author: Fisher, C. J.

text:
    (No. 3806
    James McGaughey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1945.

    John F. Gibbons, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Fisher, C. J.

This claim is for benefits under the provisions of the Workmen’s Compensation Act. The original complaint was filed July 7, 1943, and an amended complaint on May 1,1945. The facts are not in dispute.

Claimant was employed by respondent as a State Highway Policeman at a salary of $175.00 per month.

On the date of September 4, 1942 while on his regularly assigned patrol on U. S. Highway 66 between Mt. Olive and Litchfield, Illinois, claimant’s motorcycle was struck by an automobile, resulting in serious injuries to claimant. The left leg above the ankle was torn and there was some crushing of the bone of the leg. Claimant’s leg was amputated at the mid calf. Subsequent to this amputation infection developed which necessitated further operation, which further operation was performed on October 10, 1943. The infection continued, and on December 1, 1943 claimant entered the hospital for further operative medical treatment. On July 3, 1944 a further operation and amputation become necessary, which was performed on July 3, 1944.

Claimant seeks temporary total disability, reimbursement for medical expenditures, and compensation for the total loss of use of his left leg.

The record consists of the Complaint, amended Complaint, Statement, Brief and Argument by Claimant and Respondent, Reports .of Division of Highways filed August 31,1943 and May 25, 1945, and Stipulation of Facts.

It is stipulated that the Department reports shall constitute the record in this case.

Respondent had immediate notice of the accident, and the complaint was filed within one year from the date of the injury. Claimant has complied with the jurisdictional requirements of! the Workmen’s Compensation Act.

In the Stipulation it is agreed that claimant’s compensation rate amounts to $16.50 per week.

Claimant, by reason of the various amputations, was totally incapacitated for a period of 25-6/7 weeks, for which period he is entitled to compensation at the rate of $16.50 per week, a total of $426.64. Claimant suffered the entire loss of use of his left leg, for which, under the Workmen’s Compensation Act, he is entitled to compensation for 190 weeks at the rate of $16.50 per week, a total of $3,135.00. Claimant was compelled to pay for medical expenses, for which he is entitled to reimbursement in the sum of $469.00. Claimant is also entitled to have paid the sum of $55.00 for medical services to Dr. J. Albert Key, St. Louis, Missouri, which rémains unpaid.

Claimant was paid for non-productive time a total of $476.67, which must be deducted from the amount due claimant under' the provisions of the Workmen’s Compensation Act, leaving a balance due claimant of $3,-608.97.

Claimant seeks compensation for travel expense from Alton and Edwardsville to Barnes Hospital in St. Louis," and return, approximated at $132.50; also compensation for 16 days sick leave, which leave he claims he was entitled to at the time of his injury. We find no provision in the Workmen’s Compensation Act for the payment of estimated cost of transportation, or for sick leave,, and the claim in regard to these two items cannot be allowed.

The Court of Claims Act, Section 8(d) provides that determination of claims of this kind ‘ shall be in accordance with the substantive provisions of the Workmen’s Compensation Act. ”

An award is therefore entered in favor of the claimant, James McG-aughey, in the sum of $3,608.97, payable as follows:

$ 469.00 Reimbursement for medical and hospital bills paid" by-claimant.
55.00 to Dr. J. Albert Key, St. Louis, Mo.
2,739.00 Which has accrued and is payable forthwith.
345.97 Payable at the rate of $16.50 per week, commencing November 16, 1945.


source: Caselaw Access Project

license: Public Domain

text:
    (No. 3865
    Esther Hisler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1945.

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

Claimant seeks an award under the Workmen’s Compensation Act for the death of her husband, Walter G. Hisler.

At the time of the death of Walter G. Hisler he was an employee of the State of Illinois, Division' of Parks and Memorials. He was first employed by the Division on April 10, 1941, and claimant alleges that on March 16, 1944 her husband, the said Walter G. Hisler, met his death while performing his duties and in the course of his employment.

The record consists of the Claim, Departmental Report, copy of Testimony taken at Coroner’s Inquest,.Verdict of the Coroner’s Jury, Stipulation, certified copy of Claimant’s Marriage Certificate, and Waiver of Statement, Brief and Argument by claimant, pro se, and respondent by the Attorney General.

The report of the Division of Parks and Memorials, by George W. Williams, Superintendent, shows that during the year preceding his death on March 16, 1944, Mr. Hisler was regularly employed as. Custodian of the Illinois and Michigan Canal Parkway, and his yearly salary was the sum, of $1,560.00. Among his duties were those of keeping the Illinois and Michigan Canal between Peru and Buffalo Bock free of debris, repairing and maintain ing pathways, roads and bridges, maintaining and keeping all shelter houses clean, keeping the residence assigned to him and surrounding area orderly and in repair, and acting in a policing capacity on Sundays and holidays.

On the morning of March 16, 1944 at approximately 8:45 A, M. Mr. Hisler was returning on foot to his residence from the city of LaSalle where a truck assigned to him had been taken for inspection and repairs. The Department Beport concludes “Mr. Hisler was recognized by his superiors and fellow workers as a conscientious and capable workman, free of domestic and financial worries, and affable in meeting and dealing with the public. The investigation of the Division of Parks and Memorials leads to the conclusion that Mr. Hisler’s death arose outi of and in the course of his employment.”

On the 20th day of March, 1944 the Coroner of LaSalle County held an inquest to ascertain the cause of death and the Coroner’s jury found as follows:

“We, the undersigned Jurors, sworn to inquire of the death of Walter Hisler on oath do find that he came to his death by accidental drowning while on duty as an employee of the State of Illinois in his regular occupation along the tow-path of the Illinois-Michigan Canal. He was last seen alive Thursday morning, March 16, 1944, at 8:45 A. M. His death presumably occurred at 9:30 A. M., March 16, 1944. He was employed as Maintenance man and Lock-Tender at Illinois-Michigan Canal.”

The only question that presents itself for determination here is — did the deceased meet his death in the course of and within the scope of his employment.

It is stipulated that the Departmental Report of the Division of Parks and Memorials shall constitute the record in this case. The Department, in this report, concludes that the decedent met his death within the scope and as a result of his employment. The facts upon which this conclusion is reached are not included in the report. The testimony at the Coroner’s Inquest ascertained the nature of the employment of the decedent and traced his movements until he was last seen, which was on the morning of March 16, 1944.

This court, feeling it should have more of the facts and information than was disclosed by the record in this case, did, on its own initiative, request the Division of Parks and Memorials to file a report of the facts disclosed by its investigation. The Division thereupon filed a letter from Terrence Martin, Custodian of Starved Rock State Park addressed to George A. Williams, Superintendent of State Parks and Memorials, which letter is dated November 3, 1945 and states, in substance, as follows: — That Mr. Martin personally investigated and inquired into the facts concerning the death of Walter G. Hisler; that Mr. Hisler disappeared on the 16th day of March, 1944 and that an intensive search for him began on the morning of March 17, 1944; that the search was conducted by State Park employees, the Sheriff’s Office local police authorities and Mr. Martin. That on the 18th day of March, 1944 about 1:40 P. M. John DeGroot of Peru and Stanley Murray, Deputy Sheriff, while dragging the lock and basin adjoining, found the body of Walter G. Hisler; that the body was immediately taken to the funeral home, at which time the Coroner was notified. The undertaker, Anton Friedrich, as related by Mr. Martin, stated that “there were no abrasions or.injuries found on the body and that lots of water came out. The Coroner said the¡ body had been in the water about three days. The Coroner’s Jury again examined the body the following morning at the inquest. As they found no indication of foul play, and from evidence on hand, a verdict of drowning was returned. The Coroner informs me that no post-mortem was ordered by the family or authorities, therefore there was none.”

While the burden of proving that an injury or death arose out of and within the scope of the employment rests upon the claimant, this proof cannot always be made by positive and direct evidence. In this case, no one saw the deceased between the morning of March 16, 1944 and' the time his body was found in the canal on March 19,1944. The cause of his death can only be determined from certain facts and circumstances, from which a reasonable conclusion can be reached. The decedent was proved to be a man of good habits, a conscientious worker, without domestic or financial worries, and when last seen was performing the duties required of him by his employment. Part of such duties brought him to and about the bank of the Illinois-Michigan Canal. His body was found submerged in the water. The record rather conclusively shows that no reasonable conclusion can be reached other than that the decedent came to his death during the course of and within the scope of his employment. His surviving widow, Esther Hisler, is, therefore, entitled to the benefits of the Workmen’s Compensation Act.

Decedent left him surviving his widow and one child under the age of sixteen years dependent upon him for support at the time of his death.

Decedent’s salary for the year preceding his death amounted to $1,560.00. Decedent’s weekly wage was $30.00, and Ms compensation rate $15.00 per week, and, having one cMld under the age of sixteen years at the time of Ms death the weekly rate must be further increased 5% .undeif Section 7 (3), plus 17% under Section 7 (1), or a total of $18.50 per week.

Claimant is entitled to an award under Sections 7 (a) and 7 (h-3) of the Workmen’s Compensation Act, in the amount of $4,450.00, wMch must be increased 171/2% under Section 7 (1), making a total of $5,228.75.

An award is therefore entered in favor of claimant, . Esther Hisler, in the sum of $5,228.75, payable as follows:

$1,604.21 — 86 5/7 weeks, March 16, 1944 to November 13, 1945 — all of which has accrued and is payable forthwith;
$3,624.54 — Payable $18.50 per week, commencing November 13, 1945.

