, sporadically, until the end of January 1984.

In January 1984, Maggiore was under the care of Drs. Cascino and Harrison. Maggiore was diagnosed as suffering from cervical strain and initially treated with hot packs and naprapathic (manipulation of connecting tissues) treatment. Later in January, a CAT scan was performed which showed spondylosis. On January 23, 1984, Maggiore underwent a myelogram which showed a block of the cervical canal on the spinal cord at C6-7 and confirmed the existence of spondylosis.

In February 1984, Maggiore underwent two surgeries. The first on February 17, 1984, was a posterior cervical laminectomy from inferior C2 to superior C5. Two days after the surgery, Maggiore had no feeling below the nipple area. The cause of the loss of feeling was diagnosed as either spinal cord swelling (Dr. Cascino) or Brown-Sequard syndrome (Dr. I. Joshua Speigel). On February 19, 1984, Maggiore underwent a second surgery in which the laminectomy was extended from inferior C2 to C7. Maggiore regained feeling on his left side but not on the right side. According to Dr. Cascino, Maggiore had no incontinence or involuntary movement and had a good hand-fist formation on both sides and good strength in regard to grip control.

In March 1984, Maggiore began a program at the Rehabilitation Institute of Chicago. In 1985, he was evaluated by Drs. Addison and Yarkony. Dr. Addison noted that Maggiore was now able to walk on the toes.of his right foot. Dr. Addison stated that “[i]t appears that with the right kind of total motivation instilled that there should be some work ability for [Maggiore].” Dr. Yarkony noted that Maggiore. wanted to return to some type of employment. In April 1985, Maggiore underwent a driver education evaluation. According to the report, Maggiore had no problem driving and was a good defensive driver. He needed no specially adapted equipment to drive safely.

In his medical report of September 25, 1986, Dr. Cascino noted that Maggiore was experiencing numbness in both upper extremities and a tightening sensation of the soles of both feet. There was a diminution in the right extremities as compared to the left side. According to Dr. Cascino, Maggiore could not work, since he did not have the education for office work, and Dr. Cascino would not give him permission to drive.

On March 19, 1987, Maggiore was examined by Dr. I. Joshua Speigel. Dr. Speigel found that Maggiore’s current symptoms of diminished sensation and difficulty with his right foot resulted from the Brown-Sequard syndrome and were permanent and irreversible. In a letter dated December 29,1987, Dr. Speigel stated:

“The Brown-Sequard Syndrome has rendered the right lower extremity non-functional to such a degree that, in industrial terms, it can be stated unequivocally that he has sustained A COMPLETE LOSS OF USE OF THE LOWER EXTREMITY AS A RESULT OF HIS INJURY OF DECEMBER 26 [sic]. This loss of the use of the right lower extremity is permanent and irreversible.”

At the hearing before the arbitrator on September 13, 1988, Maggiore testified that he spends approximately 21h to three hours on his feet per day. The rest of the time he spends either on a recliner or the couch. He has constant pain in his upper body and his right side feels like wood. When he walks, he is clumsy. He gets tired and does not know where his right foot is. The numbness on his left side has cleared up, and he has no trouble with his left foot. According to Maggiore, his right foot does not want to turn up sideways. Sometimes he has to keep looking down to see where his right foot is. He has trouble walking up or down stairs because his body feels like it is going to topple over. He has to look down while going downstairs so he can see where his right foot is to prevent him from falling. In the winter, it is worse because of the snow and ice. Sometimes his right foot gets so cold he has to wrap it in a heating pad for up to three hours. Dr. Meracho, an orthopedic specialist, recommended a brace for his right leg but Maggiore did not have this done.

On cross-examination, Maggiore testified that he was using a cane for his right leg but discarded it after doing physical therapy.

On further cross-examination, Maggiore testified that he still had a driver’s license even though he does not drive. He does not go out in the winter because he is afraid his leg will get stiff on the ice and snow. His right foot is colder than the left. He gets up at night to walk around in the house.

The arbitrator noted the conflicting medical findings and chose to rely on Dr. Speigel’s conclusion that Maggiore had permanently lost complete use of his right leg. The arbitrator therefore ruled that Maggiore was permanently and totally disabled for life under section 8(e) of the Act.

The State Treasurer sought review of the arbitrator’s decision by the Commission. On review by the Commission, no new evidence was presented to the Commission. However, based upon Dr. Cascino’s report that Maggiore found some sensation in the right leg above the knee and that Maggiore was able to ambulate on the right leg, the Commission found that Maggiore had not lost 100% of the use of his right leg and, therefore, was not permanently and totally disabled under section 8(e) of the Act. Nevertheless, the Commission found Maggiore to be permanently and totally disabled under section 8(f) of the Act.

