author: Chief Justice Dambón

text:
    No. 3790
    Ida Hyneman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1944.

    Webneb H. Somebs and Fbank ft. Eagleton, for claimant.
    Geobge F. Babbett, Attorney General; C. Abthub Nebel, Assistant Attorney General, for respondent.
   Chief Justice Dambón

delivered the opinion of the court:

This complaint was filed on the 15th day of April, 1943, for benefits under the Workmen’s Compensation Act for an alleged injury to the above named claimant, while employed in the Elgin State Hospital, Elgin, Illinois.

The complaint alleges that on the 16th day of April, 1942, the claimant was employed as a domestic in the dining rooms at said State Hospital and that on that day she was inoculated against diphtheria by injection, as required by the authorities of the hospital. It further alleges that as a result of the aforesaid inoculation a lump developed on the upper muscle of her left arm and that the arm has become paralyzed and the use thereof has become permanently lost.

The claimant and respondent have entered into a stipulation that claimant’s annual earnings for the year next preceding the injury was $1,044.00, making her average weekly wage $20.08. It is further stipulated all requirements of Section 24 of the Workmen ^"Compensation Act were complied with.

The only question remaining for the court to determine is the nature and extent of claimant’s injury. The record in this case is not very satisfactory to the court. No evidence was taken and the only thing to guide the court is a short, concise departmental report signed by the managing officer of the Elgin State Hospital and a short report signed by Dr. Edward T. Driscoll, to whom the claimant was sent by the respondent for treatment. This report is dated February 28, 1943, which apparently was the last time claimant was treated or examined.

This report states:

“Our examination at this time reveals that there is considerable atrophy of the left deltoid muscle. She also has a limitation of motion in the shoulder joint. She is able to abduct her arm about 40° and forward flexion to about 85° and extension 15°. She has made some improvement with physio-therapy and thiamin^ chloride. However, there seems to be a residual permanent impairment of function. I would estimate that since there is such a loss of motion that her impairment of function could be rated as from fifteen-to twenty per cent.”

The departmental report above referred to contains the following statement made at the request of the institution by M. C. Hertford, M. D., Assistant Medical Superintendent of the University of Illinois College of Medicines :

“Mrs. Hyneman was seen in our dispensary on July 5, 1942, at which time she was complaining of a pain in the shoulder which was radiating down to the middle third of the arm. Our examination revealed atrophy of the left deltoid muscle; limitation of motion in all directions in the left shoulder. The most likely cause for this condition is probably a toxic neuritis resulting from the diphtheria toxoid injection.”

An accidental injury, within the meaning of the Workmen’s Compensation Act, is one which occurs in the course of the employment unexpectedly and without the affirmative act or design of the employee. The word “accident” is not to be technically construed. It may comprehend any event which is unforeseen and not expected by the person to whom it happens. The act of vaccination of the claimant was expected and was in itself not an accident. The infection was not expected' and is traceable to the act of vaccination and is compensable.

After a full consideration of this record, the court finds that the claimant and respondent were, on the 16th day of April,' 1942, operating under the provisions of the Workmen’s Compensation Act; that on the date last above mentioned said claimant sustained accidental injuries which did arise out of and in the course of the employment; and that notice of said accident was given said respondent and claim for compensation on account thereof was made on said respondent within the time required under the provisions of said Act. That the earnings of claimant next preceding the injury were $1,044.00, and that the average weekly wage was $20.08. That the claimant at the time of the injury had no children under sixteen years of age. That necessary first aid, medical and hospital services were provided by the respondent herein excepting an expenditure by claimant for travelling expenses and medicines amounting to the sum of $75.00.

That claimant is entitled to have and receive from the respondent the sum of $11.04 per week for a period of 33% weeks, as provided in. Section 8, paragraph e of said Act, as amended, for the reason that the injury sustained caused a 15% permanent loss of use of the left arm of the claimant.

An award is hereby entered against the respondent and in favor of claimant, Ida Hyneman, in the sum of $447.60, all of which has accrued and is payable forthwith.

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


source: Caselaw Access Project

author: Eckert, J.

license: Public Domain

text:
    No. 3821
    W. T. Jones, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1944.

    Claimant, pro se.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, J.

The claimant, W. T. Jones, is employed by William G. Stratton, Treasurer of the State of Illinois. Part of the duties assigned to him are to guard automobiles belonging to employees of the Treasurer’s Office while parked near the north entrance to the State Capitol Building, to keep the traffic lane open for free entrance to and departure from this entrance, and to assist and serve the employees of the Treasurer’s Office in approaching or leaving the space provided for the parking of automobiles. On April 2, 1943, while assisting in the separation of two automobiles in the parking space, claimant received a right inguinal hernia.

After notification to the State Treasurer of the injury and the diagnosis made by Dr. M. 0. Otten of Springfield, claimant submitted to an operation at St. John’s Hospital, Springfield, on October 4, 1943. He remained in the hospital for sixteen days and was thereafter confined to his home for a period of eleven days. As a result of the accident, claimant incurred necessary expenses for hospital services in the amount of $91.55, and expenses for necessary medical services in the amount of $85.00.

At the time of the injury, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State. It appears from the record that the hernia was of recent origin; that its appearance was accompanied by pain; that it was immediately preceded by trauma arising out of and in the course of the employment; and that the hernia did not exist prior to the injury. Notice of the injury was given to the State Treasurer within fifteen days after its occurrence.

Award is therefore made in favor of the claimant in the total sum of $176.55, payable as follows :

The sum of $85.00 for the use of Dr. Harry Otten, of Springfield, Illinois.

The sum of $91.55 for the use of St. John’s Hospital, Springfield, Illinois.


author: Chief Justice Damron

text:
    No. 3772
    Elizabeth A. Minkus, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1944.

    Bows & Bows and David Larson, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This complaint seeks an award under the Workmen’s Compensation Act for permanent partial loss of the use of the second finger of claimant’s right hand and for reimbursement for expenses incurred for hospital, medical, surgical and nursing services which she claims were necessary by reason of said accidental injuries sustained while in the employ of the State in the Division of Unemployment Compensation of the Department of Labor.

Two questions are to he decided by this court. First, the nature and extent of the injury sustained by claimant, and second, the liability of the respondent to reimburse the claimant for $1,058.00, alleged to have been expended by her in order to restore her health after the injury.

The record consists of the complaint, report of the Division of Placement and Unemployment Compensation, testimony of Dr. Albert C. Field and the claimant, Elizabeth A. Mirikus, abstract of said evidence, brief and argument on behalf of claimant, brief and argument on behalf of respondent and reply brief and argument of claimant.

The evidence shows this claimant was a certified civil service employee, classified as a junior clerk in said Division. That while so employed on the 24th day of July, 1942, she accidentally cut her right second finger on a clasp attached to an envelope which she was attempting to open.

Claimant testified she immediately reported the acci-' dent to her supervisor, Steven Kish. On the following day she reported the injury to Mr. Corrigan, head of the Division, who instructed her to go to a doctor and advised her to go home.

Claimant further testified that this division had made no arrangements to furnish necessary medical services to an injured employee but permitted the employee to select a physician of her own choosing. In compliance with the orders given to her by Mr. Corrigan she employed Dr. J¡ A. G-ubler. She testified that she was hospitalized in Wesley Memorial Hospital and there remained from July 30 to the 8th day of August under the care of Dr. Glubler and after leaving the hospital she was treated by her family physician, Dr. Foley, who took x-rays and rendered medical aid.

From the evidence it is evident this claimant’s finger became infected and it was necessary to perform several operations to remove this infection. During the time of the convalescence of this claimant the Division paid her salary. She makes no claim for temporary compensation.

Dr. Albert C. Field, called on behalf of claimant, testified that as a result of his examination of claimant, for the purpose of testifying, he found that the right middle finger disclosed some deformity at the distal phalanx. On active motion, there was a marked restriction of flexion in the mid and distal phalangeal joint, but on passive manipulation the- finger could be brought to within about one inch of the palm. On the dorsum of the finger at the matrix of the nail on the index finger side and on the ring finger side, extending from the distal phalangeal joint, were well healed scars. In his opinion these scars were caused from operations for drainage. On the palmar surface there was also a well healed scar extending over the distal tip. He testified there were seven operations performed on this finger. How he knew this is not clear from the testimony. He testified she also had a sear in the left orbital .region and also a scar beneath the right arm in the axillary region. She also had a scar over the right knee and about an inch or an inch and a half long over the knee. There is no causive connection between these latter scars and the injury to claimant’s finger. He testified that she had a tremor of her extended finger. He took an x-ray film of her right hand. He stated it showed the joint space was lessened in the distal phalangeal joint. In reply to a question, he testified she had about 75% loss of the use of her right middle finger. This doctor was not cross examined by the respondent and no further medical testimony was introduced either on behalf of claimant or respondent.

