author: Mr. Chief Justice Hollerich

text:
    (No. 2835
    Bernice Cordes, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 18, 1939.

    Frank R. Eagleton and William H. A. Rust, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

For more than one year prior to March 24, 1935, claimant was in the employ of the respondent as an attendant at Chicago State Hospital, Chicago, Illinois, a State charitable institution. On. the last mentioned date, while in the performance of her duties at the institution, she was attacked by a mental patient and was severely kicked in and about the right leg. As the result of such injuries, claimant was hospitalized at the institution, from April 24th to May 15, 1935, and from May 27th to June 11, 1935. Subsequent to June 11, 1935 claimant was treated by her own physician, Dr. J. B. Mussel-white, who continued to treat her from June 16th to December 7,1935.

After December 7, 1935 claimant received no treatments until 1938. Dr. Musselwhite gave her two treatments the early part of 1938, and on or about May 5, 1938, at the request of Dr. Dombrowski, Managing Officer of the Chicago State Hospital, claimant was examined by Dr. Goldstein of the Chicago State Hospital, Dr. Conley of the Cook County Hospital, and Dr. Miller of the Orthopedic Clinic of the Cook County Hospital. In the opinion of Dr. Goldstein, claimant has sustained the permanent loss of 20 per cent of the use of the right leg. The conclusions of the other examining physicians do not appear in the record.

Claimant contends that she is entitled to compensation for 64 weeks temporary total disability; 109 weeks total permanent disability; such amount as the court deems proper for partial permanent disability; and $128.00 for medical attention.

Compensation for temporary total disability is awarded for the time which is usually known as the healing period, that is to say, “The period during which medical treatment is given to cure and relieve the injured employee from the effects of the injury. It is usually considered to terminate at the time the attending physician discharges the employee as cured, or as having recovered, as far as possible, from the effects of the injury” — Angerstein 1930 Ed. P. 486, Sec. 264. In this case the claimant was under the care of a physician practically all of the time from April 22d to December 7, 1935; subsequent to that time she received no medical treatment until 1938. It would seem, therefore, that her condition on December 7, 1935 was such that no further improvement was anticipated, and we may take that date as the end of the period of temporary total disability.

The only permanent disability sustained by the claimant resulted from the injury to her right leg. The complete loss of the use of a leg, or any partial loss of the use thereof, is known as a specific loss, and any disability resulting from the injury to claimant’s right leg must be considered as a specific loss and compensated in accordance with the provisions of Paragraph (e) of Section 8 of the Compensation Act. The injury to the claimant being confined to her right leg, she is not entitled to compensation for any permanent disability other than the disability to her right leg.

The respondent objects to payment for the services of Dr. Musselwhite in the amount of $128.00. Inasmuch as respondent was not in position to furnish to the claimant at the institution, such treatments as were required, and did not offer to furnish them elsewhere, she is entitled to be compensated for the reasonable expense she was put to for such treatments. The bill of Dr. Musselwhite, however, covers items aggregating $30.00 which were incurred between July 18th and October 1st, 1938, long after the condition of the patient became permanent, and such items are not a proper charge against the respondent.

From a consideration of all of the evidence in the record the court finds as follows:

1. That on March 24, 1935, claimant and respondent were operating under and bound by the provisions of the Workmen’s Compensation Act of this State.

2. That on said date the claimant sustained accidental injuries which arose out of and in the course of her employment.

3. That notice of the accident was given and claim for compensation on account thereof was made within the time required by the Compensation Act.

4. That the claimant’s annual earnings were $583.20, and her average weekly wage was $11.21.

5. That claimant at the time of the injury was 42 years of age, and had no children under the age of 16 years.

6. That the necessary first aid, as well as all medical, surgical and hospital services to June 11,1935, were furnished by the respondent; that all necessary medical services since June 11, 1935 were furnished by the claimant; that said services were fairly and reasonably worth $98.00.

7. That claimant was temporarily totally disabled from April 22, 1935 to December 7, 1935, and has also sustained the permanent loss of 20 per cent of the use of her right leg.

8.. That claimant is therefore entitled to have and receive from the respondent for temporary total disability as aforesaid the sum of $7.50 per week for 32. 5/7 weeks commencing April 29, 1935, to-wit, the sum of $245.36, in accordance with the provisions of Paragraph (b) of Section 8 of the Workman’s Compensation Act, as amended; and is also entitled to have and receive from the respondent the further snm of $7.50 per week for 38 weeks for the permanent loss of 20 per cent of the use of the right leg, to-wit, $285.00, in accordance with the provisions of Paragraph (e) of Section 8 of the Workmen’s Compensation Act; and is also entitled to have and receive from the respondent for the use of Dr. J. B. Mnsselwhite, the sum of $98.00 for medical services rendered by him as aforesaid; that all of such compensation has accrued prior to this date.

Award is therefore entered herein as follows:

To Bernice Cordes, compensation as aforesaid............:......... $530.36
To Bernice Cordes, for the use of Dr. J. B. Musselwhite............ 98.00
Total .................................................... $628.36

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 July 3, 1937 (Session Laws 1937 page 83), and being subject further to the terms of an Act entitled “An Act Making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Moneys Until the Expiration of the First Fiscal Quarter after the Adjournment of the Next Regular Session of the General Assembly” (Senate Bill 123 as amended) approved July 8, 1939; — and being, by the terms of the first mentioned 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® by the foregoing Acts.


source: Caselaw Access Project

author: Mr. Justice Linscott

license: Public Domain

text:
    (No. 3116
    John Freeman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 18, 1939.

    Seymour. Scheffres, for claimcmt.

