text:
    (No. 2537
    Julius J. Gross, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1940.

    Snapp, Heise & Snapp, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

For more than a year prior to July 13, 1934, claimant was employed by the respondent as superintendent of the tailor shop at the Illinois State Penitentiary at Joliet, Illinois. While engaged in the duties of his employment, on the last mentioned date, claimant was brutally assaulted by certain inmates of the institution. He was struck in the jaw with a heavy iron object, knocked down, and rendered unconscious; was kicked, beaten and stabbed; he sustained a compound comminuted fracture of the lower left jaw, and all of his lower teeth were loosened. He also sustained a concussion of the brain, was bruised about the body and legs, sustained an injury to the sciatic nerve of the rig*ht leg, and was so badly beaten about the head, face, neck and chest that he was unrecognizable.

Dr. Frank J. Chmelik, the prison physician, rendered first aid within twenty minutes after the occurrence and had the patient removed to St. Joseph’s Hospital at Joliet, where he remained about three weeks. While in the hospital and afterwards, claimant remained under the care of Dr. Chmelik. He was also treated 'by Dr. Joseph D. Talbot, a practicing dentist, who treated Mm for the trouble with his teeth, mouth and jaw. X-ray pictures of the jaw were taken on the day after the injury, but the swelling was so extensive and the physical condition of the claimant was so bad that it was impossible to do any irrigating of the jaw at that time. On July 17th arch bars were placed on the upper and lower jaws and wired to the teeth, and a head cast placed on the patient. On August 12th, on account of a severe attack of hay fever and asthma, the jaws were pulled loose and had to be rewired, and a new head cast placed, which remained in position until September 12th, when it was removed. Upon the suggestion of his doctors, claimant went to Arizona about October 1, 1934 and remained there for three or four months. On February 15, 1935 he returned to his regular work and worked four days. On March 12, 1936 he again resumed his former employment and continued therein until August 2, 1937. In March, 1937 his teeth were extracted and thereafter temporary and permanent dentures were prepared and fitted by Dr. I. Goldberg, at a cost of $265.00. In the fall of 1937 claimant went to the Mayo Clinic in Rochester, Minnesota for examination, and was advised that his disability was the result of a displaced inter-vertebral disc which' produced pressure upon the nerve, and thereby caused the neurotic condition from which claimant suffered, and that an operation for the removal of such disc should be performed. In preparing him for such operation, the action of the gall bladder was paralyzed, and a preliminary operation on the bladder was required. By reason of such preliminary operation the claimant was not in condition for the operation for the removal of the inter-vertebral disc until March, 1938, when the same was performed.

The operation was a success, the pressure against the nerve was released, and the pain caused by such pressure was eliminated. Claimant’s condition continued to improve, and by July 1, 1938 he was able to perform such work as was usually incident to his previous employment, although at the time of the last hearing herein, to wit, on April 23, 1940, he still had some disability and was required to wear a body brace.

Claimant’s employment was as a superintendent of the tailor shop and his duties were mostly of a supervisory nature. During the two periods after the accident in which he resumed his previous employment, that is, during the four days in February, 1935, and between March 12, 1936 and August 2, 1937, although he performed such duties as were required of him, yet he continued to be disabled as a matter of fact and was finally given a discharge notice on October 7, 1937 for continued absence on account of illness.

Claimant was paid his regular salary of $135.00 per month from the date of his injury to October 1,1934, and was also paid for the four days’ work performed by him in February, 1935, and for the time, he worked between March 12th, 1936 and August 2, 1937.

Claimant seeks to recover compensation for the following items to wit: temporary total incapacity for three separate periods; $265.00 for money paid to Dr. I. Goldberg for dental treatment and dentures; $882.52 for medical, surgical and hospital expenses incurred at the Mayo Clinic; and compensation for serious and permanent disfigurement to the head and face resulting from the permanent loss of teeth.

So far as appears from the record, all medical, surgical and hospital bills other than the bills incurred at the Mayo Clinic as aforesaid, and the aforementioned bill of Dr. Goldberg, have been paid by the respondent.

Although claimant performed the duties required of him during the two periods he worked after his injury, to wit, from February 15th, to February 19, 1935, and from March 12th, 1936 to August 2,1937, yet the testimony shows that during all of the time from the date his injury to July 1,1938, his-nervous condition was bad; he developed a nervous twitching of the facial muscles around the lips; also a sciatic scoliosis of the right side; it was an effort for him to concentrate; his mind did not react quickly; he was restless and did not sleep well at night, and appeared to suffer a large part of the time; in short, he developed a traumatic neurosis. His condition finally became so bad that on October 7, 1937, as previously stated, he was discharged on account of continued absence from duty on account of illness.

In considering a disability resulting from traumatic neurosis, our Supreme Court in the case of Postal Telegraph Co. vs. Ind. Com., 345 Ill. 349, said:

“Whether his disability was caused entirely from the physical blow struck or from a mental condition arising out of the injury makes no difference.”

The same rule was applied in the case of U. S. Fuel Co. vs. Ind. Com., 31 Ill. 590, and in the case of Armour Grain Co. vs. Ind. Com., 323 Ill. 80.

The fact that claimant worked four days in February, 1935, and also worked from March 12, 1936 to October 8, 1937, makes it questionable whether his disability is properly classified as temporary total or permanent.

However, claimant’s disability during the time he was unemployed as aforesaid was total, and it therefore can make no difference under the facts in this case whether the same be classified as temporary or permanent.

From a consideration of all of the facts in the record, we find as follows:

1. That on July 13, 1934 the claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State; that on said date claimant sustained accidental injuries which arose out of and in the course of his employment; that notice of the accident was given to respondent and claim for compensation on account thereof was made within the time required by the provisions of such Act; that claimant’s annual earnings were $1,620.00, and his average weekly wages were $31.15; that claimant at the time of the injury was fifty-four years of age, was married, and had no children under the age of sixteen years; that all necessary first aid, medical, surgical and hospital services have been provided by the respondent, except the services rendered at the Mayo Clinic as aforesaid, and the dental services of Dr. G-oldberg as aforesaid.

2. That claimant was totally disabled from the date of his injury, to wit, July 13th, 1934, to February 15, 1935; also from February 19th, 1935 to March 12, 1936; also from August 3rd, 1937 to July 1, 1938; a total of One Hundred Thirty-three and one-seventh (133 1/7) weeks.

3. That claimant was paid his regular salary of $135.00 per month for the months of July, August and September, 1934. Such payment for that portion of the month of July subsequent to the date of claimant’s injury, to wit, July 13th, as well as for August and September, was for non-productive time and must therefore be considered as payment of compensation, making a total of compensation paid by respondent as aforesaid in the amount of Three Hundred Forty-six Dollars and Fifty Cents ($346.50).

4. That a personal examination of the claimant by the court shows that he has sustained no serious and permanent disfigurement to the head face, within the meaning of those words as used in the Compensation Act.

5. That claimant is entitled to have and receive from respondent under the provisions of the Workmen’s Compensation Act the following' amounts, to wit:

a) For total disability, 133 1/7 weeks, at $15.00 per week, less $346.50 heretofore paid by respondent as aforesaid, to wit, Sixteen Hundred Fifty Dollars and Sixty-four Cents ($1,650.64).

b) For money paid to Dr. I. Goldberg, for dental services and dentures, the sum of Two Hundred Sixty-five Dollars ($265.00).

c) For expenses incurred for medical, surgical and hospital services at the Mayo Clinic, the sum of Eight Hundred Eighty-two Dollars and Fifty-two Cents ($882.52); — in all, the sum of Twenty Seven Hundred Ninety-eight Dollars and Sixteen Cents ($2,798.16).

We further find that all of the expenses incurred at the Mayo Clinic as aforesaid have been paid by the claimant except the sum of Two' Hundred Sixty Dollars ($260.00), and that said sum of $260.00 remains due and unpaid to said Mayo Clinic.

We. further find that the compensation for total disability as aforesaid is payable in weekly installments of $15.00 per week commencing on July 14, 1934, and excluding the time during which claimant was employed as hereinbefore set forth; that all of the compensation to which claimant is entitled as above has accrued at this time, and he is therefore entitled to an award in a lump sum for the total amount due him as herein set forth.

Award is therefore entered in favor of the claimant for the sum of Twenty-seven Hundred Ninety-eight Dollars and Sixteen Cents ($2,798.16), payable as follows, to wit: To the claimant, Julius J. Gross, the sum of Twenty-five Hundred Thirty-eight Dollars and Sixteen Cents ($2,538.16); and to the claimant, Julius J. Gross, for Mayo Clinic, the sum of Two Hundred Sixty Dollars ($260.00).