Under Section 8, paragraph a of the Workmen’s Compensation Act, it is provided that the employer provide the necessary first aid, medical and surgical and hospital services, and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the injury. It is further provided in said paragraph that the employee may elect to secure his own physician, surgeon and hospital services at his own expense. There is on file in this case a departmental report in reference to this claim which, under rule 21 is prima facie evidence of the facts set forth therein. Among other things it states,

“According to statements submitted to this agency, the claimant has incurred the following expenses as a result of her injury:

Dr. J. A. Gubler...............................................$50.00

Central X-ray and Clinical Lab.................................. 2.00

Claimant stated that there were other expenses incurred by reason of this injury for which she did not secure statements and that these would be submitted to the Personnel Office at an early date. However, to date we have received no statements other than those indicated above.”

Eule 6, paragraph b of this court provides as follows :

"Where the claim is based upon the Workmen’s Compensation Act the claimant shall set forth in the complaint all payments, both of compensation and salary, which have been received by him or by others on his behalf since the date of said injury; and shall also set forth in separate items the amount incurred, and the amount paid for medical, surgical and hospital attention on account of his injury, and the portion thereof, if any, which was furnished or paid for by the respondent.”

The complaint in this case fails to comply with the above quoted rule in reference to separate items and no documents of expenditures were introduced in evidence at the hearing showing that the claimant had expended the various amounts claimed by her or that they were reasonable or necessary in order to relieve her from the effects of said injury.

After a full consideration of the record the court finds that the claimant and the respondent were on the 24th day of July, 1942, operating under the provisions of the Workmen’s Compensation Act; that on the date last above mentioned said claimant sustained accidental injuries which did arise out of and in the course of the employment; and that notice of said accident was given said respondent and claim for compensation on account thereof was made on said respondent within the time required under Section 24 of said Act.

That the earnings of the claimant for the year next preceding the injury were $1,260.00, and that the average weekly wage was $24.23; that the claimant at the time of the injury had no children under sixteen years of age. That no claim for temporary total compensation is due and that the respondent paid full salary to claimant during her convalescing period. That proper proof has been made by claimant for necessary first aid, medical and surgical services as follows: Dr. J. A. Gubler, $50.00, and the sum of $2.00, representing the amount expended for x-rays for which she is entitled to reimbursement, and that all other expenses which she claims to have incurred are denied for the lack of proper proof.

That claimant is entitled to have and receive from the respondent the sum of $13.33 for a period of 26% weeks, as provided in paragraph e of Section 8 of the Workmen’s Compensation Act, as amended, for the reason that the injury sustained caused a 75% permanent loss of the use of the second finger of the right hand of the claimant. All of which has accrued.

An award is therefore hereby entered in favor of the claimant and against the respondent as follows: The sum of $349.91 specific award for 75% of the permanent loss of the use of the second finger; the further sum of $50.00 and the sum of $2.00 for necessary first aid and medical services rendered to claimant, making a total award in the sum of $401.91, payable in a lump sum forthwith.

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


author: Fishes, J.

text:
    No. 3716
    Jelmar Olson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1944.

    William G. Thon, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Fishes, J.

An award was heretofore entered in favor of the claimant herein, in the sum of $4,400.00 — (12 C. 0. R. 468).

On September 29, 1943, claimant filed a petition herein for a lump sum settlement and payment of the balance due under the said award. On November 30, 1943, an amended petition for a lump sum settlement was filed, alleging that as a result of the injury sustained by claimant on August 4, 1941, he is no longer able to work or follow his occupation of painter and that he is unable to do any manual labor and that he has now retired to his farm in the State of Indiana consisting of 100 acres. That in order to secure any income out of the said farm it is necessary that he employ someone to work and operate the farm, and that in order for this to be accomplished it is necessary that he purchase the necessary farm machinery as he has no farm machinery of any kind with which to operate the said farm. That it is necessary to purchase the following farm machinery— one tractor to cost about $950.00; one two-gang plow to cost about $190.00; one double disc plow to cost about $250.00; and in addition thereto a seeder, cultivator and corn planter to cost about the sum of $300.00, making a total required for farm machinery of the sum of approximately $1,700.00.

Respondent, on December 8, 1943, filed an answer to the said petition, and suggests that there is no proof other than the allegation of the claimant that he is no longer able to do normal and manual labor, and further suggests “The physical condition of claimant was fully set out in the original proceedings in Olson vs. State, 12 C. C. R. 468, in the testimony of Dr. Bailey and Dr. Spiegel. The respondent is not further informed as to claimant’s present physical condition.”

In our original opinion, we said, “The record indicates that the duration of claimant’s disability is indefinite and, therefore, the payments herein awarded claimant shall cease when and if claimant is able to resume his former occupation or is able to engage in some other occupation or business whereby his income is equal to his earnings before the injury occurred, or when the maximum payment has been reached, whichever first occurs. ’ ’

As suggested by respondent, there is no showing in the record of claimant’s present physical condition, other than the petition for a lump sum settlement.

“An award under the Compensation Act is intended, so fiar as possible, to supply the loss of periodical wages resulting from the disability, and lump sum awards are the exception and not the rule; and before commutation of the award to a lump sum is authorized under Section 9 the injured employee must support his application therefor by competent evidence showing that it is for his best interest that the compensation be so paid, and unless it clearly appears that the money will be properly safeguarded and that it will increase the disabled workman’s means of support the prayer of his petition for a lump sum settlement should be denied.

The Lincoln Water and Light Company, vs. The Industrial Commission, 332 Ill. 64.

“Before the Industrial Commission is authorized to commute the compensation and order it paid in a lump sum the petitioner must support the application by competent evidence showing that it is for the best interests of the petitioner that the compensation be so paid.’’

The Sangamon County Mining Company, vs. Industrial Commission, 315 Ill. 532.

Under the present state of the record, we have no authority to authorize the payment of the balance of this award in a lump sum.

Petition is therefore denied.


text:
    No. 3822
    Verne E. Scott, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1944.

    C. E. Tate, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, J.

In Ms complaint filed in this case on November 22, 1943, the claimant, Verne E. Scott, alleges that he is employed as a jarntor in the Chemistry Annex at the UMversity of Illinois; that on April 6,1942, wMle carrying steel lockers from the Chemistry Annex to the Huff Gymnasium, he slipped and fell, sustaining permanent injury in the lower region of Ms back and spinal column; that despite his injury he continued Ms work, and on the 16th of April, 1942, while lifting paper towels onto shelves in the janitor’s room in the Chemistry Annex, he felt his back “let loose”; that as a result thereof he was hospitalized both in Urbana, Illinois, and at CMcago, Illinois; that he is permanently and totally disabled from pursmng his usual occupation.

Respondent has filed a motion to dis.miss the complaint on the ground that it was not filed within one year after the date of the accident, in accordance with the provisions of Section 24 of the Illinois Workmen’s Compensation Act. That section of the Act provides that the right to file application for compensation shall be barred unless such application is filed within one year after the date of the accident, where no compensation has been paid, or within one year after the date of the last payment of compensation, where any has been, paid. It has been repeatedly held by the Illinois Supreme Court that compliance with this section is a condition precedent to the right to maintain proceedings under the Compensation Act. City of Rochelle vs. Industrial Commission, 332 Ill. 386; Inland Rubber Co. vs. Industrial Commission, 309 Ill. 43. The decisions of this court are to like effect. Simpson vs. State, 10 C. C. R. 394; Baker vs. State, 10 C. C. R. 111. Furthermore, in' claims by State employees for compensation for accidental injuries, arising out of, and in the course of their employment, Section 24 of the Workmen’s Compensation Act is controlling as to time within which such claims must be filed, and Section 10 of the Court of Claims Act allowing claims against the State to be filed within five years after their accrual is wholly inapplicable. Boismenue vs. State, 12 C. C. R. 36. Claimant having failed to comply with Section 24 of the Act, the court is without jurisdiction to make an award.

The motion of the respondent is therefore granted. Case dismissed.


text:
    No. 3025
    Elva Jennings Penwell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1944.

    John W. Preihs, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant was injured on February 2, 1936, in an accident arising out of and in the course of her employment as a Supervisor at the Illinois Soldiers’ and Sailors’ Children’s School .at Normal, Illinois. The injury was serious, causing temporary blindness and general paralysis. The facts are fully detailed in the case of Penwell vs. State, 11 C. C. R. 365, in which an award was made to the claimant of $5,500.00 for total permanent disability, $8,215.95 for necessary medical, surgical and hospital services expended or incurred to and including October 22, 1940, and an annual pension of $660.00. On February 10,1942, a further award was made to claimant for medical and hospital expenses incurred from October 22, 1940, to January 1,, 1942. On March 10, 1943, a further award was made to claimant for medical and hospital expenses from January 1, 1942, to December 31, 1942. Claim is now made for an additional award of $980.86 for medical, hospital and nursing expenses from January 1, 1943, to and including September 30, 1943.

