text:
    (No. 3785
    Floyd Cook, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1946.

    Charles G. Seidel, Elgin, Illinois, attorney for claimant.
    George F. Barrett, Attorney General, for respondent; Wm. L. Morgan, Assistant Attorney General, of counsel.
   Damron, J.

This complaint was filed on the 29th day of March 1943. The record consists of said complaint, departmental report, transcript of evidence, stipulation, rule to show cause, abstract of evidence, and claimant’s statement, brief, and argument.'

The stipulation filed herein shows that claimant at the time of his injury was being paid $225.00 per month without maintenance; that the State of Illinois, in the operation of the Elgin State Hospital, is under the Workmen’s Compensation Act, in that the employment is hazardous; that the questions presented to this Court are whether or not the claimant was injured in the course of and arising out of his employment, and whether or not proper notice was given under the Workmen’s Compensation Act.

The evidence discloses that at the time of the filing of this complaint, the claimant was 46 years of age, was an employee of the Department of Public Welfare, working at Elgin State Hospital as a stationary engineer; that he entered the employ of the respondent in October 1920 as an attendant and was gradually promoted from that date to the 6th day of October 1942 to the last mentioned position.

. The evidence discloses that on the last mentioned date, he was lifting a 50 lb. sack of lime in the engine room of the Elgin State Hospital for the purpose of putting the lime in a water softener; in order to place this material in the water softener, he was required to lift said sack above his head; the sack became loosened from his grip, struck him causing him to fall to the floor, the bag again fell back against him striking him in the stomach at the left side above the hip bone; that he suffered severe pain in his left side in the region of the groin. He went to Dr. Raymond Gr. Scott, Geneva, Illinois, for examination on October 6, 1942; that Dr. Scott after an examination of the claimant, diagnosed his condition as a left inguinal hernia and recommended that an operation be performed upon the claimant in order to repair said hernia. Dr. Scott furnished claimant with a truss to be worn by him until the operation was performed. The record further discloses that on the same date, the claimant reported his injury to Benjamin D. Burdick, the master mechanic at said institution, who was the immediate superior of the claimant.

The evidence further discloses that Burdick sent claimant to the general hospital on the grounds of the Elgin State Hospital where he was examined by Dr. Groner, who also informed claimant that he had suffered a hernia and that it could not be cured without an operation. Claimant testified that prior to the accident he had never had trouble before in the region of the stomach or the groins.

On November 24, 1944 the following stipulation was entered into by and between the attorneys of record:

“It is hereby stipulated and agreed by. and between the above claimant by Charles G. Seidel, his attorney, and the above respondent by George F. Barrett, its attorney, as follows:
1. That the fair and reasonable cost of an operation to correct a left inguinal hernia is Three Hundred Dollars ($300.00) and that the average temporary total disability due to such treatment is four (4) weeks.”

Upon consideration of this record, we make the following findings: That the claimant and respondent were on the 4th day of October 1942, operating under the provisions of the Workmen’s- Compensation Act; that on the date last above mentioned, said claimant sustained accidental injuries which did arise out of and in the course of the employment and that notice was given said respondent within two days thereafter and claim for compensation on account thereof was made on said respondent within the time required under Section 8, par. (d-1) of the Act.

That the earnings of the claimant during the year next precéding the injury were $2,700.00 and that the average weekly wage was $51.92; that claimant at the time of the injury was 46 years of age and had no dependent children.

The Court finds that said claimant sustained a left inguinal hernia as a result of said accidental injury and that under the stipulation in this case, the respondent shall provide said ¡claimant with the necessary medical, surgical, and hospital services to the amount of $300.00 to cure or relieve from the effects of the injury as provided in paragraph (d-1) of Section 8 of said Act as amended. The Court further finds that it is provided in said stipulation that the respondent shall pay to the claimant a sum representing four weeks as temporary total compensation during the "recovery period after said operation.

An award is therefore entered in favor of claimant, Floyd Cook, in the sum of Three Hundred ($300.00) Dollars for surgical and hospital expenses and the sum of Sixty-Six ($66.00) Dollars for four weeks temporary total compensation at $16.50 per week making a total of ■ Three Hundred Sixty-Six ($366.00) Dollars.

The claimant having elected to select his own surgeon to perform this necessary operation, the payment of the above award in a lump sum to this claimant by the respondent shall extinguish and bar all claims for compensation for any disability suffered by claimant hereafter as a result of said injury.


source: Caselaw Access Project

author: Eckert, C. J.

license: Public Domain

text:
    (No. 3848 and No. 3849
    Carl F. Jesse and James R. Carpenter, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1946.

    Pence B. Orr, of Joliet, Illinois, for claimant.
    George F. Barrett, Attorney General; William L. Morgan and C. Arthur Nebel, Assistants Attorney General, for respondent.
   Eckert, C. J.

On June 12, 1945, at a special term of this court, an opinion was rendered in the consolidated case of Marie McAsey, Administratrix of the Estate of Edward J. McAsey, deceased, Carl F. Jesse, and James E. Carpenter, Claimants, vs. State of Illinois, Eespondent, Nos. 3847, 3848, and 3849. An award was made to Marie McAsey, as Administratrix of the Estate of Edward J. McAsey, deceased, but the claims of Carl F. Jesse and James E. Carpenter were continued for consideration of further evidence as to the extent of the disabilities of the respective claimants. The facts are fully set forth in the former opinion.

Since the entry of that decision, further hearing was had on the Jesse and Carpenter claims, and further evidence was presented to establish the extent of their respective injuries. The court is now of the opinion that Carl F. Jesse, as a result of his injury, sustained a 16% loss of vision in both eyes, and is entitled to an award for such loss. He has failed, however, to establish a causal connection between an alleged loss of hearing in his left ear and the injury in question, and has failed to prove a serious and permanent disfigurement to his- face. A compensable disfigurement must not only be permanent and serious, but must be such a disfigurement as affects a person’s employment. Where a person is able to procure employment similar to that in which he was engaged at the time of the injury which caused the disfigurement, with no reduction of earnings, an award is not justified. (Tyler vs. State of Illinois, 12 C. C. R. 101.) Claimant Jesse’s present employment is the same as his employment at the time of the injury, at an increased salary. Furthermore, the photographs offered in evidence indicate no disfigurement that would affect his employment. No award can be made for loss of hearing or for disfigurement.

The court is also now of the opinion that James R. Carpenter, as a result of his injury, suffered a 28% loss of vision in both eyes, and is entitled to an award for such loss. His injury also necessitated the extraction of his upper teeth, and the insertion of a plate, at a total cost of $260.00, for which an award may properly be made.

Claimant Jesse’s earnings for the year immediately preceding his injuries were $1,908.00, or an average weekly wage of $36.69. He had three children under sixteen years of age dependent upon him for support. His compensation rate is, therefore, $18.00 per week. The injury having occurred after July 1st, 1939, this must be increased 10%, making a total compensation rate of $19.80. For the loss of sight of an eye, or for the permanent and complete loss. of its use, claimant would be entitled to 50% of his average weekly wage ■ for 120 weeks.. Since he has suffered a 16% loss of use of both eyes, he is éntitled to an award of $19.80 per week for a period of 38.4 weeks, or the sum of $780.32.

Claimant Carpenter’s earnings for the year immediately preceding his injuries were $2,328.00,- or an average weekly wage of $44.77. He had no children under sixteen years of age dependent upon him for support. His compensation rate is, therefore, $15.00 per-'week. The injury having occurred after July 1st, 1939, this must be' increased 10%, making a total compensation rate of $16.50. For the loss of sight of an eye, or for the permanent and complete loss of its use, claimant would be entitled to 50% of his average weekly wage for 120 weeks. Since he has suffered a 28% loss of use of both eyes, he is entitled to an award of $16.50 per week for a period of 67.2 weeks, or the sum of $1,108.80. To this must be added the necessary dental charges in the amount of $260.00, making a total of $1,368.80.

- Julia Z. Hertz, Court reporter, of Joliet, Illinois, is entitled to payment of $25.00 for reporting the testimony at the hearing on December 28, 1945.

An award is therefore entered in favor of claimant, Carl F. Jesse in the amount of $760.32 payable forthwith, and an award is entered in favor of claimant, James E. Carpenter in the amount of $1,368.80 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”.


text:
    (No. 3880
    Marie Peterson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1946.

    Joseph W. Koucky, of Chicago, for claimant.
    George F. Barrett, Attorney General, and William L. Morgan, for respondent.
   Eckert, C. J.

Claimant, Marie Peterson, filed her complaint on October 3rd, 1944 alleging that on August 23,1944, while in the employ of the respondent at the Chicago State Hospital, and while in the discharge of her duties attending a patient, she slipped and fell, sustaining injury to her coccyx and hack. The complaint contains the necessary allegations as to notice, and prays for an award for total temporary disability, for loss of use of both legs, and for complete and permanent disability.

