text:
    (No. 4333
    Inez Opal Smith, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 10, 1951.

    Thomson and Thomson, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

On March 12, 1950, claimant, Inez Opal Smith, while employed as an institutional worker at the Jacksonville State Hospital, Division of Public Welfare, suffered a fracture of the second or middle finger of her right hand near the proximal end of the proximal phalanx, when the lid of a pasteurizer she was washing fell on her finger.

At the time of the accident the employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident, and claim for compensation were made within the time provided by the Act. The accident arose out of and in the course of claimant’s employment. Hospital, medical and surgical care have been furnished by the respondent.

The record consists of the complaint, departmental report and stipulation waiving briefs of both parties.

The claimant was treated by Dr. Lucas and Dr. F. A. Causey, physicians' employed by the respondent. On April 2, 1950 Dr. Ellsworth Black, family physician of claimant, was employed to treat the claimant. When the claimant returned to work on May 1, 1950, she had no flexion of the two distal points of the middle or second finger of the right hand. Mrs. Smith claims loss of the third and fourth finger of the right hand, however, Dr. Black testified that there was no anatomical defects of those two fingers, and the Court feels that, as to the third and fourth fingers, it is a hysterical affair and not true paralysis.

From the medical testimony, and a close review of the record, we are of the opinion that claimant has suffered the loss of use of the entire second or middle finger of her right hand.

The claimant had no children under 18 years of age dependent upon her for support at the time of her injury, and the year preceding the injury she earned the sum of $2,244.00. Claimant’s compensation rate would, therefore, be the maximum of $15.00; since the injury occurred subsequent to July 1, 1949, this must be increased 50 per cent, making a compensation rate of $22.50 per week. Claimant is thus entitled to an award of 35 weeks at $22.50 per week or $787.50. In addition thereto, she should receive the sum of $22.50 per week for. temporary total disability from March 13, 1950 to' and including May 1, 1950, or a total of 7 weeks, or the sum of $157.50. Claimant was paid the sum of $257.33 as salary during her period of temporary disability, or an overpayment for non-productive time of $99.83, which must be deducted from her award, leaving a total award due of $687.67.

An award is, therefore, entered in favor of claimant, Inez Opal Smith, in the amount of $687.67, all of which has accrued and is payable forthwith.

Margaret Eagan was employed to take and transcribe the evidence at a hearing before Commissioner Summers. Charges in the amount of $15.75 were incurred for these services, which charges are fair, reasonable and customary.

An award is, therefore, entered in favor of Margaret Eagan in the amount of $15.75, which is payable forthwith.

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


source: Caselaw Access Project

author: Delaney, J.

license: Public Domain

text:
    (No. 4345
    Jasper Jayne, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 10, 1951.

    George W. Kasserman, Jr., Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Caimant filed Ms claim on September 28, 1950 for compensation under the Workmen’s Compensation Act, for an injury wMeh he suffered on November 15, 1949, while employed by respondent.

He was employed by respondent in the Department of Public Works and Buildings, Division of Highways, as a maintenance equipment operator. On November 15, 1949 Mr. Jayne was one of a group of men engaged in crushing1 concrete, wMch was removed from the pavement of U.S. Route 45. The rock crusher was located on the right of way of U.S. 45, two miles northeast of Neoga, in Cumberland County. At approximately 3:00 P.M. that afternoon, Mr. Jayne’s right second finger and right ring finger were crushed.

Commissioner Henry S. Wise observed from an examination of claimant’s right hand that the right ring finger shows an amputation of about one-third of a distal phalanx, with the finger being somewhat shorter than the ring finger on the left hand, and that the right second finger is somewhat crooked, and that claimant stated that there is a numbness on both the right ring finger and the right second finger. Claimant is unable to flex the two fingers into a tight fist, and states that there is some disability in his ability to use his hand and fingers. Commissioner Wise further observed the bone in the right ring finger does not have sufficient flesh covering the end of same, and that the bone can be felt at the end of the finger. There seems to be a discrepancy in the facts as to just how the accident occurred, but this will not affect the determination of the Court in this cause.

The record consists of the complaint, departmental report, entry of appearance of George W. Kasserman, Jr. as counsel for claimant, and withdrawal of Dale Wilson as attorney, and stipulation waiving briefs of both parties.

At the time of the accident, in which the claimant, Jasper Jayne, was injured, employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State. Notice of the accident, and claim for compensation were made within the time provided by the Act. The accident arose out of and in the course of claimant’s employment.

Claimant had seven children under 18 years of age depending upon him for support. He was first employed on March 14, 1949 at a salary of $187.00 a month. On July 1, 1949 his salary was increased to $225.00 a month. Salary payments from the Division to Mr. Jayne from March 14, 1949 to November 15, 1949, inclusive, totaled $1,682.08. His compensation rate, therefore, would be the maximum of $15.00 per week. However, as the injury occurred after July 1, 1949, this must be increased 50 per cent, and under Section 8, (j) (3) his compensation rate would be $30.00 per week.

Claimant was totally disabled because of his injury from November 16 to December 14, 1949, inclusive. He was paid full salary from November 16 to December 2, 1949, inclusive, in the amount of $127.02. He was paid compensation at the rate of $30.00 a week from December 3 to 14,1949, inclusive, in the amount of $51.43. Payments for all loss of time due to the injury totaled $178.45.

Claimant is entitled to an award for 30 per cent loss of use of his right second finger under Section 8, Par. (e); this would be 10% weeks. Claimant is also entitled to an award for a 50 per cent loss of the right ring finger, under the same section, which would be 12% weeks, making a total for both fingers of 23 weeks at $30.00 per week or $690.00. Claimant is entitled to 4 1/7 weeks temporary total disability in the amount of $124.29; and as claimant received the total sum of $178.45 for loss of time, the sum of $54.16 must be deducted from his award representing non-productive time, leaving an award due claimant of $635.84.

An award is, therefore, entered in favor of claimant, Jásper Jayne, in the amount of $635.84, all of which has accrued and is payable forthwith.

■ Neva June Matson, Court Reporter, was employed to take and transcribe the testimony, for which she made a charge of $7.70. We find that this charge is fair, reasonable and customary.

An award is, therefore, entered in favor of Neva June Matson, in the sum of $7.70, 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: S CHUMAN, C. J.

text:
    (No. 4350
    Employers Mutual Casualty Company, a corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 10, 1951.

    Ensel, Martin, Jones and Blanchard, Attorneys for Claimant.
    Ivan A.. Elliott, Attorney General; C. ArthurNebel, Assistant Attorney General, for Respondent.
   S CHUMAN, C. J.

Section 29 of the Compensation Act, upon which this claim is brought, provides a remedy whereby the employer, or, as in this case, the Insurer, may sue a third party for damages caused by circumstances creating a legal liability against the third party for injuries to an employee, where the injuries were not proximately caused by the negligence of the employer or his employees, and where such person, as here, was under the-Compensation Act.

It is urged by respondent in its motion to dismiss that compensation was not fixed or determined.

Respondent’s motion necessarily implies, although not alleged, that compensation should have been fixed by an award of the Industrial Commission, or by a settlement between the parties approved by the Commission.

Section 23 of the Act, Sec. 160, Chapter 48, Illinois Revised Statutes, provides that no employer can waive any provisions of the Act in regard to the amount of compensation to be paid except after approval of the Commission. In construing this section, settlement contracts waiving such provisions have been held void as amounting to a lump sum settlement where not approved by the Commission, International Coal Co. v. Industrial Commission, 293, Ill. 524.

The complaint does not allege any settlement contract within the purview of the act so as to show that the employee did not waive any of his rights to have the same reviewed by the Industrial Commission; and that there was an admission by the employer, or a determination by the Industrial Commission that the disability for which the employee claims compensation arose out of an accident under the Act. For this reason we hold the complaint insufficient.

The Court has considered the case of The Tribune Co. v. Emery Motor Livery Co., 232 Ill. App. 309, which case was reserved by the Appellate Court, and remanded for a new trial to the Trial Court, and a motion to dismiss was sustained on the second trial, but reversed by the Appellate Court, and remanded with directions to assess damages at the sum-of compensation payments made prior to the institution of the suit. Case was again appealed and affirmed, and was taken on certiorari to the Supreme Court, and appears in 338 Ill. 537. The Tribune Case, 232 Ill. App. 309, was predicated upon the theory that there would have to be an agreement between the employer and employee, or an award, in order that the limit of the amount to be recovered could be determined. The case was reversed for this determination.

All of the cases provide that the limit of recovery under Section 29 shall not exceed the aggregate compensation payable under the Act.

Bower v. Ruseto & Co., 306 Ill. 602, on page 608, held:

“Under the decisions of this Court, the employer may immediately, when the compensation is fixed, bring his suit under Section 29 to recover the damages sustained in an amount not exceeding the aggregate amount of compensation payable under this Act by reason of the injury to the employee.”

In Angerstein “The Employer and the Workmen’s Compensation Act of Illinois, Section 631 of the 1930 revision, speaking of section 29, said:

“It is not entirely clear as to what constitutes the fixing of a compensation liability. However, an award would be sufficient, and in all probability a settlement or lump sum settlement approved by the Commission would be sufficient.”

