text:
    (No. 2984
    W. Frank Walkowiak, Mary Walkowiak, R. P. Lambert and Stella Lambert, Claimants, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1942.

    Lawrence Morell Gross and James W. Breen, for claimants.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

The claimants, W. Frank Walkowiak and R. P. Lambert are the owners as tenants in common of Lots 7, 8, 9, and 10 in Block 16 of “Argo Third Addition to Summit,” a subdivision of that part of the north % of the southwest quarter of Section 13, Township 38 North, Range 12, East of the Third Principal Meridian, lying east of Archer Avenue (except the north 540.41 feet thereof), in Cook County, Illinois. The claimant Mary Walkowiak is the wife of the claimant, W. Frank Walkowiak, and the claimant Stella Lambert is the wife of the claimant, R. P. Lambert. The property is situated on the northeast corner of the intersection of Archer Avenue and 60th Street, and has a frontage on Archer Avenue of 97 feet, and a frontage on 60th Street of 104 feet. During the period from July, 1934, to August, 1935, the Department of Public Works and Buildings, Division of Highways, of the State of Illinois, erected a new viaduct across the Indiana Harbor Belt Railroad on Archer Avenue just north of 60th Street, paved Archer Avenue from 55th Street to 63rd Street, and re-constructed a sidewalk on Archer Avenue adjoining claimants’ property. The new roadway and viaduct were elevated above the level of the original road and viaduct, and the approaches were lengthened and extended.

The south approach to the original viaduct began approximately forty feet north of the southwest corner of claimants’ property; the south forty feet of frontage of claimants’ property was on a level with Archer Avenue; along the remaining fifty-seven feet of frontage there was a gradual rise, the height of which increased to approximately four feet at the north line of claimants ’ property. The original sidewalk ran parallel with the front line of the property and continued up and on the approach. There was no retaining wall or hand rail on the original roadway opposite claimants’ property.

The elevation of the new roadway and viaduct at the southwest comer of claimants’ property is approximately one foot, and the elevation of the retaining wall of the viaduct increases until it reaches the height of eight feet at the north line of the property. There is a concrete hand rail three and one-half feet high superimposed upon the retaining wall and extending north from a point forty feet north of the south line of the property. The old sidewalk, which was torn up, was replaced the length of claimants-’ property only, and is now a dead-end walk. The new sidewalk, running along the new roadway and over the new viaduct, veers away from claimants’ property so that at the north end it is approximately twelve feet from the old sidewalk. Claimants’ property is now in a depression, and ingress and egress to and from Archer Avenue is completely obstructed.

Claimants purchased the property in 1930 for $8,000.00. At that time the property adjoining on the north was owned by the Catholic Bishop of Chicago, and claimants hoped a church or school might be built on this adjoining tract which would increase pedestrian traffic in front of their property and enhance its value as a business site. With this thought in mind, in August or September, 1930, they refused an offer of $100.00 a front foot. Subsequently, they expended approximately $1,100.00 for various street improvements. The property is now free and clear of liens.

Claimants contend that by the construction of the new viaduct, they have sustained a loss of $3,500.00 in the value of their property. Their right to an award is derived from Section 13 of Article 2 of the Constitution, which provides that private property shall not be taken or damaged for public use without just compensation. Where the property is not taken but is damaged for public use, the proper measure of damages is the difference between its fair cash market value immediately prior to the improvement and its fair cash market value immediately after the improvement. Oetting vs. State, 11 C. C. R. 527.

Ernest H. Lyons, a real estate broker and appraiser for more than thirty-five years in Chicago and vicinity, called as a witness for the claimant, testified that in his opinion the property prior to the construction of the new viaduct had a fair cash market value for its highest and best use of $6,000.00; that at the time of the completion of the new viaduct, the fair cash market value of the property was $2,500.00; that the property lost its most valuable accessibility and availability in the obstruction of its frontage on Archer Avenue from which it previously had derived most of its value.

Donald T. Morrison, a real estate broker and appraiser in Cook County for many years, called as a witness for the respondent, testified that in his opinion the highest and best use for which the property was immediately available prior to the construction was for business or commercial purposes; and that the construction had not changed this use. He testified that immediately prior to the construction of the new viaduct the fair cash market value of claimants ’ property in his opinion, was $5,000.00, and that immediately after the construction and improvement the fair cash market value was $4,500.00. In arriving at these values the witness considered the location and size of the property, surrounding conditions, the real estate market at the time of the improvement, recent sales of property in the neighborhood, and the highest and best use of the property. He testified that the property could still be used for commercial purposes, entering on 60th Street instead of on Archer Avenue, and that for such purposes the widening- and paving of the viaduct had benefited the 60th Street frontage. On cross-examination, the witness stated that in January, 1931, a lot 25x125 feet on Archer Avenue, located about 150 feet south of 60th Street, had sold for $70.00 a front foot.

The court has inspected the property, and from such inspection, and from the testimony of the witnesses, the court finds that the property of the claimants has been damaged by the construction of the viaduct on Archer Avenue in the amount of $3,500.00.

An award is therefore entered in favor of the claimants in the sum of $3,500.00.


source: Caselaw Access Project

author: Fisher, J.

license: Public Domain

text:
    (No. 3666
    Carl Brown, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1943.

    M. J. Hanágan, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostr'om, Assistant Attorney General, for respondent.
   Fisher, J.

The claim was filed- on November 26, 1941, for benefits under the Workmen’s Compensation Act. The complaint alleges that on September 5, 1941, claimant was injured in an accident alleged to have arisen out of and in the course of his employment- as a guard at the Southern Illinois Penitentiary.

The complaint further alleges that on September 5, 1941, claimant was attacked by an insane inmate of said institution and in the ensuing scuffle sustained a fracture of the thumb of his right hand and injuries to the right hand.

The complaint further alleges that employees engaged in the same capacity as claimant earn an average yearly salary of $1,560.00. Medical and hospital care have been furnished by the State.

Claimant prays an award for twenty (20) per cent loss of the use of his right hand. No claim is made for temporary total disability.

The record in this case consists of the original complaint, amended complaint, report of the Department of Public Safety, report of Dr. A. F. Barnett, the transcript of the evidence, waiver of statement, brief and argument by claimant, and respondent’s statement, brief and argument.

As respondent had immediate notice of the accident on the date it occurred and the complaint was filed less than three months after the date of the accident, the jurisdictional requirements of Section 24 of the Workmen’s Compensation Act have been complied with and this court has jurisdiction of the matter.

From the evidence, it appears that claimant was injured in the course of and out of his employment, and the only question presented for determination is the extent of the injury and the compensation payable. Claimant received full salary during the period after the injury and makes no claim for temporary total disability.

The evidence shows that claimant’s thumb was fractured. X-rays taken by L. H. Dunham, physician at the penitentiary showed a transverse fracture of the proximal end of the proximal phalange of the right thumb. Some displacement of fragments occurred. The fracture was reduced and good alignment obtained. A splint was applied and claimant returned to work. Later x-rays showed good alignment and early callous formation. In the opinion of Dr. A. F. Barnett, claimant suffered a fifteen (15) per cent loss of the use of his right thumb.

Claimant has prayed for an award for twenty (20) per cent loss of the use of his right hand. From the evidence, if any award were to be made in favor of claimant, it would have to be confined to the partial loss of the use of the thumb only. In claimant’s testimony he stated that he cannot pull his thumb to the palmar surface of his hand as well as he can his uninjured thumb, and that he had also lost some of his ability to grip objects. On cross examination, claimant stated that he was able to extend both thumbs from the index finger equally, and was able to place the injured thumb at the base of each of the four fingers, but that in making a fist he was not able to clinch the right thumb quite as hard as with the left thumb.

From the evidence, we are of the opinion that claimant suffered a fifteen (15) per cent loss of the use of his right thumb. Claimant is, therefore, entitled to an award under Section 8 of the Workmen’s Compensation Act, Sub-sections (E 1), (L), in the sum of $173.25, all of which has accrued at this time.

An award is therefore entered in favor of claimant, Carl Brown, for the sum of One Hundred Seventy-three and 25/100 Dollars ($173.25).

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


author: Chief Justice Damron

text:
    (No. 3767
    The Catholic Bishop of Chicago, a Corporation, Sole Owner and Operator of Mount Carmel Cemetery, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1943.

    James J. O’Brien, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.-
   Chief Justice Damron

delivered the opinion of the court:

This complaint was filed on the 2nd day of December, 1942, seeking an award in the sum of One Hundred Twelve ($112.00) Dollars, for hauling and erecting twenty-eight “free government headstones” at the graves, of deceased veterans whose names, rank and division to which they belonged, is. shown in detail in the complaint.

The sum claimed, when broken down, represents a charge of $4.00 per headstone.

The invoices, one dated September 28th, 1942, in the amount of $64.00 and the other dated October 2nd, 1942, in the amount of $48.00, copies of which are attached to this complaint, were presented to the Bureau of War Veterans Graves Registration, Springfield, Illinois, and were returned unpaid because of a lapse of the appropriation out of which these claims should have been paid.