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” (Illinois Revised Statutes, 1939, Bar Assn. Ed., Chap. 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act Making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies Until the Expiration of the First Fiscal Quarter After the Adjournment of the Next Regular Session of the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Fund in the manner provided by the foregoing Acts.


source: Caselaw Access Project

author: Mr. Justice Linsoott

license: Public Domain

text:
    (No. 2833
    H. Claude Steininger, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1940.

    Stone & Wright, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linsoott

delivered the opinion of the court r

The claimant filed his bill of complaint on February 5, 1936, and alleged that he was a resident of Chenoa, Illinois, and was employed by the State of Illinois as a maintenance patrolman in the Department of Public Works and Buildings of the State of Illinois at the time of the accident; that the accident occurred while he was engaged in his work and that his injuries arose out of and in the course of. his employment.

Claimant further charges that on the 18th day of August, 1934, while he was engaged in his employment, a quantity of hot asphalt or coal tar was accidentally poured upon his right hand, arm and fingers; that the tar was so hot that it caused third degree burns on the back of claimant’s right hand and fingers.

Claimant further alleges that a report was made to his superior at Ottawa, Illinois, and that the claimant obtained medical treatment from Dr. F. M. Bryan of Chenoa, Illinois. Claimant also averred that in spite of proper medical treatment being! administered, claimant was poisoned as a result of the burns, and that on August 31,1934, the burns and their consequent poisoning totally disabled claimant for a period of several weeks; that thereafter he had a general breaking-out of skin eruptions over all parts of his body, which greatly hindered him from doing any physical labor; that ever since he received the injuries he has been unable to sustain the exertions of ordinary labor.

Claimant also charged that for several months succeeding his injuries and until the time of the filing of the complaint, the general poisoning of claimant’s system had prevented him from engaging in any gainful employment; that upon information given him by his physician, the general systemic poisoning in his body settled in his right groin; that he now suffers from general skin eruptions and general weakness, and that the general weakness and skin eruptions will continue and are permanent injuries resulting from the burns.

Claimant also alleges that he received payments for' compensation or salary; that on September 3, 1934, he received his August, 1934, salary of $100.00, and that he received $100.00 per month for each month thereafter for eight months — $900.00 in all. Claimant also avers that he spent $22.50 for medical treatment.

There is no contention or proof that claimant was ever confined to a hospital.

At the time the last deposition was taken, claimant was working a farm consisting of one hundred twenty acres in Indiana, and employed a farm-hand at the rate of $35.00 per month to do the work. He also admits that he had 1,500 bushels of corn, sold some sheep and during one year sold milk and eggs aggregating $189.00. It is also admitted that he raised other crops since the injury, but no attempt was made to show his earnings as a farmer, probably on the theory that it would be incompetent.

His testimony is that he is unable to do any heavy manual labor; that he tried it, but had to give it up; that since the accident he can only work one or two hours, but not at heavy manual labor, and after that period of exercise he can not work any more that day.

Much incompetent evidence was offered.

Claimant had two children under the age of sixteen years at the time of the accident. The oldest girl became sixteen on September 18, 1938. Claimant’s wife is living and the youngest girl, Claudia Ruth, was about four years old at the time of the injury.

Claimant testified to questions put to him by his counsel, as follows:

“Q. What would your average annual earnings be — do you know, Mr. Steininger?
A. Yes. I copied that down. Last year the milk receipts was Eighty-one ($81.00) dollars. And the eggs was One Hundred Eight ($108.00) dollars.
Q. Those were produced through your efforts?
A. That is right. ’ ’

Aside from that, he testified that he was unable, to earn from his own labor. Claimant testified that prior to the time he received the burns he was able to work all day at hard labor.

Merle Monks testified for the claimant as to how much he was paid as a farm laborer.

Claimant went to work for the State on February 1, 1933, at $100.00 per month, and he continued in this position until he was released on May 1, 1935. On August 18, 1934, he received asphalt burns on his upper wrist. He applied first aid dressings to the burn and continued working until August 27, 1934. On that date he showed symptoms of a general toxemia from the asphalt and consulted Dr. Fred M. Bryan of Chenoa, Illinois. On August 29, 1934, he submitted a report of personal injury. From the record it appears that he was absent from work as follows:

August 27 to September 17, 1934...........................17 working days
October 27 to October 29, 1934.............................. 2 working days
January 25 to January 29, 1935............................ 4 working days
February 26 to February 28, 1935........................... 2 working days
March 5, 1935............................................. 1 working day
April 15, 20, 24 and 26, 1935............................... 4 working days

The total loss of time from August 27, 1934, to May 1, 1935, was 30 working days.

On January 3, 1935, Dr. Bryan submitted a report of the case in which he stated: “The patient feels and appears to be well. There is still a transverse groove in each nail on both hands.”

Claimant received his salary of $100.00 per month for the nine months of August, 1934, to April, 1935, inclusive. Bills of Dr. Bryan amounting to $22.50 have been paid.

We do not see how the groove in each nail on both hands is compensable. He was only burned on the back of one hand. From all that appears in the record he received the moneys hereinabove referred to of $900.00 for services performed, and there is no evidence in the record that such payments were for any other purpose.

Claimant asks damages in the sum of $7,500.00.

Doctors I. L. Turow, H. B. Knowles and Milton Levine all testified and were of the opinion that the injuries now claimed by claimant were not caused by the bums he referred to.

Under the facts in this case, we are of the opinion that the respondent is not liable to the claimant. Before the evidence was heard, the respondent made a motion to dismiss. The motion was overruled at the time for the reason that the question raised was a factual matter. After all the proof was in, the State made another motion to dismiss on the ground that the claimant had not proven his case, and that motion must be sustained.


author: Mr. Justice Linscott

text:
    (No. 2995
    Bessie Evelyn Bishop, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1940.

      Petition for rehearing denied November 12, 1940.

    William John Granata, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant, Bessie Evelyn Bishop, claims compensation from the State of Illinois on the following grounds: That on the 21st day of October, 1935, she was employed by the State of Illinois, Department of Public Welfare, at the Elgin State Hospital, Elgin, Illinois, as an attendant; that her earnings for the preceding year were' Six Hundred Twelve Dollars ($612.00) plus maintenance; that on .that date she was taking care of a patient at that institution, "and while acting in her capacity as an attendant she was attacked by her patient, one Rosalie Coleman; that said attack consisted of said patient jumping out of bed, on the radiator, and while the claimant and another nurse attempted to take her down she fought with them, hitting, struggling and spitting at this claimant, and that the patient was infected with tuberculosis; that as a direct and proximate result thereof the claimant became infected with said disease and was forced to be confined to bed on the 12th day of December, 1935, and still had to be confined to bed for an indefinite known period, possibly several years; that her lungs will be permanently impaired, and that she will not be able to again perform the duties of an attendant.

Claimant also alleged that immediately after the occurrence of the above act, she reported the incident to Dr. D. L. Steinberg, her superior officer; that the State of Illinois supplied her with complete hospitalization and medical care and attendance; that she has not received any salary since January 12, 1936; that at the present time she is convalescing and being treated for her disease at Springbrook Sanitarium, Aurora, Illinois; that she is the mother of two minor children under the age of sixteen years, whom she supports; that at the time of the injury, she was twenty-five years of age.

Claimant’s husband was also employed at the Elgin State Hospital.

In addition to her own testimony, which in part at least bears out the allegations of her complaint, two doctors testified, one being Dr. George A. Wiltrakis, a duly licensed physician, who had been employed by the State of Illinois, Department of Public Welfare, at the Elgin State Hospital since September, 1930. He testified that he had full charge of the hospital service at the Elgin State Hospital, which meant taking care of the acute mental and surgical cases and also the employees when they were physically ill; that he knew claimant ; that he came in contact with her December 14, 1935, when she entered the hospital service at the Elgin State Hospital; that he examined her at that time and found that she was suffering from pulmonary tuberculosis. Dr. Wiltrakis further testified that the claimant said she had a chronic cough; had had it for a period of six weeks, and expectoration of thick yellowish material; complained of spitting blood; had had a tired feeling for six weeks prior thereto; had some pain present underneath the right breast and right underneath the shoulder which re-occurred at times, and that she had been working in the tubercular ward for a period of about one year caring for insane tubercular patients. The doctor further testified that the claimant was put to bed and given proper diets. On a hypothetical question put to this doctor, he stated that it was his opinion that the spitting, etc., may be contributory but not an actual primary logical factor for pulmonary tuberculosis. It was his opinion that pulmonary tuberculosis is not produced by a single or two or three contacts, but by repeated contacts with a patient who had pumonary tuberculosis.