Claimant, testifying on her own behalf, stated that while attempting to assist a patient in an epileptic seizure, she fell to the floor, injuring her coccyx; that she was then taken to Dr. Cohen, a member of the hospital staff, and was hospitalized for two weeks. Upon her release from the hospital, she returned to her home, and received no further medical treatment. When asked whether she had returned to work, she stated she had not because “I am not doing as good as I could be. I was for a while. I feel pretty good and for the last two' weeks I seem to have more pain again.” She stated that her pain was at the bottom of her spine; that sometimes it is more severe while walking or working; that “it kind of bothers my back here, and I have that for the last week and a half.”

Dr. Albert 0. Field, called as a witness for claimant, testified that he examined claimant on December 28, 1944 and found some rigidity in the gluteal region which increased on' palpations over the coccygeal region; that the tip of the coccyx is turned over; that an X-ray which he took showed a fracture of the lower end of the coccyx. He further stated that these palpations showed pains which involved involuntary muscle spasms, indicating an inflammatory condition in the region of the coccyx. Dr. Field then indicated that claimant should be re-examined, having in mind an operation to remove the coccyx.

Dr. Benjamin Cohen, testifying on behalf of respondent, stated that he examined claimant immediately after the accident, and ordered an X-ray, which showed a fracture of the fifth .sacral segment,' with slight anterior displacement of the distal fragment. He stated that claimant was in the hospital from August 23rd until September 11th when she was discharged with the recommendation that if she continued to have difficulty in the region of the coccyx, she could be sent to the Illinois Research Hospital for further examination, and possible surgery. He testified that claimant never asked for such examination, but that ten days prior to the hearing she asked him whether or not she -needed surgery. He examined her at that time, told her she should return to work, but advised her not to do any heavy lifting. The hearing was then continued to permit examination of claimant, at the Illinois Research Hospital.

At the second hearing, which was held approximately five months after the first, claimant testified that she had been to the Illinois Research Hospital, was examined, and was told that an operation on her back was not advisable. She also testified that her back still ached, and her legs ‘ ‘still give me trouble”. No further testimony was taken.

It is clear from the record that claimant sustained an injury to her back arising out of and in the course of her employment. From the medical testimony it also appears that claimant’s alleged discomfort could be relieved by a comparatively simple operation. Claimant, although testifying that she was advised against such an operation, produced no medical testimony to indicate whether the operation would not in fact relieve the discomfort, or whether her condition was such that the operation was unnecessary.

Claimant seeks an award for total permanent disability. It is clear from the record, however, that she is not totally disabled; it is undisputed that she could and should return to her former employment, except that she should not' attempt heavy lifting. No award can therefore be made for complete disability.

Nor can an award for partial incapacity be made. Section 8 (d) of the Workmen’s Compensation Act of this State provides that compensation for partial incapacity shall be determined by the difference between the average amount which an employee earned before the accident, and the average amount which the employee is earning or is able to earn in some suitable employment or business after the accident. The record in this case shows only that claimant could return to her work at the Chicago State Hospital. The court can not guess whether .or not her salary would be more or less than that earned prior to the injury.

The record contains no evidence whatever of any injury to, or the loss of use of either of her .legs. That allegation of the complaint is wholly unsupported. The claimant has failed to sustain the burden of proof imposed upon her by the Workmen’s Compensation Act.

An award is, therefore, denied.

A. M. Rothbart, Court Reporting Service, has filed a claim for taking and transcribing the testimony in this case. The charges in the amount of $28.00 are fair, reasonable, and customary. An award is, therefore, entered in favor of A. M. Rothbart Court Reporting Service, in the amount of $28.00.


author: Damron, J.

text:
    (No. 3885 and No. 3886
    Mildred Ann Forrester, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, September 12, 1946.

    J. W. Koucky, Chicago, Illinois, attorney for claimant.
    George F. Barrett, Attorney General, for respondent; William L. Morgan, Assistant Attorney General, of counsel.
   Damron, J.

On October 13, 1944 this claimant filed two complaints in this Court.-

She alleges that she has had two accidents while in the course of .her employment at the Chicago State Hospital, Chicago, Illinois. Both of the alleged injuries were to her right hand. Complaint No. 3885 avers that her right hand was injured on January 22, 1944.

• Complaint No. 5886 avers that her right hand was again injured on September 7, 1944.

The evidence offered on behalf of claimant and respondent is so intermingled that we have elected to consolidate both complaints.

Claimant testified oh." direct examination that on January 22, 1944 while attempting to make a patient arise from bed the patient attacked her causing her to fall, fracturing the third metacarpal bone of the middle finger of the right hand. As a result of this accident she . lost four weeks employment, but was paid her full salary and furnished all necessary medical services. She further testified that this injury and the subsequent injury of September 7, 1946, which involves the same hand, has compelled her to write with her left hand instead of her right; that the finger felt tight and seemed to drag; that one of the knuckles of the hand was depressed and that the little finger does not extend as fully as it should and the third finger hurt her all the time; tha.t prior to the accident her hand was normal.

Doctor Albert C. Fields, called on behalf of claimant, testified that he made an examination of the claimant on ■ September 20, 1944 for the purpose of testifying. He testified that he took an X-ray film of claimant’s right hand on the same day. This X-ray was introduced in evidence and read by this medical witness. He said it shows a line in the third metacarpal bone which in his opinion was suggestive of bone injury. When asked if it was a fracture he answered:

“It is my opinion it is a fracture which is fairly well healed.”

He was asked the following question.

Q. “Doctor, is this fracture causing this disability that you speak of?”
A. “The fracture plus the injury to the soft tissues the ligaments and the tendons and the joint spaces. It is more of a soft tissue injury than it is a fracture, because the fracture has healed.”

In reply to a question he estimated the functional loss of use of claimant’s right middle finger to be a certain percentage, to which the respondent objected. The question and answer was improper and the objection wilhbe sustained. He further testified that claimant lacks about three-quarters of an inch of bringing- the tip of the finger to the palm of her hand, but there was no swelling present at the time- of his examination. He testified further that • the condition that he found was permanent.

Doctor Benjamin Cohen was called as witness on behalf of the respondent who testified that on January 22, 1944 he examined claimant and she told him about having had an accident. He examined her right hand and ordered an X-ray which revealed a fracture. Another X-ray film was taken on his orders on February 15, 1944, a progress study, an X-ray film of the right hand revealed a proper healing of the third metacarpal bone. The above testimony was taken in Chicago on November 4, 1945.

On November 10, 1945 additional testimony was taken in Chicago in support of complaint No. 3886 under which an award is sought for temporary total disability and for loss or loss of use of her right hand.under Paragraph (e) Section 8 of the Workmen’s Compensation Act.

Doctor Albert C. Fields was called on behalf of claimant, who again referred to his examination of claimant’s right hand on September 20, 1944 which was thirteen- days subsequent to the alleged injury of September 7, 1944 which is now under consideration under Complaint No. 3886. He testified that he found she had suffered some loss of grip in her hand and some loss of strength due to muscular strain that he assumed was caused by the second injury.

Doctor Benjamin Cohen was called as a witness on behalf of the respondent who testified that on September 7, 1944 the claimant told him that a disturbed patient twisted the second finger of her right hand. He found some swelling and tenderness of the finger and an X-ray film taken at that time was negative for fracture. However, this claimant was referred to Doctor P. S. Procopie an orthopedic surgeon who made an examination on September 15, 1944 of claimant’s right hand.

Doctor Procopie filed his findings of this examination which is as follows:

“Examination of the right hand doesn’t show any laceration, deformity or abnormality. X-ray picture fails to show fracture or dislocation. Function of the right hand is normal. (100% normal.) DIAGNOSIS: Simple muscular strain. No disability.” Signed Doctor P.. S. Procopie.

We have carefully considered this record. Upon examination of the X-ray exhibit we find that it shows no bone pathology and the testimony of this claimant must be considered as subjective, and her complaints are not supported by the medical testimony offered on behalf of the respondent. Claims under the Workmen’s Compensation Act must be proven by a preponderance of the evidence. Section 8, Paragraph (i-3) of the Act provides:

“That all compensation payments named and provided for in paragraphs (b), (c), (d), (e), and (f) of this section, shall mean and be defined to be 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 himself.”

This Court has consistently followed this section of the Act in claims which have been brought before it. Peck vs. State, 10 C. C. R. 56; Wasson vs. State, 10 C. C. R. 57; Musick vs. State, 13 C. C. R. 34; Nichols vs. State, 13 C. C. R. 80.

The evidence in this record does not support her claim of permanent partial disability to her right hand. The claimant having failed to prove her claim, an award is therefore denied in complaint No. 3885 and in complaint No. 3886.


text:
    (No. 3899
    Maude Carlson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1946.

    Joseph W. Koucky, of Chicago, for claimant.
    George F. Barrett, Attorney General, and William L. Morgan, for respondent.
   Eckert, C. J.

Claimant, Maude Carlson, filed her complaint on January 24, 1945, alleging that on February 18, 1944, while employed by the respondent at the Chicago State Hospital, and while in the discharge of her duties, she slipped and fell. She alleged that the fall resulted in an injury to her back and both legs. The complaint contains the necessary allegations as to notice to the respondent. It prays an award for temporary total disability, for total loss of use of both legs, and for partial permanent disability.