This record consists of the complaint, stipulation of the claimant and the Attorney General, report of the Auditor of Public Accounts, and report of the Brigadier General, Leo M. Boyle, dated December 8th, 1942. Paragraphs five and six of the report of the Brigadier General read as follows: “The claim for the twenty-eight free government headstones is recognized as valid. Three of the headstones were ordered direct from the War Department, Washington, D. C., by the applicants; twenty-five of the headstones were ordered through the War Veterans Graves Registration. The Superintendent of Mount Carmel Cemetery acknowledges and signs a statement to the effect that each individual government headstone has been erected at the proper designated grave

Upon a reading of this record, consisting of the above documents the court is convinced that the services were rendered by the claimant and the claims should be paid.

The Brigadier General acknowledges that the services were rendered by claimant, and that the amount is correct and valid and the claim should be paid. The Auditor of Public Accounts acknowledges that an appropriation existed for transporting and setting headstones and incidental expenses at the time the services were rendered by claimant.

We have repeatedly held where claimant has rendered services to the State on the order of one authorized to contract for it, and submits a bill therefor within a reasonable time and due to no fault or negligence on the part of claimant, same is not approved and vouchered for payment, before the lapse of the appropriation from which it is payable, an award for the reasonable value of same may be made, where at the time the services were rendered there were sufficient funds remaining therein to pay same. Rock Island Sand & Gravel Co. vs. State, 8 C. C. R. 165; Oak Park Hospital Inc. vs. State, 11 C. C. R. 219, and cases cited thereunder. "

This case comes within the rule above set forth. An award is therefore entered in favor of the claimant for the sum of One Hundred Twelve ($112.00) Dollars.


author: Eckert, J.

text:
    (No. 3723
    Richard E. Coyle, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1943.

    Kirkland, Fleming, Green, Martin & Ellis, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

On August .11, 1940, claimant, Richard E. Coyle, a First Lieutenant of Infantry, attached to Company G, 132nd Infantry, Illinois National Guard, was ordered by proper military authority to proceed with his regiment to Sparta, Wisconsin, where he was engaged in military maneuvers until August 30, 1940. Claimant there contracted poliomyelitis, as a result o'f which he was unable to return to his employment, as salesman of advertising for the Chicago Tribune, until September 15, 1941.

On March 2, 1941, a board of three medical officers, duly convened by order of the Commander in Chief, determined that claimant’s disability was in fact incurred while claimant was acting as an officer on duty with the Illinois National Guard, recommended that he be reimbursed for all hospital and medical bills, and that “full favorable consideration be given Lieut. Richard E. Coyle, in regard to his pay for the period of his disability.” Claimant was thereafter reimbursed for his hospital and medical bills, and his active service pay until the date of his discharge from the hospital on November 12, 1940..

On July 8, 1942, a board of three medical officers, duly convened by order of the Commander in Chief, after physical examination of claimant and survey of hospital and other records pertaining to the ease, found that claimant had attained the maximum recovery possible, and had no permanent disability. The board recommended favorable consideration of pay for claimant from November 12, 1940, to September 15, 1941, “during which period his convalescence prevented his following his usual occupation.”

Claimant alleges that while in the actual service of the State, under orders of the Commander in Chief, he received a monthly salary of $188.33, a rental allowance of $60.00 per month, and a subsistence allowance of $36.00 per month; that one-half of his active service pay is therefore $142.16 per month; and that he is entitled to receive one-half of his active service pay from November 12, 1940, to September 15, 1941, or an aggregate sum of $1,421.60.

This claim arises under the Military and Naval Code of the State of Illinois, (Illinois State Bar Statutes, Chapter 129), which is a complete code for the military and naval affairs of the State. (Hays vs. Illinois Transportation Company, 363 Ill. 397.) Section 3 of Article XVI of the code provides that when in actual service of the State, under orders of the Commander in Chief, officers of the National Guard, except officers on permanent duty and receiving a regular salary, shall receive the same pay as provided by law for officers of the United States Army of like grade, including longevity pay. From the uncontradicted report of the Adjutant General, which is a part of the record in this case, it appears that claimant has had more than three years service in the National Guard, and is therefore entitled to longevity pay; that the base pay of a first lieutenant is $166.66 per month, which amount, plus longevity pay for more than three years service, brings the amount of his pay and longevity to $175.00 per month.

Section 10 of Article XVI provides that any officer who is wounded or disabled in any way while on duty and lawfully performing the same, so as to prevent his working at his profession, trade, or other occupation from which he gains his living, shall be entitled to draw one-half his active service pay, as specified in Section 3, for not to exceed thirty days of such disability, on the certificate of the attending medical officer; that if still disabled at the end of thirty days, he shall be entitled to draw pay at the same rate for such period as a board of three medical officers, duly convened by order of the Commander in Chief, may determine to be right and just, but not to exceed six months unless approved by the State Court of Claims.

A board of three medical officers, duly convened by order of the Commander in Chief, has found that the disability of the claimant was incurred while he was on duty and lawfully performing the same, and has recommended payment of one-half claimant’s active service pay from November 12,1940, to September 14, 1941. There is nothing in the record to indicate that the finding of the board was erroneous. Claimant has complied with the provisions of Section 10, (Echols vs. State of Illinois, 10 C. C. R. 112; Louis Insalato vs. State of Illinois, Court of Claims, Case No. 3488), and is therefore entitled to an award for one-half his active service pay in the amount of $87.50 per month for a period of ten months, or the total sum of $875.00.

Award is therefore entered in favor of the claimant in said sum of $875.00.


text:
    (No. 3593
    Anna A. Esker, Administrator of the Estate of Lawrence F. Esker, Deceased ; and Eugene A. Esker, Andrew Theodore Esker, Edgar L. Esker, Minors, by Anna A. Esker, Their Next Friend, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1943.

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

This claim was filed March 6, 1941. It is for benefits under the Workmen’s Compensation Act claimed for the death of claimant’s husband from typhoid fever alleged to have been contracted out of and in the course of his employment.

Claimant further alleges that deceased, Lawrence F. Esker, was employed by the State of Illinois as a foreman on maintenance road work; that it was necessary for him to stay away from home some weeks while so employed, and that respondent paid the costs for his lodging and food while away from home.

Claimant further alleges that the said Lawrence F. Esker contracted typhoid fever on the 16th day of October, 1940, while away from his home in connection with his duties, by drinking water which was contaminated.

The evidence shows that the crew with whom Lawrence F. Esker worked, would be away from home during the week and return home on week ends; that during the week they would stay at hotels or private rooming houses in cities near their work; that they would obtain most of their meals in restaurants; that they would take water out with them from the city in which they were staying; also that much of their drinking water was obtained from; wells, cisterns, or from farms and residences near their work.

The evidence further shows that the deceased had no running water in his home, and that the drinking water used at his home was secured from wells from nearby neighbors; that about a month subsequent to her husband’s death, claimant herself and her son became ill with typhoid fever. The evidence does not show that any tests were made of any of the sources of the water supply to determine if any of them were contaminated with typhoid germs.

The applicant has the burden of proof upon every essential element of a, right to compensation. The proof required is that the applicant establish every disputed question of fact as to a right to compensation by a preponderance of the competent evidence in the record. An award cannot be based upon speculation, surmise, conjecture or upon a choice between two views equally compatible with the evidence.

Bauer & Black vs. Ind. Com., 322 Ill. 165.
Madison Coal Corp. vs. Ind. Com., 320 Ill. 298.

An award may not be based upon imagination, speculation or conjecture, but must be based upon facts established by a preponderance of the evidence.

Libby, McNeill & Libby vs. Ind. Com., 326 Ill. 293.
Paradise Coal Co. vs. Ind. Com., 324 id 420.
Camp Spring Mills Co. vs. Ind. Com., 302 id 136.

It is a generally accepted view that typhoid fever is contracted by food or liquids taken through the mouth. The deceased may have contracted his disease by the food, milk or water which he consumed at home, in the hotels or rooming houses where- he stayed while away from home, or from the water which he obtained from farmhouses and residences adjacent to his work. For this court to conclude that the typhoid fever contracted by the deceased was a result of drinking water obtained from sources of supply near the project on which he was working, would be to indulge in speculation, surmise and conjecture, and would not be based upon competent evidence before it.

Respondent’s motion to dismiss is sustained, and the claim is dismissed.


text:
    (No. 3529
    W. C. Fowler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1943.

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

This claim was filed July 17, 1940, seeking an award in the sum of Three Thousand Dollars ($3,000.00) for injuries suffered by claimant while employed as a laborer on State Bond Issue Route No. 145 on January 16, 1939. Amended complaint was filed December 20, 1940. Claimant was paid for total temporary disability, and the final period for which said compensation was paid was from June 6th to June 20th inclusive, 1939.

This claim now comes before the court on the original complaint, respondent’s motion to dismiss with affidavit in support thereof, respective briefs and arguments of respondent and claimant, claimant’s amended complaint, reports of the Division of Highways, and transcript of evidence on behalf of claimant.

Section 24 of the Workmen’s Compensation Act provides, in part, as follows :

“Unless application for compensation is filed with the Industrial Commission within one year after the date of the last payment of compensation, the right to file such application shall he barred.”