Dr. Kenneth C. Bulley also testified. He was a duly licensed physician and surgeon and a tuberculosis expert. At the time of his testimony he was superintendent and medical director at Kane County Spring-brook Sanitarium at Aurora, Illinois, and since October, 1931, had treated only pulmonary tuberculosis cases. He first treated claimant in July, 1936. She was admitted to the Spring-brook Sanitarium as a regular patient on August 24,1936. The first X-ray that he had taken was on December 12, 1935, which is claimant’s Exhibit One, and which is an X-ray film of the chest of claimant. This physician is eminently qualified to treat pulmonary tuberculosis. To a hypothetical question he said it was his opinion that the attack and altercation and exposure resulting from constant daily contact with tuberculosis patients who were insane was the contributing cause to the development of tuberculosis in claimant. On cross-examination he said that in his opinion the combination of the two facts would cause pulmonary tuberculosis, and the altercation described might well in itself have caused the development of the pulmonary tuberculosis in claimant.

The same question is presented here as was presented in the case of Margaret Crum vs. State of Illinois, No. 3023, and the reasoning set forth in that opinion is adopted here, and for such reasons the claim will be denied.


text:
    (No. 3023
    Margaret Crum, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1940.

      Rehearing denied November 12, 1940.

    William John Granata, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Margaret Crum, the claimant, filed her complaint in this court on the 5th day of November, 1936, and alleged that on the 7th day of December, 1935, she was employed by the State of Illinois, Department of Public Welfare at the Elgin State Hospital, Elgin, Illinois, as a nurse; that her earnings for the preceeding year were One Thousand Sixty-eight Dollars ($1,068.00), plus maintenance; that on that date, she was attempting to feed one Rosalie Coleman, an insane patient, who was infected with tuberculosis; that said patient was very resistive and the claimant had to resort to force feeding, and while she was attempting to feed this patient, and was holding the patient’s nose at the time, the patient coughed, and the milk, which was the food that claimant was attempting to have the patient take, combined with purulent sputum was spit all over claimant’s face, hair and uniform.

It is further charged that as a direct and proximate result thereof, the claimant became infected with tuberculosis, and was confined to her bed on the 8th day of January, 1936, and had to be confined to her bed for a period of sevéral years; that her lungs will be permanently impaired and that she will not be able to again perform the duties of a nurse.

It was also charged that immediately after the occurrence of the above act the claimant reported the incident to Dr. D. L. Steinberg, her superior officer.

It was also averred that the State of Illinois has supplied the claimant with complete hospitalization and medical care and attendance, and that the claimant has not received any salary since February, 1936; that she is now convalescing and is being treated for her disease at her home.

The claimant further averred that she has consulted physicians and tuberculosis specialists and the record shows that many x-rays were taken.

Claimant asked for Sixteen and 25/100ths Dollars ($16.25) per week for one hundred (100) weeks, temporary total disability; and Sixteen and 25/100ths Dollars ($16.25) per week for one hundred (100) weeks for total partial disability.

It was also averred that at the time of the injury complained of she was twenty-six (26) years of age.

Both counsel for claimant and also the Attorney General, who represents the State, have furnished exhaustive briefs, and given much time to this case. The testimony of several doctors who treated the claimant, is in the record. The complaint attempts to allege facts and circumstances that would bring this case under the Compensation Act. It will, therefore, be unnecessary to discuss the common law liability or liability under the Occupational Diseases Act.

The title of the Compensation Act insofar as this question is concerned, provides as follows: “An Act to promote the general welfare of the people of this State by providing compensation for accidental injuries or death suffered in the course of employment within this State * * * *” Section 3 of the Act provides that “The provisions of this Act hereinafter following shall apply automatically and without election to the State, county, city, town, township, incorporated village or school district, body politic or municipal corporation, and to all employers and all their employees engaged in any department of the following enterprises or business* * *”

The claimant was a graduate nurse and an attendant at the Elgin State Hospital. In other cases we have heretofore held that employees of the Elgin State Hospital come within the Compensation Act.

The question for this Court to determine is whether or not this claimant suffered an accidental injury within the meaning of the Compensation Act.

Counsel,for claimant puts it this way: “We next are confronted with the question of whether there is a causal relation between the coughing and expectoration in claimants face and her contracting of tuberculosis.”

It is a matter of common knowledge that tuberculosis is a germ disease. The evidence shows conclusively that claimant is infected with tuberculosis, and the evidence shows that the reprehensible act of the insane patient, that claimant was feeding did occur. The evidence shows that there are many patients at this institution infected with tuberculosis, and it seems to be a matter of common knowledge that germs of this disease may be inhaled from the air as one walks on the street or attends any meeting where there are a large number of people. The disease may be contracted in innumerable ways. The claimant first entered the services of the Elgin State Hospital in May, 1931, and so far as she knows, she was then in a healthy condition and so- remained until January, 1936, although it does not appear that she was ever examined especially for tuberculosis. She testified that she came in daily contact with tubercular patients. From the whole record, it is possible that she contracted this disease during the course of her employment at the Elgin State Hospital. The patient that claimant was taking care of on the 7th day of December, 1935 was an active tubercular insane person, very resistive and had positive tubercular sputum. She did not eat and force feeding was necessary. While claimant was performing her duties, she was of necessity very close to this patient. About a month after the incident occurred and the spitting had taken place, claimant was taken down with pleurisy and had to go to the hospital, and when she went there, she was running a temperature of 99 to 100, and she was put to bed. Pleurisy, as we understand it, is an inflammation of the pleura; and it is accompanied with fever, pain, difficult respiration, cough, and exudation. When a person has this ailment, the resistance of the human body to all kinds of germs is greatly lowered.

The evidence shows that this claimant had the best of medical care and attention, both from her husband and other doctors and specialists in this particular ailment. Claimant went to bed on January 7, 1936, just thirty days after the spitting incident.

Dr. McShane testified that the claimant, his wife, has had pulmonary tuberculosis, since January, 1936. He was asked if he knew how that condition came to be brought about and Ms answer was that she worked at the Burr Cottage and was taking care of the tuberculosis patients and she came in contact with the tuberculosis patients constantly and in one particular case the patient expectorated in her face; that this latter incident took place sometime in December, 1935. Dr. McShane was asked a hypothetical question as to the cause of this ailment. He stated that he had an opinion and in his opinion there is a causal relation, as that is the way tuberculosis is spread by the expectoration of positive tubercular germs in the sputum in and about the face of the hypothetical person.

Dr. Kenneth Gr. Bulley, a duly licensed physician and surgeon and a specialist in tuberculosis, also testified. At that time he was superintendent and medical director of Kane County Springbrook Sanitarium at Aurora, Illinois. He testified that he had treated claimant, examined many x-rays and was familiar with her ailment. He was shown claimant ’s exhibit one, that being an x-ray that was taken of claimant. He testified that that x-ray was taken on December 19, 1935 at the Elgin State Hospital. He was asked what pathology was found in that picture, and he stated that it was an x-ray picture of the chest and portrayed the lungs of the claimant and showed an active pulmonary tuberculosis and minimal lesion in the right upper lobe; that the picture shows the markings about the root of the lung on the left to be heavy and suggested some tubercular disturbance. A hypothetical question was put to this witness in which all the facts were apparently included and he stated that it was his opinion that daily contact with insane tubercular patients and the spitting incident described, were sufficient to cause her to break down with active pulmonary tuberculosis.

There is no evidence in the record to show that any fluids or sputum coughed in the face of claimant ever entered her body through the nose, mouth or abrasion of the skin, or in any other way. The above named doctors were the only ones who testified in the case. There is nothing in the record to show at what time any of the tuberculosis germs became active and infected claimant. It is possible that such proof can never be produced in tubercular patients. The record does show that after claimant was put to bed she began to improve, and that the improvement has been gradual, but certain.

As said above, the problem for this court to determine is: Is this an accidental injury within the law?

It is the view of this court, as expressed in numerous cases, that the word ‘ accident ’ ’ is not a technical legal term. No legal definition has been given or can be given which is both exact and comprehensive as applied to all circumstances. Those things which happen without design are commonly called an accident, — at least in the popular acceptance of the word. Any event unforseen, not expected by the person to whom it happened, is included in the term. In Matthiessen & Hegeler Zinc Co. vs. Industrial Board, 284 Ill. 378, the court defined the term “accident’” as follows: “The words ‘accident’ and 1 accidental injury’ imply, and the provisions for notice to the employer within thirty days after an accident and his report to the Industrial Board of1 accidental injuries show, that an injury, to be accidental or the result of an accident, must be traceable to a definite time, place and cause, but if there is such a definite time, place and cause and the injury occurs in the course of the employment the injury is accidental within the meaning of the act and the obligation to provide and pay compensation arises. While it is not intended, and perhaps not possible, to give a definition of the words used in the act as applied to all possible circumstances, it may safely be said that an injury is accidental, within the meaning of the act, which occurs in the course of the employment unexpectedly and without the affirmative act or design of the employee.” The Compensation Act of Illinois does use the words “accident” and “accidental injury.”

In the case of Renkel vs. Industrial Commission, 109 Ohio State, 152 the court held that pulmonary tuberculosis contracted in the course of employment was not compensable under the Workmen’s Compensation Act, but the State of Ohio has a different statute and constitution and their statute does not use the words “accident” or “accidental injury.”