The complaint fails to show the requisite agreement, and the very essential fact that the fixed compensation was not in excess of the amount allowed for the injuries sustained.

For these reasons assigned, the motion to dismiss is allowed.


text:
    (No. 4357
    Murrel S. Haire, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 10, 1951.

    Murrel S. Haire, Claimant, pro se.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent. .
   Delaney, J.

On August 9, 1950, the claimant, Murrel S. Haire, employed by the respondent as a highway section man in the Department of Public Works and Buildings, Division of Highways, while repairing a sickle bar of a power mower, caught his right index or first finger in the moving sickle, and severed it at the proximal phalanx. -Claimant picked up the sickle bar to clean vegetation clippings from the ledger plates. The motor was running, but the clutch to the drive shaft of the sickle was disengaged. Apparently, the disengagement was not complete because the sickle moved as Mr. Haire picked up the bar.

Immediately after the accident Mr. Haire went to Dr. K. J. Malmberg at Auburn for treatment, and reported the accident to his superior. Dr. Malmberg rendered first aid, and sent Mr. Haire to Dr. A. M. Lindsay at Springfield, Illinois, for repair of the traumatic amputation.

Incorporated in the record herein is a diagram drawn by Dr. Lindsay. On this diagram Dr. Lindsay drew a line which indicates that Mr. Haire’s right index finger was removed at a point which would leave approximately one-third of the proximal phalanx.

No jurisdictional questions are raised. Both claimant and respondent were operating under the Workmen’s Compensation Act.

The record consists of the complaint, departmental report and transcript of evidence.

Claimant has no children under 18 years of age dependent on him for support. His earnings in the year preceding his injury totaled $2,688.00. Mr. Haire was totally disabled because of his injury from August 10 to 13, 1950, inclusive. He was paid full salary in lieu of compensation for the period of total temporary disability in the amount of $21.68. Claimant was not temporarily totally incapacitated for more than six working days, so we do not have to consider temporary total incapacity in this cause, Section 8 (b) of the Workmen’s Compensation Act. All hospital and doctor bills have been paid by respondent.

In reviewing the record of the report of Dr. Lindsay, and from an examination of the Commissioner of the Court, it indicates that claimant has suffered a loss of use of the entire right index or first finger.

Section 8, Paragraph (e) of the Workmen’s Compensation Act provides for loss of the index or first finger, or the permanent and complete loss of its use, 50 per cent of the average weekly wage during 40 weeks. The compensation rate is, therefore, the maximum of $15.00; since the injury occurred subsequent to July 1, 1949, this must be increased 50 per cent, making a compensation rate of $22.50. The claimant is entitled to an award of $22.50 per week for a period of 40 weeks, or the sum of $900.00. From this award must be deducted the sum of $21.68 for non-productive time, leaving a total award of $878.32.

An award is, therefore, entered in favor of the claimant, Murrel S. Haire, in the amount of $878.32, payable as follows:

$781.05, which has accrued as' of April 10, 1951, is payable forthwith;
$ 97.27, payable in weekly installments of $22.50, beginning April 17, • 1951, for a period of 4 weeks with a final payment of $7.27.

Hugo Antonacci, Court Reporter, was employed to take and transcribe the evidence in this case and has rendered a bill in the amount of $8.30. The Court finds that the amount charged is fair, reasonable and customary.

An award is, therefore, entered in favor of Hugo Antonacci, for taking and transcribing the testimony in this case in the amount of $8.30, 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: ScHUMAN, C. J.

text:
    (No. 4376
    Delbert R. Lewis, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 10, 1951.

    Delbert R. Lewis, Claimant, pro se.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   ScHUMAN, C. J.

Complaint was filed on December 20, 1950, by Delbert R. Lewis for an award under the Compensation Act for specific loss of use of the middle finger of the right hand.

Claimant is a married man, living with his wife, but has no children.

On August 21, 1950, claimant, while in the employ of the Division of Highways as a maintenance equipment operator at $225.00 a month, was operating a self-propelled end loader on U. S. Route 66, about two miles northeast of Pontiac. In operating the loader he placed his right hand in the push-bar slot, which released, causing an injury to the middle finger of his right hand requiring an amputation of the terminal phalanx.

No jurisdictional questions are involved.' Claimant’s earnings during the year preceding the accident were $2,700.00. The facts were stipulated.

On the basis of this record we make the following award:

For the permanent partial specific loss of use of the middle finger of the right hand, an amount of 50 per cent of loss of use, making an award of ITVi weeks at $22.50 per week for a total of $393.75. From this sum will be deducted the sum of $82.02 for non-productive time, making a net award of $311.73, 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: Schuman, C. J.

text:
    (No. 4400
    Sinclair Refining Company, a Maine Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 10, 1951.

    D. IC. McIntosh and Julius F. Trefz, Attorneys for Claimant.
    Ivan Á. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Claimant, Sinclair Refining Company, a corporation, on various dates during periods from July 10, 1948 through June 30,. 1949, furnished gasoline to the Division of Highways of the State of Hlinois in the usual course of business in the amount of $284.97.

Claimant also furnished gasoline in the same manner to the Division of Waterways of the State of Illinois in the amount of $81.14.

It is agreed all of the gasoline was furnished, but payment was refused because of lapse of appropriations.

It has been repeatedly held by this Court that under the factual situation presented, an award for the amount may be made.

An award is, therefore, entered in favor of claimant in the amount of $366.11.


author: ' SCHUMAN, C. J.

text:
    (No. 4305
    Ralph J. Heffernan, Admr., et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 10, 1951.

      Petition of Respondent for rehearing denied May 8, 1951.

    Michael, F. Ryan, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   ' SCHUMAN, C. J.

Claim is brought by Ralph J. Heffernan, administrator of the estate of Betty Polen, deceased, to collect back salary for the unlawful discharge of the decedent from her civil service job of institution worker at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, lilinois, during period from May 20, 1947, to the date of her death on February 9,1950.

Betty E. Polen, in her lifetime, on September 2, 1947, filed her Petition for Writ of Mandamus in the Superior Court of Cook County against the Director of the Department of Public Welfare, et al; requiring that she be reinstated and reassigned as an institutional worker. The Court in that case entered a judgment requiring a writ to issue on July 8, 1949, ordering that she be reinstated, and be paid her regular salary from July 1, 1947. The defendants appealed to the Supreme Court, obtained a supersedeas, and the judgment of the Superior Court was affirmed as to her reinstatement, but reversed as to the payment of her salary. It is to be noted the notice of appeal was made on July 29, 1949, and a supersedeas allowed on August 1, 1949.

The Supreme Court, as to the salary question, held the appropriation had lapsed, and no payment could be made. It is to be noted the Supreme Court used the following language:

“It is unfortunate there is no provision of law requiring a sequestration or setting aside of funds with which to pay a judgment entered while an appropriation was available, so that it could not be considered as lapsed pending appeal, but so long as there is no such provision, the petitioner must await the time such funds are made available.
It was error to issue the Writ of Mandamus to pay the salary withheld, but it was proper to render a judgment that petitioner was entitled to the same.’’

The claimant’s only recourse to collect this money was in the Court of Claims. It is apparent to this Court that the judgment of the Superior Court, affirmed by the Supreme Court, that Betty E. Polen was entitled to the amount set forth, is a final judgment and binding on this Court.

This Court in a similar case in Wilson v. State, 12 C.C.R. 413, on page 414 held:

“Any question of the payment of claimant’s salary for the period in question to some other person who may have performed the duties of his office is a matter of affirmative defense.”

The State filed no pleadings in this case, and it is elementary that an affirmative defense cannot be considered under a general denial. For the reason the motion to strike the Departmental Reports is allowed, and the alleged defense thereunder is not considered. The statement of claimant as to this defense that the judgment of the Superior Court was res adjudicata is in error. There was no enforceable judgment until the Supreme Court decision became final.

An award is, therefore, made and entered in favor of the claimant in the sum of $5,307.40.


text:
    (No. 4329
    Joseph A. Mertel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1951.
    Kevin D. Kelly and Horace W. Jordan, Attorneys for Claimant,
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   ScHUMAN, C. J.

On June 9, 1950, claimant was the owner of a truck described as a 1945 International Concrete Mixer Truck. On the day iri question, the truck was being operated by Anthony Mertel, son of claimant, in the course of business for claimant.

While operating the truck over U. S. Highway No. 51 south across the Shippingsport Bridge at LaSalle, Illinois, the barrier gate at the lift span fell and struck the truck, causing damages in the amount of $742.25.

The testimony showed that the cable supporting the barrier gate broke, that it was badly worn and frayed where it broke, and that the barrier gate was of heavy fabricated steel; that the windshield on the truck was broken, that the cab of the truck was forced back against the concrete mixer, that the frame of the cab was crumpled beyond repair, that the doors of the cab were also damaged, and that the cab was damaged beyond repair.

Gordon D. Kesterson testified for the State that he was a District, Maintenance Supervisor for the Division of Waterways, which position included the maintenance of lights and barriers on bridges; that he made an inspection on May 31 and June 1, 1950, and all that he found was a loose set screw, and took up slack where it had slipped; that he examined the gate after June 9, 1950 and found a broken pin in the chain, which would release the chain, slacken off the cable, and let the gate down on that end; that he reinstalled the gate, put in a new pin, and retimed the mechanism in the tower; that cables had broken eight or nine times on four bridges in a year and a half, and similar pins had broken three times in the same period.

