text:
    (No. 3732
    Equitable Life Insurance Company of Iowa, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

    Gillespie, Burke & Gillespie, for claimant.

      George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

Claimant is a corporation of Des Moines, Iowa, doing an insurance business in Illinois, and alleges that on the 19th day of June, 1941 there was paid under protest the sum of Two Hundred Ninety-eight and 13/100 Dollars ($298.13) to the Director of Insurance of the State of Illinois as tax on dividends applied toward the purchase of paid-up additions to policies issued by claimant in Illinois as part of its business for the year 1940 in this State.

That in pursuance to a ruling by the Attorney General of Iowa, the Insurance Department of said State imposed a tax of two and one-half per cent (2%%) on all dividends credited in the form of paid-up additions during the year 1940 on all foreign life insurance companies doing business in Iowa as a part of their Iowa business.

That as a result of the action by the State of Iowa in imposing said tax, the State of Illinois did, under paragraph 1056, chapter 73 of the Illinois Revised Statutes 1941, in retaliation, compel claimant herein to pay the aforesaid sum of Two Hundred Ninety-Eight and 13/100 Dollars ($298.13) on dividends applied toward the purchase of paid-up additions to policies issued by claimant in Illinois as a part of its 1940 business in Illinois.

That said amount was paid under protest to the Director of Insurance of the State of Illinois on the 19th day of June, 1941.

That on the 17th day of March, 1942, the Supreme Court of the State of Iowa, in the case of The Prudential Insurance Co. of America, vs. C. F. Green, et al., reported in 2 N. W. 2nd 765, held that the ruling of the Attorney General of Iowa was erroneous.

Claimant prays for an award in the sum of Two Hundred Ninety-eight and 13/100 Dollars ($298.13).

The record in this case consists of the complaint and respondent’s motion to dismiss.

From the facts alleged, the State of Illinois insurance companies had been assessed in Iowa a tax of two and one-half per cent (2%%) on all dividends credited in the form of paid-up additions during the year 1940 for doing business in Iowa as a part of the Iowa business, and in retaliation therefor the State of Illinois, through its Department of Insurance, taxed Iowa insurance companies doing business in Illinois on the same basis. The assessment made by the Department of Insurance of the State of Illinois against Iowa companies was properly made, as it is not the business of the Department of Insurance to question the authority of the officials of Iowa to collect this tax and the legality of their action. It is the business, however, of the Department of Insurance of the State of Illinois, under Section 444 of the Illinois Insurance Code, known as the Retaliatory Provision, to protect Illinois insurance companies so that they can operate on a parity with foreign insurance companies.

There is nothing in the record which shows that the Department of Insurance of Iowa could, or did, refund moneys paid by the Illinois companies in that State, although in view of the decision of the Supreme Court of Iowa in declaring the collection of this additional tax illegal, it is possible that some Illinois companies took appropriate legal steps and obtained a refund. In view of the purpose of the Statute under which the tax was collected, it would appear that the Illinois Department of Insurance made a proper levy of this tax and acted within their statutory authority in collecting it. Even if this court made awards strictly on the basis of equity and good conscience — which it does not do — the claim could not be allowed. This court is also of the opinion that there is no basis, in law or equity, on which an award can be made.

Where a taxpayer has an adequate remedy in a court of general jurisdiction and is afforded a legal remedy to protect his rights, but fails to do so, he cannot be permitted to say that the tax was paid involuntarily or under duress. In the instant case the taxpayer did file a protest, but did nothing further. It should have, under the Statute, within thirty (30) days filed a bill in chancery seeking to restrain the deposit of such money in the State Treasury. Paragraph 172 of Chapter 127, Illinois Revised Statutes 1941, provides for the means of obtaining relief when moneys are paid under protest. When sums of money are received and paid under protest, the State Treasurer is under obligation to hold said sums for thirty (30) days, after which it becomes his duty to transfer it into the fund into which it would have been paid had it not been paid under protest. The State Treasurer may only retain the moneys in the Protest Fund where a temporary injunction is obtained within thirty (30) days restraining the transfer of said sum from the Protest Fund. It is a reasonable position to take, to say that a taxpayer who has not availed himself of the legal remedies the Statute gives him, should be denied relief at a later date, especially in view of the fact that government agencies must at some time know where they stand financially if there is to be any financial stability. As was said in the case of City of Oglesby vs. State of Illinois, 10 C. C. R. 694, on page 701:

“Payment under protest, in order to justify a recovery of funds from the State involves not only due notice of protest at the time of such payment, but requires the further action upon the part of the claimant of enjoining the transfer of such money until the legality of such. payment can be determined. This provision is an important one as a matter of public policy to the entire financial structure of the State government. It is only by due notice of what funds previously paid to the State officers are tied up by injunction proceedings that the Director of Finance can determine the current financial status of the State.”

For the reasons stated, the motion to dismiss is allowed, and the case is hereby dismissed.


source: Caselaw Access Project

author: Eckert, J.

license: Public Domain

text:
    (No. 3663
    James Fletcher, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

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

The claimant, James Fletcher, was first employed by the Department of Public Works and Buildings, Division of Waterways, on May 27, 1941. On June 28, 1941, he was acting as a bridge tender on the McDonough Street bridge at Joliet, Illinois, at a salary of $150.00 per month. His duties were to open the bridge for the passage of boats and to close it for traffic on highways and streets. The movement of the bridge is controlled by means of a pinion gear rolling along a gear track. It was a duty of the claimant to keep this gear track and pinion gear clean and free from all foreign substances for the proper operation of the bridge.

About nine-thirty o’clock on the evening of June 28th, claimant raised the bridge to permit the passage of a tug boat, and while the bridge was in a raised position, observed a dog caught on the east lift span immediately above the gear track. Fearing that the animal might fall on the gear track and damage the machinery, claimant tried to extricate it, and, in attempting to do so, slipped on the gear track and fell on to the highway below, a distance of about twenty-five feet, landing on his back and side.

Under the direction of L. C. Mork, Chief Bridge Tender, claimant was removed by ambulance to St. Joseph’s Hospital in Joliet, Illinois, where he was attended by Dr. Frank H. Hedges, Jr. It was found that claimant had sustained a fracture of the lumbar vertebrae. The fracture was reduced by means of a plaster cast, and claimant remained in the hospital until August 1, 1941, when he was removed to his home. On the order, of Dr. Hedges, claimant purchased at the cost of $26.00 a special spring and mattress to keep his bed rigid. The plaster cast was removed September 27, 1941, and thereafter hot applications were prescribed with a liniment rub for ten minutes each day. These applications continued until November 18, 1941.

On December 8th, 1941, claimant returned to his former employment. He has been paid compensation for temporary total disability in the sum of $140.32. Bespondent also paid Dr. Hedges for his services the sum of $202.00 and St. Joseph’s Hospital at Joliet, the sum of $144.88.

Claimant testified that although he has returned to his employment, he is unable to operate the bridge, is unable to raise and lower the windows of the bridge house, and is unable to lift heavy objects. He still suffers sharp pains in his back whenever he sits or stands for any length of time.

When the injury occurred, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the Act. From the record it appears that the accident arose out of and in the course of employment. Claimant’s earnings at the time of the accident were $150.00 per month; his average annual earnings were $1,800.00, and his average weekly wage was $34.62. He had no children under sixteen years of age. Claimant was temporarily totally incapacitated from the date of the accident until he returned to work on December 8, 1941-, or a period of 23 2/7 weeks. Claimant is therefore entitled to $16.50 per week for 23 2/7 weeks, or the sum of $384.21, from which must be deducted $140.32 heretofore paid to claimant, leaving a balance of $243.89. Claimant is also entitled to be reimbursed in the sum of $26.00 for the spring and mattress which he purchased to facilitate the healing process.

Claimant, however, is not entitled to any compensation for permanent disability. From the testimony of Dr. Frank E. Deadman, on behalf of claimant, and of Dr. Frank H. Hedges, Jr., on behalf of the respondent, it is clear that claimant sustained a véry serious injury to his back. The doctors do not agree as to its extent or permanency, but it is unnecessary for us to discuss this medical testimony in detail. Section 8, Sub-section (d) of the Workmen’s Compensation Act provides:

“If, after the injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall, except in the cases covered by the specific schedule set forth in paragraph (e) of this section, receive compensation, subject to the limitations as to time and maximum amounts fixed in paragraphs (b) and (h) of this section, equal to fifty per centum of the difference between the average amount which he earned before the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident.”