The Supreme Court of Illinois, in the case of Peru Plow Co. vs. Industrial Com., 311 Ill. 216, at page 220 held that the words “accident” and “accidental injury,” as used in the Compensation Act, were meant to include every injury suffered in the course of employment for which there was an existing right of action at the time the act was passed, and to extend the liability of the employer to make compensation for injuries for which he was not previously liable and to fix the limit of such compensation, and quoted Matthiessen & Hegeler Zinc Co. vs. Industrial Com., supra. The same court held that occupational diseases are not covered by the Compensation Act, although not all diseases are to be excluded from the purview of the Compensation Law.

It is the settled law of Illinois that the burden is upon claimant to prove his case by a greater weight or preponderance of the evidence. There is nothing in the record to show that claimant contracted tuberculosis on December 7, 1935. It does however, show that she was exposed on that date. She was likewise exposed all during the time of her employment.

It was held in the case of Byram vs. Industrial Com., 333 Ill. 152, that liability under the Compensation Act cannot rest upon imagination, speculation or conjecture or upon a choice between two views equally compatible with the evidence but must be based upon facts established by a preponderance of the evidence, and where there is no positive evidence as to exactly how an accidental death occurred but the greater weight of the evidence indicates that the deceased employee committed suicide by jumping from his employer’s office window early in the morning before other employees came to work, an award of compensation must be set aside where it is based only upon conjecture that the deceased might have accidentally fallen out of the window.

The record does not disclose how long tubercular germs might remain dormant in the human body.

Section 24 of the Compensation Act requires that notice be given within thirty days, and demand for compensation be made and requires that the claim must be filed within one year, all of which this court has held to be jurisdictional.

In the Peru Plow Co. case, supra, it was held that in order that the disability be by reason of an accidental injury or the result of an accident it must be traceable to a definite time and place of origin. There must be some definite thing happen which can be pointed to as the immediate cause of the breakdown, although the employee may have been able to work in similar conditions for a considerable period of time prior to the happening of the event which was the immediate cause of his breakdown. That this must be considered the intention of the legislature in passing the act is shown by the provisions of the act limiting the time in which notice may be given to the employer. If a definite time cannot be ascertained it is impossible to give the notice required by the act.

The medical testimony is before the court. The tuberculosis existed in January, 1936, and at that time it was a case of moderately advanced pulmonary tuberculosis. It was not within our law connected with the incident of December 7, 1935, and the record is silent as to how long it would take to develop moderately advanced pulmonary tuberculosis.

There is nothing in the record to show that claim for compensation was ever made within six (6) months after the accident as provided by Section 24 of the Workmen’s Compensation Act.

For the reasons herein set forth, the claim must be denied.


text:
    (No. 3029
    Marjorie Leming, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1940.

      Rehearing denied November 12, 1940.

    William John Granata, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant, Marjorie Leming, claims compensation from the State of Illinois, on the following grounds: That on the 7th day of December, 1935, she was employed by the State of Illinois, Department of Public Welfare at the Elgin State Hospital, as an attendant; that her earnings for the proceeding year were Six Hundred Forty-eight Dollars ($648.00), plus maintenance; that on said date, while treating a patient at that institution, and while acting in her capacity as an attendant, she was attacked by her patient, one Albert Long; that said attack consisted of the patient struggling, hitting and spitting at the claimant; that said patient was infected with tuberculosis; that as a direct and proximate result thereof, the claimant became infected with that disease, and was forced to be confined to bed on the 19th day of January, 1936, and still had to be confined to< bed for an indefinite known period, possibly several years; that her lungs will be permanently impaired, and that she will not be able to again perform the duties of an attendant.

Claimant also alleged that immediately after the occurrence of the above act, she reported the incident to Dr. M. A. Schiller, her superior officer; that the State of Illinois supplied her with complete hospitalization and medical care and attendance; that she has not received any salary since February, 1936; that ati the time of the injury she was twenty-three years of age.

The claimant testified in this case and Dr. George A. Wiltrakis also testified. He said that he had checked claimant over physically including laboratory work-up for impressions of tuberculosis; that he took an X-ray of her chest in January, 1936; and that he found her to be acutely ill. He further testified that her pulse was around eighty; that she was running a temperature, and that her blood pressure was one hundred twenty-four over eighty. Dr. Wiltrakis described her condition quite completely. Claimant was given a bed rest, and had continued and frequent sputum examinations made. The first positive sputum examination was February 4th, in which tubercular baecilli demonstrated itself in the sputum. On the 17th of February, she was sent to Springbrook Sanatarium in North Aurora, Illinois, for pneumo thoraz therapy. Claimant remained in the hospital service until November 12,1936. The doctor further testified that if the contact is with one tubercular patient in one day 'the person could not get tuberculosis; that tuberculosis, in his opinion, is a disease due to repeated contacts with tubercular infected patients. He also stated that tuberculosis might or could be caused from a connection between spitting on that date, connected with contacts of tubercular patients previous to that time and after that time up until the time symptoms of pulmonary tuberculosis became evident. The doctor further stated that in his opinion one exposure itself would not have been sufficient to cause contraction of tuberculosis; that continued contact immediately preceding and following that .occurrence with a person suffering from tuberculosis possible could cause the development. He could not say how close to December 7th, this condition could have existed; that the coughing and spitting might have aggravated a condition already present and slightly active; that the X-ray showed a definite involvement of the lung, which might have been present over a month, the exact length of time he was unable to state.

Dr. Kenneth G-. Bulley, a, tuberculosis expert/ also testified. He testified that he had treated the claimant professionally and had seen her at regular intervals since the early part of July, 1936. In July, 1936 his diagnosis was pulmonary tuberculosis involving the upper part of the upper lobe of the left lung, and he prescribed a treatment.

During claimant’s training at the Elgin State Hospital she worked in tuberculosis wards for about five months, doing general nursing. During this time she made beds and handled patients, handled sputum boxes and did servicing in these wards where tubercular patients were during those five months and following that she did hospital work, which included assisting the doctors in medical and surgical cases, and most of those patients were tubercular. She had been in bed since January 19, 1936 and had a cough extending over a period of three weeks’ duration; she lost fifteen pounds in January, 1936, and positive sputum containing tuberculosis germs was found in February, 1936.

In answer to a hypothetical question, Dr. Bulley stated it was his opinion from the facts given and circumstances described that the claimant developed tuberculosis from her work, and from an altercation with Albert Long, a patient at the Elgin State Hospital, Elgin, Illinois. He also stated that it was not possible to estimate with accuracy how long the tubercular condition would prevail. On cross examination he' stated that it was his opinion that the combined exposure by the claimant to tuberculosis and the incident of the altercation with a tubercular patient produced the pulmonary tuberculosis found in the claimant; that the altercation and the spitting in the face of the claimant in itself is sufficient to produce pulmonary tuberculosis, although it is not possible to prove from a medical standpoint that this particular incident did or did not cause the tuberculosis.

The same question is presented here as was presented in the case of Margaret Crum vs. State of Illinois, No. 3023, and the reasoning set forth in that opinion is adopted here and for such reasons, the claim will be denied.


author: Mr. Justice Tantis

text:
    (No. 3165
    Leon Shibovitch, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1940.

    Chas. P. Kane, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Plaintiff’s application for an award was filed Pro Se on December 16, 1937, alleging that during the month of January, 1934 he was employed at the Illinois Soldiers’ and Sailors’ Children’s School, Normal, Illinois as a laborer moving coal by means of a push cart; that the handle of such push cart was metal, and that during the severely cold weather he found that grasping the cold metal hindered circulation through the small finger of his left hand; that he was finally unable to grip and hold the metal handles because of such poor circulation caused by the cold bar during the severely cold weather. The application further recites that he reported to the Managing Officer of the School and was advised to visit the Illinois Research and Educational Hospital at Chicago; that he visited same December 8, 1936, and that an incision was made extending from the wrist to the little finger of the left hand, requiring fourteen stitches. Further, that he was dismissed from the Hospital January 4, 1937 and immediately returned to work where he was still employed at the time he filed his application, i. e. December 16, 1937. Petitioner prayed an award of $4.59 expense for railroad fare and $75.00 for partial loss of use of the little finger of the left hand.

On January 3, 1940 claimant, having apparently employed Counsel, the latter filed a motion to increase the Ad Damnum to $150.00, to conform to the purported proof in the record.

