text:
    (No. 3791
    Della Thomas, Philip Thomas, Sr., and Dorothy Grant, Nee Thomas, Parents and Sister of Robert R. Thomas, Deceased, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1945.

      Rehearing denied May 8, 1945.

    Wilmer L. Voght, for claimants.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

On the 13th day of May, 1942, Robert R. Thomas was an employee of the respondent in the Department of Public Safety, Division of State Police, as a State Highway Patrolman. While riding upon and operating a motorcycle owned by the respondent during the course of his employment, along and upon the concrete highway west of Collinsville, Illinois, on U. S. 40 Belt Line, he was accidentally thrown from said motorcycle receiving injuries which resulted in his death two days later.

At the time of the accident which resulted in his death, he was twenty-six years of age and received a salary from the respondent of $175.00 per month. He was unmarried and resided in Belleville, St. Clair County with his mother, Della Thomas, his. father, Philip Thomas, Sr., and his sister, Dorothy Grant.

Each of the above named are the claimants in this case for partial dependency as provided in Section 7 of the Workmen’s Compensation Act.

This record consists of the complaint above referred to, departmental report of the Division of State Police, original transcript of testimony and. abstract of same, claimants ’ statement, brief and argument, and statement, brief and argument on behalf of respondent.

The evidence discloses that the deceased was first employed by the Division of State Police on June 9,1941, as a driver’s license examiner at a salary of $150.00 per month. He was appointed as a police officer by the respondent on September 20, 1941, at a salary of $175.00 per month. The evidence further discloses that on the date of the fatal accident that the Division of State Police had immediate knowledge of the accident and of the resulting death; that claim for compensation was made within six months of the injury and that the complaint was filed within the statutory limitations, as provided by Section 24 of the Workmen’s Compensation Act. The question to be decided here is whether deceased’s mother, father and sister were partially dependent upon him for support as contemplated by the Compensation Act of this State.

At the hearing no one testified in support of this claim except the interested parties. The testimony shows that Dorothy Grant is the sister of the deceased and lived with her parents and her brother during most of her lifetime. She was seventeen years of age and unmarried. But subsequently on September 18, 1942, she married and she and her husband lived with her parents for several months, making no contributions to the family income.

Philip Thomas, Sr., the deceased’s father, was employed by the Illinois Terminal Railroad in St. Clair County and had been since 1917, earning $150.00 per month. Della Thomas, the mother of deceased, was unemployed, but operated the home for her above named husband, daughter and the deceased.

The evidence further discloses that the deceased had always lived at home and had no regular employment prior to his appointment as a driver’s license examiner. Some time subsequent to his employment, the deceased purchased an automobile on time payments and from his salary made payments of $32.00 per month on it.

The evidence further discloses that the salary earned by the father amounted to approximately $1,800.00 per year, before any social security taxes or other deductions were made. That all of this amount was contributed by the father for the family upkeep and that it was his custom to hand over his paycheck to his wife. The evidence further discloses that the deceased did likewise, which made up the family funds. This family fund was administered entirely by the mother, Della Thomas, and was doled out to the claimants in accordance with their needs.

The evidence further discloses that neither the father, mother nor sister, nor deceased brother had a savings account at the time of the death of claimants’ intestate.

In cases of this character, to sustain an award, the evidence must show that the contributions were relied upon by the petitioners for their means of living, judging this by their position in life, and that they were to a substantial degree supported by the employee at the time of his death. Lederer Co. vs. Ind. Com., 321 Ill. 563; Pratt Co. vs. Ind. Com., 293 Ill. 367; Keller vs. Ind. Com., 291 Ill. 314; Peabody Goal Company vs. Ind. Com., 311 Ill. 338.

After a careful consideration of the evidence offered in support of this claim, we conclude that Della Thomas merely acted as the banker for her son Robert. This is shown by the testimony of his sister, Dorothy. She testified as follows: “My brother Robert Thomas, turned over to Mother, his monthly salary during the time he worked for the State of Illinois before the accident. My father turned over his money to Mother. I seen it done. Mother pays the family bills, groceries, electric and gas, telephone and so forth. My brother Robert had no agreement with Mother as what should be done with his monthly salary. When I went to the show or other places of amusement I got money from my mother. Robert did the same as I. If he wanted any money he asked my mother for it, because he turned his money over to her. ’ ’

Here we find the father, one of the claimants, had a net income of approximately $1,800.00 per year and between him and the other claimants there existed a legal obligation to support under the Statute. There was no legal obligation for support on the part of the deceased son. While it may be true that part of his earnings were spent through the family budget, yet he was not required under the law to contribute any more to the family expenses except his room and board. This he would have had to do had he lived elsewhere. Partial dependency cannot be proven from the mere fact that the decedent lived with the family and contributed to his own upkeep. There is no showing that the deceased employee has paid to the petitioners, who were his father, mother and sister, with whom he lived, any sums of money other than for board and lodging, but the evidence does show that the petitioners were supported by Philip. Thomas, Sr., the father of deceased.

The evidence does not justify an award on the ground of dependency, as provided in paragraphs a, b, c or d of Section 7 of the Workmen’s Compensation Act.

No amount being payable under the above paragraphs, the sum of Four Hundred ($400.00) Dollars is hereby awarded to be paid into the special fund, of which the State Treasurer is ex officio custodian, as provided in Section 7, paragraph e of the Act.

This award is subject to the approval of the Governor of the State of Illinois.


source: Caselaw Access Project

author: Fisher, J.

license: Public Domain

text:
    (No. 3792
    Mayme Peck, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1945.

    Carson & Appleman, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Fisher, J.

The record of this case consists of the Complaint, Original and Supplemental Reports of the Department of Public Welfare, Transcript of Evidence, Claimant’s Abstract of Record, Statement, Brief and Argument of both Claimant and Respondent, and Reply Brief of Claimant.

The facts of the case, which are not in dispute, are that claimant was employed by respondent at the Manteno State Hospital on January 1, 1943, at a salary of $52.50 per month, plus maintenance valued at $24.00 per month. That on said date, while in the course of her employment, claimant slipped and fell, and as a result suffered a fracture of her left wrist. That because of the improper healing of the fracture, claimant suffered a partial total loss of the use of her wrist and hand.

No jurisdictional questions are involved and respondent agrees that “the whole point of contention between claimant and respondent is the amount of compensation to which claimant is entitled. ’ ’

The questions in controversy, presented for determination here, are:

A. The value of maintenance.

B. The duration of temporary total disability.

C. The degree of permanent partial disability.

We will discuss these questions in their order.

A.

The compensation rate is determined by the salary of the employee, including maintenance; and claimant contends that the value of maintenance of $24.00 per month as fixed by respondent is much too low and thereby deprives claimant of her just rate of compensation. Claimant presents evidence purporting to show that the value of maintenance as furnished to claimant is “between $50.00 and $75.00 per month.”

In the operation of many of its institutions, the State furnishes maintenance to its employees at a fixed and predetermined value. If the employee desires to seek maintenance elsewhere, a sum equal to the fixed value of the maintenance is added to the salary paid to such employee. In this case the basic salary was $52.50 per month, and the value of the maintenance at the institution where claimant was employed was fixed at $24.00 per month. Claimant elected to accept maintenance at the institution. In the absence of very clear and convincing proof that the fixed value of maintenance is wholly inadequate, it has been the rule to accept such value to be reasonable, and this value is taken for the purpose of fixing the rate of compensation. The evidence here does not justify a change in this general rule. Claimant’s monthly salary, for the purpose of fixing her compensation rate is, therefore, her basic salary of $52.50 per month plus maintenance allowance of $24.00 per month, or a total of $76.50 per month.

B.

Claimant seeks temporary total disability for 64 weeks. Respondent contends that no temporary total disability compensation should be allowed for the reason that the evidence does not disclose a definite period of time that claimant was disabled.

A report of the Department of Public Welfare filed herein shows that the injury to claimant occurred on January 31, 1943, and that she was advised to report for duty on February 7, 1943. She worked from February 7th to February 10tli, inclusive. On February 10th, 1943, ' she complained of difficulty in doing her work and requested a leave of absence. She was instructed to return in a week for further examination, but failed to do so. She was paid her salary to March 12, 1943.

Claimant testified that her arm was in a plaster cast for 7 weeks and that the cast was removed by a Doctor Beck of Oakland, Illinois. She further testified on June 1, 1944, that she was then working two days a week.

“To sustain an award for temporary total disability the burden is on the claimant to prove by the greater weight of evidence not only that she did not work but that she was not able to work during the entire period for which an award is allowed.”
Stone Company vs. Industrial Commission, 315 Ill. 431. “It is a well settled rule that the period of temporary total disability is the time of healing process during which the employee is totally incapacitated from work by reason of the ailment attending the injury.”

Peabody Coal Co. vs. Industrial Commission, 308-133.

There is here no evidence whatever to show when claimant was physically able to return to her previous employment, or to do other kinds of work, or when she actually began the work she is now doing.

The claim for compensation for temporary total disability, therefore, cannot be allowed.

C.

Claimant seeks an award for 65% loss of the use of her left arm. It is admitted that claimant suffered a fracture of her left wrist and, from the evidence, it appears that the fracture failed to heal properly and as a result claimant has sustained a permanent partial loss of the use of her wrist. Dr. C. W. Christie, who examined claimant on April 12, 1943, said claimant had a marked deformity of the left wrist and that “x-ray reveals a fracture of the end of the radius and ulna with an overriding of the fragments and, I believe, a total lack of union. I would estimate that she has about 65% to 75% disability of that wrist.”