    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

John .Freeman, the claimant, while in the employ of the Division of Highways of the State of Illinois, on the 25th day of May, 1937, was sweeping the gutter on 87th Street near Princeton Avenue, in the City of Chicago, Illinois, when he was struck by what is commonly called a.“hit and run,” automobile driver. He sustained a severe injury, including a concussion of the brain, a fracture of the right fibula, a laceration1 of the. frontal region and abrasion about the right ear and shock, and numerous contusions and abrasions about his chest, body and limbs. He was taken to the Auburn Park Hospital.

Claim was duly filed and the proper notice given.

It appears that claimant was a married man at least sixty-eight years of age. On examination he said that he did not know just how old he was but thought he was sixty-eight. He had no child or children under sixteen years of age.

Claimant’s employment was seasonal and it is admitted that his annual earnings for compensation purposes amounted to '$800.00 per year based on 200 days work, eight hours per day at 50c per hour, and it is conceded by both parties that he was struck by a Ford truck driven by Mr. William Dorman, 8139 Vincennes Avenue, Chicago, Illinois.

It is also admitted that the accidental injury sustained by the claimant arose out of and during the course of his employment, and that with respect to claimant’s employment, both the claimant and respondent were operating under the Illinois Workmen’s Compensation Act.

The respondent has paid the Auburn Park Hospital $148.00 for hospitalization necessitated by claimant’s injuries and has paid Dr. C. K. Barnes $68.00 for medical services. The claimant was paid compensation in the sum of $138.00.

Claimant seeks an award for permanent total disability with a pension for life, or an award for forty per cent loss of use of his right leg, seventy-five per cent loss of hearing in the right ear, sixty-four weeks of temporary total incapacity and $274.00 for medical expenses.

The respondent produced Dr. Thomas as a witness. He is a very able man and testified that the claimant was able to return to work about four months after the accident. Dr. Thomas had examined the claimant sometime before the hearing, but no physician was present on behalf of the claimant, and objection was made because claimant was not furnished with a copy of his findings, and this objection must be sustained.

Claimant! testified that he worked six weeks during the summer of 1938 at a swimming pool taking care of lockers, showers and mopping floors, but there is no evidence as to what his earnings were at this work. We are, therefore, unable to make a finding of permanent partial disability. He has received the sum of $138.00 from the State. It is stipulated that his annual earnings for compensation purposes were $800.00, or an average weekly wage of $15.38. Therefore, the compensation rate applicable would be $7.69 per week. Because we are unable to consider Dr. Thomas ’ testimony, we must rely upon the testimony of Dr. Tito. According to the last named Doctor, the condition of claimant’s right lejg reached a permanent stage six months from the time of the injury. The injury occurred on May 25, 1937, and this would bring it down to November 25, 1937. He was paid down to September 28, 1937. He is, therefore, entitled to 8 2/7 weeks at $7.69 per week or $63.72.

From the testimony in the record, we are of the opinion that the claimant has sustained a forty per cent limitation of flexion in the right knee. This does not necessarily mean that he only has a sixty per cent use of his right leg. Manifestly, it is not necessary to be able to flex a knee 100% to perform the average laborer’s job, because his ability to double up his leg in one motion, only 60;% of normal, does not mean that the leg has been 40% disabled. It appears that the condition he has found in the knee is permanent. His own testimony is that he has worked since the accident. He testified that he worked for six weeks during the summer of 1938 taking care of lockers, showers and mopping floors. He has done no work since then and what he received for that work does not appear in the record. He has trouble getting his foot down when he is going down steps or getting off the street car. He was not using a cane when he testified. His leg tires easily and he has pain when he stands on his leg a little while.

All the testimony considered, we are of the opinion that claimant has lost not to exceed 40% of the use of his right leg. There is no evidence in the record that would justify a permanent partial disability otherwise.

Giving the respondent credit for the amount that has been paid and.from the testimony of Dr. Tito, we conclude that claimant has 8 2/7 weeks coming to him or the sum of $62.73 for temporary total disability.

Under Section 8 (e) subsection 15 of the Compensation Act it is provided that for the loss of a leg, or the permanent and complete loss of its use, fifty percentum of the average weekly wage during one hundred and ninety weeks. His average weekly wage is $7.69. If we are correct in finding that he has a forty per cent loss of the permanent use of his leg, that would entitle him to 40% of $7.69 x 190 weeks, or $584.44.

It is also contended that the claimant lost 75% of the use of one ear. Subsection 16% of Section 8 (e) provides as follows: “For the total and permanent loss of the hearing of one ear, fifty percentum of the average weekly wage" during fifty weeks, and for the total and permanent loss of hearing of both ears, fifty percentum of the average weekly wage during one hundred twenty-five weeks.” Subsection 17 of the same Section provides: “For the permanent partial loss of use of a member or sight of an eye, but not including the hearing of an ear * * *.” It would seem that the partial loss of hearing is especially excluded from the Act, and no award can be made therefor.

Another question for this court to consider is whether Dr. Tito is entitled to a fee for medical services. It seems that Dr. Tito was an interne in the hospital when claimant was taken there. The State paid the hospital physician for taking care of the claimant, and paid the hospital bill. It does not appear that the claimant employed either doctor and it does not appear that the respondent employed either doctor. The respondent did recognize the claim of the hospital physician. In October following the accident, the State advised Dr. Tito that it would not recognize his employment and that he must look to claimant for his pay. From all of the facts in the record it would apear that Dr. Tito was an agent of the hospital doctor and that his principal has been paid. We cannot, therefore, allow any further fees for medical care. Under the Act, Dr. Tito must look to claimant for his remuneration.