There is no dispute in the evidence that the gate fell and struck the truck. The evidence shows the driver of the truck was in the exercise of due care and caution, and that the gate was under the sole control of respondent. The Departmental Report offered by respondent states that the barrier gate cable broke allowing the barrier gate to fall on the cab of the truck. Claimant’s testimony that the cable was broken is corroborated by the Departmental Report.

It is admitted by the respondent that the maintenance of the operating machinery of the Shippingsport Bridge was vested in the Department of Public Works and Buildings of the State of Illinois, and that by reason thereof was under sole control and .management of the respondent. It is the opinion of the Court that this case falls under the doctrine of res ipsa loquitur. The doctrine of res ipsa loquitur is grounded upon the principle of law that where one has charge or management of a thing in connection with which an accident happens, which in the ordinary course of things does not happen if those who have the management thereof use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of proper care. The fact of this occurrence, therefore, will be deemed to afford prima facie évidence to support recovery in absence of any explanation by the. defendant attempting to show that the occurrence was not due to its want of care. There was no explanation in the record of how the accident happened, nor was there any evidence of any negligence on behalf of the claimant. There being no rebuttal to the prima facie case made by the claimant, the facts are sufficient to support an award to claimant. (Westerfield vs. State of Illinois, 18 C.C.R. at 186.)

The evidence is not disputed that the damages to the claimant’s truck were in the amount of $742.25.

Claimant is entitled to an award in the. amount of $742.25 for damages to his truck.

An award is, therefore, entered in favor of claimant in the sum of $742.25.


text:
    (No. 4344
    Dollie Arbuckle, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1951.

      Petition of Claimant for lump sum settlement denied May 8, 1951.
    Howard S. Parker, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Dollie Arbuckle, widow of Russell V. Arbuckle, deceased, filed her complaint on September 28, 1950, for compensation under the provisions of the "Workmen’s Compensation Act of the State of Hlinois.

The record consists of the complaint, supplemental complaint, motion of respondent to strike and dismiss supplemental complaint, notice to call up respondent’s motion to strike and dismiss supplemental complaint, claimant’s answer to respondent’s motion to strike and dismiss supplemental complaint, departmental report, transcript of evidence, and stipulation waiving briefs of. both parties.

Russell V. Arbuckle, decedent, was employed by the Department of Public Works and Buildings, Division of Highways, as a common laborer from the date of May 9, 1940 to the date of the accident. During the year preceding the accident, his total earnings were $186.79, but employees employed in a similar capacity would work approximately two hundred (200) days a year, making the average yearly earnings of a laborer of the Highway Department approximately $1,600.00. Therefore, under Section 10 of the Workmen’s Compensation Act, Mr. Arbuckle is presumed to have earned $1,600.00 in the year preceding his injury.

On May 4, 1950 Mr. Arbuckle was acting as flagman for a group of maintenance men engaged in filling cracks in the pavement on Route U. S. 45 south of Effingham, Illinois. At approximately 1:30 P.M. on said date, Mr. Arbuckle, while acting in said capacity, was struck by a south bound automobile, and was thrown to the side of the pavement. He was taken to St. Anthony’s Hospital at Effingham, where he was attended by Dr. George C. Wood. His injuries consisted' of a cerebral concussion, fracture of left pubic bone, lacerations over left eye and on left eyeball; lacerations "of left hand, severe contusions of entire left leg; abrasions and contusions of lower lumbar region and sacral region of back, and abrasions and contusions of entire chest wall and abdomen. Mr. Arbuckle was discharged from the hospital on May 16th, and his condition while at home continued to improve until the afternoon of May 31st when he died. Dr. Wood testified that the cause of death was “pulmonary embolism”, as a result of the injuries received.

On the date of the accident decedent was 53 years old, married, and left his widow surviving, but no dependent children.

There is no jurisdictional question presented by the record, and we find that the fatal injuries to the decedent arose out of and in the course of his employment by respondent.

Compensation was paid at a rate of $22.50 a week from May 5th to May 31st, inclusive, in the total sum of $86.59. Doctor, hospital and ambulance bills were paid by the State in the amount of $288.00.

Claimant is, therefore, entitled to an award under Paragraph (a) of Section 7 of the Act, in the sum of $4,000.00, increased by 50 per cent under Paragraph (1), or a total sum of $6,000.00, which should be reduced by the payment of $86.59 compensation, as a death award is being allowed, making a net award of $5,913.41, payable at the compensation rate of $22.50 per week.

An award is, therefore, made to claimant, Dollie Arbuckle, widow, in the sum of $5,913.41, payable as follows:

$ 906.42, which has accrued, is payable forthwith;
$4,995.00, payable in weekly installments of $22.50 commencing March 16, 1951 and continuing for 222 weeks, with a final payment of $11.99.

Emma Shelton was employed to report the testimony in support of this claim and to transcribe the evidence thereof, for which she made a charge of $5.00, which we find is fair and reasonable.

A further award is entered in favor of Emma Shelton for transcribing the testimony in the sum of $5.00.

Jurisdiction of this case is specifically reserved for entry of all future orders.

The above and foregoing awards are 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: Lansdeh, J.

text:
    (No. 4352
    Thomas Kehoe, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1951.

    Hugh J. McCarthy, Attorney for Claimant.
    Ivan. A. Elliott, Attorney General; William II. Sumpter, Assistant Attorney General, for Respondent.
   Lansdeh, J.

Claimant, Thomas Kehoe, seeks to recover from respondent under the Workmen’s Compensation Act for injuries that resulted from an accident that arose out .of and in the course of his employment as a steamfitter at the Chicago State Hospital, operated by the Department of Public Welfare.

On November 10, 1949, claimant dropped a piece of pipe about three feet long on his left big toe fracturing the proximal phalange thereof. He was temporarily and totally disabled for 12 days, for which period he was paid compensation at the rate of $22.50 per week.

No jurisdictional questions are involved, and the sole question to be determined is the nature and extent of his disability.

Claimant has a pair of bad feet. He has hammer toes on both feet, and both big toes show a marked hallux valgus or inward turning of such toes. He has flát feet, and some arthritic conditions in both feet, being somewhat more acute in his left foot at the base of his left big toe.

The medical evidence is in some conflict, but it does show that there has been some aggravation of a preexisting structural deformity in his left foot.

We conclude from the evidence that claimant has sustained a 10 per cent loss of use of his left foot due to the fracture of his left big toe. No more than such per cent of loss of use can be attributed to his accident. Any greater disability is due- to structural deformity, and not his accident.

On the date of his accident, claimant was 54 years of age, a widower, and had no children under 18 years of age. His earnings in the year prior to his accident exceeded $5,000.00, and his rate of compensation is, therefore, $22.50 per week.

William J. Cleary & Co., Court Reporters, Chicago, was employed to take and transcribe the testimony before Commissioner Tearney. Charges- in the amount of $51.60 were incurred, which charges are reasonable and customary. An award is entered in favor of William J. Cleary & Co. for $51.60.

An award is entered in favor of claimant, Thomas Kehoe, under Section 8 (d) (14) of the Workmen’s Compensation Act for a 10 per cent loss of use of his left foot, or 13% weeks at $22.50 per week, being the sum of $303.75, all of which has accrued and is payable forthwith.

This- award is subject to the approval of the Governor. Ill. Rev. St-at. 1949, Chapter 127, Section 180.


text:
    (No. 4366
    John M. Smith, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1951.

    Anthony J. Maníjele, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

The claimant, John M. Smith, was employed by the respondent in the Department of Agriculture as a laborer at the Illinois State Fair Grounds on August 12, 1950. He was assigned to the sweeping crew under the direction of Mr. Ora D. Bedford. Mr. Smith alleges in his complaint that at about 11:15 P.M. on the day above mentioned he was standing by a truck, owned by the respondent; that when the driver started the truck a part of the truck body hit him in the back, and that the blow turned him around and knocked him over. That after his alleged injury he had lunch at 12:00 P.M., at which time he ate a sandwich and drank a cup of coffee. He continued working until quitting time when he checked out at 6:00 A.M. Claimant alleges he became ill while traveling to his home after quitting work, and was treated by Dr. W. B. Weisbaum. Mr. Smith claims that he told Mr. Bedford of the accident.

Claimant testified at the hearing in this cause that after his midnight lunch he became deathly sick to his stomach, and started vomiting blood, and from then until 6:00 A. M. he vomited blood five times. He was taken to St. John’s Hospital, and was treated by Dr. Weisbaum. Claimant was hospitalized for approximately one week. Mr. Smith was also treated in the County Hospital in Chicago when he started hemorrhaging again, and had three blood transfusions. Claimant testified that the large valve of his heart was ruptured. The medical report submitted to the respondent by Dr. W. B. Weisbaum, which has been made a part of the departmental report filed herein, shows that the nature of the injury consisted of “soft tissue injury to left intercostal muscles and deep muscle's of the back. Also injury to the left pectoral muscles. No permanent disability anticipated.”

The record consists of the complaint, departmental report, amendment to complaint, and stipulation waiving briefs of both parties.'

The respondent in its departmental report filed herein claims it had no knowledge of the accident, and that no report was made to claimant’s foreman.