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


text:
    (No. 3873
    Harry Wilson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1945.

    Clarence B. Davis, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Fisher, C. J.

Claimant alleges that on August 10, 1943 he was injured by reason of an accident arising out of and in the course of his employment by the respondent as Janitor-Clerk in the office of the Clerk of the Appellate Court for the Third District, at Springfield, Illinois.

Claimant seeks an award for medical expenses incurred, compensation for temporary total disability, and for permanent partial disability.

The record consists of the Complaint, Report of the Clerk of the Appellate Court for the Third District of Illinois, Claimant’s Transcript of Evidence, and Statement, Brief and Argument of both Claimant and Respondent.

From the record, it appears that on August 10, 1943 claimant was cleaning a file in the Docket Room in the office of the Clerk of the Appellate Court for the Third District. In order to reach the top file it was necessary for claimant to use a ladder and, as he was standing on this ladder, he fell, striking his back and shoulders on a chest of drawers. The Chief Deputy Clerk was immediately notified of the accident.

The claimant continued to work until August 31, 1943, at which time he states he was unable to continue to perform his duties because of his injuries. Claimant was treated by Dr. Martin B. Jelliffe from August 10, 1943 to October 27,1944, and thereafter was treated by Dr. J. J. Pleak because of the death of Dr. Jelliffe.

Claimant was paid $250.00 for unproductive time subsequent to August 31, 1943, which must be deducted from any. compensation found to be due claimant.

From the record, we find that claimant and respondent were operating under the provisions of the Workmen's Compensation Act; that claimant was injured in the course of his employment and is entitled to the benefits of the Workmen’s Compensation Act.

Claimant is married and has no children under 16 years of age dependent upon him for support. Claimant expended the sum of $277.50 for medical services rendered on account of his injuries, for which sum he is entitled to be reimbursed. Claimant also seeks reimbursement for $160.00 expended for the rental of an ultraviolet ray lamp, and $61.21 expended for drugs. It does not appear that the expenditures for drugs and an ultraviolet ray lamp were necessary to cure or relieve the injury, or that they were prescribed or advised by claimant’s physician. The claim for reimbursement of these expenditures must, therefore, be denied.

Claimant has not established his claim for permanent partial disability, and this portion of his claim must be denied.

Dr. Pleplc testified on August 17, 1945 that, in his opinion claimant at that time was able to do light work. We conclude from the evidence that the claimant was disabled from August 31,1943 until April 17,1945, for which period he is entitled to receive compensation in accordance with the provisions of the Workmen’s Compensation Act.

Claimant’s annual salary was $1800.00, and his average weekly wage exceeds the maximum of $15.00 provided by section 8 (h) of the Workmen’s Compensation Act; therefore, claimant’s compensation rate would be the maximum of $15.00, increased by 171/2% by the provision of section 8 (m), or $17.63 per week. Claimant is entitled to have and receive from respondent the sum of $17.63 per week from September 1, 1943 to April 17, 1945, a period of 84-6/7 weeks, or $1,496,03, plus $277.50 expended for medical services, from which must be deducted the sum of $250.00 paid to claimant for unproductive time, leaving a balance due claimant of $1,523.53.

An award is therefore entered in favor of claimant, Harry Wilson, for $1,523.53, 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.”


author: Eckert, J.

text:
    (No. 3895
    George M. Gammon, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1945.

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

On July 8, 1944, the claimant, George M. Gammon, an employee of the State of Illinois, Department of Public Works and Buildings, while repairing the pavement on Illinois Boute No. 148 south of Christopher, Franklin County, Illinois, slipped from a truck, and fell backwards onto the pavement. He sustained a fracture of his right arm above the wrist.

Immediately following the accident, claimant was placed under the care of Dr. W. W. Sherer, of Christopher. He was treated by Dr. Sherer until September 9, 1944, when the doctor reported to the respondent that claimant was able to return to light work, and that no permanent disability was expected. Dr. Sherer discharged claimant as of that date.

At the time of the accident, 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. The accident arose out of and in the course of decedent’s employment.

The claimant is a man sixty-five years of age, and has no children under sixteen years of age dependent upon him for support. He had been employed by the respondent since June 19, 1944 at the rate of sixty cents an hour. Employees of the respondent, engaged in the same capacity, and at the same rate as claimant, are employed less than two hundred days a year; eight hours constitute a normal working day. Ho claim is made for medical or surgical services, but claim is made for temporary total disability, and for twenty-five per cent permanent loss of use of claimant’s right hand.

Claimant was incapacitated from the date of the injury, July 8, 1944, until September 9, 1944, a period of nine weeks. Under the provisions of the Workmen’s Compensation Act, claimant’s average weekly wage was $18.46, and his compensation rate is $9.23, plus 171/2%, or $10.84 per week. For nine weeks temporary total incapacity, claimant was therefore entitled to the aggregate amount of $97.56. He was paid by the respondent, however, the sum of $112.40,or an over-payment of $14.84. This amount must be deducted from any award made in this case because the claim for additional compensation for temporary totrl disability is not sustained by the record.

The claimant, testifying on his own behalf, stated that he had complete use of his right hand prior to the injury; that the fingers of the right hand are stiff; that he can only partially close his hand with great effort; that he has no strength in his right wrist; that it is very painful and does not rotate; and that the right wrist is thicker than the left.

Dr. W. M. Sherer, of Christopher, the treating physician, testifying on behalf of claimant, stated that claimant had sustained a Colies ’ Fracture with some deformity; that an X-ray picture taken after the cast was removed showed a complete repair of the fracture line; that claimant has some inability to flex and extend his fingers, and slight limitation in extension and flexion.

From all the evidence, and from personal observation of the claimant by the court, it appears that claimant has sustained a fifty per cent permanent partial loss of use of his right hand. He is therefore entitled to an award in the sum of $921.40 for such permanent partial disability, from which must be deducted the over-payment of $14.84.

An award is therefore made to the claimant in the sum of $906.56, of which $661.24 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,” and is payable, upon approval, from the appropriation from the Road Fund in the manner provided in such act.


text:
    (No. 3913
    Bessie I. Perry, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1945.

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

Claimant, Bessie I. Perry is the widow of John B. Perry, deceased, who was formerly employed by the Department of Public Works and Buildings, as a patrolman’s helper. On December 9, 1944, while flagging traffic on U. S. Route No. 45, about four miles south of Mattoon, he was struck by a car. He died April 27,1945. Claimant, as widow, seeks an award for the death of her husband under the provisions of the Workmen’s Compensation Act.

At the time of the accident, which is alleged to have resulted in the death of John B. Perry, the employer and employee were operating under the provisions of the Workmen’s Compensation Act of this state, and notice of the accident and claim for compensation were made within the time provided by the Act. The accident arose out of and in the course of decedent’s employment.

Decedent had been employed by the respondent continuously for more than one year prior to his death at an annual salary of $1448.80. Under section 10 (a) of the Workmen’s Compensation Act, compensation must be computed on the basis of this annual wage, making decedent’s average weekly wage $27.86, and his compensation rate $13.93. The injury having occurred subsequent to July 1st, 1943, this must be increased 17%%, making the compensation rate $16.37 per week. The decedent had no children under sixteen years of age dependent upon him for support at the time of his death.

From the report of the Division of Highways, which has been filed in the case, it appears that at the time of the accident the decedent was one of a group of employees engaged in pavement repair. The group loaded a truck with tools and materials at Neoga, in Cumberland County, and. from there worked north on U. S. Route No. 45, stopping from time to time to repair small breaks in the pavement. About 11:00 o ’clock in the morning they stopped approximately four miles south of Mattoon, parking the truck on the east half of the pavement facing north. The decedent was south of the truck near the center line of the highway, flagging traffic, and at the time of the accident had stopped north bound traffic to allow south bound traffic to pass the truck. A north bound car, driven by Mr. Van V. Elbler, of Toledo, Illinois, failed to stop at the rear of the line of standing cars, drove onto the shoulder east of the pavement, around the line of parked cars, and back onto the pavement. It struck the decedent before coming to a stop across the center line of the highway, and threw the decedent to the pavement.

Immediately following the accident, Perry was placed under the care of Dr. W. E. Rhodes, of Toledo. On December 13, 1944, Dr. Rhodes reported to the Division of Highways that Perry had sustained a fracture of the 7th, 8th, and 9th ribs on the left side, a contusion on the back of the head, bruises on the right shoulder, and bruises up and down the spine. The doctor stated that he expected no permanent disability.

On January 12,1945, Dr. Rhodes reported further to the Division that he had discharged Perry on January 10, 1945, and that there was no permanent disability. Perry returned to work January 22, 1945. On April 2, however, following complaints of illness, he again consulted Dr. Rhodes, who then made a tentative diagnosis of intestinal obstruction, and on April 8, following an X-ray, recommended that Perry be hospitalized under a surgical specialist. On April 12, Perry was taken by ambulance to Barnes Hospital, St. Louis, Missouri, where he was placed under the care of Dr. Nathan A. Womack.