We, therefore, make an award to claimant, John Freeman, in the sum of $62.73 for 8 2/7 weeks that elapsed during the healing period that he has not been paid for, and the further sum of $584.44 for permanent disability of the right leg, or a total of $647.17.

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 July 3, 1937 (Sess.Laws 1937 p. 83) and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from the appropriation from the Eoad Fund in the manner provided for in such Act.


text:
    (No. 3122
    George W. King, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 18, 1939.

    Benj. F. Cassiday, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This claim comes before the Court on claimant’s amended complaint, a stipulation covering certain of the facts involved, the testimony of the claimant and the testimony of Dr. J. J. Donovan, and two questions are presented.

1. From the nature of claimant’s employment, are both parties under the Compensation Act?

2. If the claimant is under the Act, what compensation should; be paid to him?

The evidence shows that on the 22nd day of April, 1937, claimant was washing windows in the southwest corner of the State Capitol Building on the first floor; that he attempted to raise a window, and for this purpose he got on a radiator; that there was a metal piece on top of the radiator and the radiator and metal piece became unbalanced and threw him to the floor. Claimant’s superior officer was immediately notified and he was taken in an ambulance to St. John’s Hospital, Springfield, Illinois. The evidence further shows that in his performance of his duties as janitor, he used the elevators in going up and down; that he used acids and compounds in the water for washing windows; he was also required to use ladders. The evidence further shows that the windows on the first floor of the State House are 12 to 15 feet high. The evidence further shows that claimant’s duties also included moving heavy objects, moving furniture, emptying waste paper, polishing furniture, cleaning cuspidors, mopping on hisi hands and knees, and generally whatever he was told to do along that line.

The evidence/ further shows that when claimant fell he received a Y fracture of the left tibia into the knee joint — a comminuted fracture; that he suffered great pain; that X-rays were taken at the hospital; that the fracture extended into the knee joint; that he received treatment at the hospital yhich included extension and immobilization of the left leg and knee for eight weeks at St. John’s Hospital; that the leg was in a cast, and that during!, the healing period it was stretched in order that the left leg would not become shorter; that said treatment continued for eight weeks, and then the passive motion was bégun; that the claimant was at the hospital from April 22,1937 to June 30,1937, a period of 69 days, being in bed, in a wheel chair and on crutches during this time; that due to weakness of the knee and pain in the knee, claimant was unable to participate in any gainful occupation; that he received medical treatment for about thirty days after he left the hospital.

At the time the testimony was taken which was on the 17th day of January, 1938, Dr. Donovan said that although there was no limitation of motion, there was some stiffness, and some pain, but not enough to prevent the patient from returning to work and continuing his usual occupation; that a traumatic condition prevailed; that this condition is known as traumatic arthritis. Dr. Donovan testified at the time that the arthritis was still present but that it would gradually wear awayf; that the fracture itself had cleanly and thoroughly healed, without a limitation of motion, and that claimant had all of the original necessary flexing motion in his left knee.

It was the opinion of the doctor that there was some partial disability which may be permanent, but the permanency would not exceed over 15%. In other words, it was the opinion of the doctor that he had received a possible 15% impairment of the use of his knee which may or may not continue depending upon the claimant’s ability to recover at his age. Dr. Donovan expected the claimant to have a complete recovery, and to get more and more use of the left knee exclusive of any progressive rather than any regressive traumatic arthritis that might set up.

We are inclined to the view that the claimant, in the performance of his duties, was under the Compensation Act, and that under Section 8 (a) of the Compensation Act, he is entitled to an award in the sum of $379.18, which represents unpaid hospital and medical bills incurred by the claimant as the result of the injury.

The testimony of the Doctor is not very satisfactory as to the permanency of the injury. The total temporary incapacity was of five month’s duration, but giving the doctor’s testimony the most favorable consideration, this claimant has suffered a permanent loss of 15% of the use of his left leg.

Claimant’s monthly wage at the time of the injury was $112.50, an annual earning of $1,350.00, or an average weekly wage of $25.96. He was injured April 22, 1937. The most claimant would be entitled to would be compensation for five months total incapacity based upon a 15% loss of the use of his left leg. Five months thereafter would end September 22, 1937, a period of twenty-two weeks. Compensation for temporary total incapacity for the twenty-two weeks’ period of inability to work equals $285.56 (22 weeks time 50% of $25.96). Section 8 (b) Workmen’s Compensation Act. Compensation for fifteen per cent loss of use of the left leg, under Section 8 (e-15) Workmen’s Compensation Act, equals fifteen per cent of 190 weeks times fifty per cent of $25.96 or $369.93. Aside from the doctor and hospital bills the total compensation for temporary total incapacity and specific loss of fifteen per cent of the use of the left leg to which claimant would have been entitled amounts to $369.93, plus $285.56, or $655.49.

The record discloses that following his injury, claimant was paid his regular salary of $112.50 per month until July 1, 1937 and then $125.00 per month until October 1, 1937. All of his salary having been paid for unproductive time following' the injury it must be treated as a payment of compensation to the claimant. United Air Lines vs. Industrial Commission, 364 Ill. 346. These salary payments total $625.96 and deducting this amount from the compensation as above computed would leave a balance of $29.53 compensation due and unpaid.

We, therefore, make an award to George W. King in the sum of $29.53, and an award to George W. King for the use of St. John’s Hospital, for hospital services and attention in the sum of $251.18, for the use of Kirlin & Egan, for ambulance service in the sum of $3.00 and for the use of Dr. John J. Donovan, for professional and medical services and treatment in the sum of $125.00.