Although we feel that sufficient notice was given respondent, the rule is well settled that an award, to be sustained, must be founded upon facts and inferences reasonably drawn from facts proved by the evidence, and cannot be based upon guess or conjecture. (Mt. Olive Coal Co. v. Ind. Com., 374 Ill. 461.)

It fully appears from this record that claimant has failed to prove his case by a clear preponderance of the evidence as required by law. Mr. Smith’s testimony was uncorroborated. We cannot go outside the record to find a basis for an award.

This claimant also seeks an award for hospital and doctor bills, which were of his own choosing. Section ■8 (a) of the Act provides that the necessary medical and hospital services shall be furnished by the respondent,' but that the employer may at- his own expense employ physicians of his own choosing. We also must deny this claim.

Award denied.

Hugo Antonacci, Court Reporter, has filed a bill for reporting services in this case in the sum of $36.50. The bill appears reasonable for the services rendered, and is hereby allowed.

An award is hereby rendered in favor of Hugo Antonacci in the sum of $36.50 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: SCHUMAN, C. J.

text:
    (No. 4242
    W. C. Angel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 9, 1951.

      Petition of Claimant for rehearing denied June 8, 1951.

    R. W. Lamkin and W. F. Gbay, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Abthur Nebel, Assistant Attorney General, for Respondent.
   SCHUMAN, C. J.

This ease arises out of a claim made by claimant against the State of Illinois for damages to his truck, which claimant alleges was due to the negligence of State highway employees in parking a State truck on a highway near another truck that had become mired in the mud with part of the truck on the pavement, it being the contention of claimant that the truck was parked too close, and he could not get through.

Claimant, on March 10,1949, at about 7:30 A.M., was driving his' 1938 Ford Truck in a southerly direction on Highway No. 51 at a point about three miles north' of Decatur, Illinois. The place in question was near the bottom of a small hill and on an incline. The facts disclose that a semi-trailer truck owned by M. Hayes Live Fish Company of Samburg, Tennessee, was stopped with a portion of the truck out on the highway. This truck was headed south. A State truck, called a cinder spreader, was dispatched to the scene, and was driven by one Paul Blankenship', and a helper by the name of Tom Hargis was also on the truck.

There is no dispute that the pavement was icy, and the weather freezing; that two cars were ahead of claimant’s truck; that claimant observed the stalled truck a quarter of a mile away, and at the time was driving 30 to 35 miles per hour.

Claimant contends that the State truck had stopped on the east side of the highway with the rear end about even with the rear end of the stalled truck; and, that, because other cars had gone through, he believed he could make it, but just at the time he started through Hargis stepped out from the rear' of the' State truck, and, in order to avoid hitting Hargis, claimant applied his brakes and slid into the stalled truck. Claimant testified he had slowed down to 8 to 10 miles per hour, and was about 75 feet to the rear of the second car just before starting through, and after applying his brakes skidded 4 or 5 feet before striking the stalled truck.

Blankenship and Hargis both testified that the State truck stopped only long enough to let Hargis out, and then continued on down the highway to turn around. Blankenship said he passed claimant’s truck about 750 feet north of the stalled truck. Both Blankenship and Hargis stated that the State truck was not at the scene when the collision occurred.

Hargis testified that when the other cars had gone' through another car was approaching from the south, and he flagged claimant on two different occasions, but claimant applied brakes too late, and the collision occurred.

There is no question from the claimant’s testimony that he saw the trucks about a quarter of a mile away, but continued his speed until a short distance from the point of collision, that the pavement was icy and the weather freezing with light rain and snow. Hargis testified that the truck of claimant was sideways on the highway after the collision. It is difficult to understand that if the stalled truck was 4 feet on the pavement, and claimant’s truck was 7% feet wide, and the State truck, was parked where claimant contends, and claimant did not have enough room to go through, how it was that the State truck was not involved. . . V

Claimant’s complaint only alleges that the State truck was parked too close, and he didn’t have room to go through. This certainly was apparent to claimant for at least a quarter of a mile before the collision. This, together with the known condition of the road, constituted negligence on the part of the claimant, even if negligence' were proven, against the State. There is nothing in the complaint charging negligence of Hargis in walking from1 behind the State truck, which claimant contended was the reason for the-application of his brakes. This alone disproved claimant’s contention. !i

The evidence of the State was directly opposed to the testimony of claimant.

Claimant argues in his brief, and on oral argument, statutory violations, but none of these were plead. Statutory violations, if proven, would be but prima facie evi-; dence of negligence subject to being rebutted by proof. The Court concludes that the claimant has failed to plead, or prove the exercise of due care and caution on his part, or any actionable negligence on the part of the State-.

For the reasons assigned above, the claim is denied.


author: Lansden, J.

text:
    (No. 4321
    Anna Pillar, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 8, 1951.

    Roy A. Ptaoin, Attorney for Claimant.
    Ivan- A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Anna Pillar, seeks to recover from respondent under the Workmen’s Compensation Act for injuries to her ankle as a result of an accident that arose out of and in the course of her employment as an attendant at the Chicago State Hospital, operated by the Department of Public Welfare.

On April 29, 1950, claimant, who was night attendant in one of the wards of such institution, was taking a patient back to bed when she slipped on the floor, sustaining a chip fracture of the left lateral malleolus.

Claimant was totally and temporarily disabled from that date until June 12, 1950, a period of 43 days. She returned to work on June 13, 1950, and during such period of temporary disability she was paid the sum of $231.40 as compensation.

Since claimant’s earnings in the year prior to her accident amounted to $2,260.00, and she was 54 years, of age, married, but with no children under 18 years of age dependent upon her for support, her rate of compensation should have been $22.50 per week. She should have been paid temporary disability compensation amounting to $138.21, but was paid $231.40, or an overpayment of $93.19.

X-Rays, taken on the date of her accident, disclosed the fracture, and also the presence of osteo-arthritis.

Claimant’s doctor examined her on July 8,1950, and again at the hearing held on December 22, 1950. Between such dates there had been some improvement in the residual disability in her left foot, and claimant herself testified to such improvement.

From the evidence, however, it is apparent that by December 22, 1950 claimant had achieved maximum recovery from her accident, and that the remaining disability in her left foot was permanent. It is also apparent that whatever aggravation there had been to the preexisting osteo-arthritis by reason of the accident had been completely cured and relieved.

On the date of the hearing, plantar and dorsal flexion of the left foot had been reduced one-third. On pronation and supination, a limitation of one-fourth was disclosed. Some crepitus was present, but the fracture was well healed and well aligned.

To evaluate claimant’s permanent disability or partial loss of use of her foot, we must keep in mind that her left ankle joint still functions, and that she has performed her duties regularly since June 13, 1950.

From the foregoing, we conclude that claimant has sustained a 20 per cent loss of use of her left foot:

William J. Cleary and Co., Court Reporters, Chicago, Illinois, was employed to take and transcribe the testimony at the hearing before Commissioner Tearney. Charges in the amount of $46.95 were incurred, the same being reasonable and customary. An award is entered in favor of William J. Cleary & Co. for $46.95.

An award is, therefore, entered in favor of claimant, Anna Pillar, under Section 8 (e) (14) of the Workmen’s Compensation Act for a 20 per cent loss of use of her left foot, being 27 weeks at $22.50 per week, or the sum of $607.50, less overpayment of $93.19 previously referred to, leaving a net award of $514.31, all of which has accrued and is- payable forthwith.

■ This award is subject to the approval of the Governor. Ill. Rev. Stat. 1949, Chapter 127, Section 180.


text:
    (No. 4332
    Joe Dubinsky, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 8, 1951.

    Arndt and Wingaed, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Joe Dubinsky, seeks to recover from respondent under the Workmen’s Compensation Act for injuries sustained as a result of an accident arising out of and in the course of his employment as a Driver’s License Examiner in the Division of State Police of the Department of Public Safety.

On July 6, 1950, claimant was preparing to give a lady a driver’s examination by accompanying her in her car. The driver was seated behind the steering wheel, and claimant sat at her right in the front seat. The husband of the lady slammed the right front door, which struck claimant’s right elbow resulting in bursitis of the right elbow.

Claimant continued to work from the date of the accident until August 6, 1950, when his employment with respondent was terminated, On July 29, 1950, a doctor removed the bursae of the right elbow, and on August 17, 1950, claimant was discharged from further treatment with no disability.

The proof in the record shows that claimant notified his superiors within thirty days after the date of his accident, and no other jurisdictional ■ questions are, or can be, involved.

Claimant maintains that he is entitled to compensation for temporary total disability for five weeks ending on August 17, 1950. The record, however, shows that until August 6,1950, he was paid his full salary for services performed by him, although he was unable to use' his arm. Claimant is, therefore, entitled to temporary total compensation only from August 7, through August 17, inclusive, or a period of 11 days.

Claimant also maintains that he is entitled to some compensation for partial disability, but the record is wholly devoid of any proof of differential in earnings, and the uncontroverted medical report in the record shows that on August 17,- 1950, claimant ceased to be either totally or partially disabled.

However, claimant did pay the doctor who treated him the sum of $75.00 and he paid a hospital in Moline, Illinois, the sum of $13.50. We do not feel that he elected to' secure his own medical services, since his superiors apparently did not cooperate with him in the manner required by law in furnishing medical services, and that claimant should therefore be reimbursed for the medical payments he himself has made.