From the subsequent report of Dr. Womack it appears that Perry was suffering from severe abdominal pain when he entered Barnes Hospital, and had had a complete bowel obstruction for three days. On April 17, an operation was performed, and numerous bands of adhesions were found within the abdomen. In regard to the adhesions, Dr. Womack stated:

“They seem to have originated from a lesion on the right side of his transverse colon. This was definitely inflammatory in type, and the impression gained was that it was connected with inflammation of the omentum in this region. A portion was removed for microscopic study and this was verified. Extending from this area of inflammation there was a band of scar which stretched down to the termination of his small intestine, cutting it off completely. This had apparently been a progressive lesion. It was necessary to establish a new connection between his small intestine and his cecum. This was done and his condition following operation was satisfactory. His post-operative convalescence was good.”

On April 27th Perry stated that he had not felt better in the past six or eight months, and was anxious to go home. He had breakfast, and was smoking a cigarette when he suddenly ceased breathing. Dr. Womack was of the impression that the sudden death was due to embolus to his pulmonary artery, but an autopsy following the death failed to substantiate the theory, and failed completely to show any cause for the sudden death.

In his report to the Division of date May 2, 1945, Dr. Womack also stated:

"In reviewing his lesion insofar as you are concerned in the Division of Claims, I would say that the history of trauma to the abdomen is in complete accord with our operative findings, and I would therefore surmise that at the time of injury he received some, damage to the omentum, which resulted in hemorrhage and subsequent scar formation. His small intestine become involved in a band of this scar and as the fibrous tissue contracted it eventually closed off the small intestine completely.
“This is a very rare situation, but I am of the opinion that a claim on the part of his relatives associating his disease with the injury, has a very definite organic basis.”

The court is of the opinion that the death of John B. Perry was a result of the injury which he received on December 9, 1944, and which arose out of and in the course of his. employment. Claimant is therefore entitled to an award under Section 7 (a) of the Workmen’s Compensation Act in the amount of $4,000.00, which must be increased 17%% under Section 7 (1), making a total award of $4700.00. From this must be deducted the aggregate sum of $170.20, compensation payments made to Perry prior to his death, leaving a balance of $4,529.80

Award is therefore made in favor of the claimant, Bessie I. Perry, in the amount of $4,529.80 to be paid to her as follows:

$ 792.78 which has accrued and is payable forthwith:
3,737.02 which is payable in weekly installments of $16.37 per week, beginning November 13, 1945, for a period of 228 weeks, with an additional final payment of $4.66.

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 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,” and is payable, upon approval, from the appropriation from the Road Fund in the manner provided in such act.


text:
    (No. 3725
    Ada Dial, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1946.

      Petition of claimant for rehearing denied March 19, 1946.

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

On June 18, 1941, the claimant, Ada Dial, was employed by the respondent as an attendant at the Anna State Hospital, Anna, Illinois. While discharging her duties as such attendant, she fell on concrete steps of the hospital, sustaining injuries which she alleges resulted in permanent partial loss of the use of her right hand, her left eye, and her back, and total and permanent disability.

At the time of the injury, 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. The accident arose out of and in the course of decedent’s employment.

From the departmental report, it appears that, as a result of the fall, claimant received several small abrasions and a suffusion at the left side of the forehead, and several small scratches on the left upper arm; that immediately after the injury she complained of pains in the right wrist joint and on the left thigh. There were, however, no evidences of visible injury to the wrist or thigh, the injuries were considered mild, and there were no symptoms of brain concussion.

Claimant continued to perform her regular duties until August 5, 1941, at which time she was obliged to quit work because of the severity of the pain in her back. She also complained of pain in the region of the gall bladder, left wrist and both knees, and complained of shortness of breath on exertion and swelling of' her feet and ankles. She was hospitalized at the Anna State Hospital from August 6, 1941 to August 19, 1941, when she left the hospital and returned to her home at Mc-Leansboro, Illinois.

From a physical examination of the claimant, made at the hospital in April 1942, the following diagnosis was made:

1. Chronic, progressive, productive, osteo-arthritis, involving the entire spine and all joints and body surfaces.

2. Nitral stenosis with partial decompensation. The examining physician stated that the arthritic changes of the spine were of long standing, and that “while the alleged injury may have aggravated the pain in her back, it is not the original cause.” He found no evidence of injury involving the spine and stated that the condition would gradually progress until claimant developed a “Poker Spine."

The claimant, testifying on her own behalf, stated that she suffered an injury to her left eye, and that since the accident there is ‘‘a blur over the sight of that eye”; that she has not been able to open the lid of the left eye as well as she could before the accident, and that the upper lid droops. She also testified that there is a sunken place about an inch and a quarter in diameter in her forehead as a result of the injury. She testified that since the accident she can not grasp anything with the right hand, and that the bone of her right thumb is pushed up. There was no further or corroborating evidence as to these specific injuries.' Claimant stated that she had constant pain in her back since the injury, and that walking increased the pain. She stated that since she returned to her home in August, 1941 she has not been able to do her ordinary house work; that she is unable to stand on her feet because of the pain in her back; and that any work she does must be done sitting down.

Claimant testified that she had a leave of absence from August 19, 1941, until March, 1942 when she returned to the institution and told the secretary of the Managing Officer that she would return to work if she could not get an extension of her leave. She stated: “I said there were some places I could work and some I couldn’t. I said I wouldn’t want to try to work where I would have to climb steps or on a violent ward.” Following a physical examination, however, claimant was ádvised that she was not physically able to perform her duties as an attendant. She did not return to the hospital.

James Shriver, a radiologist,- of Harrisburg, was called as a witness on behalf of claimant. He testified that he made an X-ray of claimant’s back on June 13, 1942; that the X-ray disclosed claimant’s first lumbar vertebra tied to the second lumbar on both borders by arthritic deposits; that it disclosed deposits between the second and third, and between the third and fourth vertebrae, with lipping of the fourth lumbar vertebra. He also stated that the fourth lumbar vertebra showed a traumatic effect, and that the fifth lumbar vertebra had some arthritic deposits, with the right border shorter than the left.

The witness was then asked whether claimant was completely disabled' from the performance of her usual labors. His answer was: “Well, I don’t like to answer that question. I don’t know.”

Dr. E. M. Cummins, also called as a witness for the claimant, testified that the X-ray, taken by James Shriver on June 13, 1942, showed arthritic deposits not only of the lumbar vertebras, but of the dorsal vertebrae; that there were arthritic deposits between the ninth and tenth dorsal vertebrae which had coalesced, as had the eleventh and twelfth dorsal vertebrae. He testified that the first and second lumbar vertebrae, the second and third, and the fourth and fifth, had completely coalesced; that there was a crushing of the upper and outer lip of the fourth lumbar vertebra on the left side; that the X-ray showed very distinctly that claimant: “can’t use this spine at all.” He stated that the crushing of the upper and outer lips of the fourth lumbar vertebra could have been caused by trauma, and that the condition was permanent and progressive.

It is clear from the record that claimant sustained an injury in the course of her employment. She has failed to prove, however, by a preponderance of the evidence, that she has sustained any specific loss as a result of that injury, or that she is totally and permanently disabled. The testimony of claimant’s own witness negatives her claim for a permanent and total disability; her testimony that she is unable to do any type of work is insufficient to entitle her to an award, and is contradicted by her own offer to return to work at the hospital.

If claimant has sustained a permanent partial disability, she must establish by competent evidence the difference between the average amount which she earned before the accident and the average amount which she is able to earn in some suitable employment after the accident. Evans vs. State, 13 C. C. R. 65; Doyle vs. State, 13 C. C. R. 179. This, claimant has made no attempt to do, and in the absence of such proof no award can be made for partial permanent disability.

Claimant, however, is entitled to an award for temporary total disability from August 6, 1941 to April 8, 1942, a period of thirty-five weeks, for which time she was paid the total amount of $252.00. During the year preceding the injury, claimant was employed by the respondent at a salary of $67.00 per month. Her compensation rate is $11.03 per week.

She is therefore entitled to receive the sum of $11.03 per week for thirty-five weeks, or $386.05, from which must be deducted the sum of $252.00 paid to her for unproductive time.

An award is made to claimant in the amount of $134.05, 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.”


author: Damron, J.

text:
    (No. 3765
    Harry J. Laughlin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1946.

    H. Grady Vien and Charles W. Hatch, of counsel, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Damron, J.

This complaint was filed on the 23rd day of November, 1942. It is a claim for Two Hundred Twenty Dollars ($220.00), alleged to be due claimant for the use of his private owned automobile while employed by the respondent at the rate of four cents (4c) per mile.

The record consists of the complaint, departmental report, transcript of evidence, and claimant’s waiver of brief and argument.

The record discloses that the above named claimant was employed by the respondent in its Department of Public Works and Buildings, Division of Highways, as a State Highway Patrolman. The complaint alleges, and the evidence of the claimant supports the allegation, that the claimant was instructed and directed by his superior officers, in the Division of Highways, to use his own automobile in the performance of his official duties for some months prior to December, 1940.

The complaint further alleges, and the claimant so testifies, that the respondent did reimburse him for the use of such car, except for the months of December, 1940, and January, 1941. That during the month of December, 1940, the claimant says that he is entitled to the sum of $99.72, and for the month of January, 1941, the sum of $120.28, making a total of $220.00, all as shown by detailed statements attached to the complaint and marked Exhibits A and B.