Within thirty days after the filing of the complaint, a report of the Department of Public Welfare, in which claimailt had been employed, was filed by the respondent. Subsequently, and at its November term, this court entered an order on claimant to show cause why the complaint should not be dismissed for want of prosecution. Thereafter, on December 6, 1945, hearing" was had, and the transcript of testimony was filed on April 3, 1946.

From the report of the Department of Public Welfare, it appears that claimant entered the employ of the ' Chicago State Hospital in February, 1928; that an injury to claimant was reported to the Department as having occurred on February 8, 1944. A copy of the report of the injury, made by Dr. B. Cohen, Staff Physician of the Chicago State Hospital, to the Department of Public Welfare, under date of February 8, 1944, shows that claimant, on that date, while working in the general dining room of the Chicago State Hospital, accidentally .slipped and fell, and that the fall resulted in “tenderness about left wrist” with “no"treatment necessary.” The injury was classified as trivial.

Claimant, testifying on her own behalf, testified in part as follows:

“Q. You were working for the Chicago State Hospital in February, 1944; did anything unusual happen to you while working there at that time?
A. Yes.
Q. Now, tell us when did this happen, this unusual occurrence?
A. The 18th of February, I do believe.
Q. You are not sure?
A. Well, nay dietician gave me the date, too, she has it down.
Q. What is the name of your dietician?
A. Miss Teller.
Q. Is she your head nurse?
A. She was then, but she is not there now.”

She further testified, that while helping one of the patients, she slipped and fell, injuring her spine, her right foot at the ankle, and her left wrist; that she was sent to the hospital, where she was interviewed by- Dr. Cohen; that she told Dr. Cohen that she had hurt her spine and her foot and her wrist; that Dr. Cohen examined. her wrist and said, “I think you will be all right, Mrs. Carlson.”; that he made no further examination; that she saw him two days later, at which time he exam- ‘ ined her foot, and suggested' she take diathermy treatments ; that she took five such treatments, "and saw Dr. Cohen each time, excepting once when he was not in the •hospital.

Claimant also testified that during Dr. Cohen’s absence another Doctor examined her foot; that he said, ‘ ‘ My, my, you got a very serious blood clot in your foot ’ ’; that he ordered an X-ray taken; that after the X-ray was taken, the unnamed doctor ordered her ¥b bed -"that she stayed home the following Saturday and Sunday, returning to the hospital on Monday, and went to bed; that Dr. Cohen came to see her on Wednesday, examined her right leg, and ordered medication. On .the following Friday, she testified, Dr. Cohen said she could go home, but should return to the hospital on Sunday; that when she went home her foot was paining her, and her husband insisted she see another doctor, also unnamed. She consulted this doctor only once, and testified that he said, ' “Lady, you should be in-bed.- You have a very serious blood clot.”

Claimant, however, returned to the hospital on Sunday, saw Dr. Cohen again on Wednesday, and remained in the hospital, under Dr, Cohen’s care, for a period of twenty-one days.

During that period, she testified, another Doctor came to see her, also unnamed, who was said to be a blood clot specialist; that he told her, “Mrs. Carlson, I am going to try to get you well; ’ ’ that he gave her shots in the arm and other medication; that at the end of the twenty-one days she went home, “because the doctor who said he would get. me well, they would not let him in the hospital.” She testified, however, that this same doctor had been called for her by the hospital, and that he was on the hospital staff. She testified that he said she had a sprained ankle, and wrapped her foot from the toes to • the knees.

These wrappings were subsequently taken off by a Doctor Vaughan, whom claimant employed when she returned home at the end of the twenty-one day period. She testified that Dr. Vaughan wrapped both of her feet and legs in ice, and kept them in ice for nine weeks; that she remained in bed at home continuously for five months; that Dr. Vaughan came to see her every day “at . first”, and about twice a week after her condition improved.

Claimant testified that her right leg now “is very bad;” that “it just gives away on me and when I walk it don’t bend in here;” that it is stiff in the .ankle; that it swells when she walks on it, or when she stands on her feet all day. She- stated that she wears a rubber stocking and when asked if she ever had any trouble with her right leg prior to this fall, stated; “I never did.”

Upon further examination' in regard to the date of the alleged injury, claimant again testified that she checked the date of the fall with her head nurse; that February 18th was the date given to her, and was the date which appeared in a record book kept by this nurse. The nurse, however, was not called as a witness, nor the record produced.

Dr. Albert C. Field, called as a witness on behalf of claimant, stated’ that he examined claimant on December 30, 1944; that he found the movements of her back were fairly well performed; that after bending forward and assuming the erect position, there was some spasticity of the lumbar muscles; that claimant complained on manipulation on the lumbar region; that both legs were discolored, reddened in appearance; that there was evidence of a marked circulatory disturbance; and that claimant had a phlebitis in both legs, an inflammatory condition of the veins of the legs, and a thrombosis. He testified that such a condition could be caused by a fall, and when asked if it were permanent, stated that it might be ‘ ‘ some improved, but it would be a long time in. doing it.” On cross-examination Dr. Field stated that he was testifying as to an injury supposed to have occurred on February 18,1944; that he knew nothing of the injury except that claimant fell and injured her right foot and back; that he knew nothing of an injury occurring on February 8th, 1944.

' Dr. Benjamin Cohen, called as a witness for the respondent, testified that on the 8th of February • 1944, he was a member of the staff of the Chicago State Hospital; that on that date he had a complaint that claimant had. received an injury; that claimant told him she accidentally slipped and fell while working in the general dining room; that upon examination he found a tenderness about the left wrist; so trifling as to make treatment unnecessary. He stated he found no thrombosis, and no serious injury. He also testified that claimant had been a patient at the hospital on numerous occasions, both before and after the 8th of February, 1944; that she was hospitalized on March 4, 1944 for a period of twenty-one days; that she was treated by Dr. Ruess, a gynecologist, -because at that time she complained of a generalized tenderness throughout her body,, mostly her legs. On cross-éxamination, Dr. Cohen testified that from an examination on March 7th, he found a non pitting odema in claimant's legs which is generally due to a heart condition, but he found no indication of a thrombosis or phlebitis. He stated that claimant was very obese at the time of the alleged disability; that a thrombosis might be due to obesity because of the pressure on the veins, varicose veins being a prominent cause of phlebitis. On re-direct examination, Dr. Cohen stated that claimant made no complaint of an injury to her legs on February 8th.

The claimant was subsequently re-called, and testified that since her employment at Chicago- State Hospital she had broken her left wrist, had injured her ribs, had had her gall' bladder removed, had had one kidney removed, had‘broken her arm, and had had an emergency operation for appendicitis.- Upon re-cross examination she testified that in January, 1944 she employed one Dr. Corbett as her physician. She could not recall the specific date in January, but stated that she knew “it was when Sonja Henie was here,” about the middle of January; that she saw Dr. Corbett three times, having gone to him after the fall she sustained in the Stadium when she went to see Sonja IJenie and fell down and bruised both knees.

From the record, it is clear that claimant has a bad medical history;' that she had a fall in January, 1944, serious enough to require medical treatment; that she fell while in the course of her employment on February 8th, 1944; that the only injury apparent on February 8th . was an injury to her wrist. The record is conflicting as to whether or not there was a subsequent injury on the 18th of February, and as to the cause of the resulting, disability. The testimony of the claimant is contradictory and wholly unsatisfactory.,

Respondent’s records show only the injury of February 8, 1944, an injury which the examining physician characterized as trivial. The testimony of the examining physician also clearly shows that a month later his examination did not disclose the condition which claimant insists resulted from an injury, not on February 8th, but on February 18th, 1944. .Neither the head nurse who was alleged to have á record of the date of the injury, nor Dr. Ruess, whom the records show was available, and who' treated claimant at the Chicago State Hospital, nor Dr. Vaughan, whom she selected and employed, and who treated her at home after she left the hospital, was called by claimant as a witness. Instead she produced a physician who examined her almost a year after the alleged injury, and whose opinion and diagnosis in part was based on subjective symptoms. »

, Claimant has the burden of proving the causal connection between the accident and the condition or incapacity which constitutes her claim for compensation. Sanitary District v. Industrial Commission, 343 Ill. 236; Sears Roebuck & Company v. Industrial Commission, 334 Ill. 246; Mandell v. State, 12. C. C. R. 29. Liability can not rest upon imagination, speculation or conjecture, but must be based upon facts established by a preponderance of the evidence. Springfield District Coal Company v. Industrial Commission, 303 Ill. 528.

The court is of the opinion that claimant has not sustained her burden of proof; that any liability in this case would be based, not upon facts, but upon conjecture.

An award is therefore denied.

A. M. Rothbart Court Reporting Service, has filed a claim for taking and transcribing the testimony in this case. The charges in the amount of $57.00 are fair, reasonable and customary. An award is therefore entered in favor of A. M. Rothbart Court Reporting Service in the amount of $57.00.


text:
    (No. 3919
    Dean Tummel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, September 12, 1946.