On the date of his accident, claimant was 43 years of age, married, but had no children under the age of 18 years dependent upon him for support. His earnings in the year prior to his accident amounted to $2,604.00, and his rate of compensation therefore is $22.50 per week.

William J. Cleary & Co., Court Reporters, Chicago, Illinois, was employed to take and transcribe the testimony before Commissioner Tearney. Charges in the amount of $43.05 were incurred, which charges are reasonable and customary. An award is, therefore, entered in favor of William J. Cleary & Co. for $43.05.

An award is entered in favor of claimant, Joe Dubinsky, under Section 8 (a)’(b) of the Workmen’s Compensation Act for 11 days temporary total disability, or the sum of $35.36, plus $88.50 paid by him for medical services, or a total award of $123.86, all- of which has accrued and is payable forthwith.

This award is subject to the approval of the Q-overnor. Ill. Rev. Stat. 1949, Chapter 127, Section 180.


text:
    (No. 4341
    Leo Hallman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 8, 1951.
    Hugh J. McCarthy, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Leo Hallman, seeks to recover from respondent under the Workmen’s Compensation Act for the partial loss of use of his left arm, as the result of an accident that arose out of and in the course of his employment as a painter at the Chicago State Hospital, operated by the Department of Public Welfare.

On September 26, 1949, claimant was engaged in painting a room at said institution. While descending the ladder upon which he was working, his heel caught in one of the rungs thereof, and he fell three or four feet to the floor, landing on his left shoulder, causing a fracture of the surgical neck of the left humerus.

Claimant was temporarily and totally disabled until December 5, 1949, and during the period of his temporary total disability was paid compensation at the rate of $22.50 per week.

No jurisdictional questions are involved in this case, and the sole question to be decided is the nature and extent of the disability to his left arm.

The medical and other testimony in the record discloses that there is a marked atrophy of the shoulder muscles, and that abduction of his left arm is limited 50 per cent, as is the motion in the acromio-humeral joint. There was a grating in his shoulder, and the shoulder joint socket was loosened,. although the fracture had healed smoothly and was in good alignment. There was some limitation of motion in both internal and external rotation.

Claimant also testified that he was unable to use his left arm in overhead painting, and that since his injuries his services for respondent had been confined to supervision of painting and wall cleaning jobs, although at the same rate of pay that he had been receiving on the date of his accident. There is also testimony in the record that claimant had achieved the maximum recovery from, his accident, and that the residual disability was permanent.

From the foregoing, we conclude that claimant has sustained a 35 per cent loss of use of his left arm.

On the date of his accident claimant was 52 years of age, married, and had no children under the age of 18 years dependent upon him for support. His rate of pay was $2.37% per hour, and although he had worked for respondent for less than one year, employees engaged in similar work earned far in excess of $1,560.00 per year. Claimant’s rate of compensation is, therefore, $22.50 per week.

William J. Cleary & Co., Court Reporters, Chicago, Illinois, was employed to take and transcribe the testimony at the hearing before Commissioner Tearney, Charges in the amount of $32.27 were incurred, the same being reasonable and customary. An award is entered in favor of William J. Cleary & Co. for $32.27.

An award is, therefore, entered in favor of claimant, Leo Hallman, under Section 8 (e) (13) of the Workmen’s Compensation Act for a 35 per cent loss of use of Ms left arm, being 78% weeks at $22.50, per week, or the sum of $1,771.87, all of which has accrued and is payable forthwith,

This award is subject to the approval of the Governor. Ill. Rev. Stat. 1949, Chap. 127, Sec. 180.


text:
    (No. 4342
    Tom F. Allman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 8, 1951.

    I). W. Johnston and D. R. Kinder, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Rebel, Assistant Attorney General, for Respondent.
   Delaney, J.

The claimant, Tom F. Allman, was on June 28, 1949 employed by the respondent, in the Department of Public Works and Buildings, Division of Highways. Mr. All-man was 72 years of age, and had no children under 16 years of age dependent upon him for support. He was first employed by the Division of Highways on May 21, 1935 as a common laborer at a wage rate of 40 cents an hour. Mr. Allman worked intermittently, weather permitting and work being available, in this same classification and at the same wage rate until January 31,1941. He was not employed by the Division between January 31, 1941 and February 16,1949. On this last named date, he was again employed as a common laborer at a wage rate of 90 cents an hour. Beginning with February 16, 1949, Mr. Allman worked continuously, weather permitting and work being available, until the date of his injury, June 28,' 1949. Other Division employees, working in the same capacity as claimant, ordinarily work less than 200 days a year; therefore, .under Section 10 of the Workmen’s Compensation Act, claimant is presumed to have earned $1,600.00 in the year preceding the accident.

On June 28, 1949, Mr. Allman was one of a group of men assigned to the preparation of a mixture of gravel and bitumen to be used in the repair of highway surfaces. This material is prepared by mixing in a mechanical mixer definite proportions of gravel and bituminous products. At approximately 10:00 A.M. that morning, Mr. Allman was cranking the gasoline motor, which backfired, and Mr. Allman’s right wrist was injured when struck by the hand crank.

Mr. Allman was sent to Dr. Ross W. Griswold, who had X-Rays taken at the St. Francis Hospital in Litchfield, and submitted the following report to the Division on June 29, 1949:

“Possible fracture of right forearm.”.

The Division had Mr. Allman taken to Dr. J. Albert Key and Associates, who reported as follows on September 29, 1949:

“Mr. Tom Allman was examined on the 26th of September, 1949, and has, in my opinion, a traumatic synovitis of the right wrist.”

On February 24, 1950 Dr. Key and Associates reported as follows:

“Mr. Tom Allman continues to have a swollen, painful hand and wrist with limitation of motion of the fingers. Splinting of the hand and wrist relieves the pain but does not alleviate the swelling. This is a very chronic lesion which has failed to respond to anything which I have done so far. At the time of his last visit on February 20, 1950, I removed the splint and I have requested that he come' back on Friday so that I may do a stellate sympathetic block, hoping that this will improve the circulation in the hand.”

Dr. Key and Associates again reported on October 23, 1950:

“Mr. Tom Allman was examined again on October 12, 1950. He continues to complain of pain in the right shoulder and in the right hand. He further complains that if he uses the hand it swells and that the grip is so weak that he is unable to pick up anything or to use it forcefully.
Examination shows the patient to have some limitation of the right shoulder because of pain. At the time there was very little swelling of the hand and very little tenderness. There is a very weak grip, however, and the patient did not make a complete fist due to limitation of flexion of the fingers.
It is my feeling that this case has now reached a permanent state and I would estimate that he had an impairment of approximately 50 per cent of the right arm. I do not believe that there is any further treatment indicated.”

No jurisdictional question is raised. Respondent and claimant were operating under the Workmen’s Compensation Act, and the accident arose out of and in the course of the employment. The only question is the extent of disability suffered by claimant. Respondent furnished complete medical and hospital treatment.

From the evidence and the Commissioner’s observations, claimant is entitled to an award of fifty per cent (50%) loss of use of his right arm, under Section 8, Paragraph (e), of the Workmen’s Compensation Act. His compensation rate, therefore, would be $15.00 per week. However, as the injury was incurred after July 1, 1947, this must be increased 30 per cent, making his compensation rate $19.50 per week for 112% weeks or the sum of $2,193.75.

After his injury of June 28, 1949, Mr. Allman eon-tinned at light work until December 15, 1949. He was totally disabled' because of this injury from December 15, 1949 to July 31, 1950, inclusive, a period of 32 5/7 weeks. He was paid compensation at the rate of $22.50 a week in the amount of $736.04. As claimant’s compensation rate is $19.50 per week, an overpayment of $98.09 exists.

Compensation was terminated July 31, 1950, two days after Dr. Reynolds of Dr. Key and Associates wrote: “I feel that it would be of help in his convalescence, if he could be provided with a light job”.

An award is, therefore, entered in favor of the claimant, Tom F. Allman, in the sum of $2,193.75, less the sum $98.00, overpayment for the period of temporary total disability, or the sum of $2,095.66, payable as follows:

$ 869.16 which has accrued, is payable forthwith;
$1,226.50 is payable in weekly installments of $19.50, commencing June 15, 1951 for 62 weeks, with a final payment of $17.50.

Virginia Winkleblack was employed to take and transcribe the evidence at the hearing before Commissioner Summers. Charges in the amount of $41.40 were incurred for these services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Virginia Winkleblack, in the amount of $41.40, 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. 4360
    Harry L. McGuinn, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 8, 1951.

    Thomas C. Bradley, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for .Respondent.
   Lansden, J.

Claimant, Harry L. McGuinn, seeks to recover from respondent under the Workmen’s Compensation Act for the partial loss of use of his left arm as the result of an accident, which arose out of and in the course of his employment as a maintenance helper in the Division of Highways of the Department of Public Works and Buildings.

On June 26, 1950, claimant was riding on and operating a mower being drawn by a Highway Division truck. The truck and mower were proceeding in a westerly direction along Route 58 (Golf Road) in Cook County. The cutter bar on the mower struck an obstruction on the highway shoulder, thereby causing claimant to be thrown to the pavement, and the mower to overturn onto him.