In the Act creating the Court of Claims it is provided that this court shall have the power “to hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by an employee of the State, such determination to be made in accordance with the rules prescribed in the Act commonly called the Workmen’s Compensation Act.”

These, by limitation, are jurisdictional, and unless they are followed by a claimant this court is without jurisdiction to hear the matter and, upon motion, the complaint must be dismissed.

Claimant admits that this claim as filed does not comply with Section 24 and, since the complaint shows on its face that more than twelve months elapsed from the date of the injury and/or the last payment of compensation and the- date of filing claim, the court must conclude that the provisions of Section 24 of the Workmen’s Compensation Act have not been complied with and the court lacks jurisdiction to consider this claim under that section.

Claimant seeks to bring his claim within Section 19, Paragraph (h), which provides—

"An agreement or award under this Act providing for compensation in installments may at any time within eighteen months after such agreement or award be reviewed by the Industrial Commission at the request of either the employer or employee.”

This question was decided by the court in the case of Clarence Malcom vs. State of Illinois, No. 3546, opinion rendered at the September, 1942, term of this court, in which case this question was discussed in detail, and the court concluded that paragraph (h) of Section 19 was not applicable in original proceedings.

This court being without jurisdiction, the motion to dismiss by respondent is therefore granted and the complaint is hereby dismissed.


text:
    (No. 3740
    Elmer E. Hersman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1943.

    J. P. Stretjber, for claimant.
    George F. Barrett, Attorney General; Egbert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant, Elmer E. Hersman, in his complaint filed in this court on August 4, 1942, alleges that on June 12, 1942, he was employed by the Department of Public Works and Buildings, Division of Highways, of the State of Illinois, and that while lifting concrete tile forming a culvert across Milton Boad at Alton, Illinois, he suffered an injury which arose out of and in the course of his employment. Eespondent has moved to dismiss the claim on the ground that claimant’s injury is a hernia; that respondent has offered claimant such medical and surgical care, by claimant’s own physician, as is necessary for recovery; that claimant has refused to submit to such necessary medical and surgical treatment. The motion is supported by affidavit.

Under Section 6, Sub-section 6, of “An Act to create the Court of Claims and to prescribe its powers and duties, ’ ’ this court has jurisdiction to hear and determine claims for accidental injuries or death suffered in the course of employment by employees of the State. Such determination is to be made “in accordance with the rules prescribed in the Act commonly called the ‘Workmen’s Compensation Act.’ ” It is therefore the duty of this court, as it is the duty of the Industrial Commission, to determine in cases of this kind whether an employee shall submit to an operation. If an award has already been entered, the question arises under Section 19(d) of the Workmen’s Compensation Act; if an award has not been made, the question arises in the determination of the cause of the alleged disability. If the court finds that an operation is reasonably necessary to effect a recovery, is not dangerous to life or health, has a reasonable certainty of success, involves no extraordinary suffering, and is such as any reasonable man would desire for his own recovery, the employee must either submit to the surgery or be denied the benefits of the Workmen’s Compensation Act. Whittika vs. Industrial Commission, 322 Ill. 368; Pocahontas Mining Company vs. Industrial Commission, 301 Ill. 462; Rosenthal & Company vs. Industrial Commission, 295 Ill. 182; Mt. Olive Coal Company vs. Industrial Commission, 295 Ill. 429; Joliet Motor Company vs. Industrial Commission, 280 Ill. 148.

An operation for hernia offers claimant the only reasonable prospect of complete recovery; it is not attended with danger to life or health or extraordinary suffering. Recovery from a hernia does not occur in the ordinary process of healing, by allowing nature to take its course, as is the case with many wounds. Rosenthal & Company vs. Industrial Commission, supra. It is a matter of common knowledge that men generally are desirous of obtaining the relief from injuries of this kind which only surgery can give. Claimant’s refusal to submit to an operation is unreasonable and is the cause of his present incapacity. So long as he persists in this refusal, he is not entitled to the benefits of the Workmen’s Compensation Act.

Respondent’s motion to dismiss is therefore granted.


text:
    (No. 3762
    Dorothy Jensen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1943.

    Laurence B. Jacobs, for claimant.
    George. F. Barrett, Attorney General; Robert. V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Claimant seeks an award in the sum of Two Hundred ($200.00) Dollars for damages to her automobile and One Thousand ($1,000.00) Dollars for personal injuries received by her on the 6th day of May, 1942, alleged to be'the result of negligence on the part of the State of Illinois through its employees, agents or officers.

Claimant alleges that on said date while driving her automobile with due diligence and care for her own. safety in Chicago, along and upon the State Highway at 95th Street near the intersection of Melvina Avenue the roadway caved in, causing her car to overturn. . The claimant sustained a broken arm and damage to her automobile as aforesaid.

This claim is predicated on the assumption that the State, in the exercise of a governmental function, is liable for injuries to persons resulting from the negligence of its officers, agents or employees.

As this complaint is drawn it would be insufficient, if the State were suable, for the reason that it fails to allege that the State or its employees had actual notice of the alleged defect in the pavement or that it had existed for such a length of time that the State was presumed to have notice of such defect.

It has been repeatedly held, by this court, that the State is not liable for injuries to persons or property resulting from the negligence of its employees. Kramer vs. State, 8 C. C. R., 31; Johnston vs. State, 9 C. C. R., 381; Finney vs. State, 9 C. C. R., 327; Moffett vs. State, 10 C. C. R., 54; Dugar vs. State, No. 3549, opinion rendered February 14, 1941.

And the fact that the negligence is gross or wanton does not change the rule. Stanley vs. State, 10 C. C. R., 146; Garbutt vs. State, 10 C. C. R., 37; Dugar vs. State, supra.

The Court of Claims has jurisdiction to recommend an award only where the State would be liable in law or in equity in a court of general jurisdiction if it were suable. Crabtree vs. State, 7 C. C. R., 207; Helen Turner et al vs. State, No. 3633.

The Attorney General having filed a motion to dismiss the complaint, this court after full consideration of the complaint and the authorities must sustain the motion.

Motion sustained. Complaint dismissed.


text:
    (No. 2659
    Patrick J. O’Herron, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1943.

    Lloyd C. Moody, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General* for respondent.
   Chief Justice Damron

delivered the opinion of the court:

• This complaint was filed in this court on April 20, 1935, for benefits under the Workmen’s Compensation Act. The complaint alleges that on April 28,1934, claimant was injured, while employed by the State of Illinois as a laborer in a construction gang engaged,in building a durable hard surfaced road about one mile from Stone Church, Illinois.

It states that said injury arose out of and in the course of his employment and that immediate notice was given to the time-keeper and to the superintendent in charge of the construction gang in which claimant was working. That claimant made immediate claim for compensation for the injuries he so received and thereafter from the date of said accident to and including September 8, 1934, the respondent paid claimant temporary compensation in accordance with the terms and provisions of the Workmen’s Compensation Act.

The complaint states that as a direct and proximate result of said injury claimant was disabled and unable to perform his usual and customary occupation or to continue his employment for the State of Illinois and has so remained from the time of his injury and will continue permanently to be so disabled.

That the average' earnings of the claimant during the period of time he worked for respondent prior to said injury were $25.00 per week; that the average earnings of other employees of the State of Illinois in the same line of work as claimant during the period next preceding* the time of said accident were $25.00 a week or upward.

That the respondent paid the following amounts for medical and surgical services rendered: Dr. H. Schmidt, Okawville, Illinois, $29.00; Dr. George K. Wilson, Streator, Illinois, $5.00; Dr. George J. Powers, Streator, Illinois, $17.00; St. Mary’s Hospital, Streator, Illinois, $22.00, and that since the accident the respondent has paid claimant wages aggregating $64.00 and the aggregate sum of $165.00 as compensation which said amounts were paid by warrants in the following amounts: $22.00, $33.00, $44.00, $22.00, $22.00, and $22.00.

That at the time of said injury claimant was. forty-five years of age; was married and had one child, John O’Herron, then aged fourteen years, who resided with the claimant at Streator, Illinois.

Wherefore claimant says that he has sustained damage by reason of the premises in the sum of $10,000.00, which claimant prays may be allowed to him as compensation for his said damages and injuries.

The record in this case consists of the original complaint, bill of particulars and notice of the accident which was served on the respondent, testimony of Dr. George J. Powers taken on October 26, 1936, for claimant and the testimony of Dr. H. B. Thomas taken on July 13, 1938, for respondent.

As respondent had immediate notice of the accident on the date it occurred and the complaint was filed less than one year subsequent to said injury, the jurisdictional requirements of Section 24 of the Workmen’s Compensation Act have been complied with and this court has jurisdiction of the matter.

From the evidence it appears that claimant’s injuries arose out of and in the course of his employment and the only question presented for determination is the extent of the injury and the compensation payable, if any.

Dr. George J. Powers, called on behalf of claimant, was asked the following question and gave the following answer:

Q. “Have you an opinion, doctor, as to the particular nature of the injury which is causing his suffering.”
A. “I am not clear as to that, that is definitely. I couldn’t put my finger on the spot and say, ‘that’s it.’ I just know the condition is there and in my opinion permanently disables him.”