The x-ray report, made at Mercy Hospital, Urbana, Illinois, by Stephen H. Tage, M. D., Radiologist, states—

“Radiographic examination of the Jeft wrist joint, shows a complete, transverse fracture through the -radius, % of an inch proximal to the wrist joint. Considerable overriding of the fragments is noted. There is also a complete fracture through the styloid process of the ulna, with some medial displacement. DIAGNOSIS: Fracture, radius and ulna — left.”

Respondent contends that Dr. Christie’s opinion of the x-ray report refers only to a loss of the use of the wrist and made no reference to the arm. That there was no injury to the shoulder, or elbow, or any part of her arm, other than the wrist. Therefore, argues respondent, considering all the joints of equal importance, a 50% loss of the use of the wrist would result in only 16%% loss of the use of the arm. Claimant argues “of what avail is flexion of the shoulder joint if one cannot use the remainder of the arm?” Our Supreme Court, in Payne vs. Industrial Commission, 296-333, said:

' “The loss of any substantial portion of a leg constitutes the loss of the leg within the meaning of the Compensation Act, and the necessary amputation of the leg 10 inches above the ankle joint will entitle the employee to compensation for loss of the leg.”

It is difficult, under the evidence, to determine the degree of disability or loss of use of claimant’s left arm and, therefore, upon the request of respondent the claimant was asked to appear for observation in order that this cause might be determined from an observation and examination of both the record and the claimant.

From the appearance of claimant’s wrist at this time, and a consideration of all the evidence, it appears to us that a reasonable conclusion would be that claimant has been permanently injured to the extent of 30% of the loss of use of her left arm, and we so find.

(See. 8, par. e!3) Workmen’s Compensation Act provides “for the loss of an arm or the permanent and complete loss of its use 50% of the average weekly wage during 225 weeks.” Claimant is, therefore, entitled to compensation for 67% wéeks. Claimant’s compensation rate, based on her salary, is $8.83 per week, increased 10% (Sec. 8, par. 1), or a total of $9.71 per week.

An award is therefore entered in favor of claimant, Mayme Peck, in the sum of $655.43, all of which is accrued and is payable forthwith.

This award is subject to the approval of the Govemor as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees. ’ ’


author: Chief Justice Damron

text:
    (No. 3820
    James Conglis, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1945.

      Rehearina denied April 16, 1945.

    Nicholas P. Conglis, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This complaint was filed on November 8, 1943, seeking an award in the sum of $15,000.00 for alleged damages to certain real estate owned by claimant and specifically described as:

Lot twenty-three (23) in Green Bay Heights Subdivision, being a subdivision of part of the Southwest Quarter (SW14) of the Southeast Quarter (SE%) of Section nineteen (19), Township forty-five (45) North, Range twelve (12), East of the Third Principal Meridian, situate in Waukegan Township, Lake County, State of Illinois.

The above described real estate is located on the southeast corner of Green Bay Road and Washington Street, in said Lake County, and the complaint alleges that said real estate was vacant and unimproved at the time claimant acquired it.

The complaint alleges that during March, 1939, the Department of Public Highways directed their engineers and contractors, its agents and employees, to construct or repair Green Bay Road at a point' where, it intersects with Washington Street, at or near the above described real estate of claimant. That without notifying claimant or any other person in his behalf, the said State Highway Department began and completed certain alterations and repairs at said intersection, and that by so doing, the respondent, through its duly authorized agents and servants, destroyed that portion of the road which was running in front of and adjacent to the northwest line of said lot twenty-three, and closed the branch of said road then running adjacent to said road, and by so doing closed in and obstructed the entire branch of said roads, which had heretofore run in front of the entire line of said lot.

The complaint further alleges that the grade of the east line of said Green Bay Road was raised by said Department from one to ten feet from its natural height; that the south line of Washington Street was closed and the grade of said line was lowered from its natural grade line; the closing of said roads on the front and each side of said lot, and the raising and lowering of Green Bay Road and Washington Street, caused the drainage system of lot twenty-three to be greatly impaired and damaged, and that by reason thereof great quantities of water gathered upon said lot when it rained and caused said lot to flood. And further that by reason of said obstruction, elimination and destruction of that portion of the road running immediately and adjacent to the northwest line of said lot, deprives the claimant of his right of ingress and egress, and that claimant has no other means to go to and from his property unless he would trespass on other property.

The claimant further alleges that claimant, in June, 1940, discovered the changes that had been made by the Department of State Highways and thereupon he immediately took up the matter with said Department at its offices at Elgin, Illinois. That conferences were held by some unnamed agent or servant of the respondent by and through the attorney of claimant, and certain promises are alleged to have been made to claimant’s attorney that the respondent would vacate said land and pay certain sums of money to claimant for necessary expenses incurred by said attorney in holding conferences with the agents of the respondent, including a reasonable attorney fee. And that although many requests were made thereafter by claimant or his attorney upon said respondent’s agents or servants, that they have failed to comply with said promises, as alleged in said complaint. And that by reason thereof this claimant has been damaged as aforesaid.

The record in this case consists of the complaint, the motion of respondent to dismiss, and the answer of claimant to said motion.

The motion of respondent to dismiss is supported by an affidavit of Earl McK. Guy, Acting Engineer of Claims, Division of Highways, Department of Public Works and Buildings, of -the State of Illinois, dated December 4, 1943. This motion to dismiss, filed by the Attorney General, is predicated on Buie 10 of this Court, which provides:

Every claim against the State, cognizable by the Court of Claims, shall be forever barred unless the claim is filed with the Secretary of the Court within five years after the claim first accrued, saving to infants, idiots, lunatics, insane persons and persons under disability at the time the claim accrued two years from the time the disability is removed.”

The affidavit in support of the motion to dismiss shows that affiant examined the records of the Department of Public Works and Buildings, and that said records show that the plan for and the construction of State Bond Issue Route 42A, Section UR, Lake County, Illinois, is the same highway improvement by which the grade of the east line of Green Bay Road was raised, and the grade of the south line of the intersecting street, known as Washington Street was lowered, and the wye connection between said Green Bay Road and Washington Street was removed and that said plans and construction are the same highway improvement which said claimant alleges damaged lot twenty-three,' as described in claimant’s complaint.

That on April 4, 1937, the Department of Public Works and Buildings, State of Illinois, let a contract for the construction of said'State Bond Issue „ Route 42A, Section UR, Lake County, Illinois. That the contract for the construction of said road and section was awarded on June 5, 1937, and that the work under the said contract was completed and final inspection thereof was made on November 11, 1937.

It appears, therefore, from the records of the. respondent above referred to in said affidavit, that this alleged claim is barred by the -Statute of Limitation, as provided in Section 10 of the Court of Claims Law.

Claimant, in his answer to the motion to dismiss, files copies of two letters, one dated December 8, 1938, signed by C. H. Apple, District Engineer, and the other dated June 2, 1944, signed by R. T. Cash, District Engineeer. Claimant attempts to construe these letters as a new promise to claimant and a waiver on the part of the respondent to its right to plead the Statute of Limitation. We cannot agree with this contention. These letters were signed by persons who, under the law, could not create a new liability against the State nor increase or enlarge any existing liability.

Statutes delegating powers to public officers must be strictly construed and all parties interested must look to the Statute for the grant of power. Diederich vs. Rose, et al, 228 Ill. 610. Every person is presumed to know the nature and extent of the powers of state officers and therefore cannot be deemed to have been deceived or misled by acts done without legal authority. It is a familiar principal of law that all persons who deal with municipalities and subordinate boards and agencies of the State and National Government must, at their peril, inquire into the powers of the officers or agents of such municipalities, boards or agencies to make the contract contemplated. The acts of such officers can only bind in a manner and to the extent of authorized authority.

These district engineers, upon whom claimant relies for his authority in alleging a new promise, were not authorized, under the law, to execute a binding contract with the claimant. Had they done so they would have acted outside the scope of their authority.

This complaint having been filed more than five years after the cause of action accrued, motion of the Attorney General to dismiss must be sustained. Complaint dismissed.


author: Eckebt, J.

text:
    (No. 3826
    Lottie Tyner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1945.

    Kuhns and Higgins, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckebt, J.

On January 11, 1943, claimant, Lottie Tyner, an employee of the Department of Public Welfare of the State of Illinois, while serving as an attendant at the Elgin State Hospital, tripped and fell, suffering a fracture of the left humerus. The accident occurred while claimant was preparing to help a patient clean the emergency room at the hospital. A physician was called; claimant’s arm was x-rayed, and claimant was put to bed at the hospital where she remained until January 13, 1943.

Claimant was then taken to the Illinois ¡Research Hospital in Chicago and her arm was put in a cast. She returned to the Elgin State Hospital, where she remained until January 22, 1943. At the suggestion of Dr. Beed, managing director of the hospital, she then returned to Chicago and employed Dr. William B. Cnbbins. He reset the arm and applied a second cast. She was hospitalized at St. Luke’s Hospital in Chicago from January 22nd until January 26th, 1943. She did not return to work until March 22nd, a. month after the cast had been removed.

Claimant is a woman fifty-five years of age, married, with no children under sixteen years of age dependent upon her for support. At the time of the accident, the claimant and respondent were operating under the provisions of the Workman’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the Act. The accident arose out of and in the course of the employment.

During the year immediately preceding the injury, claimant was employed by the respondent at a salary of $63.00 per month, plus $24.00 per month maintenance, or a total of $87.00 per month. She was totally incapacitated from January 11, 1943, until March 22, 1943, a period of ten weeks. Her rate of compensation is, therefore, $10.04 per week, plus 10%, or $11.04, making a total of $110.40 due her for temporary total disability. Claimant, however, has received on account of temporary total disability the sum of $169.08, or an over-payment of $58.68.