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 July 3, 1937 (Session Laws 1937 page 83), and being subject further to the terms of an Act entitled “An Act making appropriations to the Auditor of Public Accounts for the disbursement of certain moneys until the expiration of the first fiscal quarter after the adjournment of the next regular session of the General Assembly” (Senate Bill 123 as amended) approved July 8, 1939; — and being, by the terms of the first mentioned 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 by the foregoing Acts.


author: Mr. Chief Justice Hollerich Mr. Chief Justice Hollerich

text:
    (No. 3096
    Roy O. Mowery, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1937.

      Supplemental opinion filed August 18, 1939.

    Claimant, pro se.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Prior to and on April 23, 1937, claimant was employed as a watchman for respondent in the Centennial Building at Springfield. On the last mentioned date, while in the. course of his employment, and while remonstrating with some young folks who were creating a disturbance in the building, he was struck in the face, his glasses were broken, and his face was cut and bruised. He expended $5.00 for medical services and $26.50 to replace his broken glasses, and asks for an award for the amount thus expended.

The Attorney General has entered a motion to strike that ■p-ortioh. of the complaint in which the claimant seeks to recover $26.50 for the glasses which were broken, and has also entered a motion to dismiss the case on the ground that the complaint does not contain any facts which entitled the claimant to recover under the provisions of the Workmen’s Compensation Act.

We have repeatedly held that the jurisdiction of this court is limited to claims in respect to which the claimant would be entitled to redress against the State, either at law or in equity, if the State were suable. Crabtree vs. State, 7 C. C. R. 207; Kramer vs. State, 8 C. C. R. 31; Shumway vs. State, 8 C. C. R. 43; Titone vs. State, No. 2473, decided at the January Term, 1937.

Theife is no law of this State making respondent liable for damage to the personal property of an employee, where such damage is caused by the wrongful act of a third person, and consequently the motion of the Attorney General to strike must be sustained.

The motion to dismiss on the ground that the complaint does not set forth facts sufficient to show that the State is liable under the Workmen’s Compensation Act presents a different question.

A complaint under the Workmen’s Compensation Act is not to be construed with the same strictness as a declaration in a suit at law. The Compensation Act is remedial in its nature, and should be given a liberal construction in order to carry out the provisions of the Act. In considering the requirements of an application for adjustment of claim in a proceeding before the Industrial Commission, our Supreme Court, in the case of Valier Coal Co. vs. Industrial Commission, 329 Ill. 139-147, said:

“The Workmen’s Compensation Act does not prescribe in specific terms any particular form of application for adjustment of claim. Section 16 states that the procedure before the commission'shall be simple and informal. It is only essential to a proper statement of claim for compensation for the applicant to state formally the time, place, manner and character of the accident, so that the employer will be advised of the nature of the claim and can properly prepare his defense.”

The rule as laid down in the Yalier case was followed in the case of Merritt vs. Industrial Commission, 322 Ill. 160.

The complaint in this case comes within the requirements of the rule laid down by the Supreme Court.

If the claimant can establish by proper evidence that at the time of the injury in question, both he and the respondent were operating under the provisions of the Workmen’s Compensation Act, and that he sustained accidental injuries which arose1 out of and in the course of his employment, he will be entitled to compensation in accordance with the provisions of the Act-and we feel that he is entitled to an opportunity to present such evidence.

The motion of the Attorney General to dismiss is therefore overruled.

Supplemental Opinion.

Mr. Chief Justice Hollerich

delivered the opinion of the court:

Subsequent to the filing of the opinion in this case on October 12, 1937, the parties hereto filed herein a stipulation of facts from which it appears that on April 23, 1937, claimant and respondent were operating under and bound by the provisions of the Workmen’s Compensation Act of this State; that on said date claimant sustained accidental injuries which arose out of and in the course of his employment; that as the result thereof claimant did not sustain any disability, either temporary or permanent, and did not sustain any specific loss, but did require first aid and medical services; that such services were not provided by the respondent but were provided by the claimant, who was required to and did expend therefor the sum of $5.00; that notice of the accident was given to the respondent, and claim for compensation on account thereof was made within the time required by Section 24 of the Compensation Act.

Under the provisions of Paragraph (a) of Section 8 of such Act, claimant is entitled to be reimbursed the amount so paid by him, and an award is therefore entered in favor of the claimant for the sum of $5.00.

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 Thereon,” approved'July 3, 1937 (Session Laws 1937, page 83), and being subject further to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Moneys until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly” (Senate Bill 123, as amended), approved July 8, 1939; and being, by the terms of the first mentioned 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 by the foregoing Acts.


author: Mr. Justice Yantis

text:
    (No. 3377
    Mary McGuire, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 18, 1939.

    Claimant, pro se.
    John E. Cassidy, Attorney General; Murray F: Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Charles McGuire, Jr., for more than a year prior to April 22,1939, had been in the employ of the State of Illinois as a maintenance patrolman in the Division of Highways, Department of Public Works and Buildings. One of the duties incident to his employment was the care of a State-owned truck which was assigned to him for use in his work. By arrangement with the Department the truck was kept at the employee’s home, and on the date in question he was there greasing it. He had raised the body to a “dump position” by the hydraulic lift and was leaning over the side of the truck frame in order to grease certain parts of the mechanism behind the cab. In some manner the lever which operated the hydraulic lift was moved and the box descended on him, crushing his body and resulting in his immediate death.

Claimant, Mary McGuire, is the widow of said employee and in addition he left surviving four children, Charles John, Eugene Edward, Mary Frances, and Kathleen, of the respective ages of Seven (7), Five (5), Four (4), and Two (2) years. A medical bill for first-aid by Dr. Thomas F. Forest of Woodstock, Illinois, in the sum of Five ($5.00) Dollars has been paid by respondent.