This is the only section of the Act applicable here, and the testimony shows that the claimant is in fact earning the same money now which he earned prior to the accident. There is no proof of any such difference in earning capacity as is required by the Statute.

Award is therefore entered in favor of the claimant for the sum of $269.89, all of which is accrued and is payable forthwith.

This award being subject to the provisions of an Act entitled, “Ah Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act.


author: Mr. Justice Eckert

text:
    (No. 3551
    Ben Hargan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

    Donald A. Miller, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Mr. Justice Eckert

delivered the opinion of the court:

On June 27, 1940, claimant, Ben Hargan, was employed as a laborer by the Division of Highways of the State of lilinois on State Bond Issue Route No. 2 about two miles north of Cairo, Illinois. While carrying water for a construction crew, he was struck by a state-owned dump truck engaged in repair and reconstruction of the highway at that point. Immediately after the accident, he was taken to the office of Dr. Fay S. Comer, at Cairo, and was subsequently treated by Dr. Comer and Dr. Bondurant until July 23, 1940, when he was placed under the care of Dr. H. B. Thomas in Chicago. On August 15,1940, claimant was discharged by Dr. Thomas and returned to his home. He continued, however, to complain of an injury to his left arm, and at the request of the respondent was given further treatment by Dr. Lewis Ent at Cairo. He was discharged by Dr. Ent on November 16, 1940.

Respondent has paid to claimant for temporary total disability the sum of $57.75, arid in addition has paid for the following services:

Dr. Fay S. Comer, Cairo.............................................$28.50
Dr. H. B. Thomas, Chicago.......................................... 87.00
Illinois Central Railroad Company, Transportation.................... 13.05
Y. M. C. A. Hotel, Chicago...................■....'.................... 47.55
Dr. Lewis Ent, Cairo................................................ 23.50

No claim is made for further medical or surgical treatment, but claimant seeks additional temporary total compensation and claims partial permanent disability. At the time of the injury, claimant was employed at the' rate of fifty-five cents per hour for an eight-hour day. Other employees of the Division engaged in the same capacity and at the same rate of pay as the claimant are employed by the Division less than two hundred days a year. At the time of the injury claimant had no children under the age of sixteen years. His average yearly salary was $880.00, and his average weekly wage, $16.92.

Claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the Act. From the record it appears that the accident arose out of and in the course of the employment. ■

Dr. Lewis Ent, a witness called on behalf of the claimant, testified that he examined claimant on August 15,1940, at the request of the respondent; that claimant had a loss of motion in the left arm; that he treated claimant until November 16th when he discharged claimant, feeling he was then able to do light work. Dr. Ent estimated the permanent loss of use of claimant’s arm between fifteen and twenty per cent.

There was no other medical testimony introduced on behalf of either claimant or respondent. Although x-ray pictures had been taken at numerous times while claimant was under the care of various physicians, none was offered in evidence.

Claimant testified that he still suffers pain from the top of his left shoulder down and across his chest; that he is unable to carry anything with his left hand; that he is unable to dress and undress himself; that he is unable to do any work of any kind; and that he is restricted in the movement of his left arm. Upon being asked whether he could put his left hand into his left side coat pocket, he testified, “I can by pulling my coat and going down that way.”

Otto E. G-otway, general foreman of the construction unit for which claimant was working at the time of the accident, was called as a witness for the respondent, and testified that on September 18th, he saw claimant walking up the street near the location of the highway construction; that claimant was walking in a natural position “slightly swinging both arms and as he went up the sidewalk he reached in his shirt pocket and took out a cigarette with his left hand and struck the match with his right hand.” A little later, while talking to Mr. G-otway, claimant again reached in his shirt pocket with his left hand, took a cigarette, struck the match with his right hand, held the cigarette to his mouth, lighted and smoked it.

Prom a careful consideration of the entire record, the court finds that claimant was totally disabled from the date of-the accident until November 16, 1940, or a period of 20 2/7 weeks, and has suffered a fifteen per cent permanent loss of use of his left arm. He is therefore entitled to have and receive from the respondent the following, to-wit:

1. The sum of $8.46 per week for 20 2/7 weeks, or $171.62, from which must be deducted $57.75 heretofore paid to claimant, leaving a balance of $113.87.

2. The further sum of $8.46 per week for fifteen per cent of 225 weeks, to-wit: $285.53, for the permanent loss of fifteen per cent of the use of his left arm.

3. Since this injury occurred subsequent to July 1, 1939, the award must be increased ten per cent or $39.94, making a total due claimant of $439.34.

Award is therefore entered in favor of the claimant for said sum of $439.34, all of which is accrued and is payable forthwith.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided for in such Act.


author: Fisher, J.

text:
    (No. 3651
    George Harper, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

    Walter G. Hagemeyer, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

Claim was filed October 27, 1941, wherein claimant asks for an award under the Illinois Workmen’s Compensation Act for temporary total incapacity, permanent partial disability, and for medical expenses necessitated by the accident. Claimant prays for an award of Three Thousand Three Hundred Fifty-nine and 44/100 Dollars ($3,359.44) and an annual pension of 8%, and also asks that a lump sum settlement be ordered.

Claimant was employed as -a maintenance patrolman’s helper in the Department of Public Works and Buildings, Division of Highways. On the 31st day of July, 1940 while so employed, claimant was standing on a truck lifting a corrugated iron pipe when the pipe slipped and claimant lost his balance and fell backwards off the truck striking his head on the pavement. Claimant suffered a fracture of the skull and concussion of the brain. Claimant was married and had one child under the age of sixteen years at the time of the injury. He was first employed by the Division of Highways on August 15, 1936, and during the year next preceding the accident he earned $1,239.00.

Inasmuch as respondent had notice of the accident on the day it occurred and complaint was filed within a few days after the last payment of compensation, the court finds that the jurisdictional requirements of Section 24 of the Workmen’s Compensation Act have been complied with. It is also apparent from the evidence in this case that claimant was injured in the course of and out of his employment.

In arriving at the award to be made in this case, there are two things for the court to determine — the period of temporary total incapacity, and whether or not claimant has a permanent partial disability.

From the evidence, it appears that claimant’s doctor certified him ready and he did return to work on December 10, 1940. After working a few days, he discovered that he became dizzy upon bending over, and it was necessary for him to cease work. He was then sent to Dr. Abraham Ettleson in Chicago, who reported that his headaches and dizziness would probably cease in time but that it was impossible to state how long a time this would take as it varies considerably in different individuals.

In consideration of all the evidence, this court is of the opinion that claimant’s period of temporary total incapacity should terminate on the day he returned to work, and that he is entitled to permanent partial disability under the Workmen’s Compensation Act. Accordingly, the court finds, that claimant was temporarily totally incapacitated from the date of his injury, July. 31,1940, until December 10, 1940, a period of nineteen weeks. He has one child under sixteen years of age and, under Section 8, paragraphs (b) and (j) of the Workmen’s Compensation Act, he is entitled to 55% of his average weekly wages which were $23.84, or $13.11, to which added under paragraph (1), 10% or $1.31, making his weekly compensation rate $14.42, which amount he is entitled to receive for nineteen weeks, or a total of $273.98 for temporary total incapacity. Claimant is also entitled to receive, under Section 8, paragraph (d) for his permanent partial disability, 50% of the difference between the average amount which he earned before the accident and the average amount which he is able to earn, or his earnings after the accident. Inasmuch as his average weekly wage was $23.84 and the testimony shows that he is now able to earn $18.00 a week, he is entitled to 55% of $5.84, or $3.21 weekly, to which is added 10%, making a total of $3.53. He is entitled to this amount under' paragraph (h), Section 8, of the Workmen’s Compensation Act for 416 weeks, making a total for permanent partial disability of $1,468.48.

All the bills covering medical and hospital services rendered to claimant were paid by respondent except the amount of $26.40 paid by claimant for transportation costs to Peoria for medical treatment, for which the amount the court finds claimant should be reimbursed.

The award to which claimant is entitled is computed as follows:

(a) Temporary total incapacity, 19 weeks @ $14.42 per week,
or ..................................................$ 273.98
(b) Permanent partial disability, 416 weeks @ $3.63 per week,
or ................................................... 1,468.48
(c) Reimbursement for traveling expenses covering trips to
Peoria for medical treatments......................... 26.40
a total of................................................$1,768.86
less the amount paid claimant for temporary total incapacity of..... 1,083.23
leaving balance due of....................................$ 685.63

Claimant requests a lump sum award, and in support thereof testified that he wanted to use the money to pay off an existing $800.00 mortgage on Ms home and to open up a lunch room at a cost of approximately $1,000.00. This court is of the opinion, from the evidence before it, that the request for a lump sum must be denied.