On January 8, 1943, the Division of Highways filed its departmental report, showing, in chronological sequence, the history of the employment of this claimant for the respondent, together with copies of letters which were sent to the claimant by the Department. This report shows that on January 25,1941, this claimant wrote a statement in reference to his claim and filed it with the Department. It is in words and figures as follows:

“To whom it may concern, I, the undersigned, have orders from Don Clark, who at the request of myself asked for meals when I was out 12 or 14 hours a day, this he said could not be granted, but he allowed me to drive my personal car and I could be compensated that way, and he knowing that a State Police car had been assigned to me for the purpose of using in the capacity of Drivers’ License Examiner. This car was issued to me for the purpose of saving the State money that I would be entitled to if 1 used my personal car, as X was being sent from one town to another on Special Examinations that meant lots of miled of travel.”

It is always incumbent upon the claimant to prove his ease by greater weight or preponderance of the evidence, and no award will be entered against the State unless a claim has been clearly proven and it is shown that some legal or equitable right has been denied the claimant. The burden of proof is always upon the claimant. We do not find sufficient proof in this record to warrant a finding for the claimant, and there is a total lack of any proof to show that claimant is entitled to be reimbursed for the alleged use of his private owned automobile during the course of his employment for the months of December, 1940, and January, 1941. Claim denied.


text:
    (No. 3818
    John A. Sten, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1946.

    Erman A. King, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Damron, J.

-This complaint was filed on the 4th day of November, 1943. It seeks an award for an alleged injury to claimant while employed by the respondent. The record consists of the complaint, departmental report, waiver of statement, brief and arguments on behalf of claimant and respondent.

This claimant resides at Osco, Henry County, Illinois, and at the time of the injury complained of he was employed by the Division of Highways.

On September 8, 1943 while claimant was cleaning weeds from the sickle bar of a power motor east of the village of Cambridge on S. B. I. Route 44 in Henry County, an operator of the power motor eased the brake pressure and allowed the machine to roll back down the slope. Claimant’s left ring finger was caught in the machinery and severed at the junction of the third and fourth phalanges. He was Immediately taken to a physician at Cambridge who rendered first aid. Later claimant was treated by Dr. W. H. Meyer of Coal Valley.

On September 11, 1943 Dr. Meyer reported as follows:

“Crushing injury to left ring finger. Distal phalanx severed. Amputated left ring finger at distal joint. About one-half inch middle phalanx removed by bone forceps to allow flap to cover stump. Permanent disability is loss of one-half of left ring finger."

Claimant received temporary total disability for the period from September 16 to September 26, 1943. On September 27, 1943 claimant returned to work for the Division.

The Departmental Report shows that all medical and hospital bills incurred by claimant in connection with this injury were paid by respondent.

From a consideration of the record we make the following findings:

That the claimant and respondent were on the 8th day of September, 1943 and prior thereto operating under the provisions of the Workmen’s Compensation Act; that on the date last 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 the claimant during the year next preceding the1 injury were $960.00, and that the average weekly wage was $18.46; that claimant at the time of the injury was 70 years of age and had no children under 16 years of age dependent upon him for support ; that all necessary first aid, and all medical and hospital services required were provided for by respondent herein.

We further find that as a result of such accident claimant has sustained a complete loss of the third finger, commonly called the ring finger, of the left hand.

An award is therefore entered in favor of claimant, John A. Sten, in the sum of $271.25, 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,” and is payable, upon approval, from the appropriation from the Road Fund in the manner provided in such act.


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    (No. 3853
    City of Jacksonville, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1946.

    Walter Bellati, City Attorney, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, J.

The claimant, City of Jacksonville, a municipal corporation, maintains and operates a inunidipal water plant supplying water for residential and commercial purposes. The Illinois School for the Deaf, conducted by the respondent at Jacksonville, under the direction of the Department of Public Welfare, is one of the large consumers supplied by the municipal water plant.

To measure the water used by the school, three meters were installed by the claimant. The monthly readings of the three meters are combined, and the respondent billed for the combined consumption at a flat rate of 9.4 cents per thousand gallons.

It is alleged by claimant, that during the year 1941, one of the meters failed to function properly, was removed and repaired, and again placed in operation on August 16th with the indicators set at zero. The claimant alleges that thereafter the meter was incorrectly read until January, 1943, the meter reader failing to add a cipher to his reading of the gallons consumed.

In January, 1943, a corrected reading showed an actual consumption of 27,419,175 gallons in excess of the gallonage which had been billed the respondent during the period in question, and the claimant alleges that there was due the municipality for this excess the sum of $2,-577.40.

After some discussion between an officer of the respondent and the claimant, a compromise settlement was suggested which would have reduced the amount due claimant to $1,546.86. Of this amount, the respondent, on September 30, 1943, paid the sum of $773.45, leaving a balance of $773.41.

Claimant also alleges that there was a balance due the municipality on water bills submitted from January, 1943, through June, 1943, totaling $1,728.94. Of this amount, however, it is admitted that $1200.00 has now been paid by the respondent, leaving $528.94 unpaid upon 'the bills for that period. There is no dispute as to this item. The total claim, therefore, now amounts to $1302.35.

The respondent contends that the claimant has not proved its claim by preponderance of the evidence. It contends that Ralph W. Hutchison, who testified on behalf of the claimant, is not shown to have examined the meter personally, and that the testimony of the person or persons who made the readings was not introduced. Mr. Hutchison is the Superintendent of Collections for the Water and Light Department of the City of Jacksonville, and among his duties is the compilation of bills and accounts due to the claimant from various customers, together with the billing of the customers, and the collection of accounts. He testified that when he first became Superintendent, he discovered the erroneous readings of the meter in question, and immediately sought to remedy the error. He testified that the meters had been read and the bills presented each month; that the readings were incorrect in that the reader failed to add a cipher, the same error occurring for sixteen consecutive readings before being discovered. The respondent made no objection to Mr. Hutchison’s testimony; furthermore, the Department of Public Welfare, in its report forming a part of the record in the case, substantially confirmed the alleged error, which was an error in the reading of the meter, and not an error in the operation of the meter. The meter itself showed the correct reading. The court is of the opinion that the claimant has proved the material allegations of its claim by a preponderance of the evidence.

The court is also of the opinion that an allowance of this claim is not contrary to Article IV, Section 19 of the Illinois Constitution. Payment of this claim is in no way payment of extra compensation, directly or indirectly, after the rendition of services or the making of a contract. The purchase of water for use of the Illinois School for the Deaf is authorized by law. The principle involved was clearly set forth in the case of Fergus vs. Brady, 277 Ill. 272, at page 279. The Supreme Court there said:

“In Section 19, claims under any agreement or contract made by express authority of law are excepted, and if there is some particular and specific thing which an officer, board, or agency of the State is required to do, the performance of the duty is expressly authorized by law. That authority is express which confers power to do a particular identical thing set forth and declared exactly, plainly and directly, with well defined limits, and the only exception under which a contract exceeding the amount appropriated for the purpose may be valid is where it is so expressly authorized by law. An express authority is one given in direct terms, definitely and explicitly, and not left to inference or to implication, as distinguished from authority which is general, implied or not directly stated or given. An example of such express authority is found in one of the deficiency appropriations to the Southern Illinois Penitentiary which has been paid, and serves only as an illustration. The authorities in control of the penitentiary are required by law to receive, feed, clothe and guard prisoners convicted of crime and placed in their care, involving the expenditure of money, which may vary on account of the cost of clothing, food and labor beyond the control of the authorities, and which could not be accurately estimated in advance for that reason or by determining the exact number of inmates."

The authorities of the Illinois School for the Deaf have an obligation under the law equal to the obligation of the authorities in' control of a state penitentiary.

The respondent also contends that any award in this case should be computed on a block commercial rate instead of a flat rate of 9.4 cents per thousand gallons. Whether or not the respondent has previously paid a flat rate pursuant to a written agreement, is disputed, but it is undisputed that for a long period of time the respondent has in fact paid claimant for water on the basis of a flat rate. The difference per thousand is very slight, and the evidence shows that the respondent has been furnished water by the claimant below the cost price to the municipality. The court is of the opinion that the claim is properly computed upon the flat rate charged by the claimant and previously paid by the respondent.

Claimant and respondent also disagree as to whether or not a compromise was offered by the respondent and accepted by the claimant. This is immaterial since the claimant has indicated its willingness to accept the so-called compromise sum.

An award is therefore entered in favor of the claimant in the amount of $1302.35.


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    (No. 3889
    Francis Hallisey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1946.

    T. V. Houlihan, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Fisher, C. J.

A petition for a rehearing of this cause was filed herein on November 13, 1945.

The record discloses that the petition for a rehearing was not filed within thirty (30) days from the determination of the claim, as required by Buie 33 of this Court, and a rehearing must, therefore, be denied.


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    (No. 3892
    Oscar Phelps, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1946.

    B. Gerald Trampe, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Fisher, C. J.

This claim was filed December 8, 1944, and the record of the case completed on November 19, 1945. The claim is for benefits under the Workmen’s Compensation Act because of injuries received by the claimant while engaged in his duties as an employee of respondent.

Claimant alleges that on the 23rd day of January, 1944 he was émployed by respondent in the Department of Public Welfare as an attendant at the Dixon State Hospital, Dixon, Illinois; that his duties required him to supervise and care for dangerous feeble-minded and epileptic patients.

That, on January 23,1944 while attending a patient, one James Martin, claimant was suddenly and viciously attacked by the said James Martin and other patients who beat the claimant about the head and body, knocking him to the floor, rendering him, unconscious and inflicting numerous and serious injuries from which claimant has not recovered and which have left him permanently and totally disabled. Claimant seeks an award under the Workmen’s Compensation Act for total permanent disability and a pension for life.