    Dixon, Devine, Bracken & Dixon, Dixon, Illinois, attorneys for claimant.
    George F. Barrett, Attorney General; Wm. L. Morgan, Assistant Attorney General, of counsel, for respondent.
   Damron, J.

This is a claim for benefits under the Workmen’s Compensation Act.

The- evidence discloses that claimant was first em- • ployed by the respondent at the Dixon State Hospital, Dixon, Illinois, as an attendant, on September 29, 1941 and worked -continuously for the respondent until the 17 th day of August 1944.

The evidence further discloses that on the last mentioned date, this claimant, in attempting to separate two patients at said hospital who were engaged in a fight, was bitten by one of the patients on her right hand. Claimant testified that her right hand had been burned from lye in 1925, which left a scar on this hand but she had full functional use of it. The injury received by her on August 17, 1944 injured the scar tissue which was present due to the lye burn.

Considerable surgery was performed on claimant’s right hand and skin was grafted thereto. She was hospitalized for a considerable length of time, due to this injury, from August 17, 1944 to January 1945. She attempted to work during that month and did perform her duties as an attendant for four days when she again found she required hospitalization. She was unable to resume her employment thereafter until August 1, 1945 upon which day she resumed her employment for the respondent and continued thereafter until December 1945 when she was discharged from her employment by the respondent.

The amended report of the Department of Public Welfare discloses that claimant’s annual wages for one year preceding this injury amounted to $1,364.81 and that the Department paid to the claimant, from the date of her injury until she resumed her employment, as temporary total compensation, the sum of $489.50; this excludes the sum of $16.13 which was paid to claimant for salary for four days ’■ employment during January 1945.

The evidence discloses that at the time of claimant’s injury she was a widow and had one child aged 9 years fully dependent upon her for support.

The medical testimony discloses that at the time the evidence was taken on May 28,1946 claimant had suffered a 25% total permanent loss of use of her right hand due to said injury.

We calculate that from the date of the injury, August 17, 1944 until claimant was able to resume" her employment was 49 weeks and 6 days. However, claimant reported for work in January 1945, worked for respondent four days during that month for which she was paid. She, therefore, is entitled to temporary total compensation for 49 weeks and 2 days and is also entitled to be compensated for a 25% permanent loss of use of the injured hand.

Her annual wages being $1,364.81, her average weekly wage would be $26.24. Her weekly compensation rate, therefore; based on 17%% increase and a 5% increase for a dependent child, would be $16.19. We find, therefore, that claimant is entitled to the sum of $797.93 for temporary total compensation for 49 weeks and 2 days, from which must be deducted the sum of $489.50 paid by respondent to claimant as temporary .compensation during this period, leaving a balance due claimant for temporary total compensation in the sum of $308.43; claimant having suffered a 25% permanent partial loss of use of her right hand would be entitled to 42% weeks at $16.19 or the sum of $688.07, making a total amount due to claimant for temporary total and specific loss in the sum of $996.50 as provided by Section 8 (Paragraphs e, j, 1, and m) of the Act.

We further find from the evidence that all medical, hospital and surgical services have been furnished by the respondent with the exception of the sum of $344.15 which represents professional service rendered at the Murphy Clime, Dixon, Illinois, for a series of surgeries of skin graftings, medications and dressings rendered to client by Dr. David L. Murphy of said Clinic, which amount we find to be fair and reasonable for the services performed.

An award is therefore entered in favor of claimant in the sum of Nine Hundred and Ninety-Six Dollars and Fifty Cents ($996.50) all accrued and payable in a lump sum to her and a further sum of Three Hundred Forty-Four Dollars and Fifteen Cents ($344.15) for the use of Dr. David L. Murphy, making a total award of One Thousand Three Hundred and Forty Dollars and Sixty-Five cents ($1,340.65).


text:
    (No. 3932
    William W. Stuenkel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1946.

      Petition of claimant for rehearing denied September 14, 1946.

    H. C. Strauschild, for claimant.
    George F. Barrett, Attorney General, for respondent.
    Wm. L. Morgan, Assistant Attorney General, of counsel.
   Damron, J.

This complaint was filed on the 26th day of September 1945, seeking an award under the provisions of the Workmen’s Compensation Act. On October 4, 1945, the. respondent, through its Attorney General, filed a motion to dismiss the complaint, based on the premise that it appeared on the face of said complaint that the cause of action was barred by the statute of limitations. Before the motion to dismiss had been passed upon by this Court, the claimant, by authority of Bule 14 of this Court, filed an amended complaint on October 27, 1945, which complied with'the rules of this Court and cured the objection raised by the respondent in reference to the statute of limitations. This Court, at the November 1945 .term, denied the motion of the Attorney General to dismiss this claim.-

The record as. completed, now consists of the following: complaint, motion of respondent to dismiss, the statement, brief, and argument, notice to call up motion to dismiss, motion of claimant to dismiss or overrule respondent’s motion to dismiss, amendment to complaint, opinion of this Court denying motion to dismiss the complaint, evidence on behalf of claimant and waiver of brief and argument of both claimant and respondent.

On February 27, 1946 the evidence was taken of claimant in support of the amended complaint. At that time, a stipulation was entered into by and between the parties which is in words and figures as follows:

“We can agree that William W. Stuenkel was employed by the Division of Highways on July 5, 1944 as a section foreman; that on that date an accident and injury occurred; that the Division of Highways and the employee are operating subject to the Workmen’s Compensation Act; that notice and demand were made as provided by the Workmen’s Compensation Act; that the petition herein was filed within two years of the date of the accident as provided by law; that his salary, exclusive of overtime, for the preceding year was $1,170.85; that the Claimant was forty-five years old at the time of the accident, was married and had no children under the age of sixteen dependent on him for support.
It is also stipulated hy and between the parties hereto that the departmental report shall stand as the evidence of the respondent in this case.” .

It is to be noted that the original complaint in this case was filed by claimant on September 26/ 1945 and the amendment to the complaint was filed on October 27, 1945. The amendment to the complaint alleges, “that during said time claimant attempted to perform his duties and during part of said time he was not able to perform his duties and for the remainder of-said four months he was not able to fully perform his duties because of the condition of his hand; that during said time, with knowledge of claimant’s injury arid without denial of liability, claimant was paid his full salary which said payments claimant regarded as compensation for his injury.”

During the course of examination of claimant, the. following questions were propounded to him on direct examination:

“Q — You returned to work right after the accident?
A — That is correct.
Q — You kept on working?
A — That is correct.
Q — Did you do your usual work?
A — I. did my usual work but not as well as I could do it before.” ■

On cross examination • the following questions were propounded to claimant:

’ “Q — During all that time you received your full pay?
A — That is also correct.”

Section 8,'paragraph D of “An Act to create the Court of Claims and to prescribe its powers and duties, ’ ’ approved July 17, 1945, provides:

“All claims against the State for personal injuries or death arising out of and in the course of the employment of any State employee and all claims against the Board of Trustees of the University of Illinois for personal injuries or death suffered in the course of, and arising out of the employment by the Board of Trustees of the University, the determination of which shall be in accordance with the substantive provisions of the Workmen’s Compensation Act or the Workmen’s Occupational Diseases Act, as the case may be.”

' Section 24 of the Workmen’s Compensation Act provides :

“* * * provided, no proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident, provided, that in any case, unless application for compensation is filed with the industrial commission within one year after the date of the accident, where no compensation has been paid, or within one year after the date of the last payment of compensation, where any has been paid, the right to file such application shall be barred; * * *”

This Court has no jurisdiction to hear and determine a claim under the Workmen’s Compensation Act where the claimant has failed to comply with the limitations of time of Section 24 of said Act. Henderson vs. State, 12 C. C. R. 3; Boismenue vs. State, 12 C. C. R. 36; Chiara vs. State, 12 C. C. R. 41; Koleita vs. State, 12 C. C. R. 217; Roebuck vs. State, 12 C. C. R. 236; Scott vs. State, 13 C. C. R. 163.

The above cases cited were rendered by this Court under Section 6 of the former Act of the General Assembly which was approved June 25, 1917 and repealed on June 17,1945. Rule 6 provided as follows:

“To hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by any 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 duty relative thereto.”

It has also been repeatedly held by the Illinois Supreme Court that compliance with the provisions of Section 24 of the Compensation Act is a condition precedent to the right to maintain proceedings under the Compensation Act. City of Rochelle vs. Industrial Commission, 332 Ill. 386; Inland Rubber Company vs. Industrial Commission, 309 Ill. 43; Simpson vs. State, 10 C. C. R. 394; Baker vs. State, 10 C. C. R. 111.

It was not the intention of the Legislature when the Court of Claims Act was passed and approved, July 17, 1945, to modify or amend the Workmen’s Compensation Act and we hold that Section 8, paragraph D of the Court of Claims Act is to be read in conjunction with Section 24 of the Illinois Workmen’s Compensation Act and a claimant is required to follow the substantive provisions of the Act to confer jurisdiction on this Court to hear and determine the claim.