Lincoln Water Company vs. Ind. Com., 332 Ill. 64.

Claimant was paid $1,083.23 for temporary total incapacity whereas he was entitled to receive $273.98, together with the sum of $26.40 for reimbursement for traveling expenses, a total of $300.38, so that he was overpaid the sum of $782.85. ‘

Under Section 8, paragraph (h), claimant is entitled to permanent partial disability from the daté of the accident— 416 weeks. He has already been paid because of this overpayment, compensation for 221 weeks and $2.72 additional. In other words, he has been paid up to and including October 26,1944, and he also received $2.21 of the payment that would be due him on November 2, 1944.

The court finds that claimant is entitled to have and to receive from respondent the sum of $685.63, payable $.81 on November 2, 1944, and the sum of $3.53 weekly thereafter for a period of 194 weeks.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided for in such Act.


text:
    (Nos. 2800 and 2801
    John F. Holtman, S. H. Cleveland Holtman, Frederick W. Holtman, Elizabeth Dubbel and John F. Holtman, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

    William J. Long, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

These claims were filed on January 16, 1936, each in the amount of Two Hundred Fifty-eight Dollars ($258.00) for damages to the crops on certain lands described in the- complaint.

John F. Holtman, claimant on the first claim, was the tenant of said premises and he, with S. H. Cleveland Holt-man, Frederick W. Holtman and Elizabeth Dubbel, was the owner of the same.

Claimants allege that the land in question lies north of State Bond Issue. Route Ho. 103 and west of two creeks known as Crane Creek and Coal Creek. Said highway passes over said creeks on a bridge known as Twin Bridge and the approach to said bridge from the west side of said creeks was filled in under contracts let by the State of Illinois for the construction of said hard road.

The land on the south side of said highway is lower than the land farmed by claimant, and prior to the construction of said highway with said bridge approach, the water drained naturally from the land farmed by claimant on to land south of said hard road and thence south to the Illinois River.

In the construction of the approach to said Twin Bridge no provision was made for the drainage of the land in question and no culvert or other device was installed through said approach to permit the water, in event of rain, to drain in the customary manner on to the land south of the highway.

In the fall of 1934 certain crops were planted on said land on a rental basis of one-half each to the tenant and owners, which crops grew during the spring and summer of 1935, and before their maturity a great amount of rain fell, and by reason of the construction of the approach to said bridge and lack of provision for drainage therein the water could not drain in the natural manner. The rain fall collected on the land and remained there a long period of time, totally ruined 27 acres of wheat and partially damaged the balance, the undamaged wheat averaging 20 bushels per acre.

The respective claimants suffered damages to their wheat and clover crop to the extent of $258.00. The claimants submitted their claim for damages to the Director of Highways, Department of Public Works and Buildings of the State of Illinois, by letter August 21, 1935, and were advised that said defendant had no funds with which to pay for such damages. No other claimants have any interest in the respective claims.

Each claim is sworn to and has a bill of particulars attached.

The record consists of the original complaint and evidence introduced on behalf of the claimant and respondent’s statement, brief and argument, none having been filed on behalf of the claimant.

There has been considerable evidence introduced by the claimants respecting the condition of the land before the improvement, with respect to drainage, the course of the flow of water since the improvement, and the failure of the State to locate culverts at the proper locations; none of which is controlling in determining the issues of this case.

On June 30, 1930 all of the parties to.this claim joined in a deed dedicating the right of way over their land for the highway in question, to the State. It has been decided in numerous cases, including a number by this court, that a conveyance and a deed of dedication has the same effect as a judgment in a condemnation proceedings, and that the consideration paid for the conveyance constitutes a release of all damages, including damages to property not conveyed, which result from the proper construction of the road in question. This view has been expressed by this court in the case of Baber vs. State, 9 C. C. R. 115, and is also the view taken by Supreme Court in a number of cases where this issue has been presented. It is contended that the highway was improperly constructed in that the culverts were not properly placed. With respect to this contention, the court has repeatedly held that

“In the constructon and maintenance of its roads, the State acts in a governmental capacity and in the exercise of such governmental function it does not become liable in actions of tort by reason of the malfeasance, misfeasance or negligence of its officers or agents in the absence of a statute creating such liability.”
Bucholz, Admx. vs. State, 7 C. C. R. 241;
Chumbler, Admx. vs. State, 6 C. C. R. 138;
Wentworth vs. State, 9 C. C. R. 240;
Wright vs. State, 9 C. C. R. 100;
Markham vs. State, 8 C. C. R. 230;
Walen, vs. State, 8 C. C. R. 501.

An award must therefore be and is denied.


author: Chief Justice Damron

text:
    (No. 1992
    Harry T. Hulse, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

    John P. Pallissard, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Harry T. Hulse, claimant in the above styled cause was injured August 20, 1931, while employed as a maintenance patrolman for the Division of Highways, Department of Public Works and Buildings of the State of Illinois, injuring his left leg and foot.

On September 30, 1932 his claim was filed seeking an award for $4,768.00, under the Workmen’s Compensation Act. The Attorney General filed a motion to dismiss on the grounds that the complaint showed on its face that more than one year had elapsed from the time of the injury to the filing of the claim. At the May term, 1934, the court having considered said motion delivered an opinion sustaining the motion of the Attorney General, and dismissed the case for want of jurisdiction.

The claimant filed a petition for rehearing which was denied by the court at the September term, 1934. On the 1st day of November 1934, an amendment to the complaint was filed seeking an award of $2,066.72, for unpaid salary alleged to be due claimant from the time of the injury to the 26th day of January 1933.

On the 24th day of January 1939, evidence was taken on behalf of claimant at the Attorney General’s office in Springfield in support of said amended complaint, and on the 18th day of January 1940, statement, brief and argument of claimant -was filed in this court. There is nothing filed on behalf of the respondent to be found in this record either a statement, brief and argument or a motion to dismiss. The court will consider the record as it finds it.

The evidence -shows that after the claimant was injured he notified the Division of Highways of his injury. He received full salary for the remainder of August 1931, and was paid for the first thirteen days of September, 1931, amounting to the sum of $41.67, for unproductive time.

A letter signed by Fred Tarrant, the Engineer of Maintenance in said Division of Highways, dated November 7, 1933, and made a part of the record contained the following sentence: “He was then removed from the payroll, and did not perform any work from August 20th and did not receive any further directions or instructions from this department concerning activities on maintenance section (315)”.

The evidence further shows that he, did receive several mimeographed circular letters from the Department, but he testified that he performed no manual labor for the respondent subsequent to August 20th, 1931, the day he was injured.

His testimony further shows that George C. Anderson, who he identified as his first assistant took over the responsibility of maintenance patrolman, employing helpers, making out daily reports, but from time to time came to the home of claimant and discussed with him the activities on said section, and the proposed work to be done such as removing snow from the highway in the winter and cutting the weeds in the summer time. Claimant further testified that he wrote several letters to the Division of Highways addressing them to Mr. M. J. Fleming, District Engineer, asking about his pay, but that he had received no answers to them; that on January 24, 1933, he received a letter from Mr. Fleming addressed to Maintenance Patrolman announcing that the salary of patrolman would be reduced on February 1st, 1933, from $125.00 to $100.00 a month. He further testified he received a letter from the Chief Highway Engineer dated January 26, 1933, which instructed him to turn over the equipment he had to Mr. Anderson. This letter is in evidence and marked claimant’s exhibit “A.”

Webster defines employee as “one who works for another. ’ ’

This court is convinced that the filing of this claim for back salary after his claim for compensation had been dismissed, for lack of jurisdiction, was an after thought on the part of the claimant. It is shown by the evidence that claimant performed no services whatever for the respondent after the date of his injury. We construe the stopping of claimant’s salary in September 1931 a sufficient notice to this appointee that his services were terminated and he was discharged.

This court is without jurisdiction to grant this award for unproductive time, claimed under the amended complaint.