As above stated, the Complaint shows that Plaintiff’s difficulty arose during the month of January, 1934, but in his testimony Plaintiff states that his trouble” arose on or about December 7,1936. From such evidence it appears that the latter date was extremely cold; that Plaintiff was working that night pushing his coal cart about seventy-five to eighty feet from the coal-bins to the power house; that the temperature was below zero. Plaintiff testified, “I got cold in my hands and my little finger on the left hand got kind of stiff.” In answer to a direct question, “How did it happen?” he replied “Well I couldn’t tell you — it did not become stiff all at once, but I felt that something was wrong with it while I was shoveling coal into the cart. —I told the engineer— ‘See my finger got stiff’. I met Mr. Bussell my Manager and said, ‘See Mr. Bussell my finger got stiff this cold weather. ’ ”

At the suggestion of the Managing Officer claimant went to Chicago to the Illinois Besearch Hospital. An incision was made about a half an inch from the tip of the little finger down the side of the finger and palm of the hand, following the muscle of the little finger. Fourteen stitches were used to close the wound and Plaintiff was laid off from work two months without pay. His salary was Fifty-six ($56.00) Dollars (Tr. p. 17) per month at the time, and in addition thereto, board, room and laundry service on the basis of Twenty-four ($24.00) Dollars per month. Plaintiff testified that at the time he went to the hospital the little finger was drawn down at right angles to the palm of the hand; that after the operation it was not straight but that he could bend it back within approximately half an inch of being on a straight line with the other fingers.

Plaintiff testified that he made three trips to Chicago in connection with his operation, each at a cost of $4.59 for railroad fare, which he himself paid.

Plaintiff further testified that he has not been compensated for the two months time lost or reimbursed for money expended. He states that his application or claim was prepared for him in the office of Mr. Bussell, the Managing Officer of the Institution, and that a Mr. Bentley who was employed in the Department of Public Welfare and who was present at Mr. Bussell’s office, consented to file a claim for Plaintiff at Springfield. Claimant stated that he delivered the claim to Mr. Bentley on November 26, 1937. The claim was not filed with the Court of Claims until December 16, 1937, and Plaintiff testified he did not know there had been any delay on the part of Mr. Bentley; that he wrote to Mr. Bentley and the latter reported he had forgotten to file it. Plaintiff further testified that the only trouble with his hand now is the disfigurement, and that he can use the hand as well as before the operation was had. Plaintiff further testified that he first talked to his Managing Officer, Mr. Bussell, about making application for an award about four months prior to the day Mr. Bentley was at the Institution, i. e. November 26, 1937.

Mr. Gr. M. Wells who was employed as an Engineer at the Plant, testified that on the night of December 7, 1936 claimant was employed at the Plant as a coal passer, and that a little before midnight claimant showed witness the little finger on his left hand; that it was drawn down about half closed, and would apparently not straighten out; that the other fingers were all right, and that there was no crack, cut or bruise on the little finger but just wouldn’t straighten out. This witness further testified that he looked at claimant’s finger a few nights later, and that the finger continued to draw down or close more all the time, and claimant stated he was going to see a Doctor about it. Witness did not make any report in regard to the matter and testified that claimant never talked to him concerning the injury thereafter until on September 27,1939 when he was called as a witness.

Mr. Wells further testified that claimant was wearing gloves on the night in question, and from time to time, between wheeling loads of coal, would go into the Power House and wheel ashes, Plaintiff being- permitted to go into the Power House at any time to get warm.

Cousel for Plaintiff in his Brief and Argument makes no contention for compensation for disfigurement, but claims actual damages for loss of wages and expenses amounting to a total of One Hundred Seventy-three and,77/ 100 ($173.77) Dollars.

The Attorney General contends that the court has no jurisdiction to make an award under the terms of the Workmen’s Compensation Act, for the reason that the injury complained of is alleged to have occurred on December 7, 1936, and the claim was not filed with this court until December 16, 1937, i. e. more than one year after the alleged injury complained of. Claimant contends that he entrusted his claim to a fellow-emplovee of the Department of Public Welfare, i. e. Mr. Bentley; that it was the latter’s negligence which caused the claim not to be filed within the limitation of one year, and that the Doctrine Estoppel in Pais should apply to the State, inasmuch as the delay and omission was an act of an employee of respondent.

When claimant notified his superior officer Mr. Bussell of his intention to seek redress from the State, he was complying with the requirements of the Compensation Act in giving notice to his employer of such intention, but when he advised with Mr. Bentley as to his legal rights, and selected him, as his emissary to help draft and file his claim in the Court of Claims, he made Mr. Bentley his own agent for such purpose, and whatever Mr. Bentley did or failed to do in filing plaintiff’s claim was done by him not as an officer or employee of the State, but as agent for plaintiff. The date of the alleged injury is stated as December 7,. 1936 (presuming the allegation in the complaint of January, 1934 to be an error), and the claim was not filed until December 16, 1937. The right to an award herein is claimed by virtue of the terms of the Workmen’s Compensation Act. Under such Act the claim must be filed within one year from the date of accident, and this court has no legal right or authority to extend or broaden such limitation of time.

As the claim will be dismissed for lack of jurisdiction, no further consideration will be given the question as to whether the evidence would or would not support an award on the merits.


author: Mr. Chief Justice Hollerich

text:
    (No. 3510
    August Billek, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1940.

    Claimant, pro se.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

For more than one year prior to March 27, 1940, claimant was employed as an automobile mechanic by the Division of Highways, Bureau of Machinery, at its central garage in the City of Springfield. On the last mentioned date, while engaged in operating a milling machine in the performance of his duties, claimant’s left hand was drawn into the machine, whereby he sustained injuries to the first and second fingers of the left hand, which thereafter required the amputation of the first finger at the middle joint, and the amputation of the second finger at the middle of the middle phalanx. The third finger of the left hand was lacerated but no permanent disability resulted therefrom. Claimant was immediately taken to St. John’s Hospital in Springfield, where he remained until April 1, 1940. On May 1st, 1940 he returned to his work with the Division of Highways, and now asks for compensation for the injuries sustained by him as aforesaid.

Upon consideration of the record the court finds:

That on March 27, 1940 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 proceeding the accident were $2,118.27;■ — and his average weekly wage was $40.73; that claimant at the time of the injury was forty-two years of age and had one child under the age of sixteen years; that necessary first aid, medical, surgical and hospital services were provided by the respondent; that claimant was temporarily totally disabled from the date of his injury as aforesaid, to May 1st, 1940, to-wit, for a period of four and six-sevenths weeks; that he also suffered the loss of more than one phalaiige of the first and second fingers of his left hand, which, under Paragraph E-7 of Section 8 of the Compensation Act is considered the loss of the entire fingers.

We further find that the claimant is entitled to have and receive from the respondent the sum of $16.50 per week for four and six-sevenths weeks for total temporary disability, in accordance with the provisions of Paragraph (b) of Section 8 of the-Compensation Act, and the further sum of $16.50 per week for a period of seventy-five (75) weeks for the loss of the first and second fingers of his left hand, in accordance with the provisions of Paragraphs E-2 and E-3 of Section 8 of the Compensation Act.

We further find that the claimant has been paid the sum of $119.87 for non-productive time, which must be considered as payment of compensation and deducted from the amount which he is entitled to have and receive as above set forth.

We further find that thirty-three (33) weeks’ compensation has accrued to November 13, 1940, and that the amount due on account thereof, namely, Five Hundred Forty-four Dollars and Fifty Cents ($544.50), less the sum of One Hundred Nineteen Dollars and Eighty-seven Cents ($119.87) heretofore paid to claimant as aforesaid, to-wit, the net amount of Four Hundred Twenty-four Dollars and Sixty-three Cents ($424.63), is payable forthwith, and the balance of said compensation, to-wit, the sum of Seven Hundred Seventy-three Dollars and Fourteen Cents ($773.14), is payable in weekly installments of Sixteen Dollars and Fifty Cents-($16.50) commencing November 20, 1940.

Award is therefore entered in favor of the claimant August Billek for the sum of Eleven Hundred Ninety-seven Dollars and Seventy-seven Cents ($1,197.77), payable as follows, to-wit:

a) The sum of Four Hundred Twenty-four Dollars and Sixty-three Cents ($424.63) is payable forthwith, being the amount of compensation which has accrued to November 13, 1940, less the amount heretofore paid as above set forth.

b) The balance of Seven Hundred Seventy-three Dollars and Fourteen Cents ($773.14) is payable in forty-six (46) weekly installments of Sixteen Dollars and Fifty Cents ($16.50), commencing November 20, 1940, and one final installment of Fourteen Dollars and Fourteen Cents ($14.14).

This award, being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” (Illinois Revised Statutes, 1939, Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act Making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies Until the Expiration of the First Fiscal Quarter After the Adjournment of the Next Regular Session of the General Assembly,” approved July 1st, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing Acts.


text:
    (No. 3544
    Glenn Ducey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 10, 1940.