On October 29, 1936, the respondent employed Dr. H. B. Thomas of Chicago, Orthopedic Surgeon to treat claimant. Dr. Thomas testified that he took the case history from the claimant and gave him a thorough examination including x-rays, giving particular attention to the region that he complained of, namely the right lower back, concentrating on the sacro-iliac joint on the right side in the lower back. He states he saw claimant about five times, examined him twice, the" second time on December 5th, the same year. As the result of such examination he found but one objective symptom, using the straight leg raising test. The movement test was negative; other tests that were made were negative. He was given some physiotherapy diagnostic treatments and tests which showed that he had some trouble in his sacro-iliac joint, right. The doctor further testified that of all the symptoms that were related to him by the claimant and of the objective findings through examinations that the above was the only injury the claimant was then suffering from and that claimant was able to perform manual labor if he was inclined to do so. He gave him heat treatments and some massage, kneading out the stiffness of his muscles, but that he did not get a fair chance with his treatment; that claimant was not cooperative that he did not stay in Chicago so that he could have been treated and he further stated that had claimant remained and accepted the treatment prepared for him by the respondent that in his opinion the claimant might have gotten well; that he had had many types of injuries such as this, and that they responded from such treatment.

On cross examination Dr. Thomas testified: “My opinion was that he did not have any permanent disability at the time I examined him.”

And again on cross examination:

Q. “Did you find any tenderness around the sacro-iliae region?”
A. "Nothing that I interpret as tenderness. I found some jumping. He jumped once before my finger touched him.”
Q. “Would you say that was caused by mental fear that you were about to touch him?”
A, “Either that, either a mental fear or malingering. I think that he has some of both. I think he had some ^slight inflammation in the muscles. I don’t think there is any in the sacro-iliac region at all.”
Q. “Would you say that this man has been malingering?”
A. “I would say so from the first time I saw him.”

There may be some slight permanent loss suffered by this claimant as a direct result of said accident, but this court cannot, with any degree of certainty determine the extent from the record before it. The burden of proof is on the claimant, and this court has repeatedly held that awards cannot be based on conjecture and surmise.

It is the opinion of this court as found by the record that claimant did not cooperate with the respondent as required by paragraph (d) of Section 19 of the Workmen’s Compensation Act, by refusing to submit to such medical, surgical, and hospital treatment as was reasonably essential to promote his recovery. And that by such refusal the respondent has been relieved from compensation payments. Whittika vs. Industrial Commission, 322 Ill. Sup. 368.

And further the record shows that if claimant had submitted to such treatments as offered by the respondent a full recovery might have been had.

Under this record the claimant is not entitled to an award.

Award denied. Complaint dismissed.


author: Chibe Justice Damron

text:
    (No. 3749
    Phil Sawicki, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1943.

    Whitney, Teitelbaum & Freeman, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chibe Justice Damron

delivered the opinion of the court:

The complaint states that on July 5, 1938, while claimant was in the act of directing the operation of a concrete mixer he caught his left foot in a Caterpillar tractor. This injury occurred on Dundee Road in Wheeling, Illinois; that the respondent received immediate notice of said injury and subsequently a written report was made to the State of Illinois, Division of Highways, giving the details of said accident.

That as a direct result of said injury to claimant he suffered trauma of his left foot, a compound fracture of the distal end of the fourth metatarsal of said left foot. The wound was closed with several stitches, but claimant developed gas gangrene in his foot and the wound was reopened.

Claimant was unable to work for a considerable length of time and suffered permanent damage and disability as a result of said injury. All medical, surgical and hospital services were paid by the respondent.

The complaint in this case does not comply with rules five (5) and six (6) of this court, and fails to ask for any specific amount of compensation.

Section six (6) of the Court of Claims law provides as follows:

“To hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by an employee of the State, such determination to be made in accordance with the rules prescribed in the Act, commonly called the ‘Workmen’s Compensation Act,’ the Industrial Commission being hereby relieved of any duties relative thereto.”

Section twenty-four (24) of the Compensation Act is as follows:

“No proceedings for compensation under this Act shall be maintained unless notice of the accident has been given to the employer as soon as practicable, but not later than thirty (30) days after the accident, . . . provided no proceedings for compensation under this Act "shall be maintained unless claim for compensation has been made within six months after the accident, provided that in any case, unless application for compensation is filed with the Industrial Commission within one year after the date of the accident, where no compensation has been paid, or within one year after the date of the last payment of compensation, where any has been, paid, the right to file such application shall be barred.”

These limitations as set forth in Section twenty-four (24) are jurisdictional and unless followed strictly by claimant the Court of Claims is without jurisdiction and an award must be denied.

Malcolm vs. State, No. 3546, decided September 8th, 1942 and cases cited therein.

Claimant however relies upon Section ten (10) of the Court of Claims Act, which provides as follows:

“Every claim against the State, cognizable by the Court of. Claims shall be forever barred unless the claim is filed with the Secretary of the court within five years after the claim first accrues, saving tojnfants, idiots, lunatics, insane persons, and persons under disability at the time the claim accrued, two years from the time the disability is removed.”

There is nothing to indicate in the complaint that this claimant is, or has been under any disability from the date of the injury to the filing of the complaint.

In Crabtree vs. State, 7 C. C. R. page 207, Section 10 was construed. This opinion was filed May 23, 1933, and has been followed consistently by this court ever since.

In this opinion on pages 211 and 212 the court said:

"It seems clear that this court must, in the first instance, consider and determine the question as to whether there is a liability on the part of the State, and that in such consideration and determination, this court must be governed by the provisions of the Workmen’s Compensation Act. In short, this court has the same jurisdiction with reference to claims for compensation for accidental injuries or death suffered in the course of employment by any employee, of the State as that possessed by the Industrial Commission in claims of other persons whose rights must be determined by the Compensation Act.”
“Such being the case, the question arises as to the effect of the aforementioned provisions of Section twenty-four (24) of the Compensation Act relative to making claim for compensation within six months, and filing application for compensation within one year after the date of the injury, when considered in connection with Section 10 of the Court of Claims Act which provides that every claim against the State cognizable by the Court of Claims shall be forever barred unless filed within five (5) years after the claim first accrues.”
“Section ten (10) of the Court of Claims Act which provides in substance that every claim against the State cognizable by the Court of Claims shall be forever barred unless the claim is filed within five (5) years after the claim first accrues, is a general enactment which has application to all claims against the State. The terms and provisions of Section twenty-four (24) of the Compensation Act constitute a special enactment which has reference only to claims against the State ‘for accidental injuries or death suffered in the course of employment by any employee of the State.’ Applying such conclusions to this case, the terms and provisions of the special enactment, that is to say the terms and provisions of Section twenty-four (24) of the Compensation Act, must prevail over the general five year Statute of Limitations prescribed in the Court of Claims Act.”
Lincoln Park Commissioners, 332, Ill. 571.
Handtoffski vs. Chicago Traction Co., 274 Ill. 282.
59 Corpus Juris, p. 1056.

The making of claims for compensation and the filing of application for compensation within the time required by the Act being a condition precedent to the right of the claimant to maintain this proceeding this court is without jurisdiction to proceed with the hearing.

Inland Rubber Co. vs. Ind. Com., 309 Ill. 43.

The filing of this claim does not comply with Section twenty-four (24) of the Workmen’s Compensation Act, therefore the motion of the Attorney General to dismiss this complaint must be sustained.

Complaint dismissed.


text:
    (No. 3731
    Standard Oil Co., (Ind.), Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1943.

    H. E. Schroeder, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This is a claim by the Standard Oil Company of Indiana against the State of Illinois for petroleum products which the claimant alleges were furnished to the Division of Highways and the Division of State Police, for which it did not receive payment in due course.

In addition to the amended complaint the claimant files a bill of particulars which consists of nineteen schedules supported by proper affidavits. The schedules bear identifying numbers, but they are not in sequence. They are dated from April 30th, 1941, to July 6, 1942, totaling Two” Hundred Thirty-seven Dollars and Seventy-eight cents ($237.78).

The case has been submitted upon stiplation of facts as contained in a report of the Division of Highways dated August 26, 1942:

The respondent acknowledges in said report that the following petroleum products' totaling $186.42 were delivered by claimant and received by the Department of Police or Division of Highways:

Schedule number A, dated July 10th, 1941, amounting to $19.22; Schedule B, July 6th, 1942, $4.14; Schedule 10649, April 30th, 1941, $16.50; Schedule 10788, May 10th, 1941, $8.77; Schedule 10933, May 20th, 1941, $17.66; Schedule 11094, May 30th, 1941, $10.85; Schedule 11239, June 10th, 1941, $16.78; Schedule 11426, June 20th, 1941, $17.89; Schedule 11543, June 30th, 1941, $16.93; Schedule 11544, June 30th, 1941, $13.94; Schedule 11690, July 10th, 1941, $15.58; Schedule 11871, July 20th, 1941, $3.33; Schedule 420, August 10th, 1941, $2.88; Schedule 421, August 10th, 1941, $9.92; Schedule 422, August 10th, 1941, $4.16; Schedule 432, August 10th, 1941, $5.44; Schedule 424, August 10th, 1941, $8.00.