Claim is made for a 35% permanent and complete loss of use of claimant’s left arm. Claimant, testifying on her own behalf, stated that prior to the accident her left arm was perfectly normal; that since the accident, the extension of her left arm is limited; that it feels as if it were tearing out of the joint when she tries to rotate it, or when she tries to lift anything forward; that she feels a weakness, numbness, and trembling in her left hand; that the arm is painful when she bumps against it, or if she lies on her left side.

Dr. Michael I. Reiffel, of Chicago, testifying on behalf of claimant, stated that upon examination of claimant on January 5, 1944, he found a marked flattening of the deltoid group of muscles of the shoulders, a change of the carry angle of the arm from the shoulder down. He found that extension and abduction and rotation of the arm were restricted, both actively and passively; that rotation of the arm at the shoulder was restricted to approximately ninety degrees of the normal one hundred and twenty degrees; that extension of the arm at the shoulder was restricted to one hundred and sixty-five degrees of a normal one hundred and eighty degrees; and that abduction was restricted to ninety degrees of a narmal one hundred and eighty degrees. He testified that this disability was the result of the fracture of the neck of the humerus with the rotation of the shaft, and is a permanent disability. Subsequent examination by Dr. Eeiffel on August 2, 1944, revealed no improvement in claimant’s condition.

From the evidence, the court is of the opinion that claimant has suffered a 35% permanent partial loss of the use of her left arm. Under the provisions of the Workmen’s Compensation Act, for such disability, she is entitled to receive the sum of $11.04 per week for a period of 78.75 weeks, or $869.40. This amount must be reduced by $58.68, the amount which she was overpaid for temporary total disability.

It also appears from the evidence that claimant has paid St. Luke’s Hospital for necessary hospital services the sum of $44.03, and has paid Dr. William E. Cubbins for necessary medical services, the sum of $100.00. She. is therefore entitled to reimbursement in the total amount of $144.03. No award, however, can be made for the services of Dr. Michael I. Eeiffel, as these servicés were entirely unauthorized by the respondent.

Award is therefore entered in favor of the claimant in the total sum of $954.75, all of which has accrued and is payable forthwith.


author: Fisher, J. Fisher, J.

text:
    (No. 3828
    Raymond Bruce, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1945.

      Rehearing denied March 14, 1945.

    E. W. Harris, for claimant.

      George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Fisher, J.

Claimant alleges that while employed as an attendant at the Dixon State Hospital, on June 2,1943, while in the performance of his duties, he was assaulted by a mentally disturbed patient, causing claimant to suffer numerous scratches and bites about his face, body, right hand and thumb. That as a result of said injuries claimant’s right hand and thumb became infected, resulting in the permanent loss of the use of his right hand.

This case consists of Statement of Claim, Departmental Report, Transcript of Evidence, and Statement, Brief and Argument of Claimant and Respondent.

The substantial facts are not denied, and the only question to be determined here is the extent of the injury suffered by the claimant. It is definitely established that claimant has suffered the complete and permanent loss of the use of the thumb on his right hand and that he has suffered considerable impairment to all the fingers of his right hand. Dr. Zoltán Glatter, staff physician at the Dixon State Hospital, testifying as to the injury said, in part:

“Q. How long since you examined Raymond Bruce’s hand?
A. I didn’t examine the hand for the last several months.
Q. Look at it now and tell me the condition which it is in. The whole hand.
A. He cannot bend the fingers on the hand. There is a marked atrophy of the bone and tissues of the thumb since I have seen him several months ago. But there is no sign of further infection. He cannot flex the thumb toward the palm.
Q. Will claimant at any time be able to use that thumb?
A. He never will be able to use his thumb much better than right now.
Q. Will the condition of his hand improve by exercise?
A. It may improve to a certain extent, but due to atrophy of the bones, it will" take years and years.
Q. In examining his hand, will you describe just how much he can flex these fingers with reference to the palm of his hand?
A. He cannot close entirely the fingers to the palm.
Q. Will you say he can half close his hand?
A. He can close it a little over half way.
Q. Can that hand be used for manual labor?
A. It cannot be used for manual labor.
Q. Can his hand, doctor, be used for office work and in writing or work of that nature.
A. To a certain extent it may be used, but it will be awful slow because he cannot adopt the thumb to the rest of the fingers to hold a pen. * * * He will never be able to do much office work. He can do some.”

There is much more testimony as to the condition of the hand, and from all the evidence, it appears that claimant has suffered a complete loss of the use of his thumb and a 50% loss of the use of his first, second, third and fourth fingers. Claimant is, therefore, entitled under the Workmen’s Compensation Act, to have and receive from respondent 50% of his salary for 130 weeks.

Claimant’s salary at the time of the injury was $15.10 per week. His rate of compensation is, therefore, $7.55 per week, to be increased 10% (Sec: 8, Par. L), or $8.30 per week. 130 weeks at $8.30 per week amounts to the sum of $1,079.00.

An award is therefore entered in favor of claimant, Raymond Bruce, in the sum of $1,079.00, payable as follows :

$697.20, which is accrued and payable forthwith;

$381.80, payable $8.30 per week, commencing January 17, 1945.

This award is subject to the approval of the Governor as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees. ’ ’

OPINION ON PETITION FOE REHEARING

Fisher, J.

At the January, 1945, term of this Court an award was made to claimant in the sum of One Thousand Seventy-nine Dollars ($1,079.00) under the Workmen’s Compensation Act, for personal injuries sustained by claimant in the performance of his duties as an employee of respondent.

Claimant now seeks a rehearing on his claim, and, in a petition filed February 1, 1945, for such rehearing, states that he did not base his claim for compensation under the Workmen’s Compensation Act, but on the basis of “equity and good conscience.” To support his contention claimant refers to the case of Charles Simmons vs. State, 5 C. C. R. 417, Emily Haslan vs. State, 6 C. C. R. 62, and Hines vs. State, 5 C. C. R. 61.

Sub-paragraph 6 of Section 6 of the Court of Claims Act gives this Court power “to hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by an employee of * the State, such determination to be made in accordance with the rules prescribed in the Act commonly called the Workmen’s Compensation Act, the Industrial Commission being hereby relieved of any duties relative thereto. ’ ’ Under this section, the award was made to claimant in accordance with the terms and provisions of the Workmen’s Compensation Act.

Claimant contends that his. claim should be con^ sidered under said Section 6, Paragraph 4, which is hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State as a sovereign commonwealth, should, in equity and good conscience, discharge and pay.”

Sub-paragraph 4 of Section 6 has no application here. It is true that for a short time prior to the year 1933 awards were made under paragraph 4, but in a comprehensive and exhaustive review in the case of Crabtree vs. State, 7 C. C. R. 207, it was concluded that sub-section 4 “merely defines the jurisdiction of the Court and does not create a new liability against the State, nor increase or enlarge any existing liability * *’ *.” To this interpretation and conclusion we have consistently adhered.

The petition for rehearing is, therefore, denied.


text:
    (No. 3845
    George S. Warren, et al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1945.

      _ Petit, Clin and Overmyer, for claimants.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Fisher, J.

Claimants allege that on June 21, 1943, they filed “application for license for the storage ‘of personal property for a compensation” with the Illinois Commerce Commission, together with a certified check in the amount of $50.00 for the license fee. That on June 28,1943, they sold their business and subsequently on August 16, 1943, and thereafter, attempted to recover the fee paid. That no recovery has been had for the reason that the fee had been deposited with the State Treasurer. Claimants seek an award for $50.00, the amount of the fee so paid.

The record of this case consists of the complaint, statement, brief and argument on behalf of claimants and respondent, and motion by respondent to dismiss the complaint for the reason that it does not set forth a cause of action at law or equity.

The complaint sets forth the payment of a license fee required by statute for the operation of certain types of public warehouses as required by the provisions of Sections 122 and 125, Chapter 111%, Illinois Revised Statutes 1943.

Claimants do not allege that the payment was made under a mistake of fact, or that any situation existed at the time of payment of which the claimants had no knowledge. The fact that claimants, before July 1,1943, sold their business and therefore did not require a license effective July 1, 1943, does not entitle them to a refund of the fee paid.

Where a fee or tax is paid voluntarily with full knowledge of all the facts the same cannot be recovered in the absence of a statute authorizing such recovery.
Cooper Kanaley & Co. vs. Gill, 363 Ill. 418.
American Can Co. vs. Gill, 364 Ill. 254.
Wright & Wagner Dairy Co. vs. State, 12 C. C. R. 149.
Where a fee or tax is paid voluntarily there is no legal basis for an award for a refund thereof, and none can be made on the ground of equity and good conscience.
Orchard Theatre Corp. vs. State, 11 C. C. R. 271.
Chicago Cold Storage Warehouse Co. vs. State, 13 C. C. R., page 111.

Claimants, in their statement, brief and argument, state that the payment of the said license fee was made because a purported representative of the Illinois Commerce Commission visited claimants before July 1, 1943, and told them that they must pay a license fee to operate a warehouse or become liable to the penalty provided by law. Claimants contend therefore, that payment was compulsory and not voluntary. A taxpayer is presumed to have knowledge of the law providing for the payment of a tax, and where payment is made under a mistake of law, there is no legal basis for a refund.