    C. E. Corbett, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

For more than a year prior to May 17,1940, claimant was in the employ of respondent, first as a highway patrolmans’ helper, and subsequent to March 1, 1940 as maintenance patrolman. On the morning of May 17, 1940 claimant was working on S. B. I. Route 47 near Bement, in Piatt County, and while unhitching the road grader from the maintenance truck in his charge, the stand upon which the grader was resting swung down and caught the first finger of claimant’s left hand between the grader tongue and the stand, crushing such finger so that the terminal phalanx thereof had to be amputated. Claimant’s injuries were sustained on a Friday and he was absent from work until the next Monday when he resumed his former employment. No deduction was made from his regular wages for the time he was absent from his work as aforesaid.

Upon a consideration of the facts in the record, we find as follows:

That on May 17,1940 claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State; that on said date 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 such Act; that claimant was in the employ of the respondent in the grade in which he was employed at the time of the accident for less than one year; that the annual earnings of persons of the same class in the same employment and same location during the year prior to May 17, 1940, was $1,620.00; that claimant’s annual earnings, within the meaning of those words as used in the Workmen’s Compensation Act were $1,620.00; that his average weekly wage was $31.15; that claimant at the time of the accident was thirty-three (33) years of age, and had no children under the age of sixteen (16) years; that necessary first aid, medical, surgical and hospital services were provided by respondent; that claimant was temporarily totally disabled from the date of his injury as aforesaid to'May 20, 1940; that he suffered the loss of the first phalange of the first finger of the left hand which, under Paragraph E-6 of Section 8 of the Compensation Act is considered to be equal to the loss of one-half of such finger.

We further find that the period of claimant’s temporary total incapacity for work was not more than six working days, and that therefore he is not entitled to receive from respondent any compensation for such temporary total incapacity.

We further find that claimant is entitled to have and receive from the respondent for the loss of one-half of the first finger of his left hand, the sum of Sixteen Dollars and Fifty Cents ($16.50) per week for a period of twenty (20) weeks, commencing May 18, 1940, pursuant to the provisions of Paragraphs E-2, E-6 and L of Section Eight (8) of the Workmen’s Compensation Act.

We further find that the claimant has been paid the sum of Five Dollars and Nineteen Cents ($5.19) for non-productive time which must be considered as payment of compensation, and deducted from the amount which he is entitled to have and receive as above set forth.

We further find that all of the compensation due to claimant as aforesaid has accrued at this time.

Award is therefore entered in favor of the claimant, Glenn Ducey, for the sum of Three Hundred Twenty-four Dollars and Eighty-one Cents ($324.81).

This award, being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” (Illinois Revised Statutes, 1939, Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act Making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies Until the Expiration of the First Fiscal Quarter After the Adjournment of the Next Regular Session of the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing Acts.


text:
    (No. 3408
    Teresa Gagel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 10, 1940.

    Joseph W. Koucky, for claimant.
    John E. Cassidy, Attorney General; Maurice J. Walsh, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On December 29, 1938, and for several years prior thereto, the claimant, Teresa Gagel, was in the employ of the respondent as an attendant at Chicago State Hospital. On the last mentioned date, while in the discharge of her duties, she slipped and fell and sustained a colles fracture of the right wrist. She was taken to the institution hospital and treated by Dr. Sankstone and Dr. Sckeffler of the hospital staff. X-rays were taken, the fracture reduced, and a cast placed. The X-ray showed a typical colies fracture in which the lower end of the radius, the smaller fragment, was displaced somewhat upward and backward; and also showed a small chip fracture of the styloid process of th'e ulna. Thereafter claimant was given physiotherapy and heat treatments in conjunction with massage. Her arm was kept in a sling for a month, and four weeks after the date of the accident she returned to her usual employment. She received her full pay during the time she was incapacitated as above set forth.

The only medical testimony in the record is the testimony of Dr. Milton Scheffler who at the time of the accident was one of the physicians on the staff of the institution, and Dr. Albert C. Field who testified as an expert. Both doctors are substantially in accord as to their findings.

Upon consideration of the facts in the record we find as follows:

That on December 29,1938 claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State; that on such date claimant sustained accidental injuries which arose out of and in the course of her 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 such Act; that the earnings of the claimant during the year preceding the accident were $972.00, and her average weekly wage was $18.70; that claimant at the time of the injury was fifty-nine (59) years of age; that all necessary first aid, medical, surgical and hospital services were provided by the respondent; that claimant was temporarily totally disabled from from the date of her injury as, aforesaid to January 27, 1939, to wit, for a period of four (4) weeks; that she also suffered the permanent loss of fifty per cent (50%) of the use of the right hand.

We further find that claimant is entitled to have and receive from the respondent the sum of Nine Dollars and Thirty-five Cents ($9.35) per week for three (3) weeks for temporary total disability, in accordance with the provisions of Paragraph (b) of Section eight (8) of the Compensation Act, and the further sum of Nine Dollars and Thirty-five Cents ($9.35) per week for a period of eighty-five (85) weeks for the permanent loss of fifty per cent (50%) of the use of the right hand, in accordance with the provisions of Paragraph E-12 of Section Eight (8) of such Act.

We further find that the claimant has been paid the sum of Seventy-five Dollars and Sixty Cents ($75.60) for non-productive time which must be considered as payment of compensation and deducted from the amount which she is entitled to have and receive as above set forth.

We further find that all of the compensation due to claimant as aforesaid has accrued at this time.

Award is therefore entered in favor of the claimant, Teresa Gagel, for the sum of Seven Hundred Forty-seven Dollars and Twenty Cents ($747.20).

This award, being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” (Illinois Revised Statutes, 1939, Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act Making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies Until the Expiration of the First Fiscal Quarter After the Adjournment of the Next Begular Session of the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Fund in the manner provided by the foregoing Acts.


text:
    (No. 3476.
    Mary Leavitt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 10, 1940.

    Joseph W. Koucky, for claimant.
    John E. Cassidy, Attorney General; Maurice J. Walsh, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On April 12, 1939, and for several years prior thereto, the claimant was in the employ of respondent at the Chicago State Hospital as a laundry worker. On the last mentioned date, while in the performance of her duties, her left hand was caught in a shirt press, whereby the dorsal surface of the left hand and the fingers thereof were burned.

Claimant was immediately taken to the institution hospital and treated by Dr. Scheffler, a member of the medical staff of the institution. She remained in the hospital from April 12th to May 9th, and returned to her regular duties on May 22d. She was paid her regular wages during the time she was incapacitated as aforesaid.

The medical testimony consists of the testimony of Dr. Albert C. Field who testified on behalf of the claimant, and Dr. Milton Scheffler who was called on behalf of respondent.

Upon a consideration of the facts in the record, we find as follows:

That on April 12, 1939 claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State; that on such date claimant sustained accidental injuries which arose out of and in the course of her 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 such Act; that the earnings of the claimant during the year preceding the accident were $972.00, and her average weekly wage was $18.70; that claimant at the time of the injury was fifty-nine (59) years of age; that all necessary first aid, medical, surgical and hospital services were provided by the respondent; that claimant was temporarily totally disabled from the date of her injury as aforesaid to May 22, 1939, to wit, for a period of five and three-sevenths weeks; that she also suffered the permanent loss of thirty-five per cent (35%) of the use of her left hand.

We further find that claimant is entitled to have and receive from the respondent the sum of Nine Dollars and Thirty-five Cents ($9.35) per week for a period of five and three-sevenths weeks for temporary total disability, in accordance with the provisions of Paragraph (b) of Section-eight (8) of the Compensation Act, and the further sum of Nine Dollars and Thirty-five Cents ($9.35) per week for a period of fifty-nine and one-half (59%) weeks for the permanent loss of thirty-five per cent (35%) of the use of the left hand, in accordance with the provisions of Paragraph E-12 of Section eight (8) of such Act.

We further find that claimant has been paid the sum of One Hundred Two Dollars and Sixty Cents ($102.60) for nonproductive time which must be considered as the payment of compensation and deducted from the amount which she is entitled to have and receive as above set forth.

We further find that all of the compensation due to claimant as aforesaid has accrued at this time.

Award is therefore entered in favor of the claimant, Mary Leavitt, for the sum of Five Hundred Dollars and Forty-eight Cents ($504.48).

This award, being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” (Illinois Revised Statutes, 1939, Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act Making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies Until the Expiration of the First Fiscal Quarter After the Adjournment of the Next Regular Session of the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Fund in the manner provided by the foregoing Acts.


text:
    (No. 3058
    Lee Arnold, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 12, 1940.

    Jacob Baskin and Leonard J. Grossman, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

An opinion was filed in this cause on September 10th, 1940. Thereafter, upon petition of the respondent, rehearing was allowed. Upon rehearing the following opinion is substituted for the original opinion herein:

The claimant, Lee Arnold, filed his complaint in this court seeking an award in the sum of $10,000.00 for disabilities alleged to have been sustained as the result of injuries received while in the employ of the State of Illinois.