Claimant remains totally paralyzed from the waist down, the paralysis being of a spastic type; her physical condition has not improved. She has no control over her lower limbs, nor over urine and faeces. From January 1, 1943, up to and including September 30, 1943, she has been required, to relieve her of her injury and to prevent deformity and to stimulate circulation and for relief of bedsores, to employ and receive medical services and nursing attention. She remains helpless, requiring the services of nurses or attendants to move her to and from her bed, to change her bed clothing at least three or four times a day, to administer light treatment to the affected parts of her paralyzed body, and to rub her body with ointments prescribed by her physician. During the period in question, she expended, on account of nursing expenses $490.50; for drugs, $97.79; for medical services, $173.00; for hospital expenses, $123.57; for ambulance services to and from hospital, $84.00; and for supplies, $12.00, totalling, $980.86. Claimant has submitted to the court, with her verified petition, the original receipts-and vouchers showing payment of these respective items.

This court has heretofore held that under Section 8, paragraph a of the Workmen’s Compensation Act, claimant is entitled to such care as is reasonably required to relieve her of the effects of the injury. (Penwell vs. State, supra.) There has been no change in claimant’s physical condition to justify the denial of an award at this time. The award, however, must be confined to such items as are reasonably required. The drugs listed in claimant’s itemized statement, including such items as Vicks Vatronol, aspirins, Lysol, soap, and unexplained drugs, do not appear to have been so required. Furthermore, Item C of claimant’s itemized statement of expenses includes a charge of $30.00 for examination of claimant by the Milton H. Berry School. This is not an authorizzed medical expense; nor is it shown to have been necessary to relieve claimant of the effects of her injury. The other services claimed appear to have been reasonably required, and the charges to be reasonable and just.

An award is therefore made to the claimant for medical and hospital expenses from January 1, 1943, to September 30, 1943, in the sum of $853.07, all of which is accrued and is payable forthwith. The court reserves for future determination claimant’s need for further medical, surgical and hospital services.


author: Per Curiam:

text:
    No. 3796
    Carl Weakley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1944.

    Francis W. Purvis, (Frank Eagleton, of Counsel) for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Per Curiam:

On the 30th day of June, 1942, the claimant, Carl Weakley, was employed as a mechanic in the Illinois State Highway Garage, State Fair Grounds, near Springfield, Illinois. While repairing a motor under the direction of his superiors, a can of gasoline which was being used to clean parts of the motor exploded, burning various parts of his body, and more particularly his left arm. He was taken to the Springfield Memorial Hospital in Springfield where he received first aid, and later was transferred to Chicago, Illinois, for further treatment. The record consists of the complaint, report of the Division of Highways, report of Dr. H. B. Thomas, orthopedic surgeon, Chicago, Illinois, and stipulation between the attorneys for claimant and the Attorney General. Claimant seeks an award under the terms of the Workmen’s Compensation Act for a partial loss of use of his left arm due to this injury.

Upon a full consideration of the record, and from a personal examination of claimant, the court makes the following findings:

That on the 30th day of June, 1942, the 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 said accident was given to respondent and claim for compensation for this injury was made within the time required by the provisions of said Act; that all necessary medical, surgical and hospital bills were provided by the respondent except the sum of $19.40 paid by the claimant for hospital services; that at the time of the accident in question claimant was twenty-eight years of age, and had one child dependent upon him; that the earnings of the claimant during the year next preceding his injury wet'e One Thousand, Nine Hundred and Twenty Dollars ($1,-920.00), making his average weekly wage Thirty-Six Dollars and Ninety-two Cents ($36.92), and his compensation rate Sixteen Dollars and Fifty Cents ($16.50) as provided under Section 8 of said Act; that claimant’s salary was paid regularly to him during the period of his convalescence, resulting in an over-payment of One Hundred Ninety-four Dollars and Twenty-four Cents ($194.24).

The court further finds that the claimant has suffered a 75% loss of use of his left hand.

Claimant has also filed claim for three items, which he claims to have expended for railroad transportation, meals and private hospital while in Chicago. No proper proof has been made of these items, and the respondent is not liable therefor. An award on these items must be denied.

An award is entered in favor of claimant as follows : 127% weeks at Sixteen Dollars and Fifty Cents ($16.50) per week for a 75% loss of functional use of claimant’s left hand totalling the sum of Two Thousand, One Hundred and Three Dollars and Seventy-five Cents ($2,-103.75), as provided by Section 8, Paragraph (E) of the Workmen’s Compensation Act. From this amount must be deducted the sum of One Hundred, Ninety-four Dollars and Twenty-four Cents ($194.24), representing the difference between the temporary compensation due claimant and the salary which was paid to him for unproductive work, leaving the total of One Thousand, Nine Hundred and Nine Dollars and Fifty-one Cents ($1,909.51), of which One Thousand, Four Hundred Sixty-eight Dollars and Fifty Cents ($1,468.50) has accrued to March 14, 1944, and is payable forthwith; the balance is payable to claimant in weekly installments of Sixteen Dollars and Fifty Cents ($16.50) per week until fully paid.

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


text:
    No. 3799
    May Arnold, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1944.

    J. W. Kottcky, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

On August 29, 1942, the claimant, May Arnold, was employed by the respondent as an attendant at the Chicago State Hospital. She alleges, that while in the discharge of her duties as such attendant, she was struck on the left foot by a falling stretcher, and that as a result, she sustained a specific loss of the use of her left foot, big toe, and little toe.

On the hearing, claimant testified that at the time of the alleged accident, she was taking a patient to the hospital on a stretcher carried by four other patients; that one of the patients let the stretcher drop, and the wooden end of one handle struck her left foot; that she reported the accident to her supervisor who sent her to Dr. Olsman, an employee of the hospital; that Dr. Olsman examined her foot, found no break, but advised that she bathe the foot with hot applications to keep the swelling down. Claimant then returned to her home, reporting for work on the next day.

Claimant also testified that in December, 1942, her foot hurt her too badly to continue her work; that she was advised to see Dr. McCorry, who was employed at the hospital; that Dr. McCorry advised her to see “a good outside chiropodist.” During January or February, 1943, claimant consulted Dr. Cohen and Dr. Barnai, both employed at the hospital. An x-ray was taken on April 9, 1943. Claimant also consulted other doctors, including a Dr. Bose, and a Dr. Vaughn, neither of whom was connected with the hospital. She testified that Dr. Vaughn advised her that “vitamin D was the only thing that would help. ’ ’ She complains of constant pain in her foot; that because of the pain she walks sideways on her foot; and that she cannot put any weight on her foot.

From the report of the Department of Public Welfare, it appears that claimant worked regularly from August 30, 1942, until January 23, 1943, when she took a vacation. She returned to work on February 18, 1943, worked for 4 days, reported that she was sick on February 22, 1943, remained away from work for 4 days, and thereafter returned to duty. She has continued to work since that time with the exception of the period from July 1, 1943, to July 12, 1943, when she was confined to her home with influenza.

Dr. Albert C. Field, called as a witness on behalf of the claimant, testified that he first examined claimant on August 27, 1943; that he examined the x-rays which had previously been taken of claimant’s foot and also took x-ray picture at that time; that in his examination, her left foot disclosed a marked relaxation of the transverse arch, a hyperextension of the toes with painful and palpable metatarsal heads, little movement, if any, in the distal phalangeal joint of the first toe, crepitation and pain on manipulation, and calosity beneath the first metatarsal phalangeal joint, which is enlarged and somewhat deformed. He testified that the x-ray taken on August 27, 1943, showed some evidence of interference with the circulation in the distal ends of the first and second toes, decalcification, some evidence of bony changes present, especially in the condyles of the first toe, distal phalangeal, the joint space somewhat narrowed due to depression of the joint, and the cartilage making up1 the space. He stated that the bony changes also appeared in the second toe in the distal phalanx. Dr. Field was then asked, “Doctor, in your opinion can those changes be caused by trauma, such as a dropping of an object upon the toe?” Dr. Field answered, “Yes, that could be.”

Dr. Benjamin Cohen, called as a witness for the respondent, testified that x-rays taken of claimant’s foot on April 9, 1943, on May 22, on July 31, and on August 27, 1943, all showed no break, but showed atrophic arthritis. The doctor also testified that the records of the Chicago State Hospital contain no report of an injury to the claimant other than her complaint made in January, 1943, five months after the alleged injury. On cross-examination, Dr. Cohen stated that the causative factor of a condition such as claimant’s is not a trauma, but an infection somewhere in the body which a trauma might aggravate.

Dr. G-eorge Procopie, called as a witness for respondent, testified that the x-ray of claimant’s foot taken on April 9,1943, showed no fracture, but showed a slight bone hypertrophy, a kind of arthritis, in some places atrophic. He testified that the x-ray taken on May 22, 1943, also showed no fracture, but a slight decalcification.

The claimant has the burden of proving the causal connection between, the accident and the condition or incapacity which constitutes her claim for compensation. Sanitary District vs. Industrial Commission, 343 Ill. 236; Sears Roebuck & Co. vs. Industrial Commission, 334 Ill. 246. Liability can not rest upon imagination, speculation or conjecture, but must be based upon facts established by a preponderance of the evidence. Springfield District Coal Company vs. Industrial Commission, 303 Ill. 528. It can not rest upon a choice between two views equally compatible with the evidence. Rittler vs. Industrial Commission, 351 Ill. 338; Carson-Payson Company vs. Industrial Commission, 340 Ill. 632; Mandell vs. State, 12 C. C. R. 49.