The record consists of the Complaint, Department Report, Transcript of Evidence, Abstracts of Evidence, and Waiver of Brief by both claimant and respondent.

At the time of the injury claimant was married and had no children under sixteen years of age dependent upon him for support.

Claim was filed in apt time. Claimant and respondent were operating under the provisions of the Workmen’s Compensation Act, and claimant is entitled to the benefits of the said Act. The facts are not in dispute, and the only question to be determined here is the extent of the injuries sustained by the claimant.

From the evidence, it appears that Mr. Phelps was taken to the Illinois Research Hospital at Chicago, Illinois, for examination and treatment, but the result of this examination and treatment is not disclosed by the evidence except by the testimony of his daughter, Mrs. Maxine Hobbs, which testimony is entirely incompetent.

Dr. Stephen P. Ward, a physician and surgeon at Metropolis, Illinois, testified that he was the family physician of the claimant since 1934, and that prior to the injuries complained of claimant was a normally healthy man. Dr. Ward testified that on July 6, 1944 he examined the claimant and made a complete physical examination; that he found the claimant to be very emotional; that claimant did not respond promptly to questions, and would cry upon the slightest questioning; that he diagnosed the claimant as a very emotional man with symptoms of residual organized occipital clot from brain concussion, with symptoms of right cervic pressure injury. Dr. Ward further testified that it was his conclusion that the claimant was totally and permanently incapacitated.

Dr. Ward testified that he again examined the claimant on September 12,1944 at his office in Metropolis, and that at this time he found no improvement.

On July 6, 1944 Dr. Ward made a written report of his examination of the claimant, which is, in part, as follows :

“This is to certify that I have examined Oscar Phelps of Golconda, Illinois, and in my opinion I believe that he is totally and permanently disabled for the following reasons:
Persistent occiput headache, vertigo, nervousness and emotional instability.
I believe that be has residual organized blood clot in the right occipital area, pressure on the right cervical nerves, causing neuralgic symptoms over their distribution. This is probably due to injury by external violence which occurred January 23rd, 1944. I believe this man will make little or no improvement for at least six months, at which time he should be rechecked for confirmation of complete and total disability.”

Dr. Ward again, examined the claimant on September 8, 1944, and on September 12, 1944 reported as follows :

“This is to certify that on September 8th, 1944, I re-examined Oscar Phelps and found no improvement in his physical disability and believe him to be totally and permanently disabled.
This disability is due to external violence received January 23rd, 1944 and are persistent headache, vertigo, nervous and emotional instability, which I believe to be a residual blood clot in the right occipital area. There still remains a neuralgic symptom over the right cervical area, distribution of it without a doubt was caused by external violence causing fracturing pressure on the anterior roots. Briefly, this man is totally and permanently disabled from the result of his injury."

There is much testimony by Mr. Phelps, and by his wife, Eessa Phelps, all being to the effect that the claimant is totally disabled.

The record shows that claimant was paid $501.53 for unproductive time, which must be deducted from any award entered herein.

From all the evidence herein, we must conclude that the claimant is totally and permanently disabled as a result of the injuries sustained while engaged in his duties as an employee of respondent, and is, therefore, entitled to the benefits of the Workmen’s Compensation Act. At the time of the injury claimant’s salary was $110.00 per month, and employees engaged in similar capacities received a salary of $110.00 per month, or $1320.00 per year. Claimant’s compensation rate is $14.91 per week. Claimant is, therefore, entitled to an award under the Workmen’s Compensation Act, Section 8 (b) and (1) in the sum of Forty-Seven Hundred Dollars ($4700.00), less overpayment of Five Hundred One and 53/100 Dollars ($501.53), or a total of Forty-one Hundred Ninety-eight and 47/100 Dollars ($4198.47); and thereafter, a pension for life under Section 8 (f) equal to 8 per centum of the amount due under Section 8 (b) and (1).

An award is therefore entered in favor of claimant, Oscar Phelps, in the sum of $4198.47, payable as follows :

$1535.73, which is accrued and payable forthwith;
$2662.71, payable in weekly installments of $14.91, beginning with the week of January 13, 1946; and thereafter a pension for life in the sum of $376.00 annually, payable in monthly installments of $31.33.

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


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    (No. 3905
    Thelma M. Edwards, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1946.

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

Claimant, Thelma Edwards is the widow of Elmer J Edwards, deceased, who was formerly employed by the Department of Public Welfare as an attendant at the Dixon State Hospital. On November 28, 1944, while performing his duties as such attendant, on the night shift at Cottage A-3, he was attacked, choked, and strangled to death by one Michael Peluso, a post-encephalitis patient committed to the hospital by the Juvenile Court of Cook County, Illinois. Claimant, as widow of the deceased employer, seeks an award for the death of her husband under the provisions of the Workmen’s Compensation Act.

At the time of the accident which resulted in the death of Elmer J. Edwards, the employer and employee were operating under the provisions of the Workmen’s Compensation Act of this state, and notice of the accident and claim for compensation were made within the time provided by the act. The accident arose out of and in the course of decedent’s employment.

Decedent had been employed by the respondent continuously for more.than one year prior to his death, at a salary of $1,440 per annum. Under Section 10 (a) of the Workmen’s Compensation Act, compensation must be computed on the basis of this annual wage, making decedent’s average weekly wage $27.70 and his compensation rate $13.85 per week. The death having occurred subsequent to July 1st, 1943, this must be increased 17%%, making the compensation rate $16.27 per week. The decedent had no children under sixteen years of age dependent upon Mm for support at the time of his death.

Claimant is therefore entitled to an award under Section 7 (a) of the Workmen’s Compensation Act in the amount of $4,000.00, wMch must be increased 17%% under Section 7 (1), making a total award of $4700.00.

Claimant has also filed a verified petition seeking a partial lump sum payment. She states that Elmer J. Edwards left no real or personal estate of any kind or description; that she has incurred, and is personally liable for the payment of Coroner’s fees, arising out of a Coroner’s inquest on the body of Elmer J. Edwards, in the amount of $17.50, for the payment of funeral expenses in the amount of $491.30, for the purchase of a burial lot in the amount of $45.70, and for the payment of costs of admimstration in the estate of Elmer J. Edwards in the amount of approximately $150.00, or a total of $704.50. Claimant states that she owns no real or personal property; that she has no income from any source whatever except wages of $100.00 per month; and that she is the sole support of a thirteen year old son by a former marriage. She requests a lump sum payment of $1800.00, leaving the balance of the award to be paid in regular weekly payments.

The award in tMs case is not for a definite sum of money payable at all events over a definite period of years and months, but is contingent in its nature. It is, in legal effect, an award that if the claimant should live so long, and should remain unmarried she should have and receive the specified payments at the specified intervals, not exceeding, in all, the sum of $4700.00. Where there is a surviving widow and no cMld or children, there is no authority under the Workmen’s Compensation Act for the commutation of the award, or any thereof, to an equivalent lump sum. Illinois Zinc Co. vs. Ind. Com., 366 Ill. 480; Duncan vs. State, 11 C. C. R. 392. The petition seeking a partial lump sum payment must be denied.

Award is therefore made in favor of the Claimant, Thelma M. Edwards, in the amount of $4700.00, to be paid to her as follows:

$ 943.66, accrued, is payable forthwith;
3756.34, is payable in weekly installments ofi $16.27 per week, beginning January 8th, 1946, for a period of 230 weeks, with an addition final payment of $14.24.

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


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    (No. 3910
    Pearle M. Hoff, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1946.

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

Claimant alleges that she is the widow of Arthur H. Hoff, who, at the time of his death on March 28,1945 was employed by respondent in the capacity of a maintenance helper by the Division of Highways. That, on March 28, 1945, the said Arthur H. Hoff, while engaged in his regular duties, received an electrical shock from which he died. .

Claimant seeks an award under the Workmen’s Compensation Act for the death of her husband, the said Arthur H. Hoff.

The record consists of the Complaint filed pro se, a copy of Marriage.Certificate, Departmental Report, Stipulation, and Waiver of Brief and Argument by both claimant and respondent. It is stipulated that the Departmental Report, shall constitute the record in this case.

It appears that the deceased left his wife, the claimant herein, entirely dependent upon him for support, and at the time of his death had no children under the age of 16 years dependent upon him.

From the Departmental Report, it appears that Arthur H. Hoff was employed by the State of Illinois and, during the year immediately prior to his death his earnings amounted to $1,553.95, or an average of $29.88 per week.