An award is denied and complaint is dismissed.


text:
    (No. 2422
    Adam Koleita, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

    J. S. Cook, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

On June 26th, 1934 the claimant, Adam Koleita filed his complaint in this court alleging that on the 20th day of May 1933, while he was engaged as a handy man and machinist at Municipal Lodging House No. 5 in Chicago, Illinois, was injured in the course of his employment; that said Municipal Lodging House No. 5 was under the jurisdiction of the Illinois Emergency Relief Commission at the time he sustained said injury. He seeks an award of Four Thousand Dollars ($4,000.00).

On February 19th, 1935, by agreement of the parties hereto testimony was taken in support of said complaint and on November 5, 1935, further testimony was taken on behalf of claimant. On July 30th, 1942, the respondent, throug’h the Attorney General filed its motion to dismiss.

It is not understandable to the members of this court why this motion to dismiss was not filed years, ago, it appearing on the face of the complaint that claim was filed more than one year after said injury was sustained and it further appears from the evidence that no compensation payments were made to claimant to .revive the Statute of Limitations prior to the filing of this complaint.

It has been repeatedly held by this court that the making of claim for compensation and filing application therefor within the time fixed by Section (24) of the Workmen’s Compensation Act is a condition precedent without which the Court of Claims is without jurisdiction to proceed with the hearing.

Crabtree vs. State, 7 C. C. R. 207.

The motion of the Attorney General therefore is sustained for lack of jurisdiction to hear said complaint.

Case dismissed.


text:
    (No. 3667
    William T. Lee, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

      Rehearing denied December 17, 1942.

    William L. Kelley and Emmet F. Byrne, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

On August 13, 1938, the claimant, who was then employed as a janitor and orderly by the State of Illinois at the 122nd Field Artillery Armory at Chicago, fell down an elevator shaft from the first floor of the Armory Building to the basement. He sustained a skull fracture, fracture of the right wrist, bruises and lacerations. Claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and the accident arose out of and in the course of the employment.

At the time of the accident, claimant’s earnings were $100.00 per month. All medical, surgical, and hospital services were furnished by the respondent, in the total sum of $1,551.30. Claimant was paid no compensation, but received his salary while he was in the hospital, through the month of December, 1938. There is no allegation in the complaint, and the record shows no payment of wages for non-productive time or compensation subsequent to December, 1938. Claimant has now returned to work. He seeks an award for temporary total and permanent partial disability.

The complaint was filed on December 2, 1941, almost three years after the last payment of wages for non-productive time. Respondent has filed a motion to dismiss. Section 24 of the Workmen’s Compensation Act provides as follows:

* * * Notice of the accident shall give the approximate date and place of the accident, if known, and may be given orally or in writing; provided no proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident, provided-, that in any case, unless application for compensation is filed with the Industrial Commission within one year after the date of the accident, where no compensation has been paid, or within one year after the date of the last payment of compensation, where any has been paid, the right to file such application shall be barred. * * *

Compliance with this section is a condition precedént to the right to maintain proceedings under the Workmen’s Compensation Act. City of Rochelle vs. Industrial Commission, 332 Ill. 386; Inland Rubber Company vs. Industrial Commission, 309 Ill. 43; Simpson vs. State, 10 C. C. R. 394; Boismenue vs. State, No. 3550, Illinois Court of Claims. Since the amendment of 1925, the furnishing of medical, surgical and hospital services does not extend the time for filing application for compensation. Lewis vs. Industrial Commission, 357 Ill. 309; Chicago Board of Underwriters vs. Industrial Commission, 332 Ill. 611; Anker vs. State, 11 C. C. R. 32. Section 8(a) of the Workmen’s Compensation Act now expressly provides that the furnishing of medical, surgical and hospital services by the employer shall not be construed as the payment of compensation. New Staunton Coal Company vs. Industrial Commission, 328 Ill. 89, and cases there cited are no longer controlling. Claimant having failed to comply with Section 24 of the Act, the court is without jurisdiction to make an award.

The claim is therefore denied and case dismissed.


text:
    (No. 3704
    E. M. Mackemer and F. R. Miller, Formerly Doing Business as Mackemer Motor Company, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

    Frederick & Frederick, for claimants.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

The record in this case consists of the complaint and its amendments thereto, invoices, report of the Division of Highways and a stipulation signed by the parties that said report shall constitute the record which is in words and figures as follows:

Report of Division of Highways
Court of Claims Case No. 3704.
E. M. Mackemer, etc. vs. State of Illinois.
At various times during the year 1941, the Division of State Highway Police had several of its cars serviced or repaired by claimants. Due to a change of personnel in the Division of State Highway Police, three of claimants invoices were not scheduled for payment in due course, although they had been presented in apt time.
No question is raised by respondent with respect to claimant’s invoices dated March 8, 1941, and May 3, 1941, in amounts, respectively of $2.97 and $0.15. Those invoices had not been scheduled for payment, and the amounts shown on them are due and owing to claimants.
June 26, 1941, claimants presented the third invoice of their claim in amount $7.26. This invoice was not scheduled for payment. On July 21, 1941, claimants submitted an invoice in amount $4.95. This invoice was scheduled for payment in due course and payment made to claimants by State Warrant No. 162044. An investigation shows that most of the items of labor and materials shown on June 26, 1941, invoice were the same as those shown in the July 21, 1941, invoice. Claimants acknowledge this to be true and are agreed that the total of their June 26, 1941 invoice should, therefore, be $2.32 rather than $7.27. The total of claimants’ claim thus becomes $5.44 instead of $10.39 as given in their complaint.
An appropriation was in existence and funds were available from which claimants’ invoices would have been paid had they been scheduled for payment in apt time, but the aforesaid appropriation had lapsed before the invoices came to the attention of the administrative department of the Division of State Police for scheduling.
M. K. Dingle,
Engineer of Claims.
May 29, 1941.

In. this case the amount involved is not disputed, and it is admitted that the services were rendered as set out in the amendment to the complaint.

This claim falls within the rule as announced in the Indian Motorcycle vs. State, 9 C. C. R 527, and Rock Island Sand and Gravel Company vs. State, 8 C. C. R. 165.

An award is therefore entered in favor of the claimant in the sum of Five Dollars and Forty-four cents ($5.44).


author: Chief Justice Damboh

text:
    (No. 3546
    Clarence Malcolm, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

    Paul D. Perona, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damboh

delivered the opinion of the court:

This claim was filed October 1, 1941, seeking an award in the sum of Two Thousand Five Hundred Ninety-four Dollars and Twenty-five Cents ($2,594.25), for compensation together with additional medical, surgical, hospital and other expenses which might arise from any operation that might be performed in the future together with temporary total disability compensation, because of injury suffered by the claimant while employed by the Division of Highways, Department of Public Works and Buildings. He was injured while employed as a laborer on S. B. I. Route No. 89,-on May 31, 1939.

Claimant was paid temporary compensation for the period from July 1, to 26th, inclusive, in the total sum of Sixty-nine Dollars and Ninety-two Cents ($69.92), this having been paid in two installments by warrants. The last one in the sum of Thirty-two Dollars and Forty-six Cents ($32.46) having been cashed for payment on August 16, 1939.

The respondent filed a motion to dismiss the complaint for the reason the complaint was not filed in compliance with Section (24) of the Workmen’s Compensation Act.

The motion came up before the court for argument and after the oral arguments were concluded on or about the 10th day of December 1940, the court ordered that -said motion should be taken with the case. Evidence was taken on the 16th day of September, 1941 following which the parties hereto filed their statement, brief and arguments.

Inasmuch as the court ordered that the motion to dismiss be taken with the case at the conclusion of the evidence it would appear that this question must be decided in the first instance.

The respondent contends that the complaint shows on its face that the injury occurred on the 31st day of May, 1939, and that the last payment of temporary compensation was August 16, 1939. That the claim was not filed until October 1, 1940 more than twelve months having elapsed from the last compensation payment to the date of filing, and urges that the court is without jurisdiction to hear this case.

The claimant in his argument acknowledges that this is not an original claim for compensation, but defines it as a petition under Section (19-h) seeking an award because he says the injury has increased since the last compensation payment made to claimant, and says this court does have jurisdiction to try this case, and says that Section (24) of the Workmen’s Compensation Act does not apply.

Two sections of the Workmen’s Compensation Act are then to be considered namely Section (24) which is jurisdictional requiring the claimant to file his claim within twelve months from the date of the injury or within twelve months from the last payment of compensation, and Section (19-h) which allows eighteen months in which a petition may be filed after an agreement or award has been made. The basis on which such contention is made is that the payment of compensation to claimant constituted such an agreement under the Act that permits a review of said agreement at the request of either the employee or the employer, after such agreement on the ground: “that the disability of the employee has subsequently recurred, increased, diminished or ended.”