Arid respondent acknowledges that said products were as represented and the price the same as agreed upon at the time of purchase; that an appropriation existed and funds were available from which payments would have been made had the schedules been placed in line for payment before the expiration of the appropriation.

Considering schedule number 11818, dated July 10th, 1941, seeking an award of $49.05 the said report states:

“The Division of Highways has found that six items of purchase listed as having been delivered at Freeburg were made, but the 050 tickets were not received or the items otherwise scheduled for payment. The seven items listed as having been delivered at either Carlyle, Decatur or Collinsville, can not be verified in any manner by the Division. Neither employees nor accounting forces have any knowledge of receipt of the materials, or of having received 050 tickets covering the alleged purchases. The Division acknowledges that ¡P19.22 is now due and owing claimant on this schedule.”

The claimant is therefore entitled to an award on said schedule in the sum of Nineteen Dollars and Twenty-two Cents ($19.22).

Considering schedule “C” we again refer to the said report of the Division'of Highways which is as follows:

“The purchase represented by this schedule can not be verified. No record exists of the officer who made the purchase, the equipment in which it was used, or receipt of an 050 ticket covering the purchase.”

The court has repeatedly held that to charge the State with the cost of goods sold, it is essential that such sale be shown to have been made upon authority of someone duly authorized to make such purchase, or it must appear without question that the merchandise was actually received by some State Department or Institution* purchased in the regular and legal course of its operation. Butler Brothers, a Corporation vs. State of Illinois, 9 C. C. R. 243.

Applying the law as we find it we must conclude that the claimant has failed to produce convincing evidence that the merchandise claimed to have been sold by it to the respondent at Carlyle, Decatur or Collinsville as shown in that portion of schedule 11818 was received by respondent and the same reasoning and law must be applied to schedule “C” in toto.

An award is therefore made in favor of claimant in the sum of $205.64.


text:
    (No. 3747
    William B. Stanford, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1943.

    Smith, McCollom & Biggle, for claimant.
    George F. Barrett, Attorney General; Bobert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

This claim was filed on September 4, 1942. Claimant alleges that he is a resident of the State of Illinois; that on October 9, 1940 he was regularly enrolled as a student in the Eastern Illinois State Teachers’ College at Charleston, Illinois ; that on said date.he was directed by a teacher of the said institution to subject himself to the use of a fluoroscope device for the purpose of demonstrating to the other students the proper use of said fluoroscope; that as a result of such demonstration claimant was severely burned by fluoroscopic rays, causing great pain and permanent injury.

Claimant asks damages in the sum of Eleven Thousand Eight Hundred Seventy-nine and 80/100 Dollars ($11,879.80) for medical attention, hospitalization, traveling expenses to doctors and hospital, loss of time and earnings, suffering and permanent injury.

Bespondent moves to dismiss this claim and, in support of the motion, submits that the claim is predicated on the alleged liability of respondent while engaged in a governmental function, because of negligent and wrongful acts of its officers, agents or employees.

This court has repeatedly held that the State in the conduct of its penal and charitable institutions is engaged in a governmental function, and that in the exercise of such functions it is not responsible for the acts of its servants and agents in the absence of a statute making it so liable.

Wood vs. State, 9 C. C. R. 501.

The State, in the exercise of a governmental function, is not liable for injuries to persons resulting from the negligence of its officers, agents or employees, and an award as a matter of social justice cannot be allowed when the State would not be liable in law or equity if it were suable. There is no theory of law upon which an award in this case could be based. There being no legal liability on the part of the State, we have no authority to allow an award.

The motion of respondent to dismiss must, therefore, be and is hereby allowed, and the claim is dismissed.


text:
    (No. 3671
    Jacob Vahlkamp, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1943.

    Schrader, & Huber, for claimant.
    George F. Barrett, Attorney General; Egbert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

On June 4, 1940, the claimant, Jacob Vahlkamp, was employed by the Department of Public Works and Buildings, Division of Highways, of the State of Illinois, as a laborer mowing weeds on State Bond Issue Route 13 about one and one-half miles east of New Athens, Illinois. While sharpening a hand scythe the scythe slipped and cut claimant’s left forearm, causing a severe laceration across the entire width of the anterior aspect of the middle of the left forearm and severing muscles down through most of the flexor digitorum sublimis. He was given first aid treatment at New Athens and then taken to St. Elizabeth’s Hospital at Belleville.

On June 7, 1940, claimant was sent to Chicago and placed under the care of Dr. H. B. Thomas, Professor of Orthopedics, University of Illinois Medical College, where he remained until July 24th. From time to time thereafter he returned to Chicago for further treatment, and on August 19th returned to work for the Division, continuing intermittently during the following months.

On April 15, 1941, Dr. Thomas examined claimant and advised an exploratory operation, stating that the chances of improvement to the arm from such an operation were about fifty per cent. The respondent at that time gave claimant the choice of closing the case or submitting to such operation. Claimant chose not to submit to the operation, and on April 17th, Dr. Thomas reported to the Division as follows:

“Area of scar is, fairly pliable. Has good strength in the fingers. The central palm, second, and third fingers are still anesthetic. Nerve over-lap has not yet assumed function of the median sensory supply. The 2% thumb muscles supplied by median are atrophic. He probably will always have the above mentioned atrophy. Other nerves in time will grow in and take over the nerve supply to the skin. So his actual loss will be the use of 2% thumb muscles. This will not appreciably impair the function of the hand. Patient states that he has learned to keep from burning and hurting the hand and that its use is good.”

The respondent has paid all claimant’s medical and hospital services, his expenses while in Chicago, and his transportation costs, in the total amount of $600.35. The respondent has also paid claimant compensation in a total amount of $140.02 for the periods of June 5th to August ,18th, 1940, September 28th to October 14th, 1940, January 26th to January 30th, 1941, and April 14th and 15th, 1941 all dates inclusive.

At the time of his injury, claimant was twenty-nine years of age, a resident of Belleville, St. Clair County, Hlinois, unmarried, and with no dependents. No claim is made for temporary total disability, but claimant seeks compensation for permanent loss of the use of his left arm. During the year next preceding the injury, claimant was employed from time to time by the respondent as a laborer at the rate of fifty cents an hour, and received wages in the total amount of $144.00. Employees of the Division of Highways, engaged in the same capacity, and at the same rate as claimant, are employed less than two hundred days a year, and eight hours constitute a normal working day. At the time of the accident, claimant and respondent were operating under the provisions of theWorkmen’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 the employment.

Dr. J. H. Needles of Belleville, called as a witness on behalf of claimant, testified that he first examined the claimant .on November 25th, 1941, for the purpose of testifying in this case. At the time of the examination by Dr. Needles, the respondent had no surgeon present. Objection was made by the respondent to the testimony of Dr. Needles on the ground that he had failed to deliver to the respondent, or its representative, a statement in writing of the condition and extent of the injury, not later than forty-eight hours before the case was set for hearing, as provided by Section 12 of the Workmen’s Compensation Act. The testimony of Dr. Needles was. also objected to on the ground that his examination was not for the purpose of treatment, but for the purpose of testifying on claimant’s behalf; that Dr. Needles based his opinion partly upon his own observation and partly upon the statements made by claimant. This evidence was incompetent, and can not be considered by the court. National Steel Castings Company vs. Industrial Commission, 377 Ill. 169.

Dr. O. G-. Schneidewind, who treated claimant immediately after the injury, was also called as a witness on his behalf. Dr. Schneidewind testified as to treatment which he gave to claimant prior to claimant’s removal to Chicago and to the care of .Dr. Thomas, but stated that he did not feel qualified to testify as to claimant’s present disability. His testimony, therefore, is not helpful in determining claimant’s present disability, so that on this question there remains before the court only the reports of Dr. Thomas as contained in the report of the Division of Highways.

It is the opinion of the court that claimant has suffered an almost complete loss of the sensory functions of the left hand, and a slight functional loss in the use of the thumb muscles, resulting in a thirty-five per cent permanent partial loss of the use of his left arm. At the rate of fifty cents per hour, eight hours per day, compensation should be determined on the basis' of two hundred days at four dollars per day, or an annual wage of $800.00. This in turn equals an average weekly wage of $15.38. Under the provisions of the Workmen’s Compensation Act, claimant is therefore entitled to fifty per cent of bis annual weekly wage for a period of seventy-eight and three-fourths weeks, or the sum of $605.59. The accident having occurred after July 1, 1939, the amount of compensation must be increased ten per cent, making a total sum of $666.15, from which should be deducted $17.96 over-payment to claimant for temporary total disability, leaving a balance of $648.19, all of which has accrued and is payable forthwith.

Award is therefore entered in favor of the claimant for said sum of $648.19.

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


text:
    (No. 3395
    Charles Neal, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 13, 1942.