The question involved in this claim has been passed upon by this Court in the case ofBussell Johnson, assignee of the Bud Shoe Store, Inc., vs. State, 12 C. C. R. 157. The facts in that case show that the corporation paid a franchise tax to the Secretary of State on May 23, 1940, although the same was not due until July 1, 1940. On June 29, 1940, before the commencement of the period for which said tax was paid, the corporation voluntarily surrendered its charter and was issued a Certificate of Dissolution. It sought a refund, based on the belief that the franchise tax paid to the State on May 23, 1940, was due from it to the respondent for the preceding year instead of the year commencing after date of payment. We held this was a mistake of law and that there is no legal basis for an award for a refund thereof and no award can be made on the grounds of equity and good conscience. To the same effect is the ruling in Orchard Theatre Corp. vs. State, 11 C. C. R. 271.

There being no legal basis upon which an award can be made, the motion of respondent to dismiss must be sustained.

Case dismissed.


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    (No. 3867
    Robert Robinson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1945.

    Louis N. Blumenthal, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Fisher, J.

TMs claim was filed July 14, 1944, and the record completed October 30, 1944.

The record consists of the Statement of Claim, Transcript of Evidence, Departmental Report, Stipulation, and Waiver of Statement, Brief and Argument by Claimant and Respondent.

Claimant alleges that on July 19, 1943, he was employed at the. Chicago State Hospital by the Department of Public Welfare, State of Illinois, as an attendant; that on said date claimant was injured by reason of an accident arising out of and in the course of his employment; that while in the performance of his duties he slipped and' fell, and thereby sustained a colles fracture of his left arm, resulting in permanent injury to. the extent of 25% permanent loss of the use of said arm.

Claimant asks for compensation for total temporary disability from July 19, 1943, until February 9, 1944, and compensation for permanent impairment of the loss of use of Ms left arm. Claimant received medical care and Ms salary for the months of July and August of 1943.

The period in which claimant was totally disabled is not clear from the record. The oMy evidence bearing on this point is the question asked of claimant—

“Q. You were totally unemployed from the time of the accident until when,
A. February 9th.”.

The Departmental Report states:

“This employee was off duty from July 19th to August 19th because of a duty connected injury for which he was paid $105.00. He then received a paid vacation from August 19th to September 1st inclusive. A Leave of Absence was granted him from September 2nd to October 4th inclusive. He was then on duty from October 5th to October 9th inclusive and he resigned on October 10th.”

From tMs evidence, it does not appear when claimant was physically able to resume his duties, and in the absence of such proof, no award for claimant’s total disability can be made.

Claimant was examined by Dr. George N. Beecher and Dr. Benjamin Cohen, who testified that claimant sustained a colies fracture of the left wrist, wMch fracture resulted in the loss of the functional use of claimant’s left forearm in flexion, supination and rotation to the extent of approximately 25% of said extremity, and that, based upon the various x-rays, examination, treatment and reasonable medical certainty, said disability is permanent.

No jurisdictional question is involved, and claimant is entitled to the benefits of the Workmen’s Compensation Act. Section 8, Paragraph E provides for the loss of an arm or the permanent and complete loss of its use, 50% of the average weekly wage during 225 weeks.

Claimant is, therefore, entitled to compensation for 25% permanent loss of the use of his left arm, or $14.23 for 5614 weeks. Claimant’s average weekly wage at the time of the injury was $24.23, 50% of which is $12.11, increased 17%% (Sec. 8, Par. M), or a total of $14.23. Claimant is entitled to have and receive from respondent compensation for 56% weeks at $14.23 per week, or a total of $800.44.

An award is therefore entered in favor of claimant, Robert Robinson, in the sum of $800.44, all of which is accrued and is payable forthwith.

This award is subject to the approval of the Governor as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees. ’ ’


author: Fishes, J.

text:
    (No. 3440
    Walter Hussman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 14, 1945.

    Sharl B. Bass and Greenberg & Sachs, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Fishes, J.

This claim was filed January 15,1940, and the record completed February Í6,1945. The record consists of the Complaint, Stipulation of Facts, Order to show cause why claim should not be dismissed for want of prosecution, Stipulation for Continuance, Depositions, Departmental Report of Medical Examination during illness of Claimant, Report of Medical Examination of Claimant filed February 13,1945, Stipulation that case be assigned on the record as filed, and Waiver of Statement, Brief and Argument by Claimant and Respondent. Claim is for compensation under the Workmen’s Compensation ' Act, for disability sustained by claimant as a result of contracting typhoid fever on or about August 18, 1939, while in the course of and as a result of his employment as an attendant at the Manteno State Hospital.

The record in this case discloses that claimant, while engaged as an attendant at the Manteno State Hospital, became ill with typhoid fever on August 16, 1939, and returned to work on February 8, 1940, in the same capacity and at the same salary. Claimant’s salary, prior to his illness, was at the rate of $56.70 per month, plus maintenance, and he had one child under the age of 16 years. His rate of compensation under the Workmen’s Compensation Act, was, therefore, $10.89 per week. He was totally incapacitated for a period of twenty-five (25) weeks, for which he would be entitled to compensation of $272.25. He was paid during this period of illness the sum of $335.25, which, under the provisions of the Workmen’s Compensation Act, was an overpayment of $63.10.

Claimant testified that he is suffering some permanent disability as a result of this illness, in that he has difficulty in walking and he suffers impairment in his feet . and legs. Dr. Alfred J. Mitchell of 3920 Lake Shore Drive, Chicago, Illinois, testifying in behalf of claimant, stated that in his opinion claimant has sustained about 10% loss of the use of each leg. In cross examination, Dr. Mitchell testified that he had formed his opinion from the history of the illness which he received from the claimant himself; that if he had not received such history from the claimant he could not have decided that the impairment was the result of typhoid fever; and further, that claimant’s present condition might or could be the result of other diseases.

Filed herein is a report of a medical examination of claimant made by Dr. W. A. Baker, M.D., in which, after a most thorough examination of claimant, Dr. Baker concludes—

“I believe that the pain in the legs and lower lumbar region, which he states is excruciating on walking or moving, is entirely due to the old osteo-arthritis which was demonstrated by x-ray in the lumbar region, and complicated by a fourth degree flat feet. The failing vision was nothing more or less than a mild myopia which developed due to his age. X can see no connection between his alleged symptoms and the attack of typhoid fever which he states he had in 1939.”

It is incumbent upon claimant to sustain his allegation of permanent disability by a preponderance of the evidence. This, he has not done. In fact, the greater weight of the evidence indicates that claimant has sustained no permanent disability. He is now engaged in other employment, for which he receives more compensation than he received as an attendant at the Manteno State Hospital. He has sustained no permanent disability, and he has been overpaid for his temporary disability. The claim for an award must, therefore, be denied.

The claim for an award is denied.


author: Eckert, J.

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    (No. 3441
    Russell McDonald, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1945.

    Sharl B. Bass and Greenberg & Sachs, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

The claimant, Bussell McDonald, contracted typhoid fever on August 19, 1939, while in the employ of the respondent as an attendant at the Manteno State Hospital. He was totally incapacitated until November 1st of the same year, and during the period of his illness he was paid by the respondent the total sum of $157.30. He now seeks an award for $103.45 for medical care, $660.00 for loss of sight, $412.50 for loss of hearing, and $937.50 for loss of use of his legs, or a total award of $2,113.45.

At the time of his illness, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the illness and claim for compensation were made within the time provided by the Act. Claimant had no children under sixteen years of age. It is stipulated that a typhoid fever epidemic existed at Manteno ■ State Hospital from July 10, 1939, to December 10, 1939. The typhoid fever contracted by the claimant was accidental and arose out of and in the course of his employment at the Manteno State Hospital, and any injury arising therefrom is compensable under the provisions of the Workmen’s Compensation Act. Ade vs. State, 13 C. C. R. 1.

For the year immediately preceding his illness, claimant’s wages were $903.10, or a weekly wage of $17.37. His rate of compensation is, therefore, $8.69 per week, plus ten per cent, or $9.56. Being totally incapacitated from August 19, 1939, to November 1, 1939, a period of 10-4/7 weeks, he was entitled to $101.06 for temporary total disability. Claimant, however, received on account of such disability the sum of $157.30, which was an over-payment of $56.24. This must be deducted from any award in this case.

On August 27, 1941, claimant was examined by Dr. Alfred H. Herman, of Chicago. From the report of Dr. Herman, and from the testimony of the claimant, it appears that claimant has suffered a complete loss of hearing in his left ear. It also appears from the record that claimant has incurred charges for medical services of Dr. Daniel K. Hur in the amount of $103.45. The record, however, does not sustain the claim for impaired vision, or the claim for loss of use of either of claimant’s legs.

The court, therefore, finds that claimant has suffered the total and permanent loss of hearing of the left ear, and is entitled to receive from the respondent 50% of his average weekly wage for a period of fifty weeks, or the sum of $478.00. He is also entitled to an award for medical expenses in the amount of $103.45, or a total award of $581.45. From this must be deducted the overpayment on account of temporary total disability in the amount of $56.24, leaving a balance of $525.21.

Award is therefore entered in favor of the claimant in the total sum of $525.21, of which $103.45 is to be paid for the use of Dr. Daniel K. Hur. The entire award has accrued and is payable forthwith.


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    (No. 3453
    Nuel Gamble, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 14, 1945.

    Sharl B. Bass and Greenberg & Sachs, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Fisher, J.

This claim is for benefits under the Workmen’s Compensation Act. Claim was filed February 7, 1940, and the record of the case completed on March 5,1945. Claimant alleges, and the record shows, that on the 29th day of August, 1939, he was an employee of respondent at the Manteno State Hospital in the capacity of an attendant; that on the said date of August 29, 1939, claimant, in the course of his employment, was taken ill with typhoid fever, from which illness he recovered and returned to his work as an attendant at the Manteno State Hospital on December 10, 1939.

