dissenting:
The decision of the Industrial Commission entered August 16, 2001, should be reinstated. The Commission affirmed the arbitrator’s award of 47V7 weeks, temporary total disability, and awarded claimant “$439.89 per week for a period of 200 weeks, as provided in § 8(d)2 of the Act for the reason that the injuries sustained caused the permanent disability *** to the extent of 40%.”
The arbitrator found that claimant “presented no evidence of an appropriate job search and no testimony from a vocational expert.” A review of the trial court’s findings shows that the trial court adopted and based its decision on the testimony of claimant. It is apparent from a review of the arbitrator’s award and the Commission’s decision that claimant was found not credible concerning any job search, or effort to secure work. At oral argument, claimant conceded the finding as to credibility. The Commission found claimant failed to inquire about employment opportunities and that claimant failed to prove entitlement to a section 8(d) 1 award but did award 40% of man as a whole pursuant to section 8(d)2.
The trial court’s reference to Consolidation Coal Co. v. Industrial Comm’n, 265 Ill. App. 3d 830, 838 (1994): “[wjhether a claimant has presented sufficient evidence of earnings impairment is a question of fact for the Commission, whose decision will not be reversed unless it is against the manifest weight of the evidence,” and to Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52, 61 (1989), “[1]lability for workers compensation cannot rest on imagination, speculation or conjecture, but must be based solely upon the facts contained in the record,” supports the Commission’s first decision. The majority has, as did the circuit court, simply reweighed the evidence and determined credibility in the place of the fact finder.
The order of the circuit court should be reversed and the August 16, 2001, decision of the Commission reinstated.
CALLUM, J., joins in the dissent.