From the record it is clear that claimant is suffering from atrophic arthritis in her left foot. It is undisputed that the x-rays show no fracture. It is not established, however, by the medical testimony that the arthritis was either caused or aggravated by the alleged injury. It appears rather that the present condition of claimant’s foot is a result of the atrophic arthritis and not a result of the alleged injury.

Claimant has, therefore, not sustained her burden of proving the causal connection between the accident and her alleged incapacity. Any liability in this case would be based not upon facts, but upon conjecture. There are two views equally compatible with the evidence: (1) that claimant’s disability is a result of the alleged injury; (2) that claimant’s disability is the result of an arthritic condition.

An award must therefore be denied.


author: Chief Justice Damroh

text:
    No. 3591
    Elsie Cross, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1944.

      Rehearing denied May 9, 1944.

    Max J. Becker and Leo Segall, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damroh

delivered the opinion of the court:

This complaint was filed in this court on March 4, 1941. The record was not completed until the 23rd day of December, 1943, on which date it was assigned for opinion. The record consists of the complaint, deposition of claimant and Dr. Frederick C. Test, called on her behalf, abstract of same, brief and argument on behalf of claimant, brief and argument on behalf of respondent, reply brief and argument on behalf of claimant, and departmental report of the Assistant Superintendent of Charities, W. C. Couch, of the Chicago State Hospital, Chicago, Illinois.

The complaint seeks an award under the Workmen’s Compensation Act for permanent and total disability as provided in paragraph (a), Section 7, and the sum of $486.80 for medical, surgical and hospital services.

The evidence of the claimant discloses that on the 3rd day of July, 1940, while employed as an attendant at the Chicago State Hospital, a mental institution, under the supervision of the Department of Public Welfare, she was attacked by a patient who beat, struck, kicked and otherwise abused her about her back, head, shoulders and abdomen. That during the attack the patient turned the claimant over and kicked her in the face, chest and abdomen. Three attendants came and loosened the patient from the claimant.

She testified she immediately reported to the night doctor of the institution, who, after an examination, pronounced the injury as mild.

An x-ray was taken of the chest July 6, 1940, which revealed a healthy chest with no evidence of fracture or injury. On the morning of the. injury claimant was directed to go to Dr. Olsman, an employee of the staff of said institution, and from there to the employees’ hospital. This she failed to do. Instead she elected to select her own medical treatment, and from the date of the injury, or thereabouts, until the 30th day of November, 1942, she was examined and claims to have been treated by at least four doctors, namely, Drs. Orth, Vaughan, Mock and Dally, all of Chicago. She testified that she incurred bills for examination and treatment from the above named doctors, which were introduced in evidence as claimant’s exhibits 1-12 inclusive, showing the amount she claimed to have expended to be $486.80.

The departmental report, whiñh is prima facia evidence, states that this claimant was in the hospital between February 2, 1940, and March 16, 1940, under the care of Dr. Vaughan for a chest condition which was supposed to have been influenzial pneumonia with pleurisy; that the claimant was off duty two weeks in February, 1939, for influenza and that she was in the hospital in August, 1938, for an infection of the right axillary region.

It is noteworthy that none of the above named doctors were called to support the allegations in the complaint. However, Dr. Frederick C. Test, of Chicago, was called as a supporting witness. He testified that he made examination of this claimant on November 30, 1942, at his office. He stated that she was complaining of her left chest and the right abdomen. On examination he observed that she held her head a little strained. He testified she moved her head about 75° to the right and about 60° to the left, which is about normal amount of movement. But when he tried to move it farther in either direction, particularly to the left, there was a cracking, a rubbing. He stated he could feel the tissues rubbing over each other, as though they were thickened. He described it as a fibrosis condition indicative of an earlier injury to the neck and a consequent inflammation, which when subsided left scar tissue between the muscles and tendons. He was not able to palpate anything abnormal on the left side where she complained of tenderness. But on the third and fourth ribs from the sternum to the axillary lines, he stated there was flinching and rigid muscles on the right abdomen when he palpated it. This condition was not present on the left side. He stated she-told him she had her appendix removed some years earlier, and had a second operation for removal of adhesions some years later.

He testified the chief objective findings developed by this examination was fibrositis in the neck. In response to a question by the attorney for claimant, he described the word “fibrositis” as a condition of fine fibrous hair line scar tissue resulting from a previous inflammation, generally following a trauma, although it may follow an arthritic inflammation.

On cross examination he testified he was not the treating physician and had been guided by what the claimant told him in reference to an attack by a patient on the 3rd day of July, 1940. The testimony of this physician being based wholly on the history and observation of the patient, and the examination having been made thirty months after the alleged injury and the examination having been made for the sole purpose of testifying in the case, under the law it cannot be taken into consideration considering the rule laid down in the case of National Steel Castings Co. vs. Ind. Com., 377 Ill. 169, wherein the Supreme Court said, on page 176—

“It is competent to have experts read the x-ray films. However, in this connection it should be noted that in so far as the introduction of such matters is related to the rules of evidence, the opinion of a medical expert who has not treated the employee but has examined him for the purpose of testifying as to the cause of his physical condition, is not admissible where it is based wholly upon the physician’s observations of outward manifestations within the employee’s control, or where it rests partly upon the statement of the case made by the employee. Sanitary District vs. Ind. Com., 343 Ill. 236; Lehigh Stone Co. vs. Ind. Com., 315 Ill. 431; Wells Bros. Co. vs. Ind. Com., 306 Ill. 191.”

But taking Dr. Test’s testimony as we find it, and giving it full weight, it is at best speculative.

On cross examination the following questions were propounded:

Q. Dr. Test, all you know about her injury or accident at the hospital is what she told you?

A. Is what she told me, yes.

Q. You just testified that she could move her arm seventy-five per cent one way and sixty per cent the other?

A. She can. She did.

Q. And that might be caused by trauma or it might be caused by arthritis, is that right? You would not be able to say today which that was caused by?

A. I don’t -think so.

Q. And you claim that her main injury is the neck injury?

A. I do, yes.

Q. Yes, and you don’t know the cause of that?

A. I don’t know the cause of it, no.

Liability under the Workmen’s Compensation Act cannot rest upon imagination, speculation or conjecture or upon a choice between two views equally compatible with the evidence but such liability must arise out of the facts established by a preponderance of the evidence. Inland Rubber Co. vs. Ind. Com., 309 Ill. 43; Cryder vs. State, 12 C. C. R. 291.

The burden of proof is on the claimant to show a causal connection between the injury and her alleged condition of ill-being. Her medical witness, Dr. Test, was unable to determine whether or not the claimant’s alleged disability as he found it, was a result of the injury or was caused by an arthritic condition which existed prior to the injury.

In Mandell vs. State, 12 C. C. R., page 49, we said:

“It appears from the evidence that claimant has not sustained her burden of proving the causal connection between the accident and her alleged incapacity; that any liability in this case would be based not upon the facts, but upon conjecture; that there are two views equally compatible: (1) that claimant’s disability is a result of the injury; (2) that claimant’s disability is a result of a prior arthritic condition.”

This claim for permanent and total disability must be denied. Likewise, the claim for $486.80 alleged to have been expended by claimant for medical services must be denied, the respondent having tendered the necessary first aid, medical and surgical services, necessary or required to cure or relieve her from the effects of the injury as provided under Section 8 (a) of the Act. These services were refused by the claimant and she elected to secure her own physician, surgeon and hospital services at her own expense.


author: Chief Justice Damboh

text:
    No. 3541
    Francis Doyle, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1944.

    Marshal I. McMahon, for claimant.
    Geobge F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damboh

delivered the opinion of the court:

This claimant was injured on May 9, 1940, while employed by the Division of Highways on S. B. I. Route 41, Cook County, Illinois. The injury occurred while lifting a tar barrel so as to place it on a patrol truck of the Division. He complained of an acute pain in the middle of his back, was taken to his home and was there attended by Dr. H. W. Luessman. Thereafter on the same day he was sent to Chicago to be under the care of Dr. H. B. Thomas. He continued under the treatment of Dr. Thomas until June 5, 1940, when he was discharged for work.

Claimant seeks an award for partial permanent disability.

The record consists of the complaint, report of the Division of Highways, evidence of claimant and James Schoos, a fellow worker, abstract of same, brief, statement and argument on behalf of claimant and respondent.

Thi.s claimant testified that he was totally incapacitated for work for six weeks and partially incapacitated for about two months. Dr. Thomas, during the course of his treatment of claimant filed a series of reports with the Division of Highways :

"On May 11, examination, shows tenderness of spinous processes of 8th to 12th dorsal vertebrae. Complains of pain through back into his lower abdomen but there is no rigidity to the abdominal muscles. Slight amount of muscle spasm though. Patient does not relax enough to try his reflexes. Patrick test negative. Other tests unsatisfactory. Sensation in back and lower extremities normal.”