The record consists of the Complaint, Amended Complaint, Stipulation, Order to show cause why claim should not be dismissed for want of prosecution, Stipulation for Continuance, Medical Report made at the time of the illness, Medical Report of an examination made January 11, 1945, and filed herein March 1, 1945, Stipulation with reference to the record, and Waiver of Statement, Brief and Argument by both Claimant and Respondent.

No claim is made for temporary disability for the reason that claimant was paid full salary during the period of his illness.

Claimant seeks permanent disability for partial permanent loss of the use of his legs and for loss of hearing. No evidence is presented in this case to sustain the claim for permanent partial disability. The medical examination of claimant made by Dr. Lowenstein at the Manteno State Hospital, a report of which was filed herein on March 1, 1945, discloses no disability, and the report summarizes the examination as “physical examination is essentially normal. ”

There being no proof that claimant has sustained any permanent disability, the claim for compensation must be denied.

Award denied.


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    (No. 3465
    Katherine Bindig, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 14, 1945.

    Sharl B. Bass and Greenberg & Sachs, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Fishes, J.

TMs claim, is for benefits under the Workmen’s Compensation Act. Claim was filed on March 5, 1940, and the record of the case completed on March 5, 1945. The record consists of the Complaint, Stipulation, Order to show cause why claim should not be dismissed for want of prosecution, Stipulation for Continuance, Medical Report at time of illness, Report of recent medical examination, Stipulation with reference to the record, Deposition, and Waiver of Statement, Brief and Argument by both Claimant and Respondent.

The stipulated facts in this case are, that claimant was employed by respondent at the Manteno State Hospital as an attendant; that in the course of her employment, on the 18th day of August, 1939, she became ill with typhoid fever; that upon recovery from her illness she. returned to her employment on December 2, 1939, at the same salary she had received prior to her illness; and that she was paid her full salary during the time of her illness.

As full salary was paid during the period of her illness, no claim is made for temporary disability.

Claim is, however, made for permanent disability for partial loss of the use of both legs and for loss of hearing and vision. Claimant submitted to a physical examination on September 23, 1944, by Dr. B. Cohen, Staff: Physician at the Manteno State Hospital, a report of which examination was filed herein on March 1, 1945. This report discloses that claimant’s vision, uneorrected, is 20/30 in both eyes, and corrected, is 20/20; that her hearing is good; that the extremities are good; and that there are no disabling defects. Nothing in the report of this examination sustains the claim for permanent disability, and there is nothing in the record that would indicate that claimant has sustained any permanent physical disability compensable under the Workmen’s Compensation Act, and the claim for such compensation must therefore be denied.

Claimant testified that due to an epidemic which existed at the time of her illness at the Manteno State Hospital, she was unable to obtain necessary medical attention and was compelled to engage the services of her own doctor, one Daniel K. Hur, M.D., of Manteno, Illinois, who attended claimant for a period of six weeks; that he visited her at least twice a day, or oftener, and that his charge for services Avas the sum of One Hundred Twenty Dollars ($120.00), Avhich was paid by claimant. Claimant is entitled, under the Workmen’s Compensation Act, to be reimbursed for this expenditure.

An award is therefore entered in favor of claimant, Katherine Bindig, in the sum of One Hundred Twenty Dollars ($120.00).


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    (No. 3477
    Ruth Robinson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 14, 1945.

    Sharl B. Bass and Greenberg & Sachs, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Fisher, J.

This is a claim for compensation under the Workmen’s Compensation Act. Claim was filed on April 2, 1940, and the record of the case completed on February 23, 1945.

Claimant was employed by respondent as an attendant at the Manteno State Hospital, Manteno, Illinois, and while so employed and during the course of and as a result of her employment, contracted typhoid fever on August 14, 1939. She was discharged as cured on September 30, 1939, and returned to work on January 2, 1940. She again became ill on March 7, 1940, and returned to work on April 24, 1940. The cause of this last illness is not disclosed by the record. Claimant was paid her full salary for the period of her illness, and all expenses and medical bills were paid by respondent.

The record in this case consists of the Complaint, Stipulation of Facts, Order to show cause why the case should not be dismissed for want of prosecution entered July 27, 1944, Medical Report at time of claimant’s illness, Report of Medical Examination dated September 14, 1944, Depositions, Stipulation that Report of the Medical Examination on September 14, 1944, shall be prima facie evidence as to the-condition of claimant at the time of said examination, and Waiver of Statement, Brief and Argument by both Claimant and Respondent.

Claimant seeks complete and permanent disability compensation, including pension, as provided by the Workmen’s Compensation Act. Claimant, in support of her claim for permanent disability, testified that her hands and feet became numb at frequent and regular intervals; that her legs are weak and swell frequently; and that her eyes are bad. Testifying in her behalf, Dr. Alfred J. Mitchell, 3920 Lake Shore Drive, Chicago, repeats the ailments as given to him by the claimant, and that his objective findings were that her temperature was 98.6, her pulse 104, her blood pressure 100/70; that the. examination of the legs was negative; and the movement of both upper and lower extremities was normal. Dr. Mitchell further testified that claimant has suffered some disability which could or might have had some causal connection with claimant’s illness from typhoid fever.

However, on cross examination, the question was asked of Dr. Mitchell:

“Q. Doctor, the condition you described would be possible as the result of a number of diseases, wouldn’t it?
A. Yes, the most likely one would be secondary anemia of high degree, or it could be a deficiency in the amount of adrenal substance from the adrenal glands which could be an early state of an Addison’s disease.”

The medical examination of September 14, 1944, made by Dr. Robert A. Crawford at Manteno State Hospital, a report of which was filed herein on February 21, 1945, shows claimant to be practically a normal person; the extremities “negative”; and summarizes the examination as “possible pathology in the right upper lobe of lung. Hypertension. ’ ’

Upon recovery from her illness, claimant returned to her former position at the Manteno State Hospital, where she continued to work up to and including the present time. To be entitled to an award for permanent disability claimant must show by a preponderance of the evidence that she is partially or wholly disabled and that the disability is a result of the injury. Mandell vs. State, 12 C. C. R. 49. Claimant has failed to make such proof, and there is nothing in the record of this case upon which to base an award for permanent disability. The claim must therefore be denied.

Claim for an award is denied.


author: Fisher, J. Fisher, J. Fishes,, J.

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    (No. 3501
    Helen Klemick, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1943.

      Supplemental Opinion filed May 18, 1944-

      Petition for Rehearing alloioed September 12, 1944-

      Second Supplemental Opinion filed March 14, 1945.

    M. D. Morahn, for claimant.
    George F. Barrett, Attorney General; Glen A. Trevor and William L. Morgan, Assistant Attorneys General, for respondent.
   Fisher, J.

This claim was filed May 18, 1940, and the record of the case completed ón June 8,1943.

The record consists of the complaint, transcript of testimony on behalf of claimant, abstract of evidence, stipulation and statement, brief and argument for claimant and respondent by respective counsel.

Claimant alleges that she was employed as an attendant at the Manteno State Hospital, operated by the Department of Public Welfare, State of Illinois, and that while so employed on or about August 13, 1939, she contracted typhoid fever due to the drinking of contaminated water which was supplied from the wells of the institution; that as a result of this illness, she incurred obligations for medical and hospital services, and that she has become totally and permanently disabled.

Claimant seeks compensation for total permanent disability, and a pension for life as provided by the Workmen’s Compensation Act and the payment of medical expenses incurred by reason of her illness.

No jurisdictional questions are involved, and it is conceded that claimant and respondent were operating under and subject to the provisions of the Workmen’s Compensation Act.

There is no proof whatever in this record that claimant contracted her illness as a result of drinking contaminated water, and no proof of the source of the infection. There is no proof that the water or food furnished by the institution to employees and inmates was in any manner contaminated, or contained typhoid bacilli. The record shows that claimant became ill with typhoid fever while employed by respondent as an attendant at the Manteno State Hospital, and that she was at that time living at the institution. The determination of this claim on its record alone 'would necessitate the denial of an award, for the reason that there is no proof that the injury arose out of and during the course of claimant’s employment.

However, this court has before it for consideration at this September term, 1943, the case of Mary Ade, claimant vs. State of Illinois, respondent, #3429, in which case it is stipulated by respondent that a typhoid fever epidemic existed at the Manteno State Hospital, Manteno, Illinois, from July 10, 1939, to December 10, 1939. By reason of this stipulation of record before us, we have knowledge that a typhoid fever epidemic existed at the Manteno State Hospital from July 10, 1939, to December 10, 1939.

Respondent contends that this claim should not be allowed for the reason that there is no proof that the water in the institution was contaminated with typhoid bacilli.-

In the case of Permanent Construction Company vs. Industrial Commission, 380 Illinois 47, it was held that an injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resultant injury.

Claimant herein worked as an attendant at the institution during a period of time when a typhoid fever epidemic existed at the institution. Her work required her to care for infected patients; to handle their clothing and otherwise administer to their needs. She contracted typhoid fever. We believe it reasonable to conclude that she contracted her illness during the course of and within the scope of her employment.

The facts herein are similar to the case of Mary Ade #3429 hereinbefore referred to in which case we discussed the law at length, which controls in this case. We conclude that under such facts, a claimant is entitled to the benefits of the Workmen’s Compensation Act.