We will consider Section (24) first; it is as follows:

“No proceedings for compensation under this Act shall be maintained unless notice of the accident has been given to the employer as soon as practicable, but not later than thirty (30) days after the accident, except in cases of hernia, in which cases notice shall he given the employer within fifteen (15) days after the accident. In case of mental incapacity of the employee or any dependents of a deceased employee who may be entitled to compensation under the provisions of this Act, the limitations of time by this Act provided shall not begin to run against said mental incompetents until a conservator or guardian has been appointed. No defect or inaccuracy of such notice shall be a bar to the maintenance of proceedings of arbitration or otherwise by the employee unless the employer proves that he is unduly prejudiced in such proceedings by such defect or inaccuracy. Notice of the accident shall be given orally or in writing, shall give the approximate date and place of the accident, if known; provided, no proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident, provided, that in any ease, unless application for compensation is filed with the Industrial Commission within one year after the date of the last payment of compensation, the right to file such application shall be barred.”

This section has been construed by the Supreme Court of this State and the Court of Claims so often that citations are unnecessary except to say that we are in accord with the Attorney General’s view that this section is jurisdictional.

In the Act creating the Court of Claims and to prescribe its powers and duties approved June 25, 1917, it is specifically provided: “To hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by an employee of the State, such determination to be made in accordance with the rules prescribed in the Act commonly called the ‘Workmen’s Compensation Act.’ The Industrial Commission being hereby relieved of any duties relative thereto.”

And we have repeatedly held, following the decisions of the Supreme Court of Illinois, and our own decisions that where an employee of the State has been injured he must notify his employer within thirty days, make demand for compensation within six months and file his claim in this court within twelve months after the said injury or after the last payment of compensation. These time limitations are jurisdictional and unless they are followed strictly by the claimant this court is without jurisdiction to hear the matter and upon motion the complaint will be dismissed.

Crabtree vs. State, 7 C. C. R., 207.
Gettinger vs. State, 8 C. C. R., 1.
Quillman vs. State, 8 C. C. R., 7.
Dahler vs. State, 8 C. C. R., 23.
Lay vs. State, 8 C. C. R., 33.
Duke vs. State, 8 C. C. R., 225.
Thompson vs. State, 9 C. C. R., 97.
Ray vs. State, 10 C. C. R., 66.
Baker vs. State, 10 C. C. R., 111.
Denham vs. State, 10 C. C. R., 317.
Simpson vs. State, 10 C. C. R., 394.

Since the claimant admits that this claim is not filed under Section (24) and since the complaint shows on its face that more than twelve months elapsed from the date of the injury or the tender and acceptance of a State warrant to claimant, the court must conclude that the provisions of Section (24) of the Workmen’s Compensation Act have not been complied with and the court lacks jurisdiction to consider this claim under that section, as an original proceeding.

Having therefore ruled out Section (24) of the Workmen’s Compensation Act as not being applicable to this claim will next consider Section (19-h) which is as follows:

“An agreement or award under this Act providing for compensation in installments may at any time within eighteen months after such agreement or award be reviewed by the Industrial Commission at the request of either the employer or the employee, on the ground that the disability of the employee has subsequently recurred, increased, diminished or ended; and on such review compensation payments may he re-established, increased, diminished or ended: Provided, that the Commission shall give fifteen days’ notice to the parties of the hearing for review: And, provided, further, any employee, upon any petition for such review being filed by the employer, shall be entitled to one day’s notice for each one hundred miles necessary to be traveled by him in attending the hearing of the Commission upon said petition, and three days in addition thereto, and such employee shall, at the discretion of the Commission, also be entitled to five cents per mile necessarily traveled by him within the State of Illinois in attending such hearing not to exceed a distance of 300 miles, to be taxed by the Commission as costs and deposited with the petition of the employer: Provided, further, that when compensation which is payable in accordance with an award or settlement contract approved by the Industrial Commission, is ordered paid in a lump sum by the Commission, no review shall be had as in this paragraph mentioned.”

It is to be noted that the review provided for under Section (19-h) is not an original proceeding and the petition for review thereunder cannot be filed or in any manner be considered as an original application for adjustment of claim. And no question having to do with liability of an employer for compensation or with any right of an employee to compensation as original questions, can be considered in such proceeding. All questions concerning whether the employer and the employee are under the Act; whether there was an accidental injury arising out of and in the course of employment; of notice of accident; of claim for compensation and compliance with Section (24) of the Act and all questions as to whether or not the employer is liable for and the employee entitled to compensation must be determined first by agreement of the parties or upon proceedings on an original complaint for compensation filed in compliance with the provisions of Section 19 (a) (b) (e) and Section (24).

Section (19-h) makes. provisions only for the review of a prior agreement or award and solely on the ground that the disability of the employee has recurred, increased, diminished or ended, subsequent to the time such prior agreement or award was made or entered, and either the claimant or respondent may avail himself of the provisions of this section.

This is well settled in City of Pana vs. Industrial Board, 279 Ill., 279. There it was urged that the Circuit Court on certiorari had rightly quashed the proceedings of the board because the board in its hearing on review under Section (19-h) had heard the matter as if it were an original proceeding and the court said (p. 280):

“This court, in construing that section in Bloomington, Decatur and Champaign Railroad Co. vs. Industrial Board, 276 Ill. 120, said: ‘The award constitutes a final adjudication upon all matters in dispute up to the time of the hearing at which the award is made. Upon a review under said paragraph (h) the parties are bound by the proof made as to the injuries received and the disability which ensued on the hearing which resulted in making the award. It would not be proper upon such review to again go into the facts as to the injury and the disability which ensued, as those matters have been finally adjudicated.’ ... It 'is< clear, also\ that the Industrial Board heard the matters as if it were an original proceeding. This could not he done under said paragraph (h).”

In Jackson vs. Industrial Commission, 302 Ill. 281, there was an original application for adjustment of claim and no claim for compensation had been made within six months as provided in Section (24) of the Act, and it was contended that paragraph (h) of Section (19) was applicable. The court said (p. 285):

“Paragraph (h) of Section (19) of the Compensation Act is not applicable to this case, as that section simply provides that an agreement or award under the act providing for compensation in installments may at any time within eighteen months after such agreement or award he reviewed by the Industrial Board at the request of either the employer or employee, on the ground that the disability of the employee has subsequently recurred, increased, diminished or ended, and on such review compensation payments may be re-established, increased, diminished or ended. The application in this case is an original application for compensation and not for the review of an agreement or award for compensation in installments.”

So we see as stated in many decisions the fundamental theory, basis, intent and purpose of paragraph (h) of Section (19), is that it provides a review only in cases where there, has'been an agreement or award which ,has settled all questions in dispute, particularly as to liability for compensation, and on such review the only question for consideration is whether such disability has recurred, increased, diminished, or ended.

Claimant here contends that an “agreement” was entered into with the respondent in reference to his injury, and that a settlement was made by the payment of ($69.92), and that since said payment of this sum to the claimant, his disability has recurred and increased.

Prior to 1925 this argument of claimant would have been sound but during that year paragraphs (A) and (I) of Section (8) were amended and became effective that year. This amendment provided that any payment of compensation by the employer to an injured employee prior to the time of the filing of an application for an adjustment of claim, shall not be construed against the employer as a liability to pay compensation.

We are faced then with this question; If the respondent pays an injured employee a sum of money by warrant or otherwise before the filing of a claim for adjustment of compensation and not being based on a written settlement contract should paragraph (h) of Section (19) be invoked by the claimant or should it apply only to awards and definite agreements such as settlement contracts?

In considering this question the fundamental theory or basis and intent and purpose of paragraph (h) of Section (19) must be kept in mind. As stated in many of the decisions, it provides a review only in cases where there has been “an agreement or award” which has settled all questions in dispute, particularly as to liability for compensation, and on such review the only question for consideration is whether such disability has recurred, increased, diminished or ended. Prior to such amendments, above referred to, in 1925, the furnishing of such medical services, etc., was held to be a payment of compensation and also the payment of compensation was held to be an admission of liability. Obviously, therefore, prior to such amendments where the employer had furnished medical services or made any payment of compensation or had made any payment or settlement on account of an injury to an employee, such payment was considered as an admission of liability and as an agreement between the employer and the employee that the injury was due to accident arising out of and in the course of employment. Such payment was therefore considered as an agreement settling all questions in dispute and on a hearing on petition under paragraph (h) of Section (19), the only question for consideration was whether the disability had recurred, etc., and questions as to liability could not be considered. It is also important to note that all the decisions, above referred to, in which questions were considered as to what constituted an agreement or award subject to review under paragraph (h) of Section (19) were rendered prior to such amendment.