No jurisdictional questions are involved, and claimant was temporarily and totally disabled until August 26, 1950.

On the date of his accident, claimant was 75 years of age, married, but had no children dependent upon him for support. His earnings in the ten months’ period from his employment to the date of his injuries amounted to $2,587.64. His rate of compensation is, therefore, $22.50 per week.

During his period of temporary total disability he was paid the sum of $533.33 when he should have been paid only the sum of $196.07. He was thus overpaid in the amount of $337.26.

The medical testimony in the record is in sharp conflict, but a careful sifting thereof leads us to the conclusion that claimant has sustained a 30 per cent loss of use of his left arm.

The only medical testimony for respondent is that found in the departmental report on file herein. A doctor testified for claimant, and was subjected to a searching cross examination by counsel for respondent, about the only effect of which was to minimize slightly the extent of the traumatic arthritis from which claimant has suffered since his accident.

It is conceded that there is some limitation of rotation in his shoulder. It is also conceded that the recuperative powers of a man of the age of claimant would be considerably lessened, so that his condition takes on a permanence, which would not be expected in a man in the prime of life.

Various measurements of motion were made by the doctors, who examined claimant, and the only conclusion that we can draw from the conflicting medical testimony is that claimant’s arm could be manipulated almost to the extreme limits of motion but that claimant could not voluntarily, without considerable pain, reach such limits of motion rapidly and directly.

To hold that claimant has sustained less than a 30 per cent loss of the use of his left arm would, in our opinion, deny to this elderly claimant the sympathetic interpretation of his case to which he is entitled under the Workmen’s Compensation Act.

William J. Cleary & Co., Court Reporters, Chicago, Illinois, was employed to take and transcribe the testimony at the hearing before Commissioner Tearney. Charges in the amount óf $42.00 were incurred, the same being reasonable and customary. An award is entered in favor of William J. Cleary & Co. for $42.00.

An award is, therefore, entered in favor of claimant, Harry L. McGuinn, under Section 8 (e) (13) of the Workmen’s Compensation Act for a 30 per cent loss of use of his left arm, being 67% weeks at the rate of $22.50 per week, or the sum of $1,518.75, from which should be deducted the overpayment of temporary total disability compensation hereinabove referred to in the amount of $337.26, leaving a net award of $1,181.49 payable as follows:

$919.29 less overpayment of $337.26 or the sum of $582.03, which has accrued and is payable forthwith,
$599.46 which is payable in weekly installments of $22.50 per week, commencing on June 15, 1951, for a period of 26 weeks, plus one final payment of $14.46.

This award is subject to the approval of the Governor. Ill. Rev. Stat. 1949, Chap. 127, Section 180.


author: SOHUMAN, C. J.

text:
    (No. 4367
    Grace B. Cammon, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 8, 1951.

    Thomas E. Kluczynski and Thomas A. Keegan, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   SOHUMAN, C. J.

Claimant, Grace B. Cammon, is the widow of Clifford C. Cammon, deceased, who was employed on October 19, 1950, as an arbitrator for the Industrial Commission of the State of Illinois. The decedent was married to the claimant, ■ and, at the time of the accident, was 54 years of age, and left no dependent children. His earnings for the year preceding his death were $6,276.00.

The decedent resided at Olney, Illinois, and on the date of October 19, 1950, was enroute to Staunton, Illinois, where he was to hear cases as an arbitrator. While the decedent was driving down the highway, near Breese, Illinois, he evidently lost control of his car, which overturned, and he was killed.

There are no jurisdictional questions involved, and there is no question but that this was an accident arising out of and in the course of decedent’s employment.

Claimant is, therefore, entitled to an award under the Workmen’s Compensation Act in the amount of $6,000.00.

An award is, therefore, made in favor of the claimant, Grace B. Cammon, in the amount of $6,000.00, which is to be paid to her as follows:

$742.50 which has accrued to June 7, 1951, and is payable forthwith; The balance of $5,257.50 to be paid in weekly installments at the rate of $22.50 per week commencing on June 14, 1951, for a period of 233 weeks with one final payment of $15.00.

An award is also entered in favor of William J. Cleary and Company for stenographic services in the amount of $19.60, which is payable forthwith. The Court finds that the amount is a fair, reasonable and customary charge, and said claim is allowed.

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


text:
    (No. 4371
    Gil Boers Equipment Company, a corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 8, 1951.
    Halfpenny and Hahn, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpteb, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Gil Boers Equipment Company, a corporation, seeks to recover from respondent the sum of $396.15 owed to claimant for services performed in connection with the repair and overhaul, during the Spring and Summer of 1949, of a crane and clamshell bucket belonging to respondent, and used by the Division of Highways from the Ottawa, Illinois, Division Headquarters.

Although claimant was engaged to make all of the necessary repairs and replacements, such Company found it necessary to secure outside services for press, machine and casting work in the sum of $396.15.

All repairs were completed, and the equipment returned to the Division of Highways at Ottawa prior to July 1, 1949. Claimant submitted its invoice No. 10337, dated May 14, 1949, for $15.00, and invoice No. 10996, dated June 1, 1949, for $836.09 in time to be paid in the regular course of business from 65th G.A. appropriations. Invoice No. 14013, dated March 29, 1950, for $396.15 covers the labor and materials sublet by claimant. This invoice was not received by the Division of Highways until after said appropriation had lapsed.

A comparison of invoices 10337, 10996 and 14013 shows that there is no duplication of charges.

Had claimant submitted its invoice No. 14013 on or prior to September 20, 1949, the Division of Highways would have paid it in regular course. Claimant was informed by the Division of Highways that owing to the late date of billing, the only available recourse for payment was to this Court.

The appropriations from which the invoice could have been paid lapsed'as of September 30, 1949. There were more than sufficient funds in said lapsed appropriations to have paid the invoice had it been presented for payment within the prescribed time.

The reason that claimant was late in submitting its invoice was that its failure to submit such invoice was not discovered until the annual audit of its books during February and March, 1950.

This Court has repeatedly held that where services, materials or supplies have been properly furnished to the State and a bill therefor has been submitted within a reasonable time, and that the same could not be approved and vouchered for payment because of the lapse of the appropriation from which it could have been paid, an award will be made for the reasonable value of the services, materials or - supplies where, at the time the State became obligated, there were sufficient funds remaining unexpended in the appropriation to pay for the same. Shell Petroleum Corp. v. State, 7 C.C.R. 224; Rock Island Sand and Gravel Co. v. State, 8 C.C.R. 165; Oak Park Hospital, Inc. v. State, 11 C.C.R. 219; Yourtee-Roberts Sand Co. v. State, 14 C.C.R. 124; Johnson v. State, 16 C.C.R. 96; Haloid Co. v. State, No. 4299, opinion filed September 19, 1950; Ernest Asphalt Sales Co. v. State, No. 4331, opinion filed January 9, 1951; Sinclair Refining Co. v. State, No. 4400, opinion filed April 10, 1951.

It is conceded that the charges made by claimant are reasonable, and claimant has brought itself within the ruling of the above cited cases.

An award is, therefore, entered in favor of claimant, Gil Boers Equipment Company, for the sum of $396.15.


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    (No. 4374
    Agnes Relk, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 8, 1951.

    Michael J. Thuma, Attorney for Claimant.
    ' Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Bespondent.
   Lansden, J.

Claimant, Agnes Belk, widow of Cornelius Belk, deceased, seeks to recover from respondent under the Workmen’s Compensation Act for the death of her husband in an accident that arose out of and in the course of his employment as a claims deputy in the Division of Unemployment Compensation of the Department of Labor.

On Friday, July 28, 1950, a mass inventory layoff of employees was made by the Electro-Motive Company, Joliet, Illinois. Anticipating that there would be a large number of claims filed for unemployment compensation the following day at the Unemployment Compensation Office in Joliet, it was decided to have an augmented staff of employees of the Division of Unemployment Compensation .present at the office in Joliet to handle the expected number of claims.

Therefore, decedent and three ladies undertook on Saturday, July 29, 1950, to handle the extra work load. When the office was opened at 8 o ’clock in the morning, 50 or 60 persons were already waiting to make claims. Decedent was in charge, and undertook to organize the morning’s work. The applicants formed in lines to the capacity of the building where the claims were being processed, and periodically, as claims were completed, additional persons were admitted to the premises. To keep order decedent went up and down stairs several times, and on one occasion was required to deal with an intoxicated applicant who had become quite unruly.

About 10:45 A.M. it was decided that already inside the building were all the persons whose claims could be handled before the noon closing hour. Decedent went to the entrance of the building to inform those still on the outside that no further claims could be handled that day. One applicant attempted to strike decedent immediately after he made such announcement, and such applicant jammed his foot within the door so that decedent could not close it.

Thereupon it was necessary to call the Joliet Police Department to disperse the persons on the outside, who by that time had become quite unruly and were milling around in front óf the entrance. This being done, decedent went upstairs to his private office, and, .when the three ladies assisting him had finished their morning’s work, they found him slumped over the top of his desk complaining of a heart attack. The ladies took what measures they could to relieve his distress, and a doctor and the Pulmotor squad of the Joliet Fire Department were summoned, but in spite of their ministrations decedent expired.