Claimant was unable to receive proper medical attention from respondent at the time of her illness, and it became necessary for her to secure the services of Doctor Daniel K. Hur. She is therefore entitled to receive from respondent the necessary medical expenses incurred and temporary total disability compensation from the date of her illness; August 14, 1939, until November 22, 1940, the date of the hearing herein, except for the month of June, 1940, during which month claimant was employed and for which she has .been paid. Claimant’s salary including maintenance was $1,044.00 per year or $20.08 per week. Her compensation rate is 50% of her average weekly wage plus 10% or $11.04 per week. She is therefore entitled to receive for temporary total disability $11.04 per week for "61 2/7 weeks or $676.58.

By stipulation herein it is shown that claimant was paid during her illness to August 1, 1940, the sum of $675.70, which was for unproductive time, except the month of June during which she worked. Her salary for June of $63.00 was earned and the balance of $612.70 was for unproductive time, and must be deducted from the sum which she is entitled to receive as compensation.

Claimant incurred medical expenses in the sum of $217.30, and is therefore entitled to have and receive from respondent, medical services $217.30, temporary total disability compensation for 61 2/7 weeks at $11.04 per week or $676.58 or a total of $893.88 less $612.70 payment for unproductive time, leaving balance due claimant of $281.18.

Claimant also asks for permanent total disability compensation equal to the amount, which would have been payable in case of death and a pension thereafter as provided in Section 8, paragraph 20 F. of the Workmen’s Compensation Act.

The evidence herein does not sustain the allegation that claimant has been totally and permanently disabled. There is much testimony as to her disability; that hex eyesight and hearing have been impaired; that she suffered from a blood clot on her leg; that she is suffering from colitis, myocarditis and nervousness and that she is a typhoid carrier.

Doctor Daniel K. Hur testified that claimant’s nervous system was such that she was more or less unstable at the time of his last examination; about November 10,1940, “which was probably due to the long periods of illness in the hospital.” She complained of pains in the joints of the body, but Doctor Hur could not say that this was a result of the typhoid infection. Neither did he say that the colitis and heart condition was a direct result of the typhoid infection. He did say that she is a typhoid carrier, and that this condition would prevent certain kinds of employment, and that “she has to get only a certain kind of a job.”

Claimant may be entitled to additional compensation. Her measure of damages is 50 per cent of the difference between what she was earning at the time of the injury, and what she is now able to earn at suitable employment. (Sec. 8, para. D Workmen’s Compensation Act.)

For the reason that we believe claimant may be entitled to further compensation, we retain jurisdiction of this claim for the purpose of making such further order as may be shown to be proper.

An award is entered in favor of claimant, Helen Klemick, in the sum of Two Hundred Eighty-one Dollars and Eighteen Cents ($281.18), all of which has accrued and is payable forthwith.

This award is subject to the approval of the Governor as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees.”

SUPPLEMENTAL OPINION

Fisher, J.

This claim was considered at the September, 1943, term of this Court. In our Opinion, filed at that time, we held “that claimant was entitled to the benefits of the Workmen’s Compensation Act, and was allowed $217.30 for medical services and $676.58 for temporary total disability compensation, a total of $893.88, less $612.70 payment for unproductive time, leaving the balance of the award which was made of $281.18.”

We also found “that claimant might be entitled to additional compensation, and that her measure of damages would be 50% of the difference between what she was earning at the time of the injury and what she is now able to earn at suitable employment.” (Sec. 8, par. D, Workmen’s Compensation Act, and retained jurisdiction of this, claim for the purpose of making such further order as could be shown to be proper.

Subsequent thereto, a stipulation was entered into between claimant, Helen Klemick, by her attorney, M. D. Morahn, and respondent, State of Illinois, by George F. Barrett, Attorney General, that the above named claimant might be examined by Dr. William V. Haskins, a licensed physician and surgeon of the State of Illinois, located at LaSalle, Illinois, to ascertain the present physical “condition of claimant, for the purpose of having said physician prepare a detailed report, to be presented as evidence in this cause; and, in pursuance thereto, a report as to claimant’s condition was filed by the said Dr. William V. Haskins. No evidence was presented other than this report.

The Court is of the opinion that the additional evidence which has been presented, is insufficient to justify a further award.

The claim for total permanent disability, pension for life, and additional compensation is, therefore, hereby denied.

SECOND SUPPLEMENTAL OPINION

Fishes,, J.

Claimant seeks an award for permanent total disability compensation equal to the amount which would have been payable in case of death, and a pension thereafter, as provided in the Workmen’s Compensation Act.

This claim was first considered at the September, 1943, term of this Court. At that time we concluded that claimant was entitled to compensation, and an award was entered in her favor in the sum of $893.88 less $612.70 paid to her for unproductive time. We also found that claimant might be entitled to additional compensation, which could not be granted under the record presented to us at that time. Jurisdiction of the claim was retained for the purpose of allowing claimant to present further evidence in case she desired to do so.

Claimant asked for a rehearing, which was granted, and further evidence was presented upon which the case was reconsidered; and, in 'a supplemental opinion, we concluded that the additional evidence which had been presented was insufficient to justify a further award. Claimant, thereupon, asked leave to make oral argument; to present further testimony by claimant; and to present additional medical testimony. This request was granted, and the claim now comes before the Court for reconsideration on the additional testimony of claimant and a medical examination made at the Manteno State Hospital by Dr. Eugene Lowenstein on November 13, 1944.

The facts in this case are fully set forth in our original opinion.

Claimant, testifying on October 27, 1944, said that she is now living in the Valley Hotel at Spring Valley, Illinois, and, in answer to the question if she were living there by reason of the order of anyone, said “Yes sir, a gentleman from the Board of Health said I was a typhoid carrier and said I was to stay in my home and not to associate with others, and that is why I was confined to my room.” She stated further, that she was unable to obtain work because of the stigma of being a typhoid carrier; and further to the question

“Does the State Board of Health prohibit you from working?”

replied

"They have insisted that I can never mingle among society, never to handle food, and that is my line of work, mostly food.”
Q. “Is there something restraining you from getting work and holding it?”
A. Yes, sir. In the record there is that I cannot even have my clothes sent out where others do, because I am a carrier. Dr. Baer, Managing Officer of the Manteno State Hospital told me that I could never work in the State Hospital there at Manteno again, because I would be a hazard to the patients as well as myself.”

From the testimony, it appeared that claimant had been typed a typhoid carrier by the State Health Department, and had signed a Typhoid Carrier Agreement. This Agreement is now a part of the record, having been obtained and introduced into the record by the Court on its own initiative. The Agreement is, in part, as follows:

4/20/40
TYPHOID CARRIER AGREEMENT
“Permission is hereby granted to Helen Veronica Klemick, a typhoid or paratyphoid fever carrier, to mingle with the public at large and to resume her usual occupation as Hospital Employee (NOT A POOD HANDLER), as long as she complies with the restrictions listed below:
SIGNED A. J. McNeil,
(Manteno Twp.) Health Department.
DATED May 7, 1940.”

The listed restrictions are that she agrees not to handle food for persons other than her immediate family who have been immunized against typhoid fever; to use care in her personal hygiene; that she will submit specimens upon request of the Health Department; and that she will notify the Health Department of any contemplated change of her present' address.

There is no restriction on the activities of the claimant or her occupation, except as a food handler. There are many gainful occupations in which claimant might engage if she is otherwise physically able and inclined to do so. ,

The physical examination made by Dr. Lowenstein, the report of which was filed herein on December 21,1944, shows claimant to be 5'-3" in height and her weight to be 222% pounds. Her blood pressure is 210/150. It shows her vision to be 20/70, and her hearing to be diminished on one side. She is otherwise normal, except that she is a typhoid carrier.

We feel, from a reconsideration of the entire record and a consideration of the additional evidence submitted, that claimant is not totally and permanently disabled; and that her illness from typhoid fever, or any results therefrom, does not disable her from pursuing some gainful occupation and earning as much as she was able to earn prior to her illness. Her claim for total permanent disability and a pension for life, is, therefore, denied.

Claimant has, however, suffered some disability by reason of her illness, for which she should be compensated. She has, heretofore, been compensated from the date of her illness to November 22,1940. Hiving to claimant the full advantage and benefit of every reasonable doubt, we now find her disability continued to October 27, 1944, and that she is entitled to have and receive additional temporary total compensation from November 22, 1940, until October 27, 1944, being a period of 205 weeks, at the rate of $11.04 per week, and. thereafter, nothing.

An award is therefore entered in favor of claimant, Helen Klemick, in the sum of $2,263.20, all of which is accrued and is payable in a lump sum.

This award is subject to the approval of the Governor as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees.”


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    (No. 3543
    Allie Stone, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1945.

    Shapiro & Lauridsen, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

The claimant, Allie Stone, contracted typhoid fever on August 15,1939, while in the employ of the respondent as an attendant at the Manteno State Hospital. Claimant did not thereafter return to work at the institution, and was given a leave of absence as of June 22, 1940. From August 15, 1939, to June 22, 1940, she received wages from respondent in the total sum of $647.75.

At the time of her illness, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the illness and claim for compensation were made within the time provided by the Act. Claimant had no children under sixteen years of age. It is stipulated that a typhoid fever epidemic existed at the Manteno State Hospital from July 10, 1939, to December 10, 1939. The typhoid fever contracted by the claimant was accidental, and arose out of, and in the course of her employment at the Manteno State Hospital, and any injury arising therefrom is compensable under the provisions of the Workmen’s Compensation Act. Ade vs. State, 13 C. C. R. 1.