The widow, Mary McGuire, filed her claim herein Pro Se on the 17th day of May, 1939, for an award under the provisions of Sections 7 (a) and 7 (h)3 of the Workmen’s Compensation Act, resulting in the payment of Five Thousand Five Hundred ($5,500.00) Dollars by reason of the death of said employee. By stipulation between claimant and the Attorney General’s office it is agreed that the foregoing are the facts, and that the decedent’s annual earnings for the year immediately prior to April 22, 1939, in his employment as such maintenance patrolman amounted to One Thousand Six Hundred Twenty ($1,620.00) Dollars; further, that respondent had immediate notice of the accident; that claimant made demand for compensation within six months thereafter, and that the claim for compensation was filed within one year from the date of such accident.

From the record it appears that the claimant suffered accidental injury and death, and that same arose out of and in the course of his employment; that said employee and respondent were within the terms of the Illinois Workmen’s Compensation Act; that the payment provided for by Section 7 (a) of the Act for four times the average annual earnings of the employee is increased by virtue of the fact that claimant left surviving four children who were under the age of sixteen years at the time of the accident. Under Section 7 (h) 3 the maximum of Four Thousand ($4,000.00) Dollars is increased to Five Thousand Five Hundred ($5,500.00) Dollars in case of three or more children under the age of sixteen years at the time of the death of the employee.

The Court therefore finds that under the provisions of the Act claimant Mary MeGfuire is entitled to receive from respondent the sum of Four Thousand ($4,000.00) Dollars. This amount is increased to Five Thousand Five Hundred ($5,500.00) Dollars by virtue of said employee being survived by four children under the age of sixteen years at the time of their father’s death. His salary being One Thousand Six Hundred Twenty ($1,620.00) Dollars for the year preceding his death, his average weekly wage would therefore be Thirty-one and 15/100 ($31.15) Dollars.

The maximum payment of fifty (50) per cent of said weekly wage is increased to sixty-five (65) per cent because of the existence of said four children, and payments, on any award herein are computable at the rate of Nineteen and 60/100 ($19.60) Dollars per week.

We further find that said claimant, Mary MeGfuire, and each of said children were wholly dependent on the earnings of deceased at the time of the latter’s injury and death. Hnder authority of the statute whereby the Court is granted the discretion to award payment of the children’s share to the parent for such children’s support, we find that an order -for payment in such manner should be herein made.

An award is hereby made to claimant in the sum of Five Thousand Five Hundred ($5,500.00) Dollars, Four Thousand ($4,000.00) Dollars of which is awarded to claimant in her own right and One Thousand Five Hundred ($1,500.00) Dollars thereof awarded to her as next friend for the use of Charles John MeGfuire, Eugene Edward MeGfuire, Mary Frances MeGfuire and Kathleen MeGfuire; said award being payable as hereinafter provided.

The time that will have elapsed from the date of said accident until September 16, 1939, will be twenty-one (21) weeks. Claimant will therefore be entitled to receive on September 16, 1939, on the basis of Nineteen and 60/100 ($19.60) Dollars per week, the sum of Four Hundred Eleven and 60/100 ($411.60) Dollars for compensation accrued to that time, leaving a balance of Five Thousand Eighty-eight and 40/100 ($5,088.40) Dollars to be thereafter paid at the rate of Nineteen and 60/100 ($19.60) Dollars per week, payable in monthly installments, subject to the further provisions of the Illinois Workmen’s Compensation Act.

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 July 3, 1937 (Session Laws 1937, page 83), and being subject further to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Moneys until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly” (Senate Bill 123, as amended), approved July 8, 1939; and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is héreby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided for by the foregoing Acts.


text:
    (No. 3312
    James Reed, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 18, 1939.

    Josef T. Skinner, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Teevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein had been continuously employed by respondent in its Division of Highways for more than a year prior to May 26, 1937, and had been paid during such time at the rate of One Hundred Twenty-five ($125.00) Dollars per month as an engineering assistant. On the latter date he was engaged in his duties as a cement inspector at the cement plant at the Marquette Cement Manufacturing Company, Oglesby, Illinois. At about 2:00 p. m. he entered an empty railroad box car which was standing on a spur track at the cement plant, for the purpose of tacking a cement inspection report card on the wall of the car. The car was moved toward the cement loading chute and was suddenly coupled against a loaded car standing there. This sudden stopping of the car caused claimant to lose his footing and to fall on the floor of the car on his right hip. Being apparently injured he was removed to the office of the loading foreman and thence to his home, where he was placed under the care of Dr. Edmund J. Burke of LaSalle, who transferred him to St. Mary’s Hospital in that city. Dr. Burke reported the nature of the injury as a fracture of the neck of the right femur and stated the age of claimant to be seventy (70) years. On June 14, 1937, F. L. Sperry, Assistant Engineer of the State of Illinois, visited the claimant in the hospital and at the instruction of Mr. W. L. Glover, Engineer of Materials, endeavored to persuade claimant to go to Chicago at the expense of the Highway Division, to obtain the services of an orthopedic surgeon. The claimant refused these services. On July 20, 1937, M. K. Lingle, Engineer of Claims in the Highway Department, visited the claimant at the hospital and again requested claimant to accept these services, which were again declined. On September 4, 1937, claimant left the hospital at the instruction of Dr. Burke and went home. On December 7, 1937, Dr. Burke reported to Mr. Lingle as follows:

“As compared with the previous X-ray, taken about three months before, there is no evidence of any increase in new bone formation. It must be admitted that this is not distinctly encouraging, although it is by no means surprising with this type of fracture. As the situation now stands, it appears improbable that firm bone union will occur. Fibrous union is possible, provided absorption of the neck of the femur (always a possibility) does not take place. A further discussion of the entire problem with a representative of your office might be helpful, should one be traveling this way in the near future.” /

On December 20, 1937, A. L. Sand of the Highway Department visited Dr. Burke and the claimant and received from the former the following report, signed by Dr. T. L. Rypina of the X-ray department of St. Mary’s Hospital:

“Progress film of the right hip as compared with July 29, 1937, shows beginning of absorption of the neck of the right femur. There continues to be an upward displacement of the major fragment. There is no evidence of union.”