The record discloses that decedent had been under a doctor’s care for more than a year for a heart condition, which had been previously diagnosed as a posterior coronary artery occlusion, but more definitely as a moderate coronary- artery insufficiency.

Two doctors testified in behalf of claimant. Both were more or less positive that the mental and physical strain through which decedent had gone during that Saturday morning contributed directly to a spasm of his coronary vessels, which resulted in his death. In other words, the excitement of the morning brought on a fatal coronary occlusion blocking the flow of blood through his heart.

No jurisdictional questions are involved in this case. In our opinion, the foregoing facts bring this case within the rule announced in Town of Cicero v. Industrial Commission, 404 Ill. 487, wherein, at pages 492-493, the Supreme Court said:

“. . . It is a well-settled rule that where an employee, in the performance of his duties and as a result thereof, is suddenly disabled, an accidental-injury is sustained even though the result would not have obtained had the employee been in normal health. (Marsh v. Industrial Com., 386 Ill. 11; Carson-Payson Co. v. Industrial Com., 340 Ill. 632; Powers Storage Co. v. Industrial Com., 303 Ill. 410; Baggot Co. v. Industrial Com., 290 Ill. 530.) While it is true that where death is caused by organic heart trouble or other pre-existing disease, it must be shown that the disease wás aggravated and accelerated by an accidental injury sustained in the course of the employment, which accidental injury was the immediate or proximate cause of death, (Fittro v. Industrial Com., 377 Ill. 532), it is not necessary, in ordér that the injury be accidental within the meaning of the Workmen’s Compensation Act, that the employee receive some external violence. (Baggott Co. v. Industrial Com., 290 Ill. 530.) If a workman’s existing physical structure, whatever it may be, gives way under the stress of his usual labor, his death is an accident which arises out of his employment. Carson-Payson Co. v. Industrial Com., 340 Ill. 632.”

Claimant is,. therefore, entitled to an award under Section 7 (a) (1) of the Workmen’s Compensation Act.

On the date of his accident and death, claimant was 56 years of age, married, but had no children under the age of 18 years dependent upon him for support. His earnings in the year prior to his death amounted to $4,080.00, and the rate of compensation in this case is, therefore, $22.50 per week.

William J. Cleary & Co., Court Eeporters, Chicago, Illinois, was employed to take and transcribe the testimony before Commissioner Wise. Charges in the amount of $118.20 were incurred, which charges are customary and reasonable. An award is entered in favor of William J. Cleary & Co. for $118.20.

An award is entered in favor of Agnes Eelk, widow of Cornelius Eelk, deceased, under Section 7 (a) (L) of the Workmen’s Compensation Act for $6,000.00, payable as follows:

$1,006.07 which has accrued and is payable forthwith;
$4,993.93 which is payable in weekly installments of $22.50 per week, commencing on June 15, 1951, for a period of 221 weeks, plus one final payment of $21.43.

Jurisdiction of this case.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. Ill. Rev. Stat. 1949, Chap. 127, Sec. 180.


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    (No. 4380
    Henry Wooley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 8, 1951.

    Boy A. Ptacin, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   SCHUMAN, C. J.

Claimant, Henry Wooley, was employed at the Chicago State Hospital as an attendant, and worked at Ward CW-23, which was classified as a violent ward. On September 7, 1950, at about 7:30 or 8:00 P.M. a fracas occurred in the ward, and the claimant, while attending to his duties, slipped on the floor, struck his head and his right hand on a wooden bench. There are no disputes as to the fact, nor is any jurisdictional question involved. Claimant was a married man with no dependents under the age of 16 years. His yearly earnings for the year preceding his injury were $1,838.00. The only question involved is the nature and extent of the injury to his hand.

Dr. Alfred C. Field testified that he saw the claimant on December 6,1950, and took an X-Ray of the right forearm, wrist and hand. He stated that the right wrist flexion was limited about 15 degrees; extension was within normal limits. There was some crepitation present on forced manipulation. In the right hand an irregularity could be palpated in the distal end of the fifth metacarpal. There was also a fullness, which could be palpated on the palmer surface beneath the head of the fifth metacarpal. The fifth finger of the claimant was held in a flexed deformity, and there was a limitation of extension of about 45 degrees,, and claimant was able, with difficulty, to bring it about one-quarter inch to the palm. The X-Rays disclosed the following: a fracture of the styloid process of the ulna, which is separate, well healed; a fracture in the distal end of the fifth metacarpal, which is fairly well healed; a deformity in the site of the fracture and the distal end is deviated, causing a fullness in the palmar surfáce of the hand. Another X-Ray, taken in a semi-oblique view, shows a deformity of the site of the fracture. This X-Ray also showed a fracture in the styloid process of the ulna, which is separated and not healed. It showed a fracture at the distal end of the fifth metacarpal, and also showed a deformity where the knob or head of the fifth metacarpal is rotated forward and deviated toward the palm of the hand. The doctor further testified that on the date of the hearing claimant still sustained some limitation of flexion in the wrist joint, and some limitation of flexion in the fifth finger. That there was also an arthritic condition in the joint of the right wrist. The doctor further testified that the condition, as he found it, was permanent; that the claimant had sustained a functional impairment amounting to 30 per cent of the right hand.

The departmental report disclosed an examination by Dr. Julius Grueneberg of the claimant' on January 15, 1951, and a copy of an X-Ray report taken on January 19, 1951. The report of Dr. Julius Grueneberg showed the following: “a slight swelling of the dorsum (back) of the right hand in the region of the distal part of the fifth metacarpal bond (the base of the small finger). The little finger of the right hand cannot be extended or .flexed completely, however, limitations of motion do not exceed 15 per cent in either direction.”

Doctor Grueneberg concluded from his examination that the claimant, as a consequence of the injury, had a minor degree of limitation of motion in the fifth finger of the right hand, and that the injury did not incapacitate him or prevent him from performing his present duties as attendant.

There is apparently some conflict in the testimony as to the nature and extent of the disability.

From the evidence submitted, the Court concludes that the claimant is entitled to a 20 per cent partial loss of the use of the right hand.

On the basis of this Record we make the following award:

For the permanent, partial specific loss of use of the right hand, claimant is entitled to an award of $765.00, all of which has accrued and is payable forthwith.

An award is also entered in favor of'William J. Cleary and Co. for stenographic services in the amount of $46.90, which is payable forthwith. The Court finds this amount to be a fair, reasonable, and customary charge, and said claim is allowed.

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. 4411
    Ulysses F. Gossage, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 8, 1951.

    Ulysses F. Gossage, Claimant, pro se.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Ulysses F. Gossage, seeks to recover from respondent under the Workmen’s Compensation Act for the loss of the first phalange of his left index finger in an accident that arose out of and in the course of his employment in the Division of Parks and Memorials of the Department of Public Works and Buildings.

All of the facts in this case have been stipulated, and such stipulation is hereby approved. The writer of this opinion has personally examined claimant’s left index finger. No jurisdictional questions are involved.

On August 1, 1950, claimant was operating a power mower at Fort Massac State Park at Metropolis, Illinois, lie stopped to adjust the mower, and the wrench that he was using slipped causing the index finger on his left hand to be caught in the blades of the mower. The end of his finger was shattered, and the bone was removed to the first joint.

Claimant is entitled to an award under Section 8 (e) 2, 6 of the Workmen’s Compensation Act for a 50 per cent loss of his left index finger.

On the date of the accident claimant was 47 years of age, and had no children under the age of 18 years dependent upon him for support. He had been employed by respondent only since April 1, 1950, and his rate of pay and that of other employees in the same classification exceeded the sum of $1,560.00 annually. His rate of compensation is, therefore, $22.50 per week.

Claimant worked regularly after the accident with no loss of time, and all medical and surgical services were furnished and paid by respondent.

An award is, therefore, entered in favor of claimant, Ulysses F. Gossage, under Section 8 (e) 2, 6 of the Workmen’s Compensation Act for a 50 per cent loss of his left index finger, being 20 weeks at the rate- of $22.50 per week, or the sum of $450.00, all of which has accrued and is payable forthwith.

This award is subject to the approval of the Governor. Ill. Rev. Stat. 1949, Chap. 127, Sec. 180.


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    (No. 4414
    Betty McConkey, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 8, 1951.

    Betty McConkey, widow, et al, Claimant, pro se)
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   SCHUMAN, C. J.

Claimant, Betty McConkey, is the widow of Corwin McConkey, deceased, who was employed by the Division of State Police on September 21, 1941, as a highway patrolman at a salary of $275.00 a month. On February 23, 1951, he was receiving a salary of $286.00 a month as sergeant. His earnings for the year preceding his death were in the amount of $3,433.00. Mr. McConkey left surviving him his wife, Betty McConkey, claimant herein, and two children under 18 years of age.

The facts show that, while in the performance of his duties, Mr. McConkey stopped a motorist, who had entered Routes 47 and 48 without having first come to a stop as required by law. This intersection is located somewhere north of Decatur, Illinois. While checking the motorist’s driver’s license, the driver of the car shot decedent twice and drove away. Mr. McConkey was taken by deluxe Trailway bus to the office of Dr. Wiley Marvel in Weldon, Illinois, who administered first aid, and then had him taken to John Warner Memorial Hospital, Clinton, Illinois, where he operated on Mr. McConkey for the repair of the intestinal wound. Mr. McConkey died as a result of his wound on March 8, 1951, at 12:40 A.M.

