dissenting:
I respectfully dissent.
It appears to me that the majority has lost sight of the fact that the petitioner’s burden of proof is to be measured by a mere preponderance of credible evidence standard-no less, no more. (Smith v. Industrial Com. (1983), 98 Ill. 2d 20; Keystone Steel & Wire Co. v. Industrial Com. (1978), 73 Ill. 2d 269, 383 N.E.2d 216.) Even though the mere fact that a petitioner’s version is unrebutted will not necessarily mandate an award, the petitioner’s proof of each element of his claim by what appears to be credible evidence cannot be ignored by the Commission in favor of negative and highly speculative circumstantial evidence offered by the respondent solely to attack the petitioner’s credibility.
In the instant case, it is particularly noteworthy that the Commission did not have an opportunity to evaluate the petitioner’s testimony and demeanor so as to assign more or less weight to the petitioner’s version of facts based on his credibility as a witness. The record before the Commission was as cold as the one we have on review. The only additional evidence considered by the Commission, which had not been before arbitrator Metis, was the one-page report of Dr. Cooper submitted by counsel for the respondent.
Affirmative evidence that the petitioner’s injury in fact resulted from an accident arising out of and in the course of his employment on June 15, 1978, was presented by the petitioner’s testimony of the slip and fall incident and corroborated by that of his co-worker, Albert Abies. Minor discrepancies of insignificant details of the two accounts — ie., whether petitioner was headed to or from the scene of the broken-down “roll over” — do not render the petitioner’s claim of an on-the-job injury unworthy of belief.
The petitioner allegedly reported to the nurse’s station the night of the accident, but did not feel that the heat pack treatment she suggested would do any good. Under the circumstances, it is not beyond credulity to find that the on-duty nurse might have failed to comply with the company’s policy of recording the visit on that occasion. Indeed, I find it incredulous that the company’s policy of reporting visits to the first aid station is sufficiently strict to guarantee that slip-ups never occur. Similarly, I do not find that the fact that the petitioner’s foreman failed to testify on the petitioner’s behalf provides any basis upon which to disbelieve the petitioner’s claim. The record before us contains an affidavit of the respondent’s personnel manager establishing that Mike Sumter, the foreman, left Caterpillar’s employ on March 23, 1981, nearly three months prior to the hearing before arbitrator Metis. The affiant further recited that no record of Sumter’s current address was available to him. Certainly the petitioner cannot be faulted, any more than can the employer, for not producing corroborative testimony from an unavailable witness.
The approximate date and fact of the injury were corroborated by medical evidence indicating that the petitioner complained of an injury to his left knee as early as September 1978, and by the report of Caterpillar’s physician, Dr. Hugh Cooper, Jr., who examined the petitioner on November 30, 1981, and stated his conclusions as follows:
“In my opinion this man has reached maximal benefit from treatment following a wedge osteotomy presumably for correction of knock-kneed .deformity associated with degenerative joint disease. The degenerative changes preexisted the injury of 1978 but presumably were aggravated by it. In my opinion, this man’s disability is due to this aggravation of a preexisting abnormality. Moderate permanent partial disability is present on that basis.” (Emphasis added.)
As aforesaid, the respondent relies solely upon negative and speculative evidence and innuendo. Rather than affirmatively demonstrating that the nurse on duty on June 15, 1978, did not see the petitioner about his knee, respondent relies on the absence of a report that should have been prepared by her, and suggests that the company policy of record-keeping produces infallible results. Further, rather than affirmatively demonstrating that the petitioner did not report the accident to Sumter, respondent relies on the petitioner’s failure to produce him at the hearing.
As I see it, the manifest weight of credible evidence supports the petitioner’s claim that his knee was injured on June 15, 1978, as a result of the accident as described by the petitioner, as substantially corroborated by his co-worker Abies, and as ultimately reported to the company doctor. That injury, as I view the credible evidence, aggravated a pre-existing degenerative joint disease and was compensable under the Workers’ Compensation Act. See Brandt Truck Lines, Inc. v. Industrial Com. (1983), 99 Ill. 2d 233.
The Commission’s undue reliance on negative and speculative evidence and innuendo, as pressed by respondent to impeach the petitioner, led to unreasonable inferences which were properly reversed by the circuit court as being contrary to the manifest weight of the evidence. I would affirm the judgment of the circuit court of Peoria County and reinstate the award.