On May 15, Dr. Thomas reported: “He states he feels fine. Has been in bed until yesterday. When he moves about quickly his right lower back catches him. Is to have physiotherapy. He ought to get along nicely. Warn, however, that he has great deal of old osteoarthritis and disc trouble which makes him a bad risk for employer.”'

On May 27, Dr. Thomas reported: “No previous injuries elicited. Back has felt sore on previous occasions especially when he has a cold. Has tenderness over spinous processes from 8th to 12th dorsal. Sensation in back and lower O. K. Reflexes in lowers 0. K. X-rays of spine show slight lipping here and there throughout the spine. A few Schmorl’s nodes are visible in dorsal spine. Impression: Moderate arthritis of spine, pain due to strain of dorsal region. I gave him a medical, fearing there was some pleurisy. Findings, however, were negative. There are no- objective orthopedic findings. He, however, continues to complain of pain in back where he states he was injured and tells of relief given by treatment.”

On June 5, Dr. Thomas reported: “Mr. Francis Doyle continues to complain of his back. He has considerable arthritis as shown by X-ray and also has evidence of injury to the discs of the 4th, 5th, 6th, 7th, 8th and 9th dorsal vertebrae. Both these conditions are old. However, he does not complain of pain. He says all he has is a ‘stitch in his right middle back over the ribs and ia peculiar feeling in the low back when attempting to turn from a lying position.’ He is a lather by trade and I am sure could do that type of work successfully if he did not lift anything heavy.”

The above and foregoing represents all the medical testimony that was introduced in the case. Claimant testified at the hearing that he was now employed as a special delivery messenger for the post office in Cook County and earns about $130.00 per month. He testified that he was a lather by trade prior to his employment by the respondent, but due to the injury to the region of his back he was unable to follow that occupation for the reason that it required heavy lifting which he claimed he was unable to do.

Upon a consideration of the full record, we make the following finding:

That claimant and respondent on the date of the injury were operating under the terms of the 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 said accident was given to the respondent and claim for compensation on account thereof was made within the time required by the provisions of Section 24 of said Act.

That necessary medical and hospital services were provided by the respondent. That at the time of the accident in question claimant was forty-two years of age, was married and had two children under the age of sixteen dependent upon him for support.

This record does not justify an award for partial permanent disability. Injuries, to be compensible under the provisions of the compensation act must be proven by competent evidence, of which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee. From such evidence in this record, it appears only that the claimant suffered an injury to his back which subsequently healed which was insufficient to account for his alleged disability. To obtain an award for partial permanent disability under Section 8, subsection (d) of the Act, there must be proof of a difference between the average amount which he is earning or is able to earn in some suitable employment or business after the accident, and that which he earned before the accident. Sefried vs. State, 12 C. C. R., 241; Weiner vs. State, 12 C. C. R., 244. Therefore, the claim for partial permanent disability must be denied.

However, the claimant is entitled to an award for temporary total disability from May 9,1940, for fourteen weeks. The testimony shows that claimant was earning Fifty Cents (50c) per hour for eight hours per day for a period not to exceed 200 days per year, making his total yearly income amount to the sum of $800.00. His weekly wage would be $15.38. His compensation rate, under Section 8, paragraph (j) would be $13.20, inasmuch as this claimant had two children under the age of sixteen years dependent upon him for support.

An award is therefore hereby entered in favor of claimant in the sum of One Hundred Eighty-four Dollars and Eighty Cents ($184.80), representing temporary total compensation for fourteen (14) weeks. Respondent, having paid the claimant the sum of Forty-one Dollars and Forty-nine Cents ($41.49) temporary total compensation, must deduct this sum from the award, leaving the sum of One Hundred Forty-three Dollars and Thirty-one Cents ($143.31) due claimant, all of which has accrued and is now payable in a lump sum.

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


author: Eckebt, J.

text:
    No. 3780
    Hemp and Company, Incorporated, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1944.

    Claimant, pro se.

      Geobge F. Babbett, Attorney General; Bobebt V. Ostbom, Assistant Attorney General, for respondent.
   Eckebt, J.

On May 12, 1941, Hemp and Company, Inc., an Illinois corporation, entered into two contracts with the State of Illinois, by the Secretary of State, for the manufacture of the 1942 and 1943 Illinois motor vehicle and motor bicycle license plates.

Subsequent to the execution of the contracts, the size of the 1942 passenger automobile and truck plates was increased one-eighth of an inch in length and width; such increase in plate size necessitated the use of 60,450 pounds of additional steel at a cost of $2,220.32. Also subsequent to the execution of the contracts, the size of the 1942 truck plates was increased three-fourths of an inch in length; such increase necessitated the use of 19,320 pounds of additional steel at a cost of $709.04.

At the time of the execution of the contracts, it was impossible to obtain all of the materials specified in the paint formula for the license plates, and it became necessary to use substitutes. A zinc chromate primer, then approved and adopted for use by the Army and Navy, was substituted for the black enamel primer called for in the contracts. The cost of this primer was $2.55 a gallon, as compared to $1.30 a gallon for the ordinary black enamel primer, making an additional cost of $7,500.00 for 6,000 gallons.

The changes in size in the.license plates necessitated an over-all die cost of $3,304.00 which claimant intended to absorb in producing the entire order of 1942 and 1948 plates. Because of its inability to obtain steel, it was able to manufacture only a small part of the 1943 plates, and so had no opportunity to utilize the dies fully in producing plates under the 1943 contract. Claimant offers to write-off one-half of the die cost against the 1942 production, provided it is reimbursed for the remaining one-half of the cost, or $1,652.00 not utilized in manufacturing the 1943 plates.

Of the 2,001,000 pairs of plates ordered for 1943, only 155,000 were manufactured. For this 155,000 claimant incurred an additional cost of steel and zinc chromate primer in an amount of $522.23. Claim is made for the total sum of $12,603.59.

From the record it appears that the changes in the license plates were made after discussions between claimant and the Chief Clerk of the Automobile Department of the Secretary of State, subsequent to the execution of the contracts, but prior to November 13,1941. No written memorandum of any kind was signed by either claimant or the Chief Clerk in relation to these changes. On November 13,1941, claimant wrote to the Chief Clerk, pointing out certain higher costs “we are running into due to several changes made since the contract for plates was let.” Claimant stated that it felt the items were extra costs not called for by the contracts, and hoped the Chief Clerk would give the matter favorable consideration, apparently meaning that the Chief Clerk should find some means of paying a part or the whole of such increased cost. Claimant received no reply to the letter. On March 17, 1942, when the contract was completed, formal invoice was rendered by claimant covering these changes. No action was taken by the office of the Secretary of State on this invoice. On direct examination, Mr. Joseph L. Hemp, president of the claimant corporation, testified that from time to time claimant brought the matter of the additional charges to the attention of the Chief Clerk, and “we were assured that it would be taken care of, because Mr. Nash agreed on a number of occasions that the changes occurred and the charges were fair. ’ ’

Mr. John J. Nash, called as a witness for the claimant, testified that he is the Chief Clerk of the Automobile Department of the Secretary of State, of the State of Illinois; that as such Chief Clerk he has supervision of the contracts entered into by the State of Illinois with reference to the manufacture of motor vehicle license plates; that the change in primer for the 1942 plates was made at the suggestion of the claimant. He stated: “The suggestion came from Hemp and Company that if they used the primer they used for the Navy, it would be a better primer for the plates. I O.K.’d it. It cost more than the other and I approved it. All verbally, of course.”

The specifications which form part of claimant’s contract provide:

“The enamel used on all license plates shall be submitted to, and withstand a salt spray test of 20% solution for a period of 350 hours. The quality and manufacture of the steel and enamel used must be such that the finished plates shall stand bending in the 'same place six times without cracking or breaking.”

“ENAMELS — in general. These specifications cover enamel for use as the background on license plates and for use as the rolling ink or lettering enamel shall be of the best quality of what is commercially known as pure chrome, prepared, applied and thoroughly baked on the plates and must be applied thick enough to be thoroughly opaque, and must be of such hardness as to resist incision by the finger nail. In short, the workmanship, quality and application of the enamel to the plates must be such that under ordinary usage there will be no deterioration in its appearance during the period of one year from January 1, 1942. The coloring combination is to be directed by the Secretary of State. The background enamel shall receive two separate coats, each applied separately and each coat baked separately. The back of the tag shall also receive two coats of the same enamel, each baked separately. These applications shall be such that all edges, including the outer edge and the edges of the slots, shall withstand the same tests without a breakdown of the enamel covering these exposed edges. The enamel must stand exposure in a weatherometer (National Carbon Company Weatherometer or equal) for fourteen days without any discoloration or fading.”

“The right is reserved to retest all enamel which has been tested and accepted at the source of manufacture, after the same has been delivered at the destination specified, and to reject all enamel which when retested does not meet the requirements of the specification.”

“All material herein specified must be finished in a thorough workmanlike manner and the right is reserved to reject any and all material thiat does not conform to these specifications; also, any and all material herein specified that fails under ordinary usage. Manufacturers will be required to replace such material free of charges.”