The Department Report further shows:

“On March 28, 1945, at 1:50 P. M., Arthur H. Hoff, John Piraino, Ralph W. Dawdle, Clarence C. Kellogg, and William Boyd, employees of the Division of Highways, were performing various elements of work in and about a Division subway pump house, on State Bond Issue Route 121, where that route passes under the tracks of the Illinois Terminal Railway Company northeast of the city of Decatur. Electric wires, which carry current to the motors in the pump house, are about 14 feet above the north edge of the pump house. At the time of accident, Messrs. Hoff and Piraino were on top of the pump house, Kellogg was at the entrance td the pump house, Dowdle was inside the pump house, and Boyd at the bottom of the pump pit. Kellogg passed a 14-foot section of one-half inch pipe to Hoff and Piraino on top of pump house. This pipe was one of two sections to be installed as a grease line to serve bearings on a vertical pump drive shaft. A box scaffold had been erected on top of the pump house in connection with the removal of an electric motor and other heavy parts of the pump system. The roof of the pump house is sheet metal and equipped with an opening to permit access into the pump house from above. Mr. Hoff was raising the line of pipe upward and to the north through the scaffold preparatory to passing it down into the pump house. A strong wind was blowing from the south and it is believed that that element contributed to bringing the pipe into contact with the electric transmission wire (4000 volts). In any event, the contact was made and Mr. Hoff rendered unconscious. He fell into an angle of the scaffold. Artificial respiration was administered immediately by fellow employees and continued until the arrival of an ambulance, approximately 15 minutes later. Mr. Hoff was pronounced dead upon the arrival of the ambulance. The Division of Highways had immediate notice of the accident and will not be called upon to pay for any ambulance, medical, or hospital services.”

There appears to be no question that the deceased met his death during the course of and within the scope of his employment by respondent and that his widow,- the claimant herein, is entitled to the benefits of the Workmen’s Compensation Act.

Claimant is entitled to an award under the Workmen’s Compensation Act, Section 7 (a) and (1) in the sum of $4,700.00, payable $17.55 per. week.

An award is therefore entered in favor of claimant, Pearle M. Hoff, in the sum of $4,700.00, payable as follows:

$ 719.55, which has accrued up to January 9, 1946 and is payable forthwith;
3,980.45, payable at the rate of $17.55 per week, beginning with the week of January 16, 1946.

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. 3922
    Caroline Mangiamele, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1946.

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

This complaint was filed on the 21st day of July, 1945 by Caroline Mangiamele, surviving wife of Samuel Salvatore Mangiamele, deceased. It seeks an award under the Workmen’s Compensation Act for the death of claimant’s husband while employed in the Department of Public Safety, Division of State Police.

The record consists of the complaint, Departmental Report, waivers of statement, brief and argument on behalf of claimant and respondent.

The record discloses that claimant’s husband was 36 years of age; that he was married to claimant and was the father of two children, namely Dominico Daniel and Frances Nancy, each under the age of 16 years and dependent upon him for support. The record further discloses that the deceased was first employed by the Department of Public Safety, Division of State Police, on June 13, 1944 as a police officer, at a salary of $175.00 a month. However, on July 1, 1943 his salary was increased to $185.00 a month.

On May 20, 1945 the deceased was assigned by his superior officer to a police detail. It was the duty of this detail to escort official personages to and from ceremonies being held at Soldiers ’ Field in Chicago. It was the duty of the deceased to ride a motorcycle in front of an official car. On the last mentioned date about 1:15 P. M., while proceeding north on Field Drive in Grant Park, Chicago, deceased motorcycle struck some loose gravel, causing him to lose control of his machine, which struck and caromed off the curb and then crossed a small parkway located in the center of the street before coming to a stop in the south bound traffic lane. Claimant’s husband was thrown from the machine, striking his head on the concrete curb of the parkway. He was removed by ambulance to St. Luke’s Hospital in Chicago, where he was placed under the care of Dr. H. B. Thomas, Orthopedic Surgeon, who rendered first aid, and kept him under treatment and observation until the 25th day of May, 1945, on which date claimant’s intestate died as the result of the injuries sustained as aforesaid.

The record further discloses that following the accident the Department paid deceased’s full salary from the date thereof until the date of his death, or for the period of May 21 to May 25, 1945, inc. in the amount of $29.84. The Division also paid $614.60 representing physician and doctor bills.

From a consideration of this record we make the following findings:

That on the 21st day of May, 1945 claimant and respondent were operating under the provisions of the Workmen’s Compensation Act; that on the date last above mentioned, said claimant sustained accidental injuries which arose out of and in the course of his employment, from which he died; 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 by the provisions of Section 24 of said Act; that the earnings of the deceased during the year next preceding the injury were $2,220.00, and that the average weekly wage was $42.69; that the deceased at the time of the injury was 36 years of age and left surviving him his wife, Caroline Mangiamele, the claimant, and two children, all dependent upon him for support.

Claimant is therefore entitled to an award under Section 7 (h) of the Workmen’s Compensation Act in the amount of $4,800.00, which must be increased 17%% under Section 7 (L), making a total award of $5,640.00, from which must be deducted the sum of $29.84, paid to deceased for unproductive time, leaving a balance of $5,610.16.

An award is therefore entered in favor of claimant, Caroline Mangiamele, in the sum of $5,610.16, payable as follows:

$ 620.40 33 weeks, May 21, 1945 to January 7, 1946 — all of which has accrued and is payable forthwith.
$4,989.76 Payable $18.80 per week, commencing January 14, 1946.

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


text:
    (No. 3926
    Peter Peradotti, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1946.

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

On May 1st, 1942, the claimant, Peter Peradotti, a motorcycle patrolman in the employ of the respondent, was thrown from his motorcycle while forming part of a motorcycle escort for Admiral Downes of Great Lakes Naval Training Station. Following the accident, claimant was hospitalized at the Highland Park Hospital until May 4,1942, and was under the care of Dr. H. B. Thomas until August 25, 1942, when he returned to work. No claim is made for medical services, nor for temporary disability. Claimant, however, alleges that he suffered a 15% permanent total disability for which respondent agreed to pay him the sum of $720.00; that through error he received only $400.80.

The claim was filed on August 18, 1945, approximately three years after the last payment of compensation. Respondent has filed a motion to dismiss on the ground that the alleged cause of action is barred by the statute of limitations.

Section 24 of the Workmen’s Compensation Act of this State provides that application for compensation must be 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. Otherwise the right to file such application is expressly barred. This court has consistently held that it has no jurisdiction of a claim filed after the expiration of the time fixed by the act. Scott vs. State, 13 C. C. R. 163.

The claimant,' however, contends that his claim is based upon an error in, the amount paid to him, and is not such an application for compensation as is barred by the act.

The court is of the opinion 'that claimant has failed to state a cause of action, except under the provisions of the Workmen’s Compensation Act. Under the provisions of that act his claim is barred. Section 24 is clear and specific. Claimant chose to accept a sum, which he now contends is erroneous, instead of pursuing his rights under the act within the statutory period. No remedy for such change of position is manifest. The motion of the respondent is granted. Case dismissed.


text:
    (No. 3930
    Charles E. Hogan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1946.

    Little, Perrine and Clausen, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Damron, J.

Claimant, Charles E. Hogan, has been employed by the respondent since October 12,1925, at the State Training School for Girls at Geneva, as foreman of the heating plant. He was paid for this work $210.00 a month until July, 1944. From the last mentioned date he has been paid $241.50 per month.

On September 26,1944 he went on duty at the School at 11:00 P. M. to fire the boiler and was to work until 7:00 A. M. In the room where this claimant worked coal was stored. Claimant testified there was about one hundred fifty tons or more, and on the outside of the building and adjacent thereto there were about five hundred tons, all on-fire, which was emitting smoke and gases. This fire had been smoldering for more than two months prior to September, 1944.

Some time after midnight on September 26, 1944 the claimant collapsed at the institution. He was taken to his home by a fellow employee. A physician was called, who upon examination found him in a collapsed condition; his heart was not functioning properly. He was treated by this physician during that night. The next morning another physician was called to assist in treating claimant. A diagnosis of carbon monoxide poisoning was made by the two physicians.

One of) the medical witnesses testified that he made an inspection of the place where claimant worked about two months prior to September, 1944, and found carbon monoxide gas or fumes being emitted at the aforesaid coal piles. This inspection was made by him, he testified, for the' reason that the claimant had an attack of gas poisoning at that time. He again made an inspection of the boiler room at the institution in September, 1944, following the collapse of claimant, and again detected the presence of gas fumes from the coal pile. He testified all doors and windows, with one exception, were closed at that time.

The testimony in support of this claim was taken • on December 7, 1945. At that time the physician testified claimant was emaciated, weak, was unable to walk any appreciable distance, poor appetite, had lost weight, even though he had received five blood transfusions. Both medical witnesses agree that claimant since September 26,1944 has been suffering from carbon monoxide poisoning and is totally and permanently disabled.

The Department Report filed in this case shows that respondent paid to claimant disability payments in the following amounts:

September, 1944 ............................................ $ 28.00
October, 1944 ............................................... 199.84
November, 1944 ............................................. 157.50
December, 1944 ............................................. 147.32
January, 1945 .............................................. 105.00
Total ................................................... 8637.66

The report also shows that for the twelve months immediately preceding the disability claimant was paid $2,520.00; that the respondent paid the sum of $328.30 for medical and hospital services rendered to and on behalf of claimant; and that claimant at the time of the disablement was married, but had no children dependent on him for support.

From a consideration of the record we make the following findings:

That the claimant and respondent were on the 26th day of September, 1944 and prior thereto operating under the provisions of the Workmen’s Compensation Act; that on.the date last 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 the claimant during the year next preceding the injury were $2,520.00, and that the average weekly wage was $48.46; that claimant at the time of the injury was 65 years of age and had no children under 16 years of age; that necessary first aid, and all medical and hospital services have been provided by respondent herein.

We further find that as the result of such accident claimant has sustained a complete disability which renders him wholly and permanently incapable of work; that claimant is entitled to have and receive from the respondent the sum of $4,700.00 to be paid to him by the respondent at a compensation rate of $17.63 weekly for complete and permanent disability, and thereafter a pension during life annually, payable monthly.