Claimant seeks an award for alleged “great financial loss and expense for private nurses, hospital treatments, medicine, physician’s bills, loss of time because of inability to work, and other expenses amounting to the sum of $761.00,” itemized as follows:

For nurse hire...............................................$ 56.00
Series of baths.............................................. 150.00
Medicines, travel expense, food, and other expenses............ 160.00
Physician and Surgeon bills..............................".... 175.00
Loss of work................................................ 225.00
Total :..................................................$761.00

There is no evidence in the record, however, to substantiate any of these items.

On September 29,1944, claimant was examined at the Chicago State Hospital by a staff physician, and it is stipulated that the report of this physical examination may be considered prima facie evidence as to her present condition. The report of an examination by Dr. L. S. Barger of Golconda, Illinois, made at the request of the claimant is also a part of the record. From these medical reports, it appears that claimant is suffering from no disability or defect of any kind even remotely connected with the attack of typhoid fever suffered while in the employ of the respondent at the Manteno State Hospital. An award is therefore denied; case dismissed.


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    (No. 3552
    Ruth Lucas, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 14, 1945.

    Shapiro & Lauridsen, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Fisher, J.

This claim was filed November 6, 1940, and the record completed on February 9, 1945. The record consists of the Complaint, Stipulation of Facts, Department Report of Examination on September 1, 1939, Report of Medical Examination on September 29, 1944, Stipulation that case be submitted on record as filed, and Waiver of Statement, Brief and Argument by Claimant and Respondent.

Claimant alleges that she was employed as a stenographer in the office of the Managing Officer of the Manteno State Hospital, and that on August 29, 1939, she became ill with typhoid fever while in the course of her employment. Claimant had no children under 16 years of age at the time of her illness, and her salary was $882.00 per year.

It is stipulated that claimant became ill on September 1, 1939; that she returned to work in the same capacity and at the same salary on December 1, 1939.

Claimant was examined on October 29, 1944, by Dr. Charles H. Wolohan of Washington, D. C., and this examination discloses no permanent disability as a result of claimant’s illness from.typhoid fever. Claimant was paid her regular salary during her illness, which amounted to the sum of $220.50 for the three month period claimant was unable to work.

Under the provisions of the Workmen’s Compensation Act, claimant’s rate of compensation would be $8.48 per week, increased by 10% equals $9.33 per week, and, being incapacitated as a result of her illness for thirteen weeks, she would be entitled to the sum of $121.26. She was paid the sum of $220.50, which was an overpayment of $99.21.

There is no evidence in the record that claimant incurred any expense for medical attention.

It appearing from the record that claimant sustained no permanent disability, and that she has received compensation for temporary total disability in excess of that provided in the Workmen’s Compensation Act, the claim for an award must be denied.

The claim for an award is denied.


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    (No. 3553
    La Vawn Campbell Forshier, Jr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1945.

    Shapiro & Lattridsen, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

The claimant, La Yawn Campbell Forshier, Jr., contracted typhoid fever on September 6, 1939, while in the employ of the respondent as an assistant stenographer at the Manteno State Hospital. Claimant did not thereafter return to work at the institution, and resigned as of December 31, 1939. During the period of her absence, from September 6,1939, to December 31,1939, she was paid by the respondent the total sum of $201.25.

At the time of her illness, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the illness and claim for compensation were made within the time provided by the Act. Claimant had no children under sixteen years of age. It is stipulated that a typhoid fever epidemic existed at the Manteno State Hospital from July 10, 1939, to December 10, 1939. The typhoid fever contracted by the claimant was accidental, and arose out of, and in the course of her employment at the Manteno State Hospital, and any injury arising therefrom is compensable under the provisions of the Workmen’s Compensation Act. Ade vs. State, 13 C. C. R. 1.

Claimant seeks an award for total permanent disability. On September 28, 1944, however, claimant was examined at the Chicago State Hospital, by a staff physician, and it is stipulated that the report of this physical examination may be considered prima facie evidence as to claimant’s condition. From such examination, it appears that claimant is suffering from no disability, or defect of any kind, even remotely connected with the attack of typhoid fever suffered while in the employ of the respondent at the Manteno State Hospital.

An award denied; case dismissed.


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    (No. 3619
    Olive F. Sanford, Widow and Executor of J. F. Sanford, Deceased, Substituted for J. F. Sanford, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1945.

    Noah Gullett and S. S. DuHamel, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, J.

John F. Sanford was employed by the respondent as a temporary insurance examiner on March 1, 1931. On September 9th of the same year, he was transferred to the position of insurance clerk, on a temporary permit, and on May 11, 1932, took and passed a civil service examination. He was certified as an insurance clerk , on October 1, 1932, and on December 7, 1932, was placed on the salary and wages roll of the Division of Insurance at a salary of $125.00 per month.

On January 31, 1933, Mr. Sanford received notice from Ernest Palmer, Acting Director of Trade and Commerce, and Superintendent of Insurance, .advising him that the Department would have no further need for his services after the close of business on Tuesday, January 31st. On February 1,1933, the Civil Service Commission received a demand from John F. Sanford alleging that he had been served with an illegal notice suspending; him from service, and asking that the Commission order his reinstatement. He also notified the Commission at that time that his removal from the service was for political, racial, or religions causes.

The case was set for hearing before the Commission on June 13, 1933, and notice given to Sanford. Because of an injury to the president of the Commission, the hearing was postponed from June 13th to June 20, and Sanford was duly notified of the continuance. He failed, however, to appear at the hearing.

On June 23, 1933, the Civil Service Commission notified Mr. Sanford that the matter had come on for hearing on June 20th pursuant to notice; that no appearance at that time had been made by him, or by anyone on his behalf, and that the Commission had dismissed his petition for want of prosecution.

Mr. Sanford did nothing further until April 23,1937, when he wrote to the Commission alleging that his discharge had been illegal, stating that he had intended to be at the hearing scheduled for June 20, 1933, but that he had been sick and unable to attend. He requested the Commission to order his reinstatement. This was refused on the ground that four years had intervened since Sanford had been in service of the State.

After the lapse of a second period of four years, Sanford filed his complaint in this court on August 5, 1941, seeking damages in the amount of $9,180.00. The claim is opposed by the respondent on the ground that any cause of action which Sanford might have had is barred by the Statute of Limitations.

Every claim against the State, cognizable by the Court of Claims, is barred unless filed with the Clerk of the Court within five years after the claim first accrues, except in the case of persons under disability. (Chapter 37, Section 436, Illinois Revised Statutes, 1943.) John F. Sanford was discharged January 31st, 1933, but his complaint was not filed in this court until August 5,1941. Upon his discharge, Sanford pursued his statutory rights and secured a hearing before the Civil Service Commission. . He failed, however, to appear at the hearing or to. ask for a continuance; he failed to take any further action for nearly four years. His failure to appear and to substantiate his own charges was not the fault of the Commission. Any claim which Sanford had first accrued in January of 1933. Not having been filed in this court within five years thereafter, it is barred by the Statute.

Award denied; case dismissed.


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    (No. 3797
    Nell Sprague, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1945.

      Rehearing denied Mag 8, 1945.

    Frank J. Burns, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This complaint was filed on the 14th day of May, 1943, and seeks an award under the Workmen’s Compensation Act for injuries sustained by the claimant while employed as an attendant at the Kankakee State Hospital at Kankakee, Illinois.

The record consists of the complaint, departmental report, original transcript of evidence and abstract of same, stipulation with 2 exhibits, statement, brief and argument of claimant, brief and argument of respondent and reply brief of claimant.

The evidence discloses that claimant had been employed as attendant at the Kankakee State Hospital since October 12, 1928. On the 1st day of February, 1943, she was attacked by a patient who clubbed her about her head with a wooden implement. The blow rendered her unconscious. She was discovered by another employee and was thereafter removed for hospitalization and treatment to the Illinois Research Hospital, Chicago, which is also operated by the State of Illinois. She received medical attention from several members of the staff there; she remained seven weeks and then was returned to the State Hospital at Kankakee. Claimant did not return to her work until January 1, 1944.

Claimant testified that she was knocked unconscious and remained so for a week, that two teeth were knocked out and she suffered other injuries of the gums and mouth; that her left ear drum was punctured and permanently injured and partly destroyed, and that she had a total and permanent loss of hearing in her left ear; that her left eye was injured, probably permanently and the controlling muscles were paralyzed. She further testifies that she had received serious and permanent disfigurements to the hands, head, face and neck and that the entire left side of her face from crown of head downward was permanently injured and paralyzed; that at the time of assault she received a compound basal fracture to the skull, and paralysis of the left leg; that her left foot, especially her great toe, was injured and required surgical attention; that her tongue is now permanently paralyzed which has resulted in the loss of taste; that there was a blood clot in her left ear and that paralysis greatly effects her entire left side.

Under Section 8, Par. (16%) of the Act awards can be made only for total and permanent loss of hearing. The testimony does not support an award for total loss of hearing in either ear. While it is true that claimant testifies that she has lost the complete hearing of one ear and partial hearing of the other ear, her testimony is not supported by medical testimony. Dr. K. C. Springer, eye, ear, nose and throat specialist, testified he made an examination of her ears before the injury. She must have had some loss of hearing before the injury or she would not have been examined by this specialist. Dr. Springer testified he examined claimant on the 31st day of March, ■ 1944, and that her left eye tested by him for vision was 20/400 uncorrected, with glasses it was 20/40; that the vision in the right eye uncorrected was 20/200, corrected with glasses was 20/25. This Court is unable to determine from the evidence before it what, if any, loss of vision claimant sustained due to her injury for the reason there is no evidence before it concerning the condition of her eye before the injury. The evidence does show that claimant was required to wea.r glasses before the accident and had them on at the time she was attacked.