At the request of Mr. Sand, claimant on January 5,1938, reported to Dr. Thomas in Chicago and was examined by the latter. Dr. Thomas ’ report of such examination shows :

“Fracture of neck of right femur with some upward displacement. The .patient walks on crutches, touches leg to floor. No pain. Hip can be flexed to 60°, abducted to 20°, without causing pain; 1% inch shortening of leg. Patient not desirous of having any surgical intervention, which is quite reasonable for his age. The operative risk is great, and he has many hard vessels. * * *”

Dr. Thomas expressed the conclusion that—

“The patient could do his work as an inspector very well, getting along first on a crutch, later on a cane and probably later without any support, provided he gets fibrous union, or with no union if the fragments adjust themselves to a new position. I think he is going to have a fibrous union. The neck of the femur is all absorbed. He has a great deal of focal infection in his mouth and his arteries are extremely brittle. ® * *”

On January 26, 1938, Dr. Burke supplied plaintiff at the cost of the State with an ambulatory splint, and on February 20th claimant began the use of two canes instead of crutches. He was paid his full salary at the rate of One Hundred Twenty-five ($125.00) Dollars per month for the last five •days of May, 1937, and for the period from June 1, 1937, to August 17, 1938, he was paid compensation for temporary disability. The total period for which compensation was paid amounted to sixty-four (64) weeks and the total sum so paid was Nine Hundred Nineteen and 43/100 ($919.43) Dollars. Claimant had no children under sixteen years of age dependent upon him for support at the time of the accident. Treatment bills were paid for him by the Division of Highways up to September 7, 1938, in the sum of Six Hundred Ten ($610.00) Dollars. According to his annual earnings his average weekly wage was Twenty-eight and 84/100 ($28.84) Dollars, and his compensation rate $14.42 per week.

The claim herein was filed August 25, 1938. The Court finds from the record that claimant and respondent were on the 26th day of May, 1937, operating under the provisions of the Workmen’s Compensation Act of Illinois; that on the date last stated claimant sustained accidental injuries arising out of and in the course of his employment, and that notice of the accident was given to respondent and claim for compensation on account thereof was made on respondent within the time required under the provisions of said Act.

That necessary first-aid, medical, surgical and hospital services have been furnished by respondent.

That the earnings of claimant during the year next preceding the injury were One Thousand Five Hundred ($1,500.00) Dollars, and that the average weekly wage was Twenty-eight and 84/100 ($28.84) Dollars.

That claimant has been compensated for all temporary-disability to which he is entitled.

There is some difficulty in determining to what permanent partial disability or specific disability claimant is entitled.

Dr. Edmund J. Burke testified that—

The last X-ray was made of claimant’s right leg on December 4, 1937; that at that time there was no bony union, and, that the inference drawn from the X-ray was that there was a fibrous union with absorption of the neck of the femur. There was no disability of the claimant’s foot itself and no impairment of motion in his ankle as a result of this injury; that while the knee never works properly in the case of permanent impairment at the hip, the motion of the knee is good and claimant has full extension of the knee itself; that the flexion in the knee of the injured right leg compares favorably with the flexion in the left knee, though not as agile and with a smaller range of motion.

Dr. Burke further testified that—

In the hip joint there is motion in four directions, extension, flexion, adduction, and abduction. That in claimant’s case the flexion of the right hip joint is about 30° active motion, and that in the ordinary case normal flexion would be 90°; that passive motion would be slightly more than the 30° indicated. In abduction, i.e., movement in the hip joint outward from the hip line, claimant has sufficient motion to cross his right leg over the left; further, that claimant can extend his right leg backward about 10° to 15° and there is no partial ankylosis in any of the joints of claimant’s right leg.

The doctor further testified that—

If the claimant were to stand on either leg without the use of a cane he could not move the other leg; that the shortening of the right limb of 1^4 inch to 1 y2 inch is caused by the absorption of the neck of the femur, and that the weight bearing line in which the fibrous union was formed is not correct, and that the alignment- is not correct because of such shortening of the limb.

Dr. Burke further testified:

The range of motion of the muscles is better than sometimes results in similar cases, but there is no framework with which the muscular power can adequately be used, and that in his opinion claimant could not do work requiring physical exertion, and that claimant’s condition will not improve and that he will not be able to do any work that requires agility.

Claimant testified that he has not been able to perform any work since the date of his accident. That at the time of the hearing he was still using the brace which had been furnished him, and that he gets around fairly well with a cane, walks about a block at a time, and was not hurt anywhere except in the hip joint.

Claimant contends that he has suffered an 80 per cent loss of use of his right leg and seeks an award of Two Thousand One Hundred Ninety-one and 84/100 ($2,191.84) Dollars on the basis thereof.

The record does not disclose what, if any, increase may have'resulted in claimant’s permanent or specific disability by reason of his refusal or' negligence to submit himself to the attention of Dr. Thomas, orthopedic specialist, in Chicago. These requests to him were made on June 14, 1937, and again July 20, 1937. Counsel for claimant contends that the latter was then confined in the hospital at LaSalle and was not discharged therefrom until September 4, 1937, and that on January 5, 1938, when the request was again renewed he took advantage of the offer, and that as the findings of Dr. Burke, under whose care he wag at LaSalle, wrere not at variance with those of Dr. Thomas, no exception should be taken to his earlier refusal of the proffered services of the orthopedic specialist.