    H. Ogden Brainard, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Fisher, J.

The claimant, Charles Neal, was employed ás a truck driver by the State of Illinois, Department of Public Works and Buildings, Division of Highways, Unit “D,” building the Lincoln Highway which runs southwesterly out of Charleston, and while so employed on September 2, 1938 shortly after reporting for work, while walking down the highway toward his truck intending to get into it in the performance of his duties he was struck from behind by another truck, knocked down and run over, suffering a fracture of his right shoulder, a fracture of the pelvis and a compound fracture of the left foot. Claimant was taken immediately to the Oakwood Hospital in Charleston and placed under the care of Dr. J. R. Alexander, who reported his injuries as follows:

“Fractures: Right iliac crest, impacted fracture right femur, right clavicle, second, third, fourth and fifth metatarsal bones left foot. Bruised right knee.”

Thereafter, on September 6th, claimant was transported to St. Luke’s Hospital in Chicago, where he was placed under the care of Dr. H. B. Thomas, Professor of Orthopedics at the University of Illinois Medical College. He remained there until October 18th when he was discharged and registered at the Y. M. C. A. Hotel, continuing his treatments under the direction of Dr. Thomas. On November 5th he was sent to his home where he remained until November 28th, when he again returned to Chicago for the purpose of additional treatment. He again went home on December 20th and returned to Chicago on January 9,1939 and was treated until January 28th, when he returned home. On February 3, 1939 Dr. Thomas reported to the Division of Highways as follows:

“Has a healed fracture over the distal end of the right clavicle with the following range of motion in the right shoulder: notation practically normal, elevation either from abduction or forward flexion lacks about 15 degrees of being complete as fellow.
“A healed fracture of the anterior crest of right ilium, the fragment being displaced downward enough to block flexion of this hip at 110 degrees.
“The metatarsal fractures have healed nicely, the X-ray evidence of acute bone atrophy is diminishing and the patient’s complaint of the foot is diminishing. Pre and supination of the foot, inversion and eversion of the heel, flexion and extension of toes are 80% of normal, the circumference of the right calf %" and thigh %" less than their fellow.
“Loss of motion at hip joint to pelvis but he can’t bring it up to his abdomen — that part of the arc not used much. He can sit comfortably with the thigh at right angles to the pelvis and he can raise the thigh even more until there is only about 45 degrees between the thigh and body.
“I would expect the disability of the foot to disappear completely if he keeps using it. The disability about the right hip will be permanent and I would estimate it at about 15%.”

This claim is filed for the benefits of the Workmen’s Compensation Act as the same is applicable to State employees. As the record shows that the State had immediate notice of his accident and that the. claimant was paid for temporary total disability compensation up to February 5, 1939, which said payment constituted a waiver of notice of claim for compensation within six months, and his claim was filed on July 10, 1939, within one year of the date of the accident, we find that this court has jurisdiction.

“The construction and maintenance of a hard-surfaced public highway is the maintenance and construction of a structure under the Workmen’s Com- ' pensation Act.”
Manhart vs. State, 8 C. C. R., 356 (357).
City of Rock Island vs. Ind. Com., 287 Ill. 76 (79).

and this court is of the opinion that his work was of such a hazardous nature that he is entitled to recovery under the Workmen’s Compensation Act. The evidence also plainly shows that the claimant suffered his injuries in the course of his employment and out of his said employment.

The claimant was 57 years of age, married, residing with his wife, and had no children under the age of 16 years dependent upon him for support. The State of Illinois paid him the sum of One Hundred Sixty-six and 07/100 Dollars ($166.07) for the temporary total disability compensation and also paid out the sum of Bight Hundred Sixty-seven and 58/100 Dollars ($867.58) for doctor, hospital and treatment expense. The claimant, by his complaint, alleges there is due him the sum of Four Thousand Dollars ($4,000.00) less the One Hundred Sixty-six and 07/100 Dollars ($166.07) paid for temporary total -disability compensation, leaving a balance due him of Three Thousand Eight Hundred Thirty-three and 93/100 Dollars ($3,833.93) plus Three Hundred Twenty Dollars ($320.00) pension per year for life.

In deciding the amount of compensation to which claimant is entitled, the court must determine

First:
For what period and at what weekly rate payment shall be allowed for temporary total disability;
Second:
Is he entitled to recover for permanent partial disability under paragraph (d), Section (8) of the Workmen’s Compensation Act; or Third:
Is he entitled to recover for permanent partial loss of the use of his arm, leg and foot under sub-paragraph (17), paragraph (e) Section (8) of the Workmen’s Compensation Act.

In determining the rate of compensation, we note from the evidence that the claimant was employed on August 12, 1938 and was injured on September 2, 1938, a period of less than one month. He worked fifteen (15) days during this period averaging about seven (7) hours per day for which he was paid $.50 an hour up to August 23, 1938 and $.60 an hour thereafter, earning total wages during his employment of Fifty-eight and 40/100 Dollars ($58.40). Claimant alleges he was being paid $.60 an hour and worked an average of seven (7). hours a day. From the evidence submitted by the Division of Highways, truck drivers employed similarly to the claimant work less than two hundred (200) days a year, which evidence was not disputed. This court is of the opinion that the rate should be determined under Section (10), paragraphs (c), (e) and (i) of the Workmen’s Compensation Act, which reads as follows:

“The basis for computing the compensation provided for in sections (7) and (8) "of the Act shall be as follows:
“(c) If the injured person has not been engaged in the employment of the same employer for the full year immediately preceding the accident, the compensation shall be computed according to the annual earnings which persons of the same class in the same employment and same location, (or if that be impracticable, of neighboring employments of the same kind) have earned during such period.
“(e) As to employees in employments in which it is the custom to operate for a part of the whole number of working days in each year, such number, if the annual earnings are not otherwise determinable, shall be used instead of 300 as a basis for computing the annual earnings; Provided, the minimum number of days which shall be so used for the basis of the year’s • work shall not be less than 200.
“(i) To determine the amount of compensation for each installment period, the amount per annum shall be ascertained pursuant thereto, and such amount divided by the number of installment periods per annum.”

Iii applying the above to the evidence it is apparent his earnings should be computed at $.60 an hour, seven (7) hours per day, which would be Four and 20/100 Dollars ($4.20) per day for two hundred (200) days, or Eight Hundred Forty Dollars ($840.00) per year. This would make his average weekly wage Sixteen and 15/100 Dollars ($16.15). Since the claimant had no children under the age of 16 years at the -time.of the injury the complete weekly rate would be Eight and 08/100 Dollars ($8.08) per week for temporary total disability. There is, however, conflict in the evidence with respect to the period of time for claimant’s temporary total disability. Dr. John B. Alexander who examined claimant on October 24, 1939 testified:

“Mr. Neal must use a cane when he walks and has much difficulty in getting up out of a chair, and because of his injuries to his shoulder and hip, mainly his hip, I am of the opinion that he will never be able to hold down a gainful occupation by which he can make a living and especially that he will never be able to work at a job where he has any walking or lifting to do.”

Mr. Neal, claimant herein, testified that he has not earned a penny since he was hurt and was supported by his son. He made an admission, however, that he could have begun to do light work on November 15, 1939. Dr. Shaffer testified that he made a manual examination of Mr. Neal on January 20, 1940, and stated:

“It is my opinion that he is not physically fit or able to follow a gainful occupation. He can do light work in a comparatively short time. You can’t tell what he might be able to do in the next five or ten years. I think the outlook is favorable.”

Dr. Thomas testified:

“He should have been doing light work the first of March, 1939. He could not have driven a truck, but he could have held a flag, ran errands and brought tools and many things. If he had been on his farm, he would have been doing his cows and working around. He can carry one scuttle of coal even in this shape, and I would not be surprised if he could carry one in each hand if nobody was watching him.”

' Here we have the testimony of two doctors who are evidently of the -opinion that claimant was unable to do any work even to a time shortly prior to January 29, 1940, and the other doctor who took care of him and gave him almost all of the treatments, testifying that he should have been able to do light work on March 1, 1939. The claimant himself admits that he could have done light work on November 15, 1939. This court, after taking into consideration all of the evidence and the reasonable inferences arising therefrom, believes that even though there is a possibility claimant might have done light work prior to November 15, 1939, the fact remains that he did no work, and from all the evidence thinks it is reasonable to conclude that he was unable to do so. This court is therefore of the opinion that he is entitled to temporary total disability for the period from September 2, 1938 to November 15, 1939 at the rate of Eight and 08/100 Dollars ($8.08) per week.

With respect to the second question, paragraph (d), Section (8), of the Workmen’s Compensation Act provides:

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

Counsel for claimant, seeking the application of said paragraph (d), Section (8) in determining the award, cited:

Scully vs. Ind. Comm., 284 Ill. 567.
Peabody Coal Co. vs. Ind. Comm., 289 Ill. 449.
Solar-Sturges Manf. Co. vs. Ind. Comm., 315 Ill. 352.

In quoting paragraph (d), Section (8), we underscored

“except in the cases covered by the specific schedule set forth in paragraph (e) of this section.”