In claims for compensation under the Workmen’s Compensation Act the burden of proof is upon claimant to prove his claim by a preponderance or greater weight of the evidence. Alexander vs. State, 13 C. C. R. 5; Bradecich vs. State, 13 C. C. R. 56; Pearman vs. State, 13 C. C. R. 84, and awards can only be made for injuries and only such injuries, as are proven by competent evidence, of which there are, or have been objective conditions or symptoms proven not within the physical or mental control of the injured employee herself, and unless there' are or have been such objective conditions or symptoms proven, no award for compensation can be made. Nichols vs. State, 10 C. C. R. 80; Wasson vs. State, 10 C. C. R. 497; Peck vs. State, 10 C. C. R. 56.

Her claim for total loss of hearing of left ear, partial loss of hearing of right ear and serious and permanent injury to head, hand and neck have not been proven. The proof in reference to these claims does not comply with the rule as enunciated in the above cited cases.

There seems to be no question concerning her claim for permanent disfigurement to her face including her left eye lid. The evidence discloses that she has difficulty in closing this lid and oft times has to use her hand to do so; that she has appearance of starting and she did not have this condition before the accident. There is merit to the claim in reference to her mouth being drawn to one side, this too had not existed prior to the accident. These disfigurements are fully proven and are compensable.

From a full consideration of this record we make the following findings; that the claimant and respondent were, on the 1st day of February, 1943, operating under the provisions of the Workmen’s Compensation Act; that on the date last above mentioned said claimant sustained injuries which arose out of and in the course of the employment; that notice of said accident was given said respondent within the time required under the provisions of Section 24 of said Act.

That the earnings of the claimant during the year next preceding the injury were $1,044.00 and that the average weekly wage was $20.07. That claimant at. time of injury was fifty-one years of age and had no children under the age of sixteen years dependent upon her for support. That necessary first aid, all medical, surgical and hospital services have been provided by the respondent.

That claimant is entitled to have and receive from said respondent the sum of $11.04 per week for a period of forty-eight weeks, that being the period of temporary total disability from the day of the injury to January 1, 1944, when claimant returned to her work; that claimant is entitled to have and receive from respondent the sum of $11.04 per week for a period of fifty weeks for disfigurement to her mouth, face and left eye lid as provided in Section 8, Pars, (e) and (17) of the Workmen’s Compensation Act as amended. The respondent paid to claimant, subsequent to said injury, salary amounting to the sum of $167.95 for unproductive work, in lieu of temporary total compensation which must be deducted from this award.

We further find that claimant has expended the sum of $30.00 for tooth replacement, the sum of $6.00 for lens and $30.00 for a facial brace for which the respondent is liable.

An award is therefore entered in favor of Nell Sprague, claimant, in the sum of $979.97; that the sum of $695.52 representing sixty-three weeks has accrued to the 17th day of March, 1945, and is payable in a lump sum forthwith, the remainder of said award in the sum of $284.45 to be paid to this claimant by the respondent in weekly payments at $11.04 for twenty-five weeks and one week at $8.45.

This award is subject to the approval of the Governor as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees.”


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    (No. 3824
    Ed Hahnenstein, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1945.

    Alvin A. Burkart, for claimant.
    George F. Barrett, Attorney General; 0. Arthur Nebel, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This complaint was filed on the 10th day of December, 1943, for benefits under the Workmen’s Compensation Act.

The record consists of the complaint, report of the Division of Highways, stipulation, brief, and argument on behalf of respondent and waiver of the claimant to file a statement, brief and argument.

From this record we find that the claimant, Ed Hahnenstein was first employed by the Public Works and Buildings, Division of Highways on April 7, 1941, as maintenance supervisor and at the time of the alleged injury was earning eighteen hundred and seventy dollars ($1,870.00) annually as an employee of the respondent.

On the 31st day of March, 1943, the claimant was assisting a fellow employee to close the endgate of a Divisional Highways truck used in connection with their assigned duties and while the two employees were attempting to remove a stone which had become lodged in the mechanism of the endgate the claimant’s right ring finger was caught between the endgate and the truck body injuring it.

The claimant was immediately sent to Dr. C. E. Anderson of St. Charles, Illinois, who rendered first aid and instructed the claimant to report to the Delnor Hospital at St. Charles the next morning for surgical and medical treatment and the shaping of a new finger tip. Claimant complied with these orders, reported to said hospital and received surgical and medical treatment. Dr. Anderson, on May 15 reported to the Division of Highways as follows:

“One-half of distal phalanx of right ring finger missing. Dry dressing on March 31. Hospitalized April 1 — local—splinters of bone trimmed smooth — skin sutured. No x-rays taken. Patient was discharged May 15, 1943. Permanent disability is half of distal phalanx of right ring finger, is missing.”

The record discloses the defendant lost no time from his employment as result of the injury and makes no claim for temporary total disability. The respondent paid Dr. C. E. Anderson for services rendered, the sum of twenty-five dollars ($25.00) and the Delnor Hospital, St. Charles, Ill., the sum of ten dollars ($10.00).

The record further discloses that the claimant, at the time he received said injury was sixty years of age and resided on North Lake Street Eoad, Aurora, Illinois. He was married but had no children under sixteen years of age dependent upon him for support. The respondent had immediate knowledge of the accident and claim for compensation was made within six months of the date of injury, and the complaint herein was filed within one year of the said date of injury as provided in Section 24, of the Workmen’s Compensation Act. The claimant having complied with the jurisdictional requirements the only question to be decided by this court is the extent of the injury.

Upon consideration of the record the Court finds:

That on the 31st day of March, 1943, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this state; that on said date the claimant sustained accidental injuries which arose out of and in the course of his employment; that notice of the accident was given to said respondent and claim for compensation on account thereof was made within the time required by the provisions of said Act; that the earnings of the claimant during the year preceding the accident were $1,870.00; and his average weekly wage was $35.96; that claimant at this time of said injury was 60 years of age and had no child dependent upon him for support; that necessary first aid, medical, surgical and hospital services were provided by respondent ; that claimant suffered no temporary disability due to said injury and made no claims therefor; that as a result of said accident claimant suffered the loss of one-half of the distal phalange of the third finger of his right hand, which, under Par. (e)-6 of Section 8 of the Compensation Act is considered the loss of one-half of said finger.

We further find that the claimant is entitled to have and receive from the respondent the sum of $16.50 per week for a period of 12% weeks for the loss of % of the third finger of his right hand amounting to the sum of $206.25 as provided in Par. 4 of Section 8 of the Compensation Act, all of which accrued and is payable in a lump sum.

An award is therefore entered in favor of the claimant Ed Hahnenstein for the sum of $206.25.

This award is subject to the approval of the Governor as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees.”


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    (No. 3842
    Yourtee-Roberts Sand Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1945.

    Claimant, pro se.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

The above named claimant is a corporation, main offices are at Chester, Illinois.

On the 9th day of October, 1942, it delivered material consisting of sand for road maintenance, to the State of Illinois, Division of Highways, District #9, Carbondale, Illinois, amounting to the sum of $10.80.

This account was presented to the Division of Highways at Carbondale, in January, 1944, was not paid, but was returned to the corporation with an explanation that the appropriation from which it was to have been paid had lapsed. The reasonableness of the claim is not questioned by the respondent.

This Court has repeatedly held that where materials or supplies have been properly furnished to the State, and a bill therefor has been submitted within a reasonable time, but the same was not approved and vouchered for payment before the lapse of the appropriation from which it is payable an award for the reasonable value of supplies will be made, where, at the time the expenses were incurred there were sufficient funds remaining unexpended in the appropriation to pay for the same.

Rock Island Sand & Gravel Co. vs. State, 8 C. C. R. 165; Oak Park Hospital vs. State, 11 C. C. R. 219.

This case comes within the rule above set forth, an award is therefore entered in favor of claimant for the sum of $10.80.


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    (No. 3843
    Charles Stone Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 14, 1945.

    Claimant, pro se.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This claimant is a corporation, principal office at Chester, Illinois, and has a quarry and plant at Cypress, Illinois.

It asks an award in the sum of $395.74 for lime stone furnished to the respondent as per invoices attached to the complaint and made a part thereof.

The record discloses that the claimant furnished the State with the following items: 5.84 tons of Cull stone at $0.65 which is $3.80; 13.18 tons roadstone at $1.00 which is $13.18; 3.13 tons of roadstone at $1.00 which is $3.13; 28.36 tons roadstone at $1.00 which is $28.36; 51.65 tons roadstone at $2.20 which is $113.63; 92.16 tons road-stone at $1.76 which is $162.20; 17.10 Agstone at $2.50 which is $42.76; 9.6 tons %" stone at $1.30 which is $12.48; and 16.20 tons culled stone at $1.00 which is $16.20.

The .report of the Division of Highways acknowledged the receipt of all of the above except 12.6 tons of stone at $1.76 a ton amounting to $22.18. The report states that the Division is unable to account for this difference but it does not deny that delivery was made.

The Division also acknowledges the kind of stone, volume, price and points of delivery as shown on inventories, were agreed upon by the parties when the material was ordered by the Division of Highways.

The Division report also shows that during the time this material was being furnished to the State the claimant was in the process of reorganization. When the corporation invoices were presented to the Division for payment in due course in January, 1944, the appropriation from which they were payable had lapsed.

When merchandise is sold to the State on its orders, and received by it and claimant submits a bill in the correct amount within a reasonable time, and due to no fault or neglect on its part, same is not approved and vouchered for payment before lapse of appropriation from which it is payable, an award may be made for the value thereof, where at the time same was furnished there was sufficient funds remaining therein to pay same.

An award is therefore made in favor of claimant in the sum of $395.74.