If subsequent to such amendments the furnishing of medical services, etc., shall not be construed to admit liability to pay compensation or be construed as a payment of compensation and any payments of compensation prior to the filing of an application for adjustment of claim shall not be construed against the employer as admitting liability to pay compensation and such is the express and specific language of those amendments, then it seems that such payments do not constitute “an agreement” as to all questions of liability and under the express language of those amendments such payments do not admit liability to pay compensation and shall not be construed as admitting a liability.

And so- we must come to the conclusion that inasmuch as a review can be had under paragraph (h) of Section (19) only in cases where there has been a prior, original agreement or award settling all questions as to liability and such review cannot be considered as an original hearing, in which questions of liability can be considered, and inasmuch under the express provision of the amendments referred to, such payments shall not be construed as admitting liability it seems clear that mere payments for medical services or mere payments of-compensation prior to the filing of an application for adjustment of compensation cannot be held as an agreement settling all questions as to liability and therefore they could not constitute an agreement subject to review under paragraph (h) of Section (19). It would therefore seem that only an agreement such as a settlement contract entered into between employer and employee, and presented and approved by this court which settled all questions as to liability or an award by this court which settled all questions of liability, could be reviewed under paragraph (h) of Section (19). Certainly such a construction is warranted when the express language of such amendment is considered in connection with the language of the Supreme Court used in many cases in defining the intent and purpose of paragraph (h) of Section (19), and the positive requirement that there must have been an agreement or award settling all questions as to liability before such a review could be had. Such a construction would not involve any hardship because in cases in which no definite agreement had been entered into between respondent and employee, the employee could file an application for compensation in this court within one year from the date of injury or within one year from the last date of compensation where payments had been made. Such construction, moreover, would obviously be in accordance with the essential intent and purpose of the amendment to paragraphs (a) and (i) of Section (8) above referred to. The purpose of those amendments was to encourage the prompt furnishing of medical services and the prompt payment of compensation. Prior to such amendments the employer in fact furnished medical services or made payments at his peril and the result was that in cases of doubtful liability there was much delay in furnishing such services or in making of payments. The same reason would exist for the construction above submitted, because if such payments should be held to constitute an admission of liability or an agreement settling all questions of liability which could be reviewed within eighteen months under paragraph (h) of Section (19) the respondent for its own protection should not make any payment of medical or any payment of compensation unless it was absolutely certain that there was a compensation liability and was willing to waive all possible questions as to liability because in any case in which a review can be had under said paragraph (h) no question of liability can be raised.

On every principle of statutory construction and of sound reasoning, if the payment for medical services or payment of compensation prior to the time of the filing of an application for adjustment of claim shall hot be construed as an admission of liability to pay compensation then certainly any such payments should not he held as an admission, waiver and settlement of all questions of liability so as to furnish a basis for a review under paragraph (h) of Section (19). The review under paragraph (h) of Section (19) should apply only to definite agreements or settlement contracts wherein the employer and employee definitely settle all questions of liability or to awards in which there are definite findings on all questions of liability.

The Employer and The Workmen’s Compensation Act of Illinois, Anger-stein.

We hold that the mere payment of Sixty-nine Dollars and Ninety-two Cents ($69.92), did not constitute a settlement agreement as contemplated in the Workmen’s Compensation Act; that claimant in failing to file his claim within the time required in Section (24) of said Act lost his right to recover from the respondent and that this court cannot hear and determine a petition by claimant in this case for the above and foregoing reason.

The motion to dismiss by the Attorney General is therefore granted and the petition is dismissed.


text:
    (No. 3668
    Agnes Manion, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

    Will P. Welker, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant, Agnes Manion, is the widow of Bert F. Manion, deceased, a former maintenance patrolman employed by the Division of Highways of the State of Illinois, District No. 7, with headquarters at Effingham, Illinois. The deceased employee was last seen alive on the morning of November 10, 1941, driving a state owned dump truck preparatory to dumping a collection of rubbish. At about two o ’clock the following morning his body was found near a state dumping ground, crushed between the bed and frame of his truck. He was apparently attempting to make some mechanical adjustment, when the bed of the truck fell, crushed, and killed him. Claimant seeks an award under the provisions of the Workmen’s Compensation Act as widow of the decedent in the amount of $4,400.00.

At the time of the accident which resulted in the death of Bert F. Manion, the employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the Act. Although the evidence is circumstantial, it is clear that the accident arose out of and in the course of the employment.

Decedent was first employed by the Division of Highways on March 18, 1941; the death having occurred on November 10, 1941, his period of employment by respondent was less than one year. His predecessor, as maintenance patrolman for more than one year next preceding March 18, 1941, was paid at a rate of $135.00 per month, or $1,620.00 annually. Under Section 10(c) of the Act, compensation must be computed on the basis of such annual wage, making decedent’s average weekly wage $31.14, and his compensation rate $16.50 per week. At the time of his death, he had no children under sixteen years of age dependent upon him for support.

Claimant is therefore entitled to an award under Section 7(a) of the Workmen’s Compensation Act in the amount of $4,000.00; the death having occurred as a result of an injury sustained after July 1, 1941, this amount must be increased ten per cent, or $400.00.

Award is therefore made in favor of the claimant, Agnes Manion, in the sum of $4,400.00 to be paid to her as follows:

(1) $709.50, which has accrued, is payable forthwith;

(2) $3,690.50 is payable in weekly installments of $16.50 per week beginning September 8, 1942, for a period of 223 weeks, with an additional final payment of $11.00.

All future payments being subject to the terms and conditions of the Workmen’s Compensation Act of Illinois, jurisdiction of this cause is specifically reserved for the entry of such further orders as may from time to time be necessary.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Eoad Fund in the manner provided for in such Act.


text:
    (No. 3567
    Anna B. McCarthy, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

    George D. Carbary, for claimant.
    George F. Barrett, Attorney General; Egbert Y. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

On December 18th, 1940 claimant, Ann¡a B. McCarthy filed her complaint in this court seeking an award under the Workmen’s Compensation Act for injuries sustained by her while employed at the Elgin State Hospital for insane at Elgin, Illinois.

The record consists of the complaint, the reports by the Department of Public Welfare, stipulation of facts, and brief and arguments on behalf of respondent, the claimant having waived her right to file brief statement and argument.

The record shows that the claimant Anna B. McCarthy was employed by the respondent at the Elgin State Hospital for more than a year prior to May 6, 1940.

The record further shows that on the 6th day of May 1940, the claimant who was then sixty years of age received an injury to her right ankle in a fall while on duty in said hospital. X-rays were immediately taken which showed a simple fracture of the external malleolus without displacement, which was treated by application of a cast for six weeks, after which the patient was allowed to be up and about. She was again examined about September 7th, 1940, by Dr. Samuel Hubert of the hospital staff who advised at that time that she wear an elastic anklet which gave her marked relief of pain. On September 23, 1940 she was again examined by Dr. Hubert who reported:

“Examination today showed no signs of strain, tenderness or weakness in the ankle joint. Last examination made some time ago showed good healing of fracture. She states that her symptoms at present are markedly relieved and she feels that she is able to return to her duties at this time.”

Stipulation was entered into by the parties hereto through their attorneys, of record filed July 22, 1942, a part of which reads as follows:

“It is further stimplated that the said Anna B. McCarthy was able to perform her usual and customary work on the 6th day of September, 1940, and that claimant has suffered no permanent injury beyond that date.”

Based upon the above record the court finds as follows:

That on the 6th day of May 1940, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State; that on said date claimant sustained accidental injury which arose out of and in the course of her employment; that notice of such accident was given to the respondent and claim for compensation on account thereof was made within the time required by the provisions of the Workmen’s Compensation Act.

That the necessary medical, surgical and hospital services were provided by the respondent.

That at the time of the accident in question claimant was sixty years of age and had no children dependent upon her under the age of sixteen years.

That the earnings of the claimant during the year next preceding her injury were Eight Hundred Twenty-eight Dollars ($828.00), and her average weekly wage was Fifteen Dollars and Ninety-two Cents ($15.92), and that her weekly compensation rate amounts to Seven Dollars and Ninety-six Cents ($7.96), as provided under Section (8) of the Act.