We further find that the sum of $637.66 has been paid to claimant as aforesaid; that $1,181.21 representing 67 weeks at $17.63 has accrued to January 9, 1946, and that said sum less $637.66 heretofore paid to the claimant as aforesaid, to-wit, the sum of $543.55 is payable in a lump sum forthwith; and the balance of $3,-518.79 is payable in 199 weekly installments of $17.63 and one final installment of $10.42. After such final installment is paid, claimant is entitled to an annual pension of $376.00, payable to him in monthly installments of $31.33 during the term of his natural life.

An award is therefore entered in favor of Charles E. Hogan, the claimant, for the total sum of $4,062.34 and a pension for life, payable as follows:

(a) The sum of $543.55 payable forthwith for compensation which has accrued from September 26, 1944 to January 9, 1946, the sum of $637.66 having heretofore been paid as temporary total disability compensation to claimant.

(b) The sum of $3,518.79 payable in 199 weekly installments at $17.63, commencing on January 16, 1946, and one final installment of $10.42; thereafter a pension as above indicated.

This Court hereby retains jurisdiction of this cause for the making of such other and further orders herein as may be in accordance with the provisions- of the Workmen’s Compensation Act.

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,” and is payable, upon approval, from the appropriation from the General Revenue Fund in the manner provided in such act.


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    (No. 3934
    Everett Wayne Bobbitt, a Minor, by Sophie Bobbitt, His Mother and Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1946.

    Neil H. Thompson, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Fisher, C. J.

This claim was filed on October 24,1945 for benefits under the Workmen’s Compensation Act. Claimant alleges that he was employed by the Department of Conservation of the State of Illinois on and prior to October 30, 1944 at the State Game Farm near Mt. Vernon, Illinois at a monthly wage rate of $125.00 per month for eight months and $135.00 thereafter. That on said date while engaged in his regularly assigned duties he was setting and driving posts at the State Game Farm aforesaid, that he was injured when a post driving machine then being operated by him struck his right hand above the second joint of the thumb, almost severing said thumb from his hand. That the State had immediate notice of the accident. That he was thereafter treated by Dr. W. G. Parker of Mt. Vernon until January 1945, and later by Dr. W. B. Bohne in St. Louis, Missouri. On February 3, 1945 he entered the Missouri Baptist Hospital in St. Louis, where he remained until February 16, 1945, during which time his hand and thumb were operated upon by Dr. Bohne. That hospital and medical bills have been paid by respondent.

The record consists of the complaint, Department Beport, and stipulation by the claimant and respondent that the Departmental Beport shall constitute the record in this case, and waiver in open Court of the right to file statement, brief and argument by both claimant and respondent.

The Department Beport sustains the allegations of the complaint. It therefrom appears that the claimant suffered the entire loss of use of the thumb on his right hand as a result of an injury sustained in the course and within the scope of his employment on the 30th day of October, 1944. As a result of said injury claimant was totally incapacitated from the date of the injury on October 30, 1944 until May 22, 1945, at which time he returned to his former employment.

Claimant was paid $270.00 for unproductive time, which must be deducted from any award entered herein. Claimant is therefore entitled to temporary total disability for 26 weeks at the rate of $17.39 per week, a total of $452.14 less overpayment of $270.00, or a total of $182.14.

Claimant is also entitled to compensation for the entire loss of use of his thumb - the sum of $17.39 for 70 weeks, or a total of $1,217.30,, making a total award to claimant for temporary total disability and the complete loss of use of his thumb the sum of $1,399.44.

The award to claimant is nearly all accrued, and therefore the entire award is made payable forthwith. An award is entered in favor of claimant in the sum of $1,399.44, 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,” and is payable, upon approval, from the appropriation from the General Revenue Fund in the manner provided in such act.


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    (No. 3438
    Harold Randolph, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 19, 1946.

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

This claim was filed January 15,1940 and the record of the case completed March 23, 1945.

It is stipulated that the claim be submitted for consideration upon the Complaint, Departmental Report and Medical Reports.

The entire record consists of the Complaint, Stipur lation, Order to Show Cause, Stipulation, Departmental Report at time of claimant’s illness. Subsequent Doctor’s Report dated August 20, 1944, Stipulation, and Waiver of Brief and Argument by respondent.

The record discloses that claimant became ill with typhoid fever while employed at the Manteno State Hospital on August 7, 1939. He seeks an award for permanent partial disability, and for medical care and expenses incurred during his illness.

It is disclosed, by stipulation, that claimant was incapacitated from August 7, 1939 to November 7, 1939 when he returned to his former employment at the same rate of pay. During his disability he was paid the sum of $217.17 for non-produictive time, which sum exceeds any amount that could be due him as compensation for temporary disability under the Workmen’s Compensation Act of this State.

There is no evidence whatever to sustain claimant’s allegation of permanent partial disability or medical expenditures, and the claim, therefore, cannot be allowed.

The claim for an award is denied.


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    (No. 3498
    Bessie Newton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 19, 1946.

    Paul D. Perona and William Zwanzig, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor and C. Arthur Nebel, Assistant Attorneys General, for respondent.
   Fisher, C. J.

This claim was filed May 18, 1940 and the record completed February 6, 1946.

The record discloses that on August 21, 1939 claimant, while employed as an attendant at the Manteno State Hospital, contracted typhoid fever. She was treated at the State Hospital from that date until February 14,1940 and returned to work on April 20,1940 at the same salary she received prior to her illness.

It is disclosed by stipulation in this Court that a typhoid fever epidemic existed at the Manteno State Hospital during the month of August, 1939 and this Court has decided that typhoid contracted under such circumstances was compensable under the Workmen’s Compensation Act of this State.

Claimant was paid $441.00 during the period of her illness from August 21, 1939 to April 20, 1940. Her salary was $63.00 per month. She had one child under the age of 16 years and therefore is entitled to compensation at the rate of $12.10 per week for 34 weeks and 4 days, or $418.31. She was overpaid $22.69 for temporary total disability which must be deducted from any award which may be granted to her.

Claimant seeks reimbursement for sums which she expended or otherwise obligated herself for medical, dental and nursing services and medicine.

Ciaimant testified that Dr. Daniel K. Hur, who attended her throughout her illness, was her personal physician; that she of her own choice requested him to attend her because she did not like the medicine they (meaning the staff physicians) were giving her. The dental services were also rendered at her own voluntary request. Under Section 8 of the Workmen’s Compensation Act, claimant having elected to obtain these services of her own physician and dentist, cannot be reimbursed for the expenses so incurred.

There is no showing in the record that claimant was compelled to obtain additional medicine, and her claim therefore must be denied.

Claimant expended $352.50 for nursing services. Her testimony is corroborated by the receipts introduced in the record. It further appears from the record that claimant was delirious and unconscious from August until the latter part of November while she was in the hospital; that the chief nurse informed claimant she should have a special nurse and, as the hospital did not provide special nurses, claimant should get one. This evidence in conjunction with the physician’s report revealing claimant’s condition from day to day, justifies an award reimbursing claimant for these expenses.

Claimant is, therefore, entitled to an award in the sum of $352.50 for charges incurred for nursing services, less $22.69 overpaid for temporary total disability, leaving a balance of $329.81.

An award is entered in favor of claimant, Bessie Newton, in the sum of $329.81.

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


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    (No. 3499
    Lucille A. Crouse, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 19, 1946.

    Paul D. Perona and William Zwanzig, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor and C. Arthur Nebel, Assistant Attorneys General, for respondent.
   Fisher, C. J.

Claimant, Lucille A. Crouse, while employed as an attendant at the Manteno State Hospital, contracted typhoid fever on August 18, 1939.

It is disclosed, by stipulation, that a typhoid fever epidemic existed at the Manteno State Hospital during the month of August, 1939, and this Court has decided that typhoid contracted under such circumstances was compensable under the Workmen’s Compensation Act of this State.

Claimant was a patient in St. Mary’s Hospital at Kankakee from August 21 to August 29, 1939, under the care of Dr. O. A. Phipps and Dr. John Horowitz. On June 18, 1940 she was examined by Dr. Paul Hletko of the Manteno State Hospital, who reported that claimant should return to work. She returned to work in the same capacity and at the same wages on July 8, 1940 and worked for four months, but has not worked since.

The respondent paid claimant $555.75 while she was ill for non-productive time. Her monthly wage at the time she became ill was $58.80 per month. She had one child under the age of 16 years. Her compensation rate is $12.10 per week, and she was entitled to $525.48 for total temporary disability for 43 3/7th weeks, and therefore was overpaid $30.27, which must be deducted from any award entered in her behalf.

Claimant, in her complaint, seeks compensation for total and permanent disability and reimbursement for sums allegedly necessarily expended for medical, hospital and nursing services.

The proof is wholly insufficient to sustain any finding of either partial or total permanent disability.

The only claim which merits consideration is that which' seeks reimbursement of expenses incurred by claimant for medical, hospital and nursing services.

Claimant testified that Dr. Phipps was her own doctor; that she went to the hospital at Kankakee at Dr. Phipps’ suggestion; that she never requested respondent to furnish a physician and that all such hills were incurred at her own request. Claimant manifestly elected to secure her own physicians and hospitalization at her own expense within the meaning of Section 8 of the Workmen’s Compensation Act and is not entitled to an award reimbursing her for medical, hospital and ambulance expense.