ARA appealed the decision of the Commission to the circuit court. The circuit court remanded the case to the Commission to make an additional finding of fact as to whether Maggiore lost 100% of the use of his right foot and a conclusion of law as to whether 100% loss of the use of an eye coupled with 100% loss of the use of a foot was a sufficient basis for an award of permanent and total disability pursuant to section 8(e) of the Act.

On remand, the Commission accorded the greatest weight to the opinion of Dr. Cascino, a treating physician, and because Drs. Cascino and Addison’s findings and opinions correlated with Maggiore’s complaints. The Commission gave no weight to Dr. Speigel’s opinion because his opinion as to the extent of Maggiore’s permanent disability of the right leg constituted a conclusion of ultimate fact which is the province of the Commission. The Commission then found as follows:

“The Commission notes that although [Maggiore] expressed some apprehension about walking, standing, or climbing stairs, [Maggiore] is able to walk on his right leg and foot without assistance. [Maggiore] failed to establish that the injured members no longer perform their normal function. The Commission therefore finds that 8(e) of the Act is not applicable to this case because [Maggiore] has not proven permanent and complete loss of use of the right leg or the right foot.”

The Commission then reaffirmed its original decision that Maggiore be awarded benefits pursuant to section 8(f) of the Act given that Maggiore’s age, skill level and lack of education prevented him from performing anything but the most menial task for which no stable labor market existed.

In its lengthy memorandum decision and judgment, the circuit court reviewed the original decision of the arbitrator and the Commission, as well as the Commission’s decision on remand. The circuit court found that there was sufficient evidence in the record to support the Commission’s award of benefits under section 8(f) of the Act and confirmed the Commission’s decision. This appeal by ARA followed.

ARA contends that the decision of the Commission was against the manifest weight of the evidence. ARA argues that the evidence supports a finding that Maggiore was permanently disabled under section 8(e) of the Act rather than section 8(f) of the Act.

Section 8(e) of the Act provides in pertinent part as follows:

“§8. The amount of compensation which shall be paid to the employee for an accidental injury not resulting in death is:
* * *
(e) For accidental injuries in the following schedule, the employee shall receive compensation ***. The following listed amounts apply ***.
* * *
18. The specific case of loss of both hands, both arms, or both feet, or both legs, or both eyes, or of any two thereof, or the permanent and complete loss of the use thereof, constitutes total and permanent disability, to be compensated according to the compensation fixed by paragraph (f) of this Section. These specific cases of total and permanent disability do not exclude other cases.
Any employee who has previously suffered the loss or permanent and complete loss of the use of any such members, and in a subsequent independent accident loses another or suffers the permanent and complete loss of the use of any one of such members the employer for whom the injured employee is working at the time of the last independent accident is liable to pay compensation only for the loss or permanent and complete loss of the use of the member occasioned by the last independent accident.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(e)(18).)

Section 8(f) provides in pertinent part as follows:

“(f) In case of complete disability, which renders the employee wholly and permanently incapable of work, or in the specific case of total and permanent disability as provided in subparagraph 18 of paragraph (e) of this Section, compensation shall be payable at the rate provided in subparagraph 2 of paragraph (b) of this Section for life.
* * *
If any employee who receives an award under this paragraph afterwards returns to work or is able to do so, and earns or is able to earn as much as before the accident, payments under such award shall cease. ***
***
Disability as enumerated in subdivision 18, paragraph (e) of this Section is considered complete disability.
If an employee who had previously incurred [the] loss or the permanent and complete loss of use of one member, through the loss or the permanent and complete loss of the use of one hand, one arm, one foot, one leg, or one eye, incurs permanent and complete disability through the loss or the permanent and complete loss of the use of another member, he shall receive, in addition to the compensation payable by the employer and after such payments have ceased, an amount from the Second Injury Fund provided for in paragraph (f) of Section 7 [(Ill. Rev. Stat. 1989, ch. 48, par. 138.7(f))], which, together with the compensation payable from the employer in whose employ he was when the last accidental injury was incurred, will equal the amount payable for permanent and complete disability as provided in this paragraph of this Section.
The custodian of the Second Injury Fund provided in paragraph (f) of Section 7 shall be joined with the employer as a party respondent in the application for adjustment of claim.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(f).)

The State Treasurer is the ex officio custodian of the second injury fund. Ill. Rev. Stat. 1989, ch. 48, par. 138.7(f).