Claimant’s obligation under these specifications was clearly to furnish a first-class, high grade, all weather surface for the 1942 license plates. Because of war conditions, the exact paint formula could not be followed. At claimant’s suggestion, a substitute primer was used. The respondent made no requirements for the substitute other than those already a part of the contract. The fact that the substitute chosen by the claimant was costlier than that originally intended, of itself, creates no obligation on the part of the respondent to pay this additional cost. The substitution could not deprive the respondent of its obvious right under the contract to test and either approve or disapprove the finished product. In the absence of any agreement of the respondent to assume the additional cost, the approval of the substitution can be considered only the exercise of its contract rights.

The increase in the size of the passenger car plates likewise was not the result of any instruction from the respondent. Claimant, in its complaint, alleged that this increase in size was made, in part at least, “to avoid a patent infringement.” Mr. Nash testified that the only change made in these plates was a change in the embossing dies; that he did not order the new embossing dies; that this change was made “because in 1939 when Hemp and Company made our plates a man in California had a patent right and he wanted to collect a royalty and in order to get around that it was changed. ’ ’

The record contains the following testimony of Mr. Nash, on direct examination, and as a witness for claimant:

“Q. Was there ,any change in the size of the plates or rather increase in the size of the passenger plates which called for additional steel?

A. Yes, there was with the new embossing dies, but I didn’t order that.

Q. And that was made necessary by reason of the facts which you have just related?

A. That’s right. I didn’t order the dies. I just simply told them if they didn’t want to pay that royalty they’d have to do that.”

The court, therefore, must deny that portion of the claim in the amount of $2,220.32 for increasing the size of the 1942 passenger plates and truck plates; must deny that portion of the claim in the amount of $7,500.00 necessitated by the use of zinc chromate primer on the 1942 plates; and must deny that portion of the claim in the amount of $522.23 for increased size and for use of zinc chromate primer in the manufacture of 155,000 1943 license plates.

It is undisputed, however, that subsequent to the execution of the contracts, respondent instructed claimant to insert the word “Truck” vertically on the 1942 truck plates after the letter prefix. A portion of the claim, in the amount of $709.04, is the result of claimant’s increasing the length of these plates to comply with this instruction. The charge is reasonable and proper; it was incurred through no fault of claimant, but solely by reason of respondent’s change of plans and specifications; and it will therefore be allowed. Willadsen, et al vs. State, 8 C. C. R. 604; Goelits Company vs. State, 10 C. C. R. 572.

It is not clear from the record what portion of the claim for 50% of the additional die cost of $3,304.00 is attributable .to the increase in size of the 1942 truck plates, and what portion is attributable to the increase in size of the passenger car plates. No award can therefore be made for such additional die cost.

Award is made in favor of the claimant, Hemp and Company, Inc., in the amount of $709.04. The balance of the claim is denied.


text:
    No. 3769
    The Lord and Bushnell Company, an Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1944.

    Marshall, Murtaugh and Burgeson, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Eckebt, J.

On January 8, 1943, claimant filed its complaint in this court alleging that from December 30, 1937, to July 15, 1940, upon orders of the respondent through its Department of World Fair Exhibits, claimant supplied respondent with various items of lumber; that claimant has not received payment for those items furnished from May 23, 1940, to July 15, 1940; that the orders were signed by Eric Lindgren, Director, World Fair Exhibits; that the orders of May 23, 1940, and following were of the same tenor and form, and upon the same authority as the prior orders; that claimant is entitled to payment for materials furnished in the total sum of $9,141.18 with interest at five per cent per annum from July 31, 1940.

On motion of respondent, the complaint was dismissed on the ground that claimant had failed to allege that the expenditures were approved by the Speaker of the House of Representatives and the President of the Senate of the State of Illinois, or by any person or persons designated by them to act in their stead, as required by Section 3 of “An Act to Create the Afra-Merican Emancipation Exposition Commission, to define its powers and duties, and to make an appropriation therefor,” enacted by the Sixty-first General Assembly.

On May 15, 1943, claimant filed its amended complaint, adopting the allegations of the original complaint, and further alleging that Eric Lindgren was a member of the technical staff of the Afra-Merican Emancipation Exposition Commission, and of the Diamond Jubilee' Exposition Authority, Inc., the fiscal agency of the American Negro Exposition; that said fiscal agency was the person designated within the provisions of Section 3 of the Act creating the Afra-Merican Emancipation Exposition Commission, and that Truman K. Gibson, Executive Director of the fiscal agency and of the Exposition, and Eric Lindgren as member of the technical staff, were also duly designated within the provisions of that Act, and that Eric Lindgren, Truman K. Gibson, Diamond Jubilee Exposition Authority, Inc., and Afra-Merican Emancipation Exposition Commission duly and properly approved the purchase of material as required by the Act; that all the duly authorized officers of the government of the State of Illinois, including the then Governor, the Secretary to the Governor, the Director of the Department of Finance, the State Auditor, the State Treasurer, the Speaker of the House, and the President of the Senate, the members of the Afra-Merican Emancipation Exposition Commission, the Director of the Commission, the fiscal agency, and the job supervisors were advised and knew of over fifty separate orders and deliveries made by the claimant over a period of more than two months and approved the same; that if each of these persons did not order the material, such knowledge warranted the continued delivery of goods and cured any deficiency in the authority of Eric Lindgren.

The amended complaint also alleged that the Exposition was scheduled to open on July 4, 1940; that completion of the project was delayed until May 20,1940, and thereafter, until the opening of the Exposition, an emergency existed whereby unless the material was ordered and delivered immediately, the Exposition could not have commenced and the prestige of the State and the large investments of the State and Federal Governments would have been seriously prejudiced; that this emergency justified the deviation or failure to comply with the statutory requirements for approval, if any such deviation occurred; that at the time the orders were placed and material delivered there were funds appropriated and not expended in excess of the amount due claimant.

The case is now before the court on respondent’s motion to dismiss the amended complaint. The motion is substantially the same as the motion filed to the original complaint.

The Sixty-first General Assembly of the State of Illinois, by an Act approved July 17, 1939, created an Afra-Merican Emancipation Exposition Commission, and made • an appropriation for its use. It was from this appropriation that claimant expected payment of ■ the orders in question. Section 3 of the Act, however, provided:

“The exposition authorities shall prepare an estimate prior to the first day of each month of the expenditures to be made during the succeeding month and shall submit the same for the approval of the Speaker of the House of Representatives and the President of the Senate or such persons as they may designate to act in their stead, and no expenditure shall be made from the sums appropriated by this Act unless the same are approved as hereinabove provided for.”

This provision was mandatory and an express limitation on the power conferred. (Martin Root, et al, vs. State, No. 3673.) Whoever deals with persons exercising a special statutory power does so with notice of the limitation of that power, (Illinois Central Railroad Company vs. State, 10 C. C. R. 493), and the State cannot be charged on any theory of estoppel. (Dement, et al vs. Rohher, et al, 126 Ill. 174; Klimczak et al vs. State, 11 C. C. R. 110; Schoenig vs. State, 11 C. C. R. 634.) The case of Volland vs. State, 10 C. C. R. 715, cited by claimant, has been directly overruled by the decision of this court in the Klimczak case. In the case of King vs. State, 11 C. C. R. 577, also cited by claimant, the question presented was the effect of a departmental ruling, not of a statutory provision, and is not controlling in this case.

Claimant was bound to know the extent of the powers of the Afra-Merican Emancipation Exposition Commission, and was bound at its peril to know whether or not the expenditures in question had been properly approved. The amended complaint, failing to show compliance with Section 3 of the Act creating the commission, is insufficient to support an award by this court. Respondent’s motion to dismiss is therefore sustained.

Claim dismissed.


text:
    Nos. 3517-3519, consolidated
    Ruby Sefton Matthews and Central Illinois Building, Loan and Homestead Association, No. 3517 and Moneta K. Remington, Lottie D. Davidson, Harry H. Taylor and Effe A. Taylor, No. 3519, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1944.

    William F. Smith, for claimant.
    George F. Barrett, Attorney General; Robert VOstrom, Assistant Attorney General, for respondent.
   Eckert, J.

The claimant, Central Illinois Building Loan and Homestead Association, is the owner of the following real estate:

Lot 12 in Block 2 in Crang’s Addition to Clinton, situated in the County of DeWitt, and State of Illinois,

subject to contract for sale to the claimant, Ruby Sefton Matthews. On June 5, 1940, claimants filed their complaint in this court alleging that the real estate had been damaged for public use within the meaning of Section 13, Article 2 of the Constitution of the State of Illinois. The complaint alleged that the construction of a subway by the State, on North Grant Avenue, in the City of Clinton, changed the grade at the intersecting point of the subway line and the property line of claimants’ property; that the construction of the subway cut off claimants ’ natural, most useful, and efficient means of access, and ingress and egress to and from their property; that the construction of the subway damaged the house located on the premises, damaged the foundation of the house, and damaged its interior furnishings; that the fair cash market value of the property before the construction was $1,500.00 to $2,000.00; that after the completion of the subway, the fair cash market value of the property was $600.00 to $750.00; and that claimants suffered damages in the amount of $1,000.00.