Paragraph (d) of Section 19 of the Workmen’s Compensation Act provides:

“If any employee shall persist in insanitary or injurious practices which tend to either imperil or retard his recovery or shall refuse to submit to such medical, surgical, or hospital treatment as is reasonably essential to-promote his recovery, the commission may, in its discretion, reduce or suspend the compensation of any such injured employee.”

These provisions are just to both the employer and the employee. In many cases, such as fractures or infections, if proper treatment is received in apt time there is a minimum period of total temporary disability and probable decrease in the permanent disability. The statute contemplates that while-the employer is liable for compensation, regardless of the-negligence of the employee that may have caused the injury, such employee should cooperate in accepting proper medical and hospital treatment.

While no question is raised as to Dr. Burke’s ability oreare of claimant, Dr. Thomas is recognized as an orthopedic-surgeon of note, and early care at his hands may have resulted in a lessened disability to claimant.

The record does not disclose, however, that such would' necessarily have been the case here. Neither does the record disclose that it would have been impossible or dangerous to-claimant for him to have been removed to Chicago and placed under the care of Dr. Thomas when first requested six months prior to the time when he finally consented to go. From these facts and the evidence appearing in the record that claimant is able to use bis injured leg, to possess substantial flexion thereof, to have no substantial injury in the knee or ankle, and to be able to walk on the injured leg with the use of a cane, and to stand on the leg, leads to the conclusion that he still possesses substantial use thereof.

The court finds from the evidence that plaintiff has suffered sixty-five (65) per cent loss of use of the right leg as a result of said accident, and under authority of the provisions of the Workmen’s Compensation Act of Illinois is entitled to an award for sixty-five (65) per cent specific loss of use of such leg in the sum of One Thousand Seven Hundred Eighty and 87/100 ($1,780.87) Dollars.

An award is hereby made in favor of claimant, James Reed, in the sum of One Thousand Seven Hundred Eighty and 87/100 ($1,780.87) Dollars, such award being payable on the basis of Fourteen and 42/100 ($14.42) Dollars per week. Temporary total disability has heretofore been paid of Fourteen and 42/100 ($14.42) Dollars per week, commencing on the 1st day of June, A. D. 1937, and continuing to August 17, A. D. 1938, the latter being the date to which claimant has heretofore been paid temporary total disability. Payments have heretofore accrued over a period of fifty-two (52) weeks to August 17, 1939, for which compensation is now payable in the sum of Seven Hundred Forty-nine and 84/100 ($749.84) Dollars. The balance of One Thousand Thirty-one and 03/100 ($1,031.03) Dollars is payable at the rate of Fourteen and 42/100 ($14.42) Dollars per week, commencing on the 18th day of August, A. D. 1939, and continuing until the total of such balance has been paid, under the terms of the Workmen’s Compensation Act of Illinois.

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 July 3, 1937 (Session Laws 1937, page 83), and being subject further to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Moneys until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly” (Senate Bill 123, as amended), approved July 8, 1939; and being, by the terms of the first mentioned 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 by the foregoing Acts.


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    (No. 3329
    Stanley Pienta, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 19, 1939.

    James Eugene Malone, Je., for claimant.
    John E. Cassidy, Attorney General; Glenn A. Teevob, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant, together with several others, was employed on April 7,1938, as a temporary or extra laborer for the purpose of chipping ice from the electrical connection on a certain steel bridge spanning the Illinois River at the City of LaSalle, Illinois, commonly known as the ‘‘Shippingsport Bridge” over the waterway. This work became necessary because of a terrific blizzard that began April 5, 1938. On the second day of his employment, April 8, 1938, claimant was assisting in adjusting the counterweight lifting blocks from the bridge to the roadway, and as the block was raised it swung around catching the second finger on the right hand of Mr. Pienta between the concrete block and a steel girder on the bridge. Mr. Pienta showed his finger to his foreman and he was referred to an attending physician, Dr. E. F. Cox of LaSalle, Illinois. The latter testified:

The extensor tendons had been torn from their attachment at the base of the distal phalanx of the third or middle finger of the right hand. He placed an aluminum splint over the finger so as to aid in obtaining a fibrous attachment of the injured tendon, but did not have much success; that the degree of flexion resulting from a failure of the extensor tendons to perform their function is limited to the joint itself; that usually one did not get more than 90° of flexion, and that Mr. Planta probably has 25 per cent flexion.

Dr. Cox further testified that—

In his opinion the injury to the distal phalanx of claimant’s finger does not produce any disability in the remainder of the fingers; that while there is a certain amount of clumsiness in plaintiff’s picking up things with this finger, a claim of 50 per cent disability of the distal phalanx would he fully ample.

Claimant was employed immediately prior to the accident by the Illinois Power and Light Company at the rate of Seven ($7.00) Dollars per day, but was not working for them on April 7th and 8th because of bad weather. He testified that he was totally unable to use the injured finger for three weeks; that he can now move the first joint of the finger laterally, but that it remains in a bent'condition, is larger than it was prior to the accident, and that he is unable to grip as well with that finger as he could before. He testified that he can now only bend the end joint of the injured finger about half as far as he can the corresponding joint on his other hand. After three weeks’ disability claimant returned to his prior employment with the Illinois Power and Light Company, and has been working for them since that time in similar work to that which he previously performed. A Department Eeport from the Division of Waterways shows that claimant was paid for eleven (11) hours of labor at Forty (40c) Cents per hour, being seven (7) hours on April 7, 1938, and four (4) hours on April 8, 1938. Mr. Pienta, through his attorney, filed a claim with the Waterway Division June 29, 1938, and sent a copy of such claim to the Governor’s Office. The doctor’s bill in favor of Dr. Cox in the amount of Ten and 50/100 ($10.50) Dollars was paid by respondent.