The evidence shows that this claimant was injured on July 5, 1944; that claimant lost no compensable time from the date of injury until the filing of the original complaint in this case and therefore no temporary compensation was due or paid to him by the respondent.

The original complaint was filed with the Clerk of this Court on the 26th day of September 1945, more than one year subsequent to the accidental injury sustained by claimant.

This, claimant having failed to comply with the provisions of Section 24 of the Act, his claim must be denied.

Claim dismissed.


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    (No. 3933
    Dr. Charles Ahronheim, Claimant, vs. State of Illinois, Respondent.

      Opinion files September 12, 1946.

    Paul C. Ross and Frank M. Martoccio, of Chicago, for claimant.

      George F. Barrett, Attorney General, and William L. Morgan, for respondent.
   Eckert, C. J.

On December 18th, 1944, claimant, Dr. Charles Ahronheim, while in the employ of the respondent at the Elgin State Hospital fell on a slippery side walk on the hospital grounds and injured his right shoulder and back. The injury caused pain in claimant’s back, and grew increasingly worse until the 10th of "January, 1945, when cláimant reported to Dr. Green of the Hospital Staff, who put claimant’s right arm in a sling. The report made at that time to the Department of Public Welfare classified the injury as serious and described it as: “small area of swelling at anterior edge of the right deltoid muscle, nutritional disturbance of the right 4th and 5th finger nails.”

Claimant’s arm remained in a sling until some time in July or August, without improvement. Diathermy treatments, in the meantime, were given to claimant at the Sherman Hospital in Elgin, and. claimant was hospitalized at the Elgin State Hospital for. eight days under the care of Dr. Green, Dr. Reid and Dr. Leibert. Claimant left the employ of the respondent on the first of May, 1945.

The report of the attending physician, made to the Department, indicates that the condition of claimant’s shoulder had not improved when he was last examined by Dr. Green on April 30th, 1945, and the prognosis was that the condition might become chronic.

After claimant left the Elgin State Hospital, he continued to consult various doctors in the hope of obtaining relief, but without success. The services of these various physicians were all secured at claimant’s, own election. At the time of the hearing, on October 29, 1945, the pain in claimant’s shoulder had not lessened, and- he testified that it was alleviated only by the use of sedatives and hypnotics. His postero-lateral abduction was restricted, and he was unable to close or make a fist. He testified that the fingers of the right hand were partially numb, as if they were covered with silk, and stated, that in his work as a physician, his right hand and arm are entirely useless.

Dr. George Green, the attending physician, testified that he had no knowledge as to the fall which occasioned the injury, but stated that the condition now existing, as described by the claimant, might be a result of an injury such as claimant stated he received. Dr. Green, just prior to the hearing, found claimant unable to lift his right arm anteriorly above the level of the shoulder; found claimant limited as to lateral abduction; found claimant unable to place his right hand behind his back; found claimant had atrophic changes of the finger nail of the right fourth finger, and the ring finger; and found a small lump at the anterior border of the right deltoid muscle near its insertion on the humerus. ' Dr. Green stated that it was unlikely that" such a condition would occur from anything other than an injury. He considered the condition chronic.

Dr. S. I. Weiner testified that he examined the claimant on October 29, 1945, at which time he took an X-ray of both claimant’s shoulders. These X-rays were ad mitted in evidence, and show claimant’s left shoulder perfectly normal, but show, as to the right shoulder, calcification around the margin of the glenoid fauca of the scapula, and calcifications-over the greater tubercle of the head of the humerus, and streaks of calcification across the heads of the humerus proper.

Dr. Weiner also testified that he had made a medical examination of claimant which disclosed an atrophy of the right upper extremity, localized tenderness from the angle of the shoulder and over the anterior part of the shoulder and the region of the coracoid process of the scapula. His diagnosis was traumatic periarthritis of the right shoulder, and he stated that it was definitely of a traumatic nature because it is confined to the periarticular structures and not to the articular structure. Dr. Weiner stated that in his opinion the condition is permanent, and that there is a total functional loss of use of claimant’s right arm.

At the time of the injury, the employer and employee were operating under the provisions of the Workmen’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 claimant’s employment. During the year immediately preceding the injury, claimant’s salary totaled $2,760.00. Claimant, although unable to work from January 10, 1945, to May 1,1945, received his full salary in the amount of $899.33.

Claimant’s average weekly wage was $53.07, and his compensation rate is therefore $17.63. The court is of the opinion that he is entitled to an award for temporary total disability for a period of 15 5/7 weeks, or the sum of $277.04.

The court is also of the opinion that claimant has suffered a complete loss of use of Ms right arm. He is therefore entitled to an award, for such loss of use, of $17.63 per week for a period of 225 weeks, or the sum of $3,966.75.

A. M. Rothbart Court Reporting Service is entitled to payment of $41.50 for reporting the testimony at the hearing.

No award can be made for medical expenditures, since claimant elected to secure these services at his own expense.

An award is therefore entered in the total sum of $4,285.29, from wMch must be deducted moneys paid to the claimant by respondent during the period of January 10,1945, .to May 1,1945, being the sum of $899.33, leaving a balance of $3,385.96, payable as follows:

a) the sum of $41.50 to A. M. Rothbart Court Reporting Service, forthwith.
b) the sum of $1,256.77 to claimant, forthwith.
c) the sum of $2,087.69 to claimant in weekly installments, beginning on the 12th day of September, A. D. 1946, at the rate of $17.63 per week for a period of one hundred and eighteen weeks, with an additional final payment of $7.35.

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..”


text:
    (No. 3939
    Harriette E. Bailey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1946.

    White & Ingram, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, C. J.

On September 14, 1934, Elizabeth Ginn died a resident of Moultrie County, Illinois. Her estate was administered as an intestate estate in the County .Court of Moultrie County. The final report of the administrator was filed on September 23, 1935, and an order was entered by the court approving .the report and directing distribution of the assets of the estate to Harriette E. Bailey, as niece and sole heir of the decedent.

Oh January 2,1935, during course of administration, the administrator filed an inheritance tax return in the County Court of Moultrie County, and on February 6, 1935, after due notice, an order was entered by the court assessing an inheritance tax upon a net estate of $52,-283.18. A total tax in the amount of $3,742.65 was assessed against Harriette E. Bailey, and this amount was paid from the estate to the County Treasurer of Moultrie County on February 13, 1935.

On August 10,1945, a conservator appointed for one Ella B. Harbaugh, the widow of Frank Harbaugh, formerly an attorney at Sullivan, Illinois, found in the possession of Mrs. Harbaugh a will of Elizabeth Ginn, which had been drawn -by Frank Harbaugh in his lifetime. The will made charitable bequests, which it is conceded are not subject to an inheritance tax, totaling $33,000.00. On August 18,, 1945, the will, together with a petition for probate by the Trustees of the Methodist Church of Sullivan, one of the charitable beneficiaries, was filed in the County Court of Moultrie County. On September 17, 1945, Harriette E. Bailey entered her appearance in the probate proceedings, filed her answer to the petition, and consented to an immediate hearing. An order was thereupon entered admitting the will to probate, and directing that no letters be issued because Harriette E. Bailey had paid the full amount of the bequests, and all costs and expenses of the probate proceedings.

Because of the subsequently discovered will containing the charitable bequests, the inheritance tax paid by the administrator of the estate of Elizabeth Ginn, deceased, and which was deducted from the residue distributed to Harriette E. Bailey, was excessive in the aggregate amount of $2,615.66. The claimant, Harriette E. Bailey, now seeks a refund of such excess from the State of Illinois.

Section 10 of “An Act to tax gifts, legacies, inheritances, transfers, appointments and interests in certain cases, and to provide for the collection of the same, and repealing certain Acts therein named, ’ ’ (approved June 14, 1909), as subsequently amended, provides as follows:

“When, it appears that errors have inadvertently occurred in the inheritance tax proceedings resulting in an erroneous amount of tax paid to the State Treasurer, such errors may be corrected and the order of assessment modified accordingly in a proper proceeding, and the executor, administrator or trustee, person or persons, corporation or corporations, who have paid such tax in error, shall be entitled to a refund from the State Treasurer of the amount of such tax erroneously paid: Provided, that'this section shall not apply to any errors in the valuations of the property of the decedent as appraised, or in the rules Of law applied in determining the taxability of the several successions: Provided, that all applications for the repayment of any tax under this section shall be made within two years from the date of such payment.”

The error which occurred in the inheritance tax proceedings in the Elizabeth Ginn estate was clearly inadvertent, without fault on the part of the claimant, or any interested party, and resulted in the payment ■ of an errpneous amount of tax to the State Treasurer. Under this section of the statute, such an error may be corrected, and the order of assessment modified accordingly in a proper proceeding, and the person who has paid such tax in error is entitled to a refund from the State Treasurer in the amount of the tax erroneously paid.