Claimant testified that she expended $257.50 for nursing services and the only proof to be found in relation thereto are the names and various amounts paid to the respective persons who are said to have furnished such services as testified to by claimant, and her additional testimony that owing to the epidemic of typhoid fever there was a general shortage of nurses and doctors at the Manteno State Hospital, and they all had to get outside nurses as claimant did. The testimony with respect to' the necessity of these services or the failure of the respondent to provide such services is not very substantial or impressive, but viewing the record as leniently as possible, it may bet regarded as sufficient to warrant an award reimbursing claimant for the expenses incurred for such nursing services.

Claimant is, therefore, entitled to an award of $257.50 for sums expended for nursing services, less the $30.27 overpayment for temporary disability, leaving a balance due claimant of $227.23.

An award is entered in favor of claimant, Lucille A. Crouse, in the sum of $227.23.

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


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    (No. 3834
    Cato Casey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 19, 1946.

    Maurice E. Gosnell and Noah M. Tohill, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Fisher, C. J.

This claim was filed on February 17, 1944 and the record of the case completed and claimant observed by the Court on January 9, 1946.

On July 24, 1942 claimant, Cato Casey, was employed by the Division of Highways, State of Illinois, as the driver of a truck being used in repair work on S. B. I. Route 12 (U. S. Route 50) about six miles west of Lawrenceville, in Lawrence County, Illinois. When another employee attempted to refuel the tank of an auxiliary motor mounted on the truck, with gasoline from a five gallon can, the gasoline ignited and the container was dropped, spilling the flaming gasoline over Casey. He suffered severe burns to Ms face, head, neck, chest, shoulders, arms, hands, tMghs and legs.

The respondent paid all medical and hospital expenses amounting to $984.19 and compensation totaling $823.12 for total temporary disability, at the rate of $19.80 per week from July 25,1942 to May 11,1943, which was the day after his release by Dr H. B. Thomas, his last attending physician. No claim is made for medical or surgical services or for temporary total disability.

TMs claim filed February 17, 1944 seeks an award for the permanent partial loss of use of the right arm, both legs, right eye, hearing of both ears and for serious and permanent disfigurement of the head, face and hands.

At the time of the accident claimant and respondent were operating under the provisions of the Workmen’s Compensation Act, and the accident arose out of and in the course of the employment. No jurisdictional questions are involved.

The record consists of the Complaint, Departmental Report, Transcript of Claimant’s Evidence, Transcript of Additional Evidence of Claimant, Abstract of Evidence, and Statement, Brief and Argument of Claimant.

Claimant was not in the employment of the State for a full year preceding the accident. He was employed by the Division of Highways on May 27, 1942 and thereafter worked regularly in various capacities to July 24, 1942, the date of Ms injury.' On that day he was working as a truck driver, at a wage rate of 80c an hour, and the Division in its report states that employees engaged in the same capacity in which claimant was engaged at the time of Ms accident; worked less than 200 days a year and that 8 hours constituted a normal working day.

As required by Section 10 of the Workmen’s Compensation Act, the daily wage of $6.40 multiplied by 200 would make Ms annual earnings $1,280.00. Divide by 52 Ms average weekly wage would be $24.62. Increaseing the award 5% for each of his three children under 16 years and another 10% as required by Section 8 (j) and (1) establishes a weekly compensation rate of $17.60. Claimant seeks an increase of 5% for each of four cMldren under 16 years of age. The youngest child was bom after the time of the injury and hence cannot be considered under Section 8 (j).

The testimony with respect to claimant’s injuries is as follows:

Dr. W. I. Creen on behalf of the claiment testified that he examined claimant on June 12, 1944 and found dense keloid formation scars, 7 by 8 inches over the right shoulder region, extending over the outer surface of the right arm and one 4 by 8 inches over the left shoulder; another covering the lower tMrd of the right forearm, the right hand and fingers; a long cicatrical band at the right elbow; scarring of both sides of the face resulting in loss of two-tMrds of the right external ear and about one-half of the left ear; scarring of the forehead and skin about the eyes, the neck, upper one-third of the chest, left tMgh and leg and inner surface of the right knee. He further testified that the extension of the right arm was limited to about 25 degrees; that Casey showed a diminution in hearing of about 40%; that there was a chronic conjunctivitis of the eyes which could have resulted from bums and scars, that it appeared the eyeball had been burnt but had now healed and no scar tissue could be detected.

Dr. V. M. Brian, who also examined Casey on June 12, 1944, testified as to the scars and that he also found a one-fourth loss of normal function in extending the right arm and that he thought claimant had lost fifty per cent of Ms hearing.

Dr. H. Nolan Fisher, who treated Casey’s eyelids, reported to the Division of Highways on January 9,1943, “there was no direct injury to the eyeball.” Dr H. B. Thomas of the university of Illinois Medical College reported on March 19, 1943 that claimant had 25% disability of the right elbow and 15% of the right knee, and also reported on May 10,1943 that claimant was improving in the affected areas and that he should be given light work, and although further improvement should be expected the prognosis was poor. Claimant was dismissed on this date, but did not return to the Division of Highways.

The claimant testified he is unable to extend Ms right arm completely and that he is not able to move his left leg as he could before the burns; that his knees give way after four or five hours of work; that his scars cause him discomfort, particularly in damp, cold weather; that his right eye aches and before the injury his eyes were all right. His physical condition prior to the accident was good; he worked eight to Mne hours a day and never tired, but now after working for four hours he has to stop and rest and cannot work all day. He operates an auto repair shop in Pinkstaff, but makes very little money, because he is not able to do a full day’s work. He cannot stand on his feet for more than a few minutes and has to change position because of pain.

A. C. Stoltz, a former employer of claimant, who had known Mm for over twenty years, testified that up to the time of his injury claimant was a strong, able-bodied man, able to do more than an average day’s work. After the accident Mr. Stoltz had attempted to re-employ claimant and pay Mm $1.00 an hour, but claimant would work only four or five hours, whereupon, claimant informed the witness he did not care to work under these conditions and would prefer to work in his own shop where he could rest at intervals. He had observed claimant and knows that he does not have the use of his arm and that he is handicapped with his leg.

No evidence was introduced as to the amount of claimant’s earnings from his present repair shop.

The Court observed the claimant in order to reach a fair estimate of the actual extent of his disfigurement and disability.

It is not possible to determine from the record what loss of vision claimant may have, and the proof is wholly inadequate to sustain any award for partial loss of vision.

Claimant does not contend, nor does the evidence show, that he has sustained a total and permanent loss of hearing in either one or both ears. Under Section 8 (e), sub-paragraph 16% (by amendment effective July 1, 1929) compensation cannot be awarded for permanent partial loss of hearing. The loss of hearing must be total and permanent in either one or both ears, as a result of accidental injury arising out of and in the course of employment before compensation can be awarded.

From the record and our observation of claimant he is shown to have, sustained a permanent partial loss of 25% of the use of his right arm, and serious and permanent disfigurement to his head, face and neck.

Claimant contends there has been a 25% loss of the use of both legs, although the medical testimony does not indicate any definite degree of loss of use. The testimony does show restrictions in the normal functions of the legs and that claimant will be incapacitated in performing his routine duties.

Therefore, it would appear to the Court that a reasonable conclusion would be that claimant has been permanently injured to the extent of 15% of the use of both legs and that he is entitled to an award for such permanent partial loss of use.

For the serious and permanent disfigurement to claimant’s head, face and neck, he is entitled to compensation under Section 8 (c) in the sum of $880.00 at the rate of $17.60 for 50 weeks.

The Wells Brothers Co. v. Industrial Commission, et al, 285 Ill. 647.
Smith-Lohr Coal Co. v. Industrial Commission, 291 Ill. 355.
International Coal Co. v. Industrial Commission, 293 Ill. 524.
Chicago Home v. Industrial Commission, 297 Ill. 286.

For the permanent partial loss of 25% of the use of his right arm, claimant is entitled to $990.00, computed at $17.60 for 56% weeks (permanent and complete loss being compensable at 50% of the average weekly wage for 225 weeks).

For the permanent partial loss of 15% of the use of his right leg, claimant is entitled to $501.60, computed at $17.60 for 28% weeks (permanent'and complete loss being compensable at 50% of the average weekly wage for 190 weeks).

For the permanent partial loss of the use of his left leg, claimant is entitled to $501.60, at the rate of $17.60 for 28% weeks.

The total of the above awards is $2,873.20. The record shows that claimant was paid $823.12, at the rate of $19.80 for 41 4/7 weeks, whereas, his average weekly rate should have been computed at $17.60, ór a total of $731.66 for 41 4/7 weeks. This represents an overpayment to claimant of $91.46, which must be deducted from his award, leaving a balance now due claimant of $2,781.74.

An award is therefore entered in favor of claimant, Cato Casey, in the sum of $2,781.74, all of which is accrued and is payable forthwith.

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


text:
    (No. 3846
    Standard Oil Company (Ind.), Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 19, 1946.

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

Respondent made purchases from the claimant during the month of June, 1943, totaling $8.17. The appropriation for the payment of these items lapsed before the invoices could be submitted. The invoices were, however, submitted within a reasonable time, and nonpayment is without fault on the part of the claimant. Sufficient funds remain unexpended in the appropriation to pay for the same.

An award is therefore entered in favor of the claimant in the amount of $8.17.