The claimant, Moneta K. Remington, is the owner of the following real estate:

Lot 8 in Block 2 in Crang’s Addition to the City of Clinton, situated in the County of DeWitt and State of Illinois.

subject to the rights of the claimant, Lottie D. Davidson as tenant in possession. The claimants, Harry H. Taylor and Effe A. Taylor were the owners of the property at the time the alleged injury occurred. All damages to which they might be entitled as against the respondent have been assigned to the claimant, Moneta K. Remington. On June 5, 1940, claimants filed their complaint in this court alleging that the real estate had been damaged for public use within the meaning of Section 13, Article 2 of the Constitution of the State of Illinois. The complaint alleged that the construction of the North Grant Avenue subway, and road improvement in connection therewith, lowered the level of North Grant Avenue adjacent to their property; that the subway prevents the owners from entering or leaving the property by Grant Avenue, and compels them to enter and leave their property by a back entrance; that the construction of the subway substantially damaged the paint inside and outside of the dwelling house on the premises, and damaged the furnishings within the house; that the fair cash market value of the property before the construction was $3,500.00; that the fair cash market value of the property subsequent to the construction of the subway is $2,000.00; and that claimants suffered damages in the amount of $1,500.00.

On November 14, 1942, respondent filed answer to the complaint of Ruby Sefton Matthews, alleging that before the construction of the subway, she executed and delivered a deed to the State of Illinois dedicating a right of way for public road purposes in, over, and upon the identical property for which she seeks damages, and alleging that by this deed of dedication claimant is barred as a matter of law from maintaining her claim. Substantially the same answer was filed to the complaint of Moneta K. Remington. Evidence was taken in both cases, and filed in this court on October 15, 1942. On December 9, 1942, respondent filed its motion to dismiss the consolidated cases, reserving its right to introduce testimony on the merits in the event the motion should be denied.

The evidence discloses that a part of the properties in question were dedicated by claimants for public use in connection with the identical public improvements which they allege to have been the cause of the damages they subsequently sustained. The evidence discloses no deviation from the plans and specifications for the improvement and construction of the subway, and discloses no misrepresentation by the respondent with reference to the deeds of dedication. Where an owner dedicates property for public use in connection with public improvements, the law conclusively presumes that the consideration for the dedication is based, not only on the value of the land dedicated,- but any damages sustained to contiguous land of the owners by reason of the improvement. Longden vs. State, 12 C. C. R. 129; Holtman, et al, vs. State, 12 C. C. R. 212; Lepski, et al, vs. State, 10 C. C. R. 170; Siekmann vs. State, 10 C. C. R. 286.

The motion of the respondent must therefore be granted. Cases dismissed.


text:
    No. 3811
    Henry Clay Gott, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 15, 1944.

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

delivered the opinion of the court:

This claim was filed on the 25th day of September, 1943, for an award under the provisions of the Workmen’s Compensation Act.

The record consists of the complaint, departmental report, claimant’s waiver of brief, statement and argument, stipulation that the departmental report constitutes the full record and waiver of brief, statement and argument on behalf of respondent. The departmental report states that the claimant was first employed in the office of the Secretary of State on the 14th day of February, 1938. That on August 23,1943, while in the employment of the respondent, and while going from one part of the room to another in the Capitol Building, at Springfield, Illinois, claimant tripped and fell, which resulted in an injury to his back and body, especially his spine and pelvis. That by reason of the injuries caused by his fall, he was absent from duty approximately ten days, but was paid regular wages during that time, and has been paid in full at the regular monthly rate for such services rendered by him from the date of his employment until the present time.

The report further states that at the time of his injuries he was drawing a monthly salary of $150.00.

Immediate notice was given to the respondent on the day of the injury. He was sent to St. John’s Hospital in Springfield, Illinois, where x-rays were made at the suggestion of Dr. H. H. Southwick, the treating physician.

The complaint seeks an award as follows:

St. John’s Hospital, Springfield, Illinois.........................$25.00

Dr. H. H. Southwick, Springfield, Illinois................•........ 10.00

and such other sums as may be provided by the Workmen’s Compensation Act.

Upon a full consideration of this record, the court finds that respondent had notice of the accident on the date it occurred, that claim for compensation was made within six months, and that the claim was filed within one year after the date of the accident, meeting the jurisdictional requirements of Section 24 of the Workmen’s Compensation Act.

Under Section 8, paragraph a of the Act, claimant is entitled to have such medical care as is reasonably required to relieve him of the effects of his injury. It appears from the record that the services claimed were necessary and that the charges therefor were reasonable and just. The record further discloses he was not able to work for a period of ten days after said injury and ordinarily would be entitled to three days temporary compensation, but inasmuch as the record discloses claimant was paid full salary during the period of temporary disability, this cannot be allowed.

There being no evidence in this record to sustain an award for temporary or permanent disability, any claim for such must be denied.

An award is therefore made in favor of the claimant in the total sum of $35.00, payable as follows:

1. The sum of $25.00 for the use of St. John’s Hospital.

2. The sum of $10.00 for the use of Dr. H. H. Southwick.

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


text:
    No. 3500
    Emma S. McGuire, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 18, 1944.

    M. D. Morahn, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This claimant was first employed at the Manteno State Hospital about October 1, 1935, as an attendant. She claim,s she became ill with typhoid fever on August 27 and 28, 1939, while on the premises of said hospital and went off duty at seven o’clock on the 28th. The record shows she had worked steadily prior thereto and was never ill before. She was treated by Dr. Ralph J. Major, of Grant Park, Illinois, until the 20th day of September, 1939, when he had her removed to the hospital on the grounds of said institution for the reason she had developed pneumonia. She remained in the hospital until the 27th day of November of that year. She claims she has never been able to work since the attack.

She seeks an award for total permanent disability and a pension for life, and seeks payment in the sum of $301.29 expended by her for doctors, nursing bills, drugs, etc.

The record consists of the complaint, testimony, abstract of same, stipulation dated January 14, 1941, report of Dr. Allyn, Waverly, Illinois, brief, statement and argument on behalf of claimant and respondent.

Evidence, both oral and written, was taken in support of the complaint.

Dr. Ralph J. Major, called as a witness on behalf of claimant, testified that he was the attending physician, that she came to his office during August, 1939, complaining of a cough and that he took a blood examination of claimant, which proved positive as to typhoid. He stated that the first time he saw her, her condition was good. He saw her the following week and her temperature had risen. He prescribed sulfanilamide tablets and on his next visit she was getting worse. This condition extended over a period of three or four weeks, then she developed pneumonia. He testified he saw her in his office twice and afterwards at her home, then he had her transferred to the Manteno State Hospital for treatments. He stated she had a severe case of pneumonia, that it was a complication of typhoid. He further testified that her system was weakened by the typhoid and that she was suffering from myocarditis or nephritis and that the typhoid fever so weakened her system that pneumonia followed.

By stipulation this claimant was examined by Dr. Paul Allyn, licensed physician and surgeon at Waverly, Morgan County, Illinois, to ascertain the present physical condition of claimant. This was for the purpose of having said physician prepare a detailed report to be presented to this court as evidence in said cause. This examination of claimant was made on the 12th day of November, 1943. A portion of this report follows:

“Physical examination. She has the appearance of an old lady. Throat negative, teeth in bad state of decay, nose chronic rhinitis of the left nostril. Blood pressure 120-80, pulse sitting 100, after walking SO feet pulse 120. Heart, some arrythmia and very irregular at this time. Under fluroscope heart appears to be enlarged at least % in size.

Lungs — numerous rales heard in both chests. Urine negative excepting a ring of albumen and strongly acid. She has arthritis of feet, (walks with difficulty) knees and spine. Urine and faeces specimen sent to Illinois State Laboratory were found to be negative for typhoid bacilli.

Diagnosis — Endocarditis, chronic, Nephritis and Arthritis of spine and limbs. Prognosis: Bad. In my opinion patient is totally and permanently disabled."

This court on its own motion had this claimant before it for the purpose of personal observation and interrogation.

We found on interrogation that as a result of her illness she was typed by the State of Illinois as a typhoid or para-typhoid fever carrier and under it she was restricted in her activities. She produced this agreement for the court. By this agreement she was permitted to mingle with the public at large and resume her usual occupation as hospital attendant but ordered not to handle food. In compliance with the request of the respondent she entered into an agreement that she would handle no food for persons other than members of her immediate family and to use the utmost care in her personal hygiene. She also agreed to submit specimens at the request of the local health department until she had been properly released according to the rules for the control of typhoid and para-typhoid fever. This court questioned her specifically in reference to this typhoid carrier agreement and found that it depressed her. She was constantly conscious of it, and in the opinion of the court it accounted in part for her present subjective symptoms. She stated she had not performed any work' since August, 1939, and did not pretend to do even her housework. She was morbid and felt that she was a useless member of society.

Compensation is payable under: the provisions of the Workmen’s Compensation Act for disability or death from typhoid fever if the disease was accidentally contracted by claimant during the course of the employment.