This court has consistently held that it has no jurisdiction to hear and determine claims for which there exists a remedy in courts of general jurisdiction. (Farm Bureau Oil Co. Inc. v. State of Illinois, 14 C. C. R. 153.) But Section 10 provides that all applications for repayment under that section must be made within two years from the date of payment. It was manifestly impossible for this claimant to make application for refund within the statutory period. The County Court of Moultrie County, after the lapse of more than ten years, was without jurisdiction to correct the error inadvertently made, and was without jurisdiction to modify the order and assessment. The State Treasurer, likewise, no longer had any authority to coñsider an application for refund. Since no remedy existed in courts of general jurisdiction, the claim was properly filed in this court, and since it originated when the will of Elizabeth Ginn was probated, it was filed in apt time under the general statute of limitations applicable to claims filed in the Court of Claims.

The only objection 'which can seriously be urged is that since the claim arises under Section 10, and since two years have elapsed from the date of the payment of the tax, claimant is also barred from claiming a refund in this court.

Although this precise question has not previously been determined, there are numerous cases in which this court has made awards for refunds of inheritance taxes. Prior to the 1933 amendments to the Inheritance Tax Act, it was customary to make application for -refunds under Sections 8, 10, and 25 of the Act in the Court of Claims. The application was made directly to this court because there were no provisions in the Act for re-determination of the tax in the County Court. And prior to the 1933 amendment, Section 10 was the only section providing for refunds which contained a time limitation.

Section 10 of the Act, prior to the 1933 amendment, provided :

“When any amount of said tax shall have been paid erroneously to the State Treasurer, it shall be lawful for him, on satisfactory proof rendered to him by said County Treasurer of said erroneous payments, to refund and pay to the executor, administrator or trustee, person or persons who have paid any such tax in error, the amount of such tax so paid: Provided, that all applications for the re-payment of said tax shall be made within two years from the date of said payment.”

This section of the Act was considered by this, court in numerous cases. In Griffith v. State of Illinois, 2 C. C. R. 128, at page 131, the court said:

“The difficulty encountered in this regard, however, is the requirement of said section ten, that application for repayment must be made within two years from the date of payment. In this case, payment was made to the county treasurer, April 26, 1907, and the two years’ limitation therefor had run April 26, 1909. The evidence further shows, that neither during that period, nor afterward, was any application made to the State Treasurer for repayment, either by the county treasurer of Cook County, or the claimant, and the question therefore arises, whether claimant is barred of recovery in this cause> by limitation.
"Section ten, referred to above, is somewhat vague and uncertain as to the manner in which application for repayment is to be made, or as to the person by whom or to whom such application is to be made. As conditions precedent to repayment, two incidents are to concur: First, the county treasurer is to render to the State Treasurer satisfactory proof of the erroneous payment and, secondly, an application is to be made for repayment, but whether application is to be made by the payer to the county treasurer, by the payer to the State Treasurer, or by the payer to the county treasurer and then by the county treasurer to the State Treasurer, is not at all evident from the context.
“It would seem to be the most natural method, however, for the person who had erroneously paid the tax to the county treasurer, to apply for repayment to the very same officer to whom payment in the first instance was made, and that the county treasurer, who is presumed to have paid this erroneous tax to the State Treasurer, would thereupon make proof of the erroneous payment to said State Treasurer and the latter officer then make repayment.
“Again, under section ten referred to, repayment is to be made by the State Treasurer upon satisfactory proof being made to him, by the county treasurer, of the .erroneous payment. It is unlikely that the county treasurer would render such proof, unless application were first made to him for repayment by the party erroneously paying the tax, notice of the erroneous payment being thus brought to his attention, and it is not unreasonable to suppose that this is the application which is intended should be made within the two years period.
“There is no definite direction in section ten as to this matter of application, and there is nothing in the section to indicate that the application is to be accompanied by any formality. In this case, at the time the tax was paid, claimant expressed protest by endorsing the same on the check. This protest was followed by an appeal by the claimant, from the order of the county judge, fixing this tax and by the time the county court rendered its opinion that part of the tax was illegal, the limitation had run. There was no laches or lack of diligence on the part of claimant. She was protesting against the payment all the time and was seeking relief from the same by the only legal remedy at hand, following her remedy to the Supreme Court of the State. Her acts and conduct in the matter constituted a constructive application of the very strongest kind and was of a continuing character.”

An award for the excess tax was made.

Section 10 of the act was again considered in the case of Weller and Klick v. State of Illinois, 3 C. C. R. 2. In that case, one George Weller, on January 4, 1898, conveyed a life estate in land to Henry Lorenz by deed, with remainder in the child or children of Katherine Lorenz, daughter of the grantor and wife of the grantee, the grantor reserving to himself, however, the possession and use of the real estate during his lifetime. On March 30, 1910, George Weller died testate, leaving Mina Lorenz, the daughter of Katherine Lorenz, as his only heir. His will devised a life estate in the same property to Mina Lorenz and Lillie Lorenz, and the claimants, Weller and Klick, were appointed trustees of the estate of Mina Lorenz and Lillie Lorenz. Lillie Lorenz, however, died before the testator, leaving Mina Lorenz as the sole devisee. Inheritance tax proceedings were had, and tax paid, in accordance with the will, on the beneficial interest of Mina Lorenz. The tax was paid to the County Treasurer on September 22, 1910, and subsequently paid by him to the State Treasurer.

On June 10, 1912, the claimants, Weller and Klick, as trustees, filed their report in the Circuit Court of Logan County. Mina Lorenz filed objections, claiming that $188.09 of the tax paid had been erroneously paid, in that it was an assessment against property taken by her under the deed, and denying that her title was a life estate under the will." The Circuit Court over-ruled the objections, but'upon appeal to-the Supreme Court, at the April, 1915 term, it was held that $188.09 of the inheritance tax paid by the testamentary trustees had been erroneously assessed against the beneficial interest of Mina Lorenz, and erroneously paid to the County Treasurer. Thereafter, the claimants revised their report in accordance with the order of the Supreme Court, and made application to the State Treasurer for a refund, which was refused.

Claim was then filed in this court, and the claimants argued that the two-year statute of limitation contained in Section 10 of the Inheritance Tax Act was not a bar because the statute did not begin to run until the date of the final determination by the Supreme Court in 1915. This court, in its opinion, pointed out that the claimants had acted in good faith, and had followed the advice of counsel in the payment of the inheritance tax. On page 3, the court said:

“. . . It is a rule of statutory construction that a statute of limitations shall be strictly construed, and it has been further said as in Btanninger v. Taber, 103 111. App. 133, ‘The statute of limitations affects only the remedy, and does not commence to run until the parties to be barred hav.e a right to invoke the aid of the court to enforce their remedy.’
“The Supreme Court found in 1915, that this tax was erroneously paid. Previous to that time claimants were of the belief that it had been properly paid, and in this belief they were supported by the advice of their counsel as well as the findings of the Circuit Court. After the entering of the judgment of the Circuit Court, wherein it was found that the tax had been properly paid, claimants certainly could not have asked for a refund and it was not until the Supreihe Court in April of 1915 found that the tax had been erroneously paid, that they could possibly have filed this claim.”

The court held that the limitation clause of Section 10 was not applicable, and entered an award for a refund:

Section 10 of the Inheritance Tax law was again considered by this court in the case of Moore v. State, 4 C. C. R. 1. James Hobart Moore died testate on July 18, 1916, a resident of Wisconsin. Letters Testamentary were issued in Wisconsin to Lora Moore, and no administration was had in Illinois. On October 18,1916, the County Judge of Cook County assessed an inheritance tax in the amount of $19,773.00, which was paid by the executor to the County Treasurer of Cook County in November, 1916.. Thereafter, on September 5,1918, on hearing on petition, the acting County Judge of Cook County entered a decree finding that the order of the County Judge of Cook County, entered on October 18, 1916, was in error in the assessment of an inheritance tax upon the transfer of stock of foreign corporations passing to non-resident beneficiaries, and that the total tax assessable in said estate was $6,307.56. On November 26,1918, the executor filed in the Court of Claims a claim for refund of $12,-438.79. The respondent contended that the claim was barréd by the two-year statute of limitations in Section 10. This contention was not sustained by the court. On page 3 of the opinion, it was said: “The two-years’ limitation mentioned in section 10 aforesaid does not affect the right of recovery in this case in this court. It only limits the time of applying for refund from State Treasurer.” The court held that the amount claimed had been erroneously assessed as an inheritance tax and constituted a valid claim against the State. An award was entered.

In the case of Union Trust Company v. State, 6 C. C. R. 254, the executors of an estate, on July 31, 1920, paid to the County Treasurer of Cook County the amount of inheritance tax fixed by the County Judge on an appraiser’s report, less the discount provided by statute. The appraiser had made an error in his computations, which was not discovered until 1928. Notwithstanding the lapse of time, this court entered an award for the difference between the tax which had been paid and the tax properly and correctly computed.