That claimant was temporarily totally disabled from May 8th, 1940 until the 6th day of September, 1940, to-wit, 17 5/7 weeks; that the sum of Sixty-nine Dollars ($69.00), has been paid to claimant for non-productive time since the date of said injury and such sum must therefore be held to apply on the compensation due the claimant as aforesaid.

We further find that claimant is entitled to have and receive from the respondent the sum of Seven Dollars and Ninety-six Cents ($7.96) per week for 17 5/7 weeks, temporary total disability, in accordance with the provisions of paragraph (B) of Section (8) of the Workmen’s Compensation Act, which must be increased ten per cent (10%) as provided in paragraph (L) of Section (8) of such Act making a total of One Hundred Fifty-five Dollars and Eleven Cents ($155.11) less the sum of Sixty-nine Dollars ($69.00) heretofore paid by the respondent making a net amount of Eighty-six Dollars and Eleven Cents ($86.11).

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

An award is therefore entered in favor of the claimant Anna B. McCarthy in the sum of Eighty-six Dollars and Eleven Cents ($86.11). "

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof, ’ ’ approved .June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue ... Fund in the manner provided for in such Act.


author: Chief Justice Dambox

text:
    (No. 3588
    Railway Express Agency, Incorporated, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

    John A. Dill, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Dambox

delivered the opinion of the court:

From the stipulation of facts herein it appears:

1. That during the months of May and July, 1939, pursuant to proper authority, order and request, the claimant rendered express services to the respondent in connection with the shipment and transportation of “talking hooks” to and from the respondent’s Illinois Visitation Home for Adult Blind at 1900 Marshall Boulevard, Chicago, Illinois, a charitable institution operated, maintained and conducted by the respondent through its Department of Public Welfare.

2. That the usual and customary charge for such services in accordance with the tariff rates then in effect was the sum of $18.49.

3. That claimant on June 19th and July 1, 1939, presented to respondent its invoices and bills covering said services but that through no fault or neglect upon the part of the claimant the same were not vouchered for payment prior to the lapse on September 30, 1939 of the appropriation from which said bills would have been properly payable, and for that reason no warrant has been issued claimant in payment of same.

4. That at the time said services were requested and rendered there was remaining unexpended in the appropriation from which the same were properly payable a balance sufficient to pay the same.

5. That claimant has not received the said $18.49 or any part thereof, and that no person, firm or corporation other than claimant has any interest in this claim.

We have held in numerous cases that where materials, services, or supplies have been properly furnished to the State, and a bill therefor has been submitted within a reasonable time, but the same was not approved and vouchered for payment before the lapse of the appropriation from which it is payable, without any fault or neglect on the part of the claimant, an award for the reasonable value of such materials, services or supplies will be made, where at the time the expenses were incurred there were sufficient funds remaining unexpended in the appropriation to pay for the same. Rock Island Sand & Gravel Co. vs. State, 8 C. C. R. 165; Indian Motorcycle Co. vs. State, 9 C. C. R. 526; Wabash Telephone Company vs. State, 11 C. C. R. 92.

This claim comes within the requirements above set forth. Award is therefore entered in favor of claimant in the sum of $18.49.


text:
    (No. 3613
    Harold Roebuck, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

    Walter G. Hagemeyer, for claimant.
    George F. Barrett, Attorney General; Bobert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

This claim was filed May 26, 1941. It is for benefits under the Workmen’s Compensation Act prayed by claimant for permanent partial loss of the use of his left leg, and for temporary total disability suffered as a result of an accident received in the course of and out of claimant’s employment.

The complaint alleges that claimant, while working with a surveying crew, was subjected to a shock of electricity when one of the crew members with whom he was working brought the engineer’s level rod into contact with a high power transmission wire. Claimant, together with two other men with whom he was working, was knocked to the ground, and claimant was found at the bottom of the cut near the pavement at a point of about twenty to twenty-five feet from where he had been standing, and as a result thereof claimant sustained serious and permanent injuries to his left leg. Claimant was taken to Dr. Trotter at Carthage, Illinois, and his leg was set and a cast applied. He was also examined and treated by Dr. H. B. Thomas, Professor of Orthopedics at the University of Illinois Medical College.

Claimant further alleges that he was paid for the year prior to this accident as annual earnings, the sum of Two Thousand Forty Dollars ($2,040.00) and his weekly wage was, therefore, Thirty-nine and 23/100 Dollars ($39.23). That at the time of his injury claimant was thirty-eight (38) years of age, was married and had four children under the age of sixteen (16).

Claimant further alleges that no third party or corporation has any interest in this claim; that all medical bills and transportation costs have been reimbursed to claimant.

Claimant seeks an award of Two Thousand Three Hundred Seventeen and 14/100 Dollars ($2,317.14), less the sum of Eight Hundred Twelve and 96/100 Dollars ($812.96) heretofore paid to claimant, or One Thousand Five Hundred Four and 18/100 Dollars ($1,504.18).

Claimant in this case is an employee of the State and his employment is such that he is within the provisions of the Workmen’s Compensation Act. From the evidence produced by the claimant and the report of the Division of Highways, there would seem to be no doubt that' the accident arose in the course of and out of the employment of claimant. It is the contention of the respondent, however, that the court is without jurisdiction for the reason that the claim was not filed in apt time.

The claimant was injured on the 25th day of May, 1938 and was temporarily totally disabled from that date to October 13, 1938, when he returned to work. Claimant was requested to and did submit to further examinations and treatments in Chicago for two days during January, 1939, one day in June 1939, on May 26th and May 29th, 1940, and was examined the last time on April 15, 1941. These examinations and treatments were at the request of respondent and the expenses of claimant for these trips to Chicago and the charges for the examinations and treatments were paid for by respondent. Claimant’s complaint was filed on May 26, 1941.

It is true that much more than a year elapsed between the date of the injury and the filing of this complaint. Therefore, the precise question before this court is, whether the furnishing of medical, surgical and hospital services and payment therefor by respondent, the payment of expenses incurred in trips to Chicago for treatment and the full payment for time spent in an effort to effect a cure without denial of liability, should be regarded as the payment of compensation under the Act.

In the case of Newman Co. vs. Industrial Commission, 353 Ill. 190, our Supreme Court said:

"The Workmen’s Compensation Act is a humane law óf a remedial nature, and wherever construction is permissable its language should be liberally-construed. (City of Chicago vs. Industrial Commission, 291 Ill. 23; Chicago Cleaning Co. vs. Industrial Board, 283 id. 177.) A strained construction not fairly within the provisions of the act cannot be supported. (Berry Co. vs. Industrial Comm., 318 Ill. 312). There was no denial by the employer of liability, and it has been repeatedly held by this court that the furnishing of medical, surgical and hospital services must be regarded as the payment of compensation under the act. Goodman Manf. Co. vs. Industrial Com., 316 Ill. 394.”

Our Supreme Court, in the case of United Air Lines, Inc. vs. Industrial Commission, 364 Ill. 346, said:

“Where employer makes payments to injured employee during period of time when latter is unable to work and liability under this act is not denied, such payments will be construed as in consequence of employer’s liability under doctrine that when employer has knowledge of injury and does not deny liability employee has right to regard payments as made under act and is not bound to demand further compensation as long as payments are continued.”

Respondent did not at any time deny liability. On the contrary, the entire relationship between claimant and respondent was one of co-operation to relieve and cure claimant of his admitted serious injury. Respondent went much further in this case than reimbursement for medical expenses. Compensation was actually paid by full payment of salary during the time this claimant was absent from his work, in seeking medical treatment. The whole record of this case indicates that the State recognized liability and attempted to cure and compensate claimant. The State made every effort to relieve the claimant from the effects of the injury, which full effect was not ascertained until the last examination, immediately prior to the filing of the claim. A report of the Division of Highways, a part of the record of this case, in showing the amount paid to claimant, describes these payments as compensation. To hold that the failure of claimant to file his claim during the time both he and respondent were seeking to effect a cure and before the full effect of the injury was known bars him from seeking compensation would defeat substantial justice.

Claimant had his last examination on April 15,1941, only a little over a month prior to the filing1 of his claim. It was at that time he learned that no further treatments would benefit him and was in a position to determine that his leg would be permanently injured. This court is of the opinion that claimant’s complaint was filed in apt time and the court has jurisdiction thereof.