We find the facts to be that on February 18, 1936, the claimant, Lee Arnold, was in the employ of the State of Illinois as a truck driver for the Division of Highways, Department of Public Works and Buildings; that he was then married and had five children under sixteen years of age. It was stipulated that claimant’s employment was seasonal, and that his earnings for the purpose of computing compensation amounted to $5.20 per day on the basis of 200 days employment per year. Claimant had worked for the State but nine days prior to February 18, 1936, and on that date he was operating a truck and snow plow, clearing the highway of snow. The nose of the plow struck an expansion plate on a bridge floor and the plow overturned. The claimant and his helper got out of the overturned truck, and claimant then attempted to cut the hose leading to the radiator in an effort to drain the radiator to prevent it from freezing, the temperature at that time being about 24 degrees below zero. While the claimant was endeavoring to cut this hose a barrel of tar, which the evidence showed weighed from 300 to 600 pounds, struck the claimant in the back in the lower part of the spine. Help was obtained and claimant was taken to a neighboring farm-house and Dr. Edgecomb of Ottawa was summoned. Claimant was then removed in an ambulance to a hospital at Ottawa, where he was confined for five weeks. Dr. Christian was called into the case and claimant was placed in a plaster cast. About two weeks later claimant was transferred to the care of Dr. H. B. Thomas, a noted physician and surgeon, and was taken and confined to St. Luke’s Hospital in Chicago, where another plaster cast was applied. It appears from the evidence that claimant remained in this hospital for a week and was taken home. He made periodical trips to the hospital in Chicago at two week intervals until November 28, 1936, for the purpose of receiving treatments and care from Dr. Thomas.

The respondent furnished all the hospitalization and medical care received by the claimant prior to November 28, 1936, and the claimant was paid $499.60 compensation during the period between February 18th and November 28, 1936.

Claimant testified that since the latter date he purchased a heat lamp machine for $222.00, but there is nothing in the record to indicate that he was instructed to purchase such lamp by the respondent, nor that-the purchase thereof was necessary or was advised by any of bis physicians; nor is there anything in the record to indicate that the price paid therefor was the fair and reasonable value thereof, or what it is fairly and reasonably worth at the present time. Claimant also testified that since November, 1936, he has visited his family physician on approximately ten occasions at a cost of $2.00 for each visit; also that since November 30, 1937, he earned approximately $20.00 or $25.00 over a period of three or four months acting as business agent for the Retailers Clerks’ Union. The amount paid by claimant for medical services is offset by the amount earned by him as aforesaid, and the evidence in the record does not. justify an award for the amount paid by claimant for the lamp in question.

The claimant testified on January 26, 1939, that his condition had not improved since the time he originally testified in November, 1937; that since the last' mentioned date he had attempted to drive his father-in-law’s truck on several different occasions, and had . attempted to do other work. He testified that he could drive a truck for fifteen or' twenty minutes and then the pain would become so severe that it would be necessary for him to quit.

The medical testimony is not' in harmony. Eminent physicians have given conflicting opinions — one to the effect that since November 28, 1936, claimant has been cured; others of equal renown, experience and training deny this.

This court had Dr. Magnuson of the Passavant Hospital in Chicago examine the claimant and report direct to the court, and considering the testimony of the doctors and the testimony of the claimant, we find that claimant is now incapacitated from performing the duties of his previous employment ; that he cannot do any work which involves stooping or lifting for any considerable length of time, without completely incapacitating himself. We find that there is a direct causal connection between the injury he received at the time the heavy barrel rolled upon him and his present condition. In the opinion of Dr. Paul B. Magnuson, claimant’s condition is permanent, but he felt there was something that could be done to improve it, and possibly take him out of the permanent disability class; that is, permanent immobilization of the lumbo-sacral joint, by fusion or bone graft, or both, as may be indicated upon exposure of the bone and its joints. Dr. Magnuson is of the opinion that claimant is wholly incapable of performing the work he was doing prior to the injury, but states that probably he could do desk work, checking1 goods in and out, on the like, where he would be on his feet part time and sitting down part of the time, without bearing any weight over a number of consecutive hours. Dr. Magnuson also found that the claimant had a constant spot of tenderness and pain, which was localized on successive examinations repeated twice on two successive days by Dr. Stinchfield, his associate, and himself; that this spot does not vary; and connected with this spot of tenderness the claimant gives signs and symptoms which check up with injury to the joints in the lumbo-sacral region; that he had paralysis following the injury, with incontinence of urine and feces; that in other words, he had an actual concussion of the cord at the point which involved the cauda equina at the point where he now complains of pain; that he has muscle spasm which limits the whole motion of the spine, and in repeatedly putting him through motions of the spine, including the confusion tests with him in various positions where he could not realize what the physician was actually doing with his back, the pain occurred on the application of pressure on these joints. The evidence shows that the claimant is still wearing a steel brace. Dr. Magnuson concluded that the claimant has a loose lumbo-sacral joint, in all probability due to rupture of the ligaments at the time of the injury; that it is only the bones that show in the X-ray, and rupture of the ligaments in this region is more serious than a fracture, provided the bone is not crushed, because ligaments do not heal as well as bone, and give longer disability and more permanent disability.

The claimant is now 32 years of age, weighs 145 pounds, and is five feet eleven and one-half inches tall. From the record it appears that he had always been engaged in manual labor, and that he only went through the eighth grade at school; and that he is now willing to submit to an operation.

As we understand it, Dr. Magnuson is of the opinion that after any operation there will still be a period of continued disability and pain, in which manual labor is impossible even though the operation were a success. Thisi operation would call for a bone graft from Lee Arnold’s thigh into his back, and after that claimant would be put in a plaster cast and a new brace would be necessary, as a brace is still needed, but of a different type from the one originally prescribed by Dr. Thomas. The question of what the result of an operation suggested by Dr. Magnuson would be, is largely a matter of conjecture.

After considering all of the evidence in the case, we find that on February 18, 1936, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act; that on said date 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 such Act; that claimant’s annual earnings, computed in accordance with paragraph (e) of Section 10 of the Workmen’s Compensation Act, were $1,040.00, and°his average weekly wage was $20.00; that claimant at the time of the injury was 28 years of age and had five children under the age of 16 years, to wit: Gertrude Ann, 8; Mary Lou, 5; Eileen, 6; Jackie Lee, 2; and John Robert, 8 months; that all medical, surgical and hospital services were provided by the respondent.

We further find that as the result of such accident claimant has sustained a complete disability which renders him wholly and permanently incapable of work; that under the provisions of Section 8, paragraph (f) of the Compensation Act, as construed by our Supreme Court in the case of Moweaqua Coal Co. vs. Ind. Com., 360 Ill. 194, and in the case of Truax-Traer Coal Co. vs. Ind. Com., 362 Ill. 75, the claimant is entitled to the sum of Forty-one Hundred Sixty Dollars ($4,160.00), less the sum of Four Hundred Ninety-nine Dollars and Sixty Cents ($499.60) heretofore paid by respondent, to wit, the net amount of Thirty-six Hundred Sixty Dollars and Forty Cents ($3,660.40), for complete and permanent disability, payable in weekly installments of Fourteen Dollars ($14.00) per week, and thereafter a pension during life annually in the amount of Three-Hundred Thirty-two Dollars and Eighty Cents ($332.80), payable monthly.

We further find that the sum of $499.60 has been paid to claimant as aforesaid; that Two Hundred Fifty-one (251) weeks ’ compensation, amounting to Thirty-five Hundred Fourteen Dollars ($3,514.00), has accrued to December 11, 1940, and that .said sum, less $499.60 heretofore paid to the claimant as aforesaid, to wit, the sum of Three Thousand Fourteen Dollars and Fourteen Cents ($3,014.14), is payable at this time-; and the balance of Six Hundred Forty-six Dollars ($646.00), payable in forty-six (46) weekly installments of Fourteen Dollars ($14.00), and one final installment of Two Dollars ($2.00). After such final installment is paid claimant is entitled to an annual pension of Three Hundred Thirty-two Dollars and Eighty Cents ($332.80), payable in monthly installments of Twenty-seven Dollars and Seventy-three Cents ($27.73) during the term of his natural life.

Award is therefore entered in favor of the claimant, Lee Arnold, for the total sum of Thirty-six Hundred Sixty Dollars and Forty Cents ($3,660.40) and a pension for life, payable as follows:

a) The sum of $3,014.40 is payable forthwith, for compensation which has accrued from February 19, 1936, to December 11, 1940, less the sum of $499.60 heretofore paid to claimant as aforesaid.

b) The sum of $646.00 payable in 46 weekly installments of $14.00 per week, commencing December 18, 1940, and one final installment of $2.00.

After the last installment of such compensation has been paid as aforesaid, the claimant, Lee Arnold, shall be paid an annual pension for and during his natural life in the sum of $332.80, payable in monthly installments of $27.73, commencing one week after the payment of the aforementioned final installment of $2.00.