It is necessary at this point to review the distinction between awards made pursuant to section 8(e)(18) and those made pursuant to section 8(f) of the Act. In discussing that distinction, our supreme court in Freeman United Coal Mining Co. v. Industrial Comm’n (1984), 99 Ill. 2d 487, stated as follows:

“There is a distinction between the two kinds of permanent and total disability referred to in section 8(f), as the wording of that section suggests. ‘[C]omplete disability, which renders the employee wholly and permanently incapable of work’ is defined only in section 8(f), and only in those words; it can form the basis for an award only if the employee is able to show that his injuries have left him without a market for his skills, so that he is for practical purposes unemployable [citations], and benefits for that type of disability must cease or be reduced should the employee subsequently reacquire a wage-earning capacity [citation]. Disability under section 8(eX18), by contrast, is ‘permanent and total’ only by legislative pronouncement; it is not inconsistent with a continuing ability to work, and in that event the pension mandated for it is not to be affected by the employee’s return to work. [Citations.] Although the benefit rates for disability under section 8(eX18) are calculated in the same manner as those for disability under section 8(f), the purpose behind section 8(eX18) is not merely to replace lost wages or to provide financial protection for workers whose earning power is terminated, but ‘is broad enough to accommodate the pain and inconvenience that accompany the “specific case of loss of both hands, both arms, both feet or both eyes ***” even though the employee remains able to work.’ ” (Freeman, 99 Ill. 2d at 492-93, quoting National Lock Co. v. Industrial Comm’n (1975), 62 Ill. 2d 51, 56-57.)

ARA correctly points out that under an award pursuant to section 8(eX18), its liability for compensation is limited to the loss of the member involved in the second accident, rather than the permanent and total loss of the man as a whole. 99 Ill. 2d at 493.

ARA’s argument that an award pursuant to section 8(e)(18) rather than 8(f) was appropriate is twofold: first, that the evidence showed Maggiore had suffered a complete and permanent loss of the use of his right leg and foot; and, second, that the evidence established that Maggiore was not incapable of working. We disagree.

It is well settled that a reviewing court will not set aside the decision of an administrative agency unless the findings are against the manifest weight of the evidence. (Sperling v. Industrial Comm’n (1989), 129 Ill. 2d 416, 421.) It is solely within the province of the Commission to draw reasonable inferences from the record and determine the weight to be given the evidence presented. (Caterpillar Tractor Co. v. Industrial Comm’n (1984), 124 Ill. App. 3d 650, 653.) That other inferences might be drawn from the evidence is not relevant since a reviewing court will not disregard or reject permissible inferences drawn by the Commission nor will it substitute its judgment for that of the Commission unless its findings are against the manifest weight of the evidence. (Caterpillar, 124 Ill. App. 3d at 653.) It is the Commission’s function to choose between conflicting medical opinions. (124 Ill. App. 3d at 653.) Not only may the Commission decide which medical view is to be accepted, it may attach greater weight to the opinion of the treating physician. International Vermiculite Co. v. Industrial Comm’n (1979), 77 Ill. 2d 1, 4.

There is no requirement that a claimant must establish he is unable to work as a result of the loss of use of a member, but only that the member no longer performs its normal function. (Treasurer of the State of Illinois v. Industrial Comm’n (1985), 136 Ill. App. 3d 809, 814.) ARA relies on Maggiore’s testimony that he must look at his foot to see where it is, that he has no sensation in it, that he must walk with the use of a cane, he cannot drive a car, and his foot feels cold and like a piece of wood. ARA also relies on Dr. Speigel’s report and argues that Dr. Cascino substantiated Dr. Speigel’s finding when he wrote that Maggiore had diminished sensation below the right knee, a tightening on the soles of his feet and an inward turning of his feet.

Maggiore testified that he was apprehensive about walking, particularly when there was ice and snow. However, he also testified that he no longer used a cane; that he was on his feet 21k to 3 hours per day and that he walks around in the house and even walked to the arbitration hearing. Dr. Cascino noted some use of Maggiore’s right leg. Dr. Addison noted that Maggiore had begun walking on the toes of his right foot. It is noted that the Commission struck the opinion of Dr. Speigel that claimant had sustained a 100% loss of use of his right leg as a conclusion of ultimate fact and that said ultimate conclusion was within the province of the Commission. In the same paragraph, the Commission stated that it accorded greatest weight to the opinions of Dr. Cascino and Dr. Addison, since they were correlated to the complaints of the complainant. Accordingly, we are convinced that the inference that claimant had not lost 100% of the use of his right leg or foot was a permissible inference based upon the evidence in the record, and this cause should not be remanded to the Commission, as the findings on this issue have clearly been determined by the Commission.