The same result was reached in the case of March and, et al, v. State, 10 C. C. R. 691. The claimants in that case were the heirs of one Edward Armstrong, who died December 12, 1922, a resident of Adams County, Illinois. An administrator was appointed for Ms estate, inheritance tax proceedings were had, arid a tax of $212.11 was assessed ori the theory that the net estate escheated to the County of Adams. On April 17, 1924, the administrator paid the tax to the County Treasurer of Adams County, who in turn remitted to the State Treasurer in accordance with the statute. In 1936, the claimants first learned of the death of Edward Armstrong, and after a hearing in the County Court of Adams County, an order was entered establishing claimants as Ms heirs. Despite the time limitation of Section 10 of the statute, which had then been amended and was in. its present form, this court held that the claimants, being non-residents, and not knowing of the original assessment, nor of the estate, until 1936, were entitled to a return of the excess tax paid to the State.

The decisions of tMs court, construing the limitation provision of Section 10 of the Act, thus establish a precedent for the allowance of a refund in a case such as this. They are based on several theories: (1) that there was no laches or lack of diligence on the part of the claimant; (2) that a statute of limitations, being always strictly construed, does not commence to run until the party to be barred has had a right to invoke the aid of a court to enforce Ms remedy; and (3) that the two-year period of limitation in Section 10 affects only the time of applying for refund from the State Treasurer.

Applying these principles to the instant case, the court is of the opiMon that the provision of Section 10 requiring applications for repayment to be made within two years from the date of payment does not bar claimant’s recovery in tMs court.

An award' is therefore entered in favor of the claimant in the amount of $2,615.66.


text:
    (No. 3956
    Harriet I. Smith, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1946.

    Roy A. Ptacin and Joseph W. Koucky, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, C. J.

On December 24, 1945, the claimant, Harriet I. Smith, an employee- of the respondent at the Chicago State Hospital, slipped on an icy sidewalk on the hospital grounds and fractured her right wrist. She was hospitalized at the institution from December 24, 1945, to ■ January 21, 1946.. She returned to work on February 17, 1946.

At the time of the accident, the employer and employee were operating under the provisions of the Workmen’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 claimant’s employment.

Claimant’s earnings for the year-preceding the accident were $1,587.26, making an average weekly wage of $30.52. Her compensation rate is therefore the maximum of $15.00, increased twenty per cent, since the injury occurred after July 1, 1945, or $18.00. Claimant was totally incapacitated for a period of eight weeks, and is entitled to an award in the amount of $144.00 .for temporary total compensation. Claimant, however, was paid $217.50 for non-productive time, making an over-payment of $73.50. All medical and hospital services were furnished by the respondent.

Claimant, testifying on her own behalf, stated that, since the injury she has a bump on the top of her right wrist, a numbness in several fingers of the right hand, an inability to close the right fist, and that her hand is twisted inward.

Dr. Benjamin Cohen, called on- behalf of claimant, stated that an x-ray taken on December 26, 1945, shows .an impacted colles fracture of the right wrist. Dr. Cohen, from examination of claimant’s arm, stated that the injury was permanent, and that she has sustained a definite loss of use of the right hand as a result of the injury.

Dr. Albert C. Field, testifying on behalf of claimant, stated that he examined claimant on April 23, 1946, and made an x-ray of her right wrist and hand. He found the hand held in a somewhat silver-forked deformity, with a shortening of the radius and a prominence of the lower end of the ulna. He testified that all movements of the fingers of claimant’s right hand were somewhat restricted, and on active motion she lacked about three-fourths of an inch of bringing the middle and ring fingers to the palm of the hand. He found flexion of the wrist limited about forty-five degrees, extension about forty-five degrees; supination about one-half of her normal range, and pronation within normal limits. The x-ray taken by Dr. 'Field was introduced in evidence and forms a part of the record. He was of the opinion that claimant had suffered a permanent loss of the use of her right hand.

The testimony was heard by Commissioner John L. East, Jr., who. recommends an award of fifty per cent permanent loss of use of claimant’s right hand. The Commissioner’s recommendation is fully supported by the evidence and the x-ray. Claimant, therefore, is entitled to an award for fifty per cent permanent loss of use of her right hand, or $18.00 per week for a period of eighty-five weeks, a total of $1,530.00. From this amount must be deducted, the over-payment on account of tem-

c

por'ary total disability of $73.50, leaving a balance due claimant of $1,456.50.

A. M. Rothbart Court Reporting Service is entitled to payment of $25.50 for reporting the testimony at the hearing.

An award is therefore entered in the total sum of $1,482.00, payable as follows:

a) the sum oí $25.50 to A. M. Rothbart Court Reporting Service, forthwith.
b) the sum of $529.71 to claimant, forthwith.
c) the sum of $926.79 to claimant in weekly installments, beginning on the 12th day of September, A. D. 1946, at the rate of $18.00 per week for a period of fifty-one weeks, with an additional final payment .of $8.79.

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. 3957
    The Texas Company, a Delaware Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1946.

    Harold K. Norton and Edward R. Cullen, Chicago, Illinois, attorneys for claimant.
    George F. Barrett, Attorney General, for respondent; C. Arthur Nebel, Assistant Attorney General, of counsel.
   Damron, J.

The claimant is a foreign corporation duly authorized to engage in business in this State. An award in the amount of $68.09 is sought for goods sold and delivered to the respondent by the claimant.

The record consists of the complaint, bill of particulars, report of the Division of Highways, and the waiver, statement, brief, and argument by the claimant and respondent.

The record discloses that the claimant, through its agents, furnished the respondent with gasoline, kerosene, liquid fuels, oils, and lubricants.

The report of the Division of Highways acknowledges that the claimant, through its several agencies, made 22 deliveries of products for which it has not been paid. The Division of Highways, of the Department of Public Works and Buildings, made 17 purchases; the Division of State Police, of the Department of Public Safety, made 3 purchases; the Division of Waterways, of the Department of Public Works and Buildings, made 1 purchase, and the Department of Conservation made 1 purchase,, as set out in claimant’s bill of particulars attached to said complaint and made a part thereof.

The report further shows that each department'or division, above referred to, has confirmed that the purchases assigned to it, as shown on said bill of particulars, were made; the material used in department or division equipment; that the amounts of the charges are correct; that the volume of material is correct; and as of June 30, 1945, appropriations were in existence and funds available in them for the payment of said materials had the invoices covering them been presented for payment within the allotted time.

The court finds from the record that the above named .claimant furnished supplies for the respondent, the purchase of which was properly and duly authorized; claim- . ant submitted its invoices to the respondent within a reasonable time and has not received payment; such nonpayment is due to no fault on the part of the claimant;

- when the charges were incurred there remained a sufficient unexpended balance in the appropriation from which payments could have been made. Claimant is therefore entitled to this award. Phillips Petroleum Company vs. State, 14 C. C. R. 44.

An award is therefore entered in favor of the claimant in the sum of Sixty-Eight Dollars and Nine Cents ($68.09).


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    (No. 3412
    Raymond Ruddy, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1946.

    M. W. Stefanich, attorney for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, of counsel for respondent.
   Damron, J.

This claimant seeks an award for temporary total compensation from July 1, 1939 to October 30, 1940 in the sum of $2,188.00 plus $55.50 alleged to have been expended by claimant for trips to Chicago, Illinois for medical attention and for medicinal purchases.

Claimant testified that, while employed as a guard at the Pontiac Branch of the Illinois State Penitentiary, on March 25, 1939 he slipped on the floor of the barn at said institution causing him to fall with great force and thereafter developed a hernia. That he immediately reported the injury to Doctor Otis H. Law who was at that time employed by the respondent at the Pontiac Branch of the Illinois State Penitentiary, and that on the 31st day of March 1939, an operation was performed by the staff physician at the prison hospital. . Claimant re- ■ mained therein for approximately four weeks.

Claimant further testified that he returned to his work on May 27, 1939 but suffered intense pain from March 25, until July 23, 1939. He testified that he suffered a recurrent traumatic rupture soon after the original operation and that on April 29, 1940 he again submitted to an operation which was performed by Doctor J. D. Scouller at the St. James Hospital in Pontiac, Illinois; that he made a satisfactory recovery following said operation and returned to work for the respondent" on October 30, 1940 at the Joliet Branch of the Illinois State Penitentiary. The departmental report, which is prima facie evidence, shows that claimant was first employed on April 7, 1936, as a guard at the Illinois State Penitentiary. That he filed an application for a transfer to'the Pontiac Institution and reported there for duty on July 1,1936, and submitted his resignation at that branch July 31, 1939.

The record in this case is very unsatisfactory, and we are unable, upon a careful consideration thereof, to say with certainty whether or not this claimant was actually disabled for any period of time from his employment as a result of the alleged injury except about four weeks following the first operation in which he received salary.

Liability under the Workmen’s Compensation Act cannot rest upon imagination, speculation or conjecture or upon a choice between two views equally compatible with the evidence but such liability must arise out of the facts established by a preponderance of the evidence/

The general rule of law that the burden of proof is upon the plaintiff to prove his case by a preponderance or greater weight of the evidence, is applicable to claims under the Act,.and where the only evidence in support of claim "for temporary total disability is the unsupported ■ testimony of claimant the evidence is insufficient to justify awárd therefor.