This court interprets this to mean that if claimant was covered by Section (e) his award would be based orn Section (e) and not on paragraph (d), Section (8). When the cases cited by counsel for the claimant were decided by the Supreme Court they were with respect to injuries which occurred prior to July 1, 1917. Up to that time Section (e) of the Workmen’s Compensation Act only covered injuries for the compíete loss of a leg, arm, etc., but on July 1, 1917 an amendment went into effect known as sub-paragraph (17), which reads:

“For permanent partial loss of use of a member or sight of an eye, but not including the hearing of an ear, fifty per centum of the average weekly wage during the proportion of the number of weeks in the foregoing schedule provided for the loss of such member or sight of an eye which the partial loss of use thereof hears to the total loss of use of such member or sight of eye.”

Section (e) as amended by sub-paragraph (17) now provides for permanent partial loss of members of the body. When the above cases were decided, it did not, and consequently the Supreme Court applied paragraph (d) of Section (8). Now that it does cover such injuries this court is of the opinion from a careful reading of paragraph (d) of Section (8) that if the injuries in question are covered by Section (e), Section (e) should be applied. In this case the claimant claims permanent partial injuries to his shoulder, hip and foot, and as we interpret the statute this is exactly what sub-paragraph (17) of Section (e) covers. This court does not think from the evidence that claimant has a permanent partial back injury and for that reason does not think the questions raised by Solar-Sturges Mfg. Co. vs. Ind. Comm. supra, apply. If claimant’s injury was to the head, neck or back, then undoubtedly paragraph (d) of Section (8) would apply.

There still remains for this court to decide the percentum of permanent partial disability to the shoulder, hip and foot of the claimant. On that point there is considerable difference of opinion by the doctors testifying in this case. Dr. John E. Alexander testified on January 20, 1940 that he was the same person who treated Charles Neal immediately after his injury on September 2, 1938, and that on October 24, 1939 he again examined Charles Neal and found the'following:

“He had a healed fracture of the right clavical near the distal end. Speaking of his arm and shoulder motions, rotation of arms practically normal. He is unable to abduct the arm above the shoulder, and when he does abduct it to his shoulder level and tries to go ahead it is impossible due to the pain he has. An ordinary person can get their arm 33%% above the shoulder, and he cannot do that. I. would say there is about 30% loss of motion in his' right shoulder. He has a liealed fracture of the anterior crest of his right ilium. The fragment is displaced downward and prevents total flexion, and abducts while the leg is flexed so there is about a 30% loss of motion in the hip. The four fractures of his left foot, that is the metatarsal bones, have healed very nicely, but he still has about 25% loss of motion in all his movements of ankle, that-is his left ankle. The right thigh is about three-quarters of an inch smaller than his left thigh, that would be due to atrophy from disuse mostly. He complains of an extremely sore spot over the lateral dorsal part of his right ilium. This seems to interfere mostly when he gets up from a sitting position to a standing position. Other than that, no other findings.”

On the same day Dr. H. A. Shaffer testified:

“I examined Mr. Neal on January 20, 1940 and found the following: Healed fracture of the right clavical near the distal end. Can abduct the arm above the shoulder. Pain present over right scapula. Loss of motion of i right shoulder about 25%, that is just approximately, I won’t say that was exact. Healed fracture of the anterior crest of the right ilium, fragment displaced downward, which prevents the total flexion and abduction while the leg is flexed. Constant pain and soreness in the sacrum and the small of the back. About 25% loss of hip action. Third, healed fracture of the four metatarsal bones of the left foot, about 20% loss of motion in the left foot and ankle. Fourth, right thigh is three-quarters of an inch smaller than the left. Has''extreme sore area over the lateral dorsal part of the right ilium and sacrum.
My examination was manual not x-ray. All fractures healed in good opposition except the crest of the ilium which was displaced. There was no shortening of the leg. I found a loss of motion in the right arm only in abduction.”

Dr. H. B. Thomas testified on April 24, 1940 that he examined the claimant on April 16, 17, 18 and 19, 1940 and found as follows:

“The patient should receive 15% disability, 7% % for the right arm and the same for the left foot, added together to make a total of 15%. He has no disability in the hip or back except a feigning. I don’t think he has any disability today at all. I think the two joints in the arm and the foot have been hurt and if you hurt a joint, you age it, and if he is a potential arthritic he would have it earlier than he would have, and if he is a potential arthritic I think he should have something for it. Those are the only two joints he has hurt. The hip is not a joint), it is a piece of bone taken out of the flat surface of the ilium.
He could perform the same duties he could ever perform with this exception. He has certain self-produced muscle atrophy that has to be taken care of gradually. He can’t use the bone muscles until they are trained, his disability today is all self-inflicted. He has more disability than I have named but I don’t think he should have credit for it because he has done it himself — that is the feigning stuff. If I carry my right arm in my pocket all summer and don’t use it and then expect to hit a golf ball, I won’t hit it.
Some doctor told him he never could shovel coal again but they are just wrong. The doctors down there are delivering babies most of the time and they don’t know much about backs. I have tried for four days to persuade myself that he wasn’t malingering, but I can’t do it. He walks without his cane without apparent difficulty when you are not looking at him. He did a good deal of grunting and bearing down and being very cautious and got in a cab very stiffly, then he took a notion to look at the advertisements on Michigan Avenue; we opened the door, he forgot himself, and got out very easily with a changed type of action altogether. He didn’t use his back much but he had his leg flexed up about 110 degrees • getting out of the cab.”

Counsel for claimant urges the view that two doctors having testified in substantial agreement, and one doctor testified to a different view, that the preponderance of the evidence is with the claimant and should be followed. It is true that the issues should be decided on the preponderance of the evidence, but this does not necessarily mean a preponderance numerically. It is the court’s duty to take into consideration all of the evidence and the reasonable inferences arising therefrom. Dr. Shaffer evidently gave his conclusions from one manual examination of the claimant. Dr. Alexander treated the claimant for a few days when he was first hurt and made an examination on October 24, 1939. Claimant was under the direct treatment and observation of Dr. Thomas from September 6, 1938 to November 5, 1938, November 28, 1938 to December 20, 1938, January 9, 1939 to January 28, 1939, and again examined the claimant on April 16, 17, 18, and 19, 1940! It is apparent that Dr. Thomas had a more intimate knowledge of the claimant’s condition. He treated the' claimant for a long period of time and was in a position to observe the claimant during this time under all conditions and circumstances. He has an excellent reputation as an orthopedic surgeon and is a Professor of Orthopedics at the University of Illinois Medical College. It was because of his excellence in this kind of practice that the claimant was sent to him for treatment.

In consideration of all the evidence this court is of the opinion that claimant suffered a 7y2% disability to his right arm and a 7%% disability to his left foot. In his report to the Division of Highways on February 3,1939 Dr. Thomas reported:

“The disability about the right hip will he permanent and I would estimate it at about 15%.’’

Evidently in his opinion, as a result of his examination on April 16,17,18 and 19,1940, this condition had cleared up, as he testified that the claimant had no disability in the hip or back except a feigning.

In considering all of the evidence this court is of the opinion that claimant may still have some hip injury, and find that he has disability of 15% in the use of his right leg.

The court, therefore, upon a consideration of the entire record, finds that the claimant, having suffered an accidental injury which arose out of and in the course of his employment, is entitled to have and receive from the respondent the following sums, to-wit:

(1) Eight and 08/100 Dollars ($8.08) for sixty-two and five-sevenths (62 5/7ths) weeks, that being the period of temporary total disability, or the sum of Five Hundred Six and 73/100 Dollars ($506.73);
(2) The further sum of Eight and 08/100 Dollars ($8.08) per week for 16.875 weeks, to-wit: One Hundred Thirty-six and 35/100 Dollars ($136.35) for the permanent loss of 7%% of the use of his right arm;
(3) The further sum of Eight and 08/100 Dolfars ($8.08) per week for 10.125 weeks, to-wit: Eighty-one and 81/100 Dollars ($81.81) for the permanent loss of 7%% of the use of his left foot;
(4) The further sum of Eight and 08/100 Dollars ($8.08) for 28.5 weeks, to-wit: Two Hundred Thirty and 28/100 Dollars ($230.28) for the permanent loss of 15% of the use of his right leg;
(5) Or a total compensation in the amount of Nine Hundred Fifty-five and 17/100 Dollars ($955.17), from which must be deducted the sum of One Hundred Sixty-six and 07/100 Dollars ($166.07) heretofore paid to claimant, leaving a balance of Seven Hundred Eighty-nine and 10/100 Dollars ($789.10).

Award is therefore entered in favor of the claimant for the said sum of Seven Hundred Eighty-nine and 10/100 Dollars ($789.10), which is payable forthwith.

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


text:
    (No. 3561
    George F. Adolphi, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1943.

    William B. Schroeder, for claimant.

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

Claimant seeks an award for disability resulting from illness contracted while he was on duty as a member of the Illinois National Guard and while stationed at Camp McCoy, Sparta, Wisconsin, with the 123rd Field Artillery from August 11 to August 31, 1940. Claim was filed November 22, 1940.

Claimant alleges that when he returned to the • Rock Island Armory at Rock Island, Illinois, he requested a medical officer; that no such officer was available and that he was advised to get a private doctor.