The cases relied on by ARA, Scandroli Construction Co. v. Industrial Comm’n (1973), 54 Ill. 2d 395, and Keystone Steel & Wire Co. v. Industrial Comm’n (1969), 42 Ill. 2d 273, are not persuasive. Neither case addressed the issue of whether an award was appropriate pursuant to section 8(e)(18), rather than section 8(f). Both also affirmed decisions of the Commission, as we do in this case. In both cases, the claimants had to use either leg braces or a cane to walk. Thus, we find ARA’s authorities distinguishable.

We also reject ARA’s argument that the evidence did not establish that Maggiore is permanently and totally disabled under section 8(f).

In Illinois-Iowa Blacktop, Inc. v. Industrial Comm’n (1989), 180 Ill. App. 3d 885, this court stated as follows:

“A person is totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists. [Citation.] In determining whether an employee can perform any useful services, his age, training, education and experience must be taken into account. Unless he is obviously unemployable or unless he presents medical evidence to support a claim of total disability, a claimant has the burden of proving that no employment is available for a person in [these] circumstances. [Citation.] However, once the claimant establishes that he falls into the ‘odd-lot’ category of persons who are not altogether incapacitated but are so handicapped that they will not be employed regularly in any well-known branch of the labor market, the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the claimant.” Illinois-Iowa, 180 Ill. App. 3d at 888-89.

The evidence established that Maggiore was 56 years of age at the time of the arbitration hearing. He had one year of high school education. He could not spell or read well. The only type of work he had performed since 1959 was that of a mechanic. His work as a mechanic for ARA required him to push heavy machines weighing 800 to 1,200 pounds unassisted and to carry a tool box weighing 20 to 25 pounds. He also drove from site to site. Given his physical limitations, his problems walking, suffering continual pain and only being able to be on his feet two to three hours per day, his ability to perform any job that required physical labor was severely curtailed.

ARA argues that Maggiore was capable of telephone solicitation work as suggested by Dr. Pawl in his report and that the Department of Vocational Rehabilitation of the Rehabilitation Institute of Chicago concluded that Maggiore was ready to return to behind-the-wheel driving. However, Dr. Cascino concluded that Maggiore should not drive or do office work due to his lack of education and the original loss of his left eye, which Dr. Cascino felt would make the situation worse.

We are of the opinion that Maggiore established that he was in the “odd-lot” category, and, therefore, the burden was on ARA to prove the availability of regular and suitable work for Maggiore. Given Maggiore’s lack of education, age and employment history, the suggestion that Maggiore be employed as a telephone solicitor does not meet ARA’s burden of establishing that regular and suitable employment was available for Maggiore.

Finally, ARA argues that the Commission’s decision contravenes the legislative intent of the second injury fund.

Section 7(f) of the Act requires an employer to pay twice a year a sum equal to one-eighth of 1% of all compensation payments paid by that employer into a fund known as the second injury fund. (Ill. Rev. Stat. 1989, ch. 48, par. 138.7(f).) The purpose behind the second injury fund is to enhance the employability of handicapped persons who previously lost a member or its use by limiting the liability of employers hiring or retaining such persons in their employment and at the same time to afford such handicapped persons the proper measure of compensation if a second loss was sustained, with industry bearing the burden of such losses. Arview v. Industrial Comm’n (1953), 415 Ill. 522, 530.

ARA correctly notes that under section 8(e)(18), it would only be responsible for the loss of the use of Maggiore’s right leg and foot with the complete and total disability liability being borne by the second injury fund. (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(f).) However, as we have previously determined, Maggiore was not eligible for an award pursuant to section 8(e)(18) because he did not prove that he had lost 100% of the use of his right leg or foot. We fail to see how the intent of the statute is frustrated, as ARA maintains, when, on the basis that the requirements of the statute were not met, an award is denied.

Therefore, we conclude that the decision of the Commission awarding benefits to Maggiore pursuant to section 8(f) of the Act and denying benefits under section 8(e)(18) of the Act is not against the manifest weight of the evidence. We further conclude that the award in this case pursuant to section 8(f) of the Act does not frustrate the intent behind the second injury fund.

The judgment of the circuit court is affirmed.

Affirmed.

McCULLOUGH, P.J., and LEWIS, STOUDER, and RAKOWSKI, JJ., concur.