There is considerable disagreement between the respondent and the claimant as to the extent of the permanent injury to the leg. Both claimant and respondent agree that there is 145 degrees of flexion in the normal movement of the knee, and do not differ much on the permanent loss in degrees of this motion of the knee. After a careful review of the medical testimony, it is a fair conclusion to say that the claimant is permanently injured to the extent of 62 degrees in his flexion motion of the knee, or approximately forty (40) per cent. Respondent ingeniously reasons that there is also one hundred forty-five (145) degrees motion of extension in the knee and that in the case of the leg three joints are involved, the hip, knee and ankle, and in determining the relation of each joint to the others respondent gives to the hip one hundred twenty-five (125) per cent, to the knee one hundred (100) per cent and to the ankle seventy-five (75) per cent, a total of three hundred (300) per cent in the leg, and then concludes that the permanent injury to the leg is seven (7) per cent. Claimant contends that it is fifty (50) per cent. The court cannot agree with the contention of the respondent, as it is- possible to hurt the hip in such a way that the use of the leg would be lost regardless of the condition of the knee or ankle joint. This is also true with respect to the ankle and knee joints. Claimant has a certain definite restriction in the use of his knee joint, and this necessarily must impair the efficient use of his whole leg. Claimant will have a permanent impairment for any physical exertion where the use of his leg is required and will be handicapped in the performance of his duties as an' engineer. From a consideration of all of the evidence it would appear to this court that a reasonable conclusion would be that claimant has been permanently injured to the extent of thirty (30) per cent of the use of his entire leg, and the court so finds.

For the year next preceding claimant’s injury he received a salary of One Hundred Seventy Dollars ($170.00) per month, which would make his compensation the maximum of Fifteen Dollars ($15.00) per week, which is further increased to the' maximum of Twenty Dollars ($20.00) per week due to the fact that claimant has four children under sixteen years of age. Claimant is therefore entitled to an award of Four Hundred Dollars ($400.00) for total temporary disability computed on the basis of twenty (20) weeks at the rate of Twenty Dollars- ($20.00) per week, and is further entitled to an award of Eleven Hundred Forty Dollars ($1,140.00) for permanent partial loss of the use of his left leg computed on the basis of thirty (30) per cent of one hundred ninety (190) weeks or, fifty-seven (57) weeks at the rate of Twenty Dollars ($20.00) per week. Tins makes a total of Fifteen Hundred Forty Dollars ($1,540.00), from which must be deducted the sum of Eight Hundred Twelve and 96/100 Dollars ($812.96), being the sum already paid to claimant, leaving a balance of Seven Hundred Twenty-seven and 04/100 Dollars ($727.04).

An award is therefore made to claimant in the sum of Seven Hundred Twenty-seven and 04/100 Dollars ($727.04), all of which is accrued and is payable forthwith.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation! to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30th, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided for in such Act.


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    (No. 2293
    Harry H. Sefried, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

    Clarence B. Davis, for claimant.
    George F. Barrett, Attorney General; Egbert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

On June 21, 1933, the claimant, Harry H. Sefried, was employed by the respondent' as foreman tinner at the Kankakee State Hospital, at Kankakee, Illinois. While repairing the cupola of the hospital cannery, the ladder upon which he was working slipped from a second-story roof and he fell "to the ground, a distance of thirty feet, sustaining a fracture of the last lumbar vertebra. He was hospitalized from June 21, to July 28, 1933, under the care of Dr. J. J. Madden, and returned to work on August 2, 1933. The cost of this medical and hospital service was paid by the respondent. Claimant, however, alleges that as a result of the accident he was obliged to expend $5.00 for a supporting belt, $12.00 for eye glasses, and $5.00 for special foods; that he has also paid for medical services, since his discharge from the hospital, $10.00 to Dr. Hollis E. Potter, Chicago, Illinois, $50.00 to Dr. Lewis J. Pollock, Chicago, Illinois, and $35.00 to Dr. W. T. McNary, East St. Louis, Illinois.

Claimant was first employed by the respondent at the Kankakee State Hospital on May 15, 1931, as a tinner at $1.25 per hour for a forty-eight hour week, and on September 1, 1931, was made foreman. In April, 1932, Ms wage was reduced to $1.00 per hour for a twenty-four hour week, or approximately $100.00 per month. Claimant alleges that when he became foreman tinner, his compensation under the Civil Service schedule should have been increased ten cents per hour; that in fact it was not so increased; that from the date of his promotion to October 1, 1934, he worked for the respondent four thousand nine hundred and twenty, hours; and that the respondent is therefore indebted to Mm for unpaid wages in the sum of $492.00.

Claimant testified that he is no longer able to climb ladders, to go upon roofs, or otherwise to perform his duties; that his present activities are confined to desk work, such as laying out jobs, specifying materials, and planning construction or repair work; that he still suffers pain and physical discomfort and certain functional disabilities; that the use of Ms limbs is uncertain; that he can walk safely only with a cane; and that he has been advised such condition is permanent. He receives, however, the same wages wMch he received prior to the injury.

Hr. J. J. Madden, called as a witness for claimant, testified that following the injury claimant walked into the hospital ward complaining of pain and stiffness in his back and left side; that he had several minor superficial scratches and abrasions of the left elbow, ankle, and buttocks, and a slight discoloration of the left chest. An x-ray taken shortly afterward disclosed a fracture of the last lumbar vertebra. The fracture was of linear type, apparently incomplete, and there was no displacement of the fragments. His recovery was entirely satisfactory. On cross-examination Dr. Madden testified that it would be very difficult for him to reconcile claimant’s subsequent disabilities with the injury as he found it.

Dr. Francis J. Sullivan, also called as a witness on behalf of the claimant, testified that he took a series of x-ray pictures at intervals from June 21, 1933, when claimant entered the hospital, to January 18, 1934; that the x-ray taken on tMs latter date showed the fracture apparently healed with callous formation. From these pictures, Dr. Sullivan found it difficult to account for claimant’s alleged disabilities, and stated that he would "not expect claimant’s injury to be permanent or to produce any organic disturbanee of any nerve structure, although it might produce a physical effect. He also testified that the x-rays would not show any pressure upon the nervous structure.

On March 5th and 6th, 1941, eight years after the accident, claimant was examined by Dr. Henry B. Thomas of Chicago. Dr. Thomas reported that when claimant was asked the location of the painful place in his back, he pointed to an area much lower than that of the lumbar vertebra which had been fractured. Dr. Thomas found a healed fracture of the fourth lumbar vertebra, a snapping right hip not shown to be a result of the injury, a questionable right sacro-iliac irritation, and, from claimant’s own statement, some functional disturbance following the injury. The prognosis was: complaints should clear up upon: (1) settlement pending suit; (2) operation of right hip; (3) treatment of back.

Claimant seeks an award for salary which he claims to be due him as a result of his promotion to the position of foreman tinner, but for which promotion he never received additional compensation. The record, however, fails to sustain this contention, and no ground is shown upon which to justify an award for such additional compensation.

Claimant also seeks an award under the provisions of the Workmen’s Compensation Act for his alleged disabilities. At the time of the accident, claimant and respondent were operating under the Act, and notice of the accident and claim for compensation were made within the required time. The accident arose out of and in the course- of the employment. Claimant, therefore, was entitled to receive for temporary total disability, from June 21, 1933, to August 2, 1933, a period of six weeks, $12.00 per week, or a total sum of $72.00. This amount, however, was paid to claimant by the respondent during the first thirty days of his hospitalization, so that he is not entitled to any further award for such disability.

The record does not justify an award for partial permanent disability. Injuries, to be compensable under the provisions of the Workmen’s 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 apparently incomplete fracture of a vertebra, which subsequently healed, and in which there was no displacement of fragments, and which was insufficient to account for his present alleged disability. Furthermore, 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 claimant earned before the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident.. The record contains no proof of any such difference in claimant’s earning capacity. Nor is there sufficient evidence to support an award for impaired vision or need of eye glasses, or to sustain the claim of functional disability.

The moneys which claimant expended for medical services in consultation with Dr. McNary, Dr. Potter, and Dr1. Pollock were secured at his own election, and apparently were not necessary nor reasonably required to cure or relieve from the effects of the injury. They must therefore be at his expense. Claimant, however, is entitled to be reimbursed for the supporting belt and the special foods which he purchased in the total sum of $10.00.

Award is therefore made to the claimant in the sum of $10.00 which is payable forthwith.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30th, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act.