There are no jurisdictional questions in this case, and the case is submitted on a stipulation signed by Betty McConkey, the claimant, and the Attorney General, appearing for the respondent.

There being no dispute, claimant is entitled to an award under the Workmen’s Compensation Act in the amount of $7,500.00.

An award is, therefore, made in favor of the claimant, Betty McConkey, in the amount of $7,500.00, to be paid to her as follows:

$ 312.00 which has accrued, and is payable forthwith;
$7,188.00 which is payable in weekly installments of $24.00 per week beginning June 15, 1951, for a period of 299 weeks, with one final payment of $12.00.

All future payments being subject to the terms and provisions 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. 4330
    Zingo McNulty, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 9, 1951.

      Supplemental Opinion filed July 6, 1951.

    John B. Habéis, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   ScHUMAN, C. J.

Claimant, Zingo McNulty, was employed by the State of Illinois as a common laborer under the Division of Highways, and while so employed on May 23, 1950, in the- discharge of his duties, sustained an injury to his right eye, shoulder, and mouth by being struck with a metal sign, which had been placed on the highway near where he was working, the sign having been hit by an automobile. No jurisdictional questions are involved. Claimant was married, 57 years of age, and had four children under the age of 16 years dependent upon him for support at the time of his injury. In the year preceding his injuries he earned the sum of $1,509.20.

The particular facts as to the nature of the injuries were as follows: Claimant was cleaning out a catch basin near Second Street and St. Clair Avenue, and while so doing had placed two metal signs, one marked “Men Working” and the other “Slow”. Claimant heard a car strike one of the signs, looked around, and the sign struck him in the corner of the right eye. Claimant was also struck on the right shoulder and mouth causing loss of the left front incisor tooth.

Claimant was taken to St. Mary’s Hospital in East St. Louis, where he was given emergency treatment, and then went to his family physician, Dr. Earl Williams. Dr. Williams sent claimant to Dr. Nofles in St. Louis.

The Division of Highways had claimant sent to Dr. Lawrence Post, who examined claimant, and performed an operation on the right eye. The conclusión of all medical reports show claimant sustained a complete loss of sight of his right eye.

Claimant was temporarily disabled from performing any work until about November 1, 1950. Eespondent paid all medical bills in connection with the injury, and temporary compensation to July 31,1950.

The evidence shows claimant expended $6.80 in going to doctors in St. Louis. For this amount he should be reimbursed.

A bill for stenographic services, performed at the hearing, was submitted by Igatha Broach, in the amount of $28.65, which the Court finds to be reasonable.

On the basis of this record we make the following award:

For temporary total disability for the period from May 25, 1950, to October 2, 1950, a period of 18 and 5/7 weeks, in the amount of $561.44, of which $291.44 has been paid, leaving a balance due of $270.00, all of which has accrued and is payable forthwith.
For the specific total loss of the use of the right eye, the sum of $3,600.00 payable as follows: $540.00 for a period of 18 weeks, which has accrued to February 5, 1951. The balance of $3,060.00 to be paid in weekly installments of $30.00 per week for a period of 102 weeks beginning February 12, 1951.
An award is also entered in favor of the claimant in the amount of $6.80 for the expenses incurred by him in the treatment of his injuries.
An award of $100.00 to be paid by the respondent to the State Treasurer of the State of Illinois, as ex-officio custodian of the Workmen's Compensation Special Fund, to be distributed in accordance with the provisions of the said Workmen’s Compensation Act.
An award is also made in favor of Igatha Broach for stenographic services in the amount of $28.65, which 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.”

All future payments are subject to the terms and provisions of the Workmen’s Compensation Act of the State of Illinois.

Jurisdiction of this cause is specifically retained for the entry of such further orders as may from time to time be necessary.

Supplemental Opinion

It being represented to the. Court that the award entered in this cause in the amount of $100.00 to be paid by the respondent to the State Treasurer of the State of Illinois, as ex-officio custodian of the Workmen’s Compensation Special Fund, to be distributed in accordance with the provisions of the said Workmen’s Compensation Act, is not necessary, as the balance in said fund is in excess of $50,000.00 and no further payments are required;

It is therefore ordered that the opinion in this case, wherein the following award was made:

“An award of $100.00 to be paid by the respondent to the State Treasurer of the State of Illinois, as ex-officio custodian of the Workmen’s Compensation Special Fund, to be distributed in accordance with the provisions of the said Workmen’s Compensation Act”

is hereby vacated, set aside, and held for naught.


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    (No. 4172
    Rose Haberichter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 6, 1951.

    Edward J. Lyons, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Rose Haberichter, in her lifetime, was employed as secretary to the Chairman of the State Housing Board. She was injured in her employment on September 7, 1948, and sustained a fracture of her right foot. No questions are raised as to jurisdiction, and she earned $2,940.00 for the year preceding her injury.

The death of Rose Haberichter was suggested in the record, and it was shown that she died on March 26, 1950. At a subsequent hearing held on December 22, 1950, the sworn testimony showed that Rose Haberichter left surviving her the following adult persons as her only heirs at law, namely: Ruth E. Betty, sister; Paul H. Haberichter, brother; George T. Haberichter, brother.

The testimony further showed that all last illness expenses and funeral bills had been paid, and that no administration on her estate was had, or would be sought.

On the basis of this record, the heirs at law above named are entitled to receive the amounts necessarily expended by decedent in her lifetime in caring for her admitted injuries, which the Court finds as follows: Dr. Fred W. Mueller, $75.00; Lillian I. Weld, $263.00;' Woodlawn Hospital, $16.30, for a total of $354.30.

William J. Cleary & Co. furnished stenographic services in reporting testimony in the amount of $65.45, which the Court finds reasonable.

An award is entered in the amount of $354.30 payable to Ruth E. Betty, Paul H. Haberichter, and George T. Haberichter, all of which is due and payable forthwith.

An award in the amount of $65.45 is also made to William J. Cleary & Co. for stenographic services.

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. 4235
    Eldon B. Dawson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1951.

      Petition of Respondent for rehearing denied July 6, 1951.

    James O. Monroe, Jr., Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant in this case seeks an award for contracting active pulmonary tuberculosis under Section 3 of the Workmen’s Occupational Diseases Act.

The record consists of the complaint, Departmental Report, amended complaint, Supplemental Departmental Report, transcript of the evidence, order of the Chief Justice of this Court granting claimant an extension of thirty days in which to file abstract and brief, statement, brief and argument of claimant, abstract of evidence, statement, brief and argument of respondent, order of the Chief Justice of this Court granting claimant an extension of time to November 12, 1950 in which to file reply brief, and claimant’s reply brief.

The record shows that Eldon B. Dawson is a widower with one child apparently under the age of 16. Date of birth is given as June 2, 1895. He entered State service on October 15, 1942, and was assigned to the farm detail as a truck driver at the Alton State Hospital. At the time of his employment the physical examination of his chest was negative, and the X-Ray examination performed on December 8, 1943 revealed pulmonary fibrosis without evidence of active lung pathology. Mr. Dawson was found to have active tuberculosis with a positive sputum on October 25, 1948, and was admitted to the Madison County Sanitarium.

Claimant drove the garbage truck on occasions when the regular truck driver was off duty. Mr. Dawson was required to work with mental patients diseased with tuberculosis, who talked, spat and coughed near him.

This Court held in the case of Helen M. Kaspari vs. State, No. 4221, as follows:

“To be entitled to compensation under the Workmen’s Occupational Diseases Act, a claimant must show that respondent violated:
1. A rule or rules of the Industrial Commission made pursuant to the Health and Safety Act.
2. A statute of this State intended for the protection of the health of employees. (Domke vs. State, 12 C.C.R. 451.)”

The Departmental Report filed on May 24, 1950, which has become a part pf this record by the rules of the Court, states as follows:

“The claimant was permitted to have one day’s rest during each calendar week, except during March, 1947 when he worked a full month without a day off in view of the shortage of help.”

Claimant is entitled to the benefits of “An Act to Promote the Public Health and Comfort of Persons Employed by Providing One Day of Rest in Seven”, which provides, among other things, that an employee shall be allowed at least twenty-four consecutive hours of rest in every calendar week in addition to the regular period of rest allowed at the close of each working day. Ill. Rev. Stat., 1949, Chap. 48, Sec. 8b; Domke vs. State, 12 C.C.R. 451.

That such statute has been violated is shown by - respondent’s Departmental Report, and such violation is negligence on the part of respondent under Section 3 of the Workmen’s Occupational Diseases Act.

Claimant is, therefore, entitled to an award.

As to damages, there is evidence in the record to the effect that, with continued sanitarium confinement and medication, claimant’s tuberculosis may become permanently arrested. We, therefore, conclude that claimant, Eldon B. Dawson, is entitled to an award of $2,000.00.

Henry P. Keefe, Court Reporter, was employed to take and transcribe the testimony before Commissioner Summers. Charges in the amount of $40.75 were incurred, which are reasonable and customary, and an award is entered in favor of Henry P. Keefe for $40.75.

An award is entered in favor of claimant, Eldon B. Dawson, in the amount of $2,000.00.