Claimant has not sustained his burden of proving his right to temporary total compensation. An award in this case if allowed to the claimant, would have to be based not upon the facts contained in the record but it necessarily would have to be upon conjecture.

This claim for temporary total compensation must be denied.


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    (No. 3462
    Luther F. Cobb, et al. Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1946.

      Petition of claimant for rehearing denied January 14, 1947.

    Sharl Bass, and Jack L. Sachs, for claimant.
    George F. Barrett, Attorney General and William L. Morgan, Assistant Attorney General of counsel, for respondent.
   Damron, J.

This complaint was filed on February 23, 1940 by Cloteel Cobb for an award under the Compensation Act.

' The complaint alleges that ,on the 19th day of August 1939, Cloteel Cobb was employed as an attendant at the Manteno State Hospital and on that date contracted typhoid fever during the course of her employment in said institution; that' medical, surgical and hospital treatments were partially furnished by the respondent; that the earnings of said employee during the year preceding her alleged injury was $649.20 plus room and board; that during the time of her temporary disability the respondent paid her full salary. Claim is made herein for $22.00 a week for complete and permanent disability, including pension for life as provided in Paragraph (e) of Section 8 of the Workman’s Compensation Act; that said claimant at the time of the alleged injury was 40 years of age and that she was the mother of four children under the age of 16 years..

On September 15, 1944, a suggestion of death of the above claimant was filed in this Court showing that she had died on March 25, 1943. Leave was given to substitute Luther F. Cobb, as husband of the claimant and as father of Maxine Cobb, Billy Cobb, Doris Cobb and Harvey Cobb, minor children of Cloteel Cobb and-Luther F. Cobb. The record consists of the following:

Complaint, stipulation, order to show cause, suggestion of death of claimant and motion to substitute husband, Lnther F. Cobb, et al, stipulation for continuance of rule to show cause, order to show cause dated November 13, 1945, motion of claimant to vacate order of dis: missal and to reinstate, transcript of evidence, waiver of claimant’s brief and argument, medical report, waiver of brief and argument of respondent, letter from Dr. Edward.Ross, commissioner’s report of findings, copy of death certificate, statement for services rendered by A. M. Rothbart for taking and transcribing testimony.

The evidence in support of this claim was filed in this Court on May 27, 1946 consisting of-the testimony of Luther F. Cobb, the present claimant, and Doctor Alfred J. Mitchell. The death certificate and hospital record of the Manteno State Hospital were introduced in evidence on behalf of the respondent.

The hospital record discloses that the said Cloteel Cobb was admitted to the medical hospital at the Manteno institution on August 19,1939 under the care of staff physician, Doctor Spinka, and there remained until October 28, 1939. The hospital record further discloses that patient was given daily treatments of insulin throughout the period of her hospitalization, and discloses that the stools were negative as to typhoid fever on October 13, 1939, again on October 17, 1939 and on October 21, 1939; that this patient was discharged from further treatment for typhoid fever on October 28, 1939; that on her discharge a diabetic diet was ordered for her and insulin treatments of 10-5-10 were recommended by Doctor Spinka and he also ordered her to bring a specimen of her urine to the laboratory daily for examination as to sugar content.

The evidence discloses that after her discharge from the hospital on October 28,1939 she returned to her home and there remained until her death on March 25, 1943.

A death certificate filed in this case gives the immediate canse of death as cardiac failure due to diabetic coma due to diabetes and further that this disease was in no way related to the occupation of the deceased, said death certificate being signed by Doctor Fred L. Darnell," Momence, Illinois, who was not called as a witness on behalf of claimant or respondent.

A physician was called on behalf of claimant who gave an opinion based on a hypothetical question that . there was a direct causal relationship between the on-set of the typhoid- fever and the subsequent condition of ill being of the hypothetic individual, and the relationship between the antecedent diabetes and the cause of death of the hypothetic person.

On cross examination he admitted he had based this opinion wholly on the hospital report filed in this cause and that he had never seen claimant’s intestate during her lifetime. He readily admitted, however, that typhoid fever is no cause for diabetes and that the diabetes suffered by Mrs. Cobb anteceded the attack of typhoid.

The evidence in this case taken as a whole conclusively shows that claimant’s intestate suffered an attack of typhoid fever on August 19, 1939 during the course of her employment by the respondent but recovered fully from this attack. That prior to said onslaught she was the victim of diabetes and ran the usual course of a diabetic from which she died March 25', 1943.

In Elliott vs. State, C. C. R. 14, page 227, this Court said. “It is the duty of this court to weigh and consider the evidence in the record and if it is found that the evidence fails to support the averments in the complaint, the court must deny the claim. Liability under the Compensation Act can not rest upon imagination, speculation, or conjecture, or on a choice between two views equally ■compatible with the evidence, but must be based upon facts established by a, preponderance of the evidence. Berry vs. Industrial Commission, 335 Ill. 374. Awards for compensation can not be based upon possibilities or probabilities, but must be based upon evidence the preponderance of which shows that claimant has incurred a disability arising out of and in the course of his employment. Standard Oil Company vs. Industrial Commission, 322 Ill. 524; Weimer vs. State, 12 C. C. R. 244.”

Claimant having received full salary from the respondent during her hospitalization period the claim under the complaint for temporary total disability must be denied for the reason that she was over paid for nonproductive work; her claim for complete and permanent disability from the 19th day of August 1939 to the 25th day of March 1943 must be denied for lack of proper proof and likewise the claim of the present claimant under the provisions of Section 7 (a) of the Workman’s Compensation Act for the death of Cloteel Cobb, his wife, must be denied for lack of proper proof.

Awards as prayed in the complaint as amended are denied.

A. M. Bothbart, court reporting service was employed to take and transcribe the testimony in the above entitled cause and rendered services in that behalf on February 18th and May 2nd, 1946.

The charges for these services are $29.40 and we find that that is fair, reasonable and customary charges for such services.

An award is therefore entered in favor of A. M. Rothbart, court reporting services, Chicago, Illinois in the sum of $29.40.


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    (No. 3662
    Charles W. Dutton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1946.

    Harold Tunnell, for claimant.
    George F. Barrett, Attorney General, M. F. Milne and C. Arthur Nebel, Assistant Attorneys General of counsel, for respondent.
   Damron, J.

In 1939 General John G. Garrity was superintendent of the Department of "Veterans Grave Registration of the State of Illinois. During that year he employed the claimant, Charles W. Dutton, to erect government issue head stones of war veterans in cemeteries in certain counties of this State. This employment of the claimant was authorized under Chapter 21, Paragraph 59a, Illinois Revised Statutes 1939, which provided for the erection of head stones at the graves of soldiers and sailors of the Army of the .United States. Appropriations by the 61st General Assembly to the bureau of War Veteran’s Graves Administration included the sum of $20,000 “for transportation and setting of stones.”

The record discloses that this claimant performed services for General Garrity "and he claims he re-set and repaired a number of head stones at the graves of veterans which during the lifetime of General Garrity was paid through the office of the Adjutant General.

On August 10, 1940, General Garrity died, thereby creating a vacancy in the office of Adjutant General. The record discloses that the claimant, however, continued to re-set stones thereafter and with one exception all the work done by this claimant was re-setting old stones.

He makes a claim for this work for $471.80.

This Court has heretofore held that where one renders services to the State, on the order of one authorized to contract for same, and submits a bill in the correct amount within a reasonable time, and due to no fault or negligence on his 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. Sheppley vs. State, 14 C. C. R. 204; Catholic Bishop of Chicago, et al vs. State, 12 C. C. R. 440; Rock Island Sand and Gravel Company, 8 C. C. R. 165; Oak Park Hospital Incorporated vs. State, 11 C. C. R. 219.

The authority of this Court to pay a claim such as this must come from the General Assembly. Without a specific appropriation for the payment of services such as was rendered by this claimant this Court is without jurisdiction. An appropriation for the services rendered is a condition precedent to an award.

Here it must be'noted that the appropriation of the 61st General Assembly to the bureau of War Veterans Graves Administration was for transportation and setting of head stones only. There was no appropriation made'to the bureau to pay for work of re-setting other stones which were alreády in place or for placing “collars” around certain stones which had previously been set.

The claimant admits that he was never an employee of the State and while it is true he might be designated an independent contractor yet it is also true that General Garrity did not have the statutory authority to employ this claimant to do anything other than the setting of • new stones. He had no legal right to employ anyone to. maintain,- repair or re-set stones which had been placed at the heads of veterans graves under the authority of the General Assembly.

Claimant, while admitting he was not an employee of the respondent, nevertheless says that when one furnishes material, or labor for another, unless there are circumstances showing a different intention on the part of the parties in the transaction, the law will raise an implied contract that the recipient of labor or materials will pay the fair, reasonable value of the same.

We agree that doctrine has been upheld in the cases cited by the claimant, but here we find the respondent is a sovereign State and this doctrine does not apply.

For the reasons assigned this claim must be denied.

Award denied.