The record in this case leaves no doubt in the minds of this court that claimant contracted typhoid fever during the course of her employment by the State. Any disability suffered by her as a consequence of this extra hazard and risk to which she was exposed, and the injury arising therefrom, is compensable. The question then to be decided by this court is the nature and extent of her disability.

From a consideration of all the record and our personal observation of' this claimant, we cannot agree that she is totally and permanently disabled. We do feel, however, that she has suffered disability by reason of her illness and we further find that there are many useful and lucrative occupations in which she could engage if she would make an attempt to do so. Her condition has aroused the sympathy of this court.

We find that this claimant is entitled to have and receive temporary total compensation from August 27, 1939, to the 12th day of May, 1944, being a period of 245 weeks, as provided in Section 8, paragraph b of the Workmen’s Compensation Act, as amended. It is our considered opinion, and we so rule, that this claimant is now able to pursue some, gainful occupation and earn as much as she was able to earn prior to her illness.

We further find that the claimant and respondent were, on the 27th day of August, 1939, operating under the provisions of the Workmen’s Compensation Act; that on the date last above mentioned said claimant sustained accidental injuries which did arise out of and in the course of the employment; and that notice of said accident was given said respondent and claim for compensation was made on said respondent within the time required under the provisions of said Act.

That the earnings of the claimant during the year next preceding the injury were $828.00, and that the average weekly wage was $15.92; that claimant had no children under sixteen years of age dependent upon her for support; that the necessary first aid, medical, surgical and hospital services have been provided by the respondent herein, and that her claim for additional medical services in the sum of $301.29, procured without the consent of the respondent, must be denied.

We further find that claimant is entitled to have and receive from the respondent for temporary total disability, the sum of $8.75 per week for a period of 245 weeks, totalling the sum of $2,143.75, and thereafter nothing. We find from the record that the claimant had been paid by the respondent subsequent to her injury the sum of $621.80 as salary for unproductive work, which must be deducted from the above award, leaving the sum of $1,521.95, all of which has accrued and is payable in a lump sum.

An award is therefore entered in favor of claimant and against the respondent in the sum of One Thousand Five Hundred Twenty-one Dollars and Ninety-five Cents. ($1,521.95).

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

Dated at Springfield, Illinois, this 12th day of May, A. D. 1944.


text:
    No. 3851
    Della Thompson, Widow of Henry Monroe Thompson, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 18, 1944.

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

delivered the opinion of the court:

This complaint was filed in this court on the 13th day of May, 1944, by claimant, Della Thompson, on her own behalf as widow of Henry Monroe Thompson, deceased.

The complaint alleges that Henry Monroe Thompson was first employed by the respondent on the 23rd day of March, 1927, as a farm hand at the Dixon State Hospital, Lee County, Illinois, an institution operated by the respondent through its Department of Public Welfare. That said employment was continuous until the 28th day of February, 1944. That on the last mentioned date, while in the course of his employment, he was injured by being struck and crushed by a falling tree on the premises of said Dixon State Hospital, and the injuries thus sustained caused his death on the following day; that he was survived by his widow, the claimant, who was his sole dependent.

The record under consideration consists of the complaint, stipulation between the parties hereto, including the report of the Department of Public Welfare, testimony taken before the Coroner of Lee County, and waiver of right to file statement, brief and argument of claimant and respondent.

Under Bule 21 of this court the report of the Department of Public Welfare is prima facie evidence of the facts set forth therein. This report confirms the manner in which the accident occurred, as alleged in the said complaint, and states that- at the time of the fatal accident, the deceased was in the course of Ms employment.

From a consideration of all the evidence, the court finds that the deceased, Henry Monroe Thompson, and respondent, were, at the time of the accident and death of the former, operating witMn the terms of the Workmen’s Compensation Act; that the injury and death of Henry Monroe Thompson was caused by an accident which arose out of and in the course of Ms employment by the State of Illinois; that respondent had actual knowledge of the accident, and notice' of claim and application for compensation were made witMn the statutory limits as provided by said Act; that the deceased’s annual earnings for the year preceding Ms death in the employment in which he was then engaged, were $1,431.50, making his average weekly wage amount to the sum of $27.53. That he left surviving Mm Ms widow, the claimant herein, who was wholly dependent upon Mm for support. That .the sum of $26.50 was incurred for medical and surgical attention given to said employee, which the respondent should pay and discharge.

An award is hereby entered in favor of claimant, Della Thompson, in the sum of $4,700.00, as provided in Section 7, paragraphs (a) and (1) of the Workmen’s Compensation Act, as amended. This award is payable to claimant in monthly installments by the respondent at a weekly compensation rate of $16.17. On May 23, 1944, there will be accrued the sum of $194.04, which is payable to claimant forthwith in a lump sum.

A further award is entered in favor of claimant in the sum of $26.50 for the use of Dr. W. Gr. Murray, Dixon, Illinois, representing necessary first aid, medical and hospitalization rendered said deceased employee, as provided in Section 8, paragraph (a) of the Act.

The future payments above referred to, being subject to the terms of the Workmen’s Compensation Act of Illinois, jurisdiction of this cause is hereby retained for the purpose of making such further orders as may from time to time be necessary herein.

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


text:
    Taylor vs. Illinois Public Aid Commission.

      Thomas Taylor, Claimant, vs. Illinois Public Aid Commission, Respondent.

      Opinion filed September 14, 1943.

   ADVISORY OPINIOH BY MR. CHIEF JUSTICE DAMROH

From the above statement of facts we find that on the date of injury, 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 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 Section 8 (d-1) of said Act.

Section 8, sub-section (a) of said Act provides:

“The employer shall provide the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the injury * *

The proof here shows that the following bills were incurred and are unpaid :

Graham Hospital, Canton, Illinois.............................$118.90

Dr. J. C. Simmons............................................. 150.00

The record further discloses that said bills are reasonable.

We therefore find that claimant is entitled to payment of said items under the provisions of the Workmen’s Compensation Act, and we are of the opinion that the Commission is properly justified in recognizing and paying said claim in the sum of Two Hundred Sixty-eight Dollars and Ninety Cents ($268.90). No question of compensation is raised for temporary or permanent disability. Payment of the claim, in the sum of Two Hundred Sixty-eight Dollars and Ninety Cents ($268.90) is recommended, same to be made by the Illinois Public Aid Commission out of any funds held by it and allocated for such purposes.


text:
    (No. 2762
    Paul H. Boyers, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1944.

    Clarence B. Davis, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Per Curiam:

On June 30, 1937, an award was made to the claimant, Paul H. Boyers, in the amount of Two Thousand Two Hundred and Twenty-five Dollars ($2,225.00), compensation for a 50 per cent permanent disability. Jurisdiction was expressly reserved for such further orders as might subsequently be made. (Boyers vs. State, 9 C. C. R. 530). On May 14, 1941, an additional award was made to the claimant in the amount of Six Hundred Sixty-seven Dollars and Fifty Cents ($667.50), compensation for an additional 15 per cent permanent disability. Jurisdiction of the case was again retained.

On April 27, 1942, claimant filed herein his motion to reopen the case for the purpose of taking additional testimony and seeking an additional award on the ground that since the award of May 14, 1941, his health had become worse and his earning power gradually decreased. The motion was granted, and further testimony was taken on August 24, 1942. On March 9, 1943, the Court found that an insufficient showing had been made by claimant and denied a further award. Petition for rehearing was denied April 15, 1943. (Boyer vs. State, 12 C. C. R. 377). On May 27, 1943, claimant again moved to reopen the case to present new and additional testimony. This motion was granted, and further testimony was heard by one of the judges of this Court at Sterling, Illinois, on-January 31,1944.

It appears clearly from the record that the claimant’s present physical condition is a result of the injury for which the previous awards were made; that claimant has been compensated on the basis of an aggregate of sixty-five (65) per cent total and permanent disability; that claimant’s physical condition grows slowly and progressively worse. It is very possible that claimant will ultimately be wholly and permanently incapacitated. Obviously, however, he is not wholly incapacitated at the present time, and although the medical testimony indicates an increase of disability since the last prior award, the testimony also shows that claimant is now employed by the International Harvester Company as a machinist, working forty-eight (48) hours a week. He earns an average of ninety-eight and one-half cents (98%) an hour. Even with time off because of ill health, he is employed ninety (90) per cent of the time. When the injury occurred, claimant was earning between $30.00 and $34.00 per week. In view of the fact that he is now employed and earning more than he earned prior to the accident, the Court would not be justified in granting a further award at this time.

The claimant, however, has incurred, since the prior award in this case, medical expenses which were clearly necessary to relieve him from the effects of the injury sustained. Under Section 8a of the Workmen’s Compensation Act, an award may be made for all necessary medical, surgical and hospital services reasonably required to cure or relieve from the effects of an injury. (Penwell vs. State, 12 C. C. R. 73.) Claimant is therefore entitled to an award in the amount of One Hundred and Twenty-five Dollars ($125.00) for necessary medical expenses incurred as a result of the injury and for which he has not previously been reimbursed.

An award is therefore made in favor of the claimant in the amount of One Hundred and Twenty-five Dollars ($125.00), payable forthwith.