It is further ordered that if the said Lee Arnold hereafter returns to work, or is able to do so, and earns, or is able to earn, as much as before the injury, payments under this award shall cease; and if said Lee Arnold returns to work, or is able to do so, and earns, or is able to earn, part but not as much as before the injury, this award shall be modified so as to conform to an award under paragraph (d) of Section eight (8) of the Compensation Act.

It is further ordered that this court retain jurisdiction of this cause for the making of such other and further orders herein as may be in accordance with the provisions of the Workmen’s Compensation Act of this State.

This award, being subject to the provisions of an Act entitled “An Act making an Appropriation to Pay Compensation Claims of State Employees and providing for the Method of Payment Thereof” (Illinois Revised Statutes, 1939, Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing Acts.


text:
    (No. 3418
    Delia Choate, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 12, 1940.

    Joseph W. Koucky, for claimant.
    John E. Cassidy, Attorney General; Maurice J. Walsh, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

For about eleven years prior to October 20, 1938, claimant was in the employ of respondent as a cook at Chicago State Hospital.

At such institution the interior entrance to the dining room, the bathroom, and the stairway to the basement, is from the main hall. The door to the bathroom and the door to the basement stairway are about two or three feet apart, the bathroom door being closest to the dining room.

Claimant’s duties for the day ended at 6:30 P. M. About 6:10 or 6:15 P. M., on said 20th day of October, A. D. 1938, she was ready to go home and was proceeding from the dining room down the hallway, with the intention of going to the bathroom, but inadvertently passed the bathroom door and opened the door leading to the basement steps. The basement light was not burning at the time. Thinking that she was at the bathroom, claimant stepped forward, and fell down the steps, and thereby sustained injuries to her back, as well as to both legs.

She was immediately taken to the institution hospital where she was examined by Dr. Sinai. The next day she was examined by Dr. Scheffler, a member of the institution staff, who bandaged her side and placed a hot pack on her right leg, which was continued for about two or three weeks. Claimant left the hospital on November 25th and returned to her work on December 1, 1938. During all of the time she was incapacitated for work as aforesaid, she was under the care of Dr. Scheffler, and received her regular pay.

Claimant asks compensation for temporary total disability during the time she was incapacitated for work as aforesaid, and also for the permanent loss of fifty per cent (50%) of the use of her right leg, and for the permanent loss of twenty-five per cent (25%) of the use of her left leg.

The Attorney General contends that the accident did not arise out of and in the course of claimant’s employment, and that the medical testimony does not show a causal connection between the accident in question and the present condition of the claimant.

With reference to accidents arising out of and in the course of the employment of the employee, Angerstein in his work “The Employer and the Workmen’s Compensation Act of Illinois,” Section 111, page 240, said:

“Although the Compensation Act provides compensation to employees only for accidental injuries arising out of and in the course of their employment, yet it is not necessary that the employee be in the actual performance of his work. It is well recognized that there are intervals or periods when the employee is not in the actual performance of work, and yet he is in the course of employment, as for example when the employee is ministering to such personal wants as getting a drink, eating his lunch, particularly upon the employer’s premises, or resting at proper intervals, or going to a toilet, etc., subject of course to the usual limitations that he does not go to forbidden or improper places upon the premises, or unnecessarily increase the hazard or danger.
It is the general rule that all such acts by the employee while on the employer’s premises as are reasonably necessary to his health and comfort, are incidental to his employment and are contemplated by the employer and the employee as a part of their contractual relation. It is, therefore, the rule that such acts by the employee as eating lunch during the lunch period on the employer’s premises, or getting a drink, going to a toilet, protecting himself from excessive cold when at a place provided by the employer, or which the employees customarily use, are incidents of the employment and when accidental injuries occur during such time, the employer is liable for compensation.”

The rule announced by Angerstein is supported by numerous decisions of our Supreme Court. Humphrey vs. Ind. Com., 285 Ill. 372; Mt. Olive Coal Co. vs. Ind. Com., 355 Ill. 222; Wabash Ry. Co. vs. Ind. Com., 360 Ill. 192.

In speaking of the same question, our Supreme Court in the case of Union Starch Co. vs. Ind. Com., 344 Ill. 77, said:

“Where an employee is injured at a place where he reasonably may be and while he reasonably is fulfilling the duties of his employment or is engaged in doing something incidental to it, he is injured in the course of his employment.”

This rule was also recognized and applied in the case of Wabash Ry. Co. vs. Ind. Com., 360 Ill. 192.

In the present ease the accident in question occurred in the building where claimant was employed, about fifteen or twenty minutes before the end of the day’s work; claimant was just getting ready to leave the institution, had left the dining room, and intended to go to the bathroom but inadvertently opened the wrong door and fell down the basement stairway.

We feel that the case clearly comes within the rule as stated by Angerstein, and the aforementioned decisions of our Supreme Court, and that the injury in question arose out of and in the course of claimant’s employment.

With reference to the causal connection between the claimant’s present condition and the accident in question, it appears, from the evidence that claimant is fifty-seven years of age, and weighs 195 pounds; that she is now partially disabled in both legs, and that such disability is permanent; that prior to the accident in question she never sustained an injury to either leg, never had any pain therein or any swelling thereof; and that she satisfactorily performed all of the duties of her position for about eleven years.

The evidence further shows that since the accident she has had pain in her legs, particularly the right leg; that she has a phlebitis of the right leg; that she has a limitation of motion in both legs; that her legs are swollen most of the time, particularly the right leg; that she feels very stiff and has difficulty in moving about.

In our judgment, the evidence in the record satisfactorily shows a causal connection between the claimant’s present condition and the accident of October 20, 1938.

The only testimony in the record as to the extent of claimant’s disability, other than that of the claimant, is the testimony of Dr. Field. From his testimony it satisfactorily appears that claimant has sustained the permanent loss of fifty per cent (50%) of the use of the right leg, and the permanent loss of twenty per cent (20%) of the use of the left leg.

Upon consideration of the testimony in the record we find as follows:

That on October 20, 1938 claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State; that on such date claimant sustained accidental injuries which arose out of and in the course of her 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 such Act; that the earnings of the claimant during the year next preceding the injury in accordance with the stipulation of the parties hereto, were $1,065.00 and her average weekly wage was $20.48; that claimant at the time of the injury was fifty-seven years of age; that all necessary first aid, medical, surgical and hospital services were provided by the respondent; that claimant was temporarily totally disabled from the date of her injury as aforesaid to December 1, 1938, to wit, for a period of five and six-sevenths (5 6/7) weeks; that she also suffered the permanent loss of fifty per cent (50%) of the use of her right leg and the permanent loss of twenty per cent (20%) of the use of her left leg.

We further find that claimant is entitled to have and receive from the respondent the sum of $10.24 per week for a period of five and six-sevenths (5 6/7) weeks for temporary total disability, in accordance with the provisions of Paragraph (b) of Section eight (8) of the Compensation Act, and the further sum of $10.24 per week for a period of ninety-five (95) weeks for the permanent loss of fifty per cent (50%) of the use of her right leg, and the further sum of $10.24 per week for a period of thirty-eight (38) weeks for the permanent loss of twenty per cent (20%) of the use of her left leg; — in accordance with the provisions of Paragraph E-15 of Section eight (8) of such Act.

We further find that claimant has been paid the sum of One Hundred Seven Dollars and Sixty-three Cents ($107.63) for non-productive time, which must be considered as the payment of compensation and deducted from the amount which she is entitled to have and receive as above set forth.

We further find that One Hundred Twelve (112) weeks’ compensation, amounting to Eleven Hundred Forty-six Dollars and Eighty-eight Cents ($1,146.88), has accrued to December 12, 1940, and that said sum, less $107.63 heretofore paid to claimant as aforesaid, to wit, the sum of Ten Hundred Thirty-nine Dollars and Twenty-five Cents ($1,039.25), is payable at this, time; and the balance of Two Hundred Seventy-five Dollars and One Cent ($275.01) is payable in twenty-six (26) weekly payments of $10.24 each, commencing December 19, 1940, and one final installment of $8.77.

Award is therefore entered in favor of the claimant, Delia Choate, for the sum of Thirteen Hundred Fourteen Dollars and Twenty-six Cents ($1,314.26), payable as follows:

a) The sum of $1,039.25 is payable forthwith (being the amount of compensation which has accrued from October 21, 1938 to December 12, 1940, less the sum of $107.63 heretofore paid to claimant as aforesaid).

b) The sum of $275.01 is payable in twenty-six (26) weekly installments of $10.24 per week commencing December 19,1940, and one final installment of $8.77.

This award, being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” (Hlinois Revised Statutes, 1939, Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act Making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies Until the Expiration of the First Fiscal Quarter After the Adjournment of the Next Regular Session of the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Fund in the manner provided by the foregoing Acts.