Claimant further alleges that about September 3, 1940, he called Dr., Joseph DeSilva of Rock Island, Illinois, who diagnosed claimant’s illness as pneumonia and ordered claimant removed to St. Anthony’s Hospital, Rock Island, Illinois.

Claimant further alleges that the doctors recommend that claimant spend a year in Arizona in order to recover his health, and claimant seeks an award sufficient for such purpose.

The record consists of the Complaint, reports of the Adjutant General, Amended Complaint, Transcript of Testimony, Waiver of Statement, Brief and Argument by claimant, and Statement, Brief and Argument on behalf of respondent.

Section 10, Article 16, of the Military and Naval Code provides:

“Any officer or enlisted man of the National Guard or Naval Reserve who may he wounded or disabled in any way, while on duty and lawfully performing the same, so as to prevent his working at his profession, trade or other occupation from which he gains his living, shall be entitled to be treated by an officer of the medical department detailed by the surgeon general, and to draw one-half his active service pay, as specified in-Sections 3 and 4 of this article, for not to exceed thirty days of such disability, on the certificate of the attending medical officer; if still disabled at the end of thirty days, he shall be entitled to draw pay at the same rate for such period as a board of three medical officers, duly convened by order of the Commander-in-Chief, may determine to be right and just, but not to exceed six months, unless approved by the State Court of Claims.”

The report of the Adjutant General filed herein shows that claimant was paid according to the Military and Naval Code to and including December 31, 1940 at the rate of $2.05-per day, in accordance with the Board’s recommendation. A Medical Board, duly convened, on October 29, 1940 recommended as follows:

“The Board recommends authorization of continued treatment by his attending physician.
The Board does not believe further hospitalization to be necessary or of advantage.
The Board recommends that he be paid in accordance with the Military and Naval Code to this date and for a further period of disability, which it estimates not to exceed sixty days.
The Board recommends -that this soldier be discharged from military service.
The Board recommends that the following bills for the professional services and hospital care be paid, when presented in proper form:
1. St. Anthony’s Hospital, Rock Island, Ill..........................$77.00
2. Dr. Joseph B. DeSilva, Rock Island, Ill........................... 53.00”

When a member of the Illinois National Guard is injured while in service and in the line of duty, he is entitled to an award for injuries sustained.

Solomon vs. State, 5 C. C. R. 295;
Bridges vs. State, 7 C. C. R. 230;
Charles vs. State, 8 C. C. R. 371.

In view of Section 10, Article 16, of the Military and Naval Code, we are without authority to grant an award other than that recommended by a Medical Board advising that such payment should be made. A proper Medical Board having made its recommendations, claimant is entitled' to an award in accordance with such recommendations.

An award is, therefore, entered in the sum of One Hundred Thirty Dollars ($130.00), payable, $77.00 to St. Anthony’s Hospital, Bock Island, Illinois; $53.00 to Dr. Joseph B. DeSilva, Bock Island, Illinois; for the benefit of claimant, George F. Adolphi.


text:
    (No. 3616
    The Alton Railroad Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1943.

    William L. Patton, (Henry A. Converse, of Counsel), for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

Claim filed June 23, 1941, alleges that claimant, a corporation organized under and by virtue of the laws of the State of Illinois, on the 24th day of June, 1937 entered into a contract with respondent, acting by and through its Department of Public Works and Buildings, Division of Architecture and Engineering, granting to the State the right to install upon the right-of-way of claimant in Section 1, Township 19 North, Range 3 West of the Third Principal Meridian, and in Section 36, Township .20 North, Range 3 West of the Third Principal Meridian, in Logan County, Illinois, an eight inch sewer, 3,890 feet in length, to extend from the farm pumping station of the State to the sewerage disposal plant in the City of Lincoln, Illinois.

That respondent, in consideration of such grant, agreed to pay claimant the sum of $25.00 per year, such payment to be made in advance upon the first day of each and every year of the term of said contract.

Claimant seeks an award for $50.00 according to the terms of said contract for two years rental ending June 30, 1939.

The record consists of the claim, stipulation, and waiver of statement, brief and argument by claimant and respondent, by respective counsel.

It is stipulated that claimant and respondent entered into the alleged contract; that the State of Illinois constructed a sewer in accordance with such contract; that the rental accruing thereunder, as alleged, has not been paid; and that there is now due and owing from respondent to claimant the sum of $50.00 representing such accrued rental.

We cannot understand why claimant has been required to file a claim in order to collect such a contractual obligation of respondent. It appears to be an imposition on claimant.

Claimant is entitled to an award of $50.00 for rental for the years ending, June 30, 1938 and 1939.

An award is, therefore, entered in favor of claimant, The Alton Railroad Company, a corporation, in the sum of Fifty Dollars ($50.00).


author: Per Curiam:

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

      Opinion filed March 9, 1943.

      Rehearing denied April 15, 1943.

    Claimant, pro se.
    George F. Barrett, Attorney General; Robert V. 0strom, Assistant Attorney General, for respondent.
   Per Curiam:

This matter again comes on for hearing on petition of claimant for an additional award amounting to fifteen per cent (15%) total disability.

On June 30, 1937, this court awarded claimant $2,225.00 for fifty per cent (50%) total disability. On May 14th, 1941, thi s cause again came on for hearing on petition for further award. Upon due consideration the court granted claimant an additional fifteen per cent (15%) total permanent disability. The petition now under consideration was filed April 27, 1942, seeking an additional fifteen per cent (15%) total permanent disability.

The evidence shows that this claimant at the time of filing this petition was employed at the Green River Ordnance Plant, at Sterling, Illinois, as equipment inspector, but the record is silent regarding the amount he is earning.

The court having duly considered the additional evidence in support of said petition finds that no sufficient showing appears therein upon which to authorize a further award. The petition for further award is therefore hereby denied.


text:
    (No. 3739
    Clarence Buhlman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1943.

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

The record in this case consists of the complaint filed August 3, 1942; report of the Department of Public Works and Buildings, Division of Highways, by M. K. Lingle; waiver of statement, brief and argument on behalf of claimant ; statement, brief and argument by respondent; and stipulation between claimant and respondent wherein it is stipulated that the report of the Division of Highways shall constitute the record in this case.

Claimant, an employee of respondent in the Division of Highways, while engaged in cutting brush or “hedge sprouts” on the right-of-way of State Bond Issue Route No. Ill about three and one-half miles south of Medora, Illinois, on December 15,1941, was injured by being struck in the right eye by a branch or “hedge sprout” which he was attempting to remove, which injury resulted in the complete loss of vision in claimant’s right eye.

It is admitted that claimant was an employee of respondent; that he was injured on December 15, 1941; that all jurisdictional requirements have been met; that all medical bills and charges have been paid by respondent; that temporary total disability has been paid to claimant in the sum of Seventy-nine and 02/100 Dollars ($79.02); that claimant has no children under 16 years of age.

Claimant was employed intermittently at a wage rate of Fifty Cents ($.50) per hour and worked for the Division of Highways less than two hundred (200) days per year. Claimant’s average weekly wage figured on the above basis and in accordance with the Workmen’s Compensation Act amounts to Fifteen and 38/100 Dollars ($15.38) per week. Claimant would be entitled to fifty (50) per cent of this average wage, plus ten (10) per cent, or a total of Eight and 46/100 Dollars ($8.46) per week during the total disability period which it is agreed was nine (9) weeks and two (2) days, amounting to Seventy-eight and 54/100 Dollars ($78.54). Claimant has, therefore, been overpaid Forty-six Cents ($.46) in temporary total disability compensation.

The report of the Division of Highways shows that claimant was injured while engaged in his duties; that while claimant was cutting into a clump of hedge sprouts with a hedge knife a sprout rebounded and struck him in the right eye; that claimant was immediately taken to the office of a physician and later removed to the Barnes Hospital in St. Louis, Missouri, and placed under the care of. Dr. Lawrence T. Post, professor of clinical opthalmology and head of the department, Washington' University, Medical College. On November 6th Dr. Post reported to the division that claimant had suffered complete loss of vision in the right eye and that the disability was permanent.

Claimant asks for One Thousand Dollars ($1,000.00) compensation for permanent disfigurement to his face and Twelve and 10/100 Dollars ($12.10) weekly for one hundred twenty (120) weeks for loss of the sight of his right eye.

Under the record, the claim for disfigurement must be disallowed.

It is stipulated that claimant expended for transportation and medical necessities as a result of this accident the sum of Five and 30/100 Dollars ($5.30), for which expenditure claimant should be reimbursed.

Claimant is entitled to compensation for "the complete loss of the sight of his right eye. Section 8, Subsections e (16) and L of the Workmen’s Compensation Act provide for the loss of the sight of an eye 50 per cent of the average weekly wage, plus 10% for 120 weeks, or $8.46 x 120, equalling $1,015.20, plus $5.30 expended by claimant for medical necessities and transportation, less overpayment of $.46, or a total of $1,020.04. An award is, therefore, entered in favor of claimant, Clarence Buhlman, in the sum of $1,020.04, payable as follows: $466.52 is accrued and payable forthwith, and the balance of $553.52 is payable in equal weekly installments of $8.46 for sixty-five (65) weeks beginning March 15, 1943, and a final payment of $3.62.

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