Claim was filed in the Court of Claims on October 25, 1938.

As claimant was only a temporary employee, the proper method of computing his average weekly wage is on the basis of Forty (40c) Cents per hour, eight (8) hours per day, multiplied by the minimum number of days, i.e., two hundred (200), as provided for by Section 10 (e) of the Workmen’s Compensation Act of Illinois, making a total of Six Hundred Forty ($640.00) Dollars, which results in an average weekly wage of Twelve and 30/100 ($12.30) Dollars. Fifty (50) per cent thereof being less than the minimum of Seven and 50/100 ($7.50) Dollars weekly compensation provided for by Section 8 (b) of the Act, compensation is allowed at the latter figure.

The Court finds that claimant at the time of his injury was such an employee of the State of Illinois as was entitled to the benefits of the Workmen’s Compensation Act; that he suffered an accidental injury which arose out of and in the course of his employment; that he suffered temporary total disability of three weeks; that no compensation is due for the first eight days, and that there is due him for such tern-, porary total disability, the sum of Fifteen ($15.00) Dollars; that he has suffered forty (40) per cent loss of use of the first phalange of the second finger of his right hand, for which specific injury he is entitled to compensation in the sum of Fifty-two and 50/100 ($52.50) Dollars.

An award is therefore made in favor of claimant for the sum of Sixty-seven and 50/100 ($67.50) Dollars, and as the full amount has accrued, payment therefor is to be made instanter.

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 July 3, 1937 (Sess. Laws 1937, page 83), and being subject further to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly” (S. B. 123, as amended), approved July 8, 1939; and being, by the terms of the first mentioned 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 by the foregoing Acts.


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    (No. 2216
    George Herbert Anker, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1935.

      Rehearing denied September 13, 1939.

    Doyle, Sampson & Griffin, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This case comes to the court on a stipulation of facts.

The declaration was filed on July 14,1933, and avers that George Herbert Anker, on and prior to the 29th day of May, 1931, was employed as a Junior Engineer in the Division of Highways of the Department of Public Works and Buildings of the Staté of Illinois; that on that date he was performing his usual and customary duties as such Junior Engineer in and about the construction of a hard road designated as Eoute No. 48 at a place between Welden and Farmer City in the State of Illinois, and while so engaged he stepped upon a finishing machine and received an accidental injury by the breaking of a bone in the arch of his right foot; that the State had notice of the injury and provided certain medical and hospital services and paid therefor the sum of One Hundred Three and 50/100ths Dollars ($103.50); that the treatment furnished did not effect a permanent cure, and that the claimant has since that time continuously suffered therefrom; that the bones of his foot slip out of place whenever pressure is placed on the foot and that he has been compelled to undergo continuous treatment for the injury since being discharged by the physician furnished and provided by the State; that he is still undergoing such treatment; that as the result of this injury he became liable for a doctor bill in excess of the sum of Two Hundred Fourteen and no/100ths Dollars ($214.00), and that claimant has suffered a fifteen (15%) per cent permanent loss of the use of the right foot; that for the year immediately preceding the injury his average monthly salary was the sum of One Hundred Fifty and no/100ths ($150.00) Dollars per month, and that for the fifteen (15) per cent permanent loss of the use of said foot, he is entitled to the further sum of Four Hundred Twenty-seven and 50/100ths ($427.50) Dollars.

The Attorney General has made a motion to dismiss, for two reasons: First, that it appears that no claim or demand was made upon the respondent within six months after the date of the accident, and second, for the reason that an application for compensation or complaint herein was not filed within one year after the date of injury or within one year after the date of the last payment made by the respondent to the claimant of any temporary total compensation payable under the Act.

It is conceded that the injury arose out of and during the course of the employment of the claimant.

It appears from the stipulation that the attending physician furnished and provided by the State of Illinois pronounced the claimant permanently cured. It is further stipulated that on September 3, 1931, at the request of agents for the State of Illinois, the claimant executed a release under the mistaken belief that he was permanently cured. It is further stipulated that claimant has taken osteopathic treatments at least once each week from August 1, 1931, at a cost of Two Dollars ($2.00) each, and in support of his contention he attached an affidavit of C. A. Wendel. It further appears in the stipulation that claimant received One Hundred Fifty and no/100ths Dollars ($150.00) per month continuously up to February 1, 1933, when he discontinued his employment with the State of Illinois.

From this stipulation we assume that the claimant was paid his usual and customary salary from the time of his injury on the 29th day of May, 1931, up to February 1, 1933.

The statute provides that this Court must 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 claimant contends that the five-year statute provided in the Court of Claims Act governs this case. The Attorney General contends that Section 24 of the Workmen’s Compensation Act governs, and this Court, has held that the special provision of the Compensation Act, which is Section 24 thereof, and which provides that a claim or demand must be made within six months after the date of the accident, and application for compensation must be made within one year after the date of injury or one year after the date of last payment made by respondent for the claim of any total temporary disability under the Act.

We have repeatedly held that this Court has no greater jurisdiction in compensation cases where State employees are injured than the Industrial Commission of the State of Illinois has in cases before it.

Statutes oí limitation relate to the remedy and not the right. They are statutes of repose, designed to accelerate the settlement of controversies, and are, therefore, favored.
Chicago Board of Underwriters vs. Ind. Com. 332 Ill. 611.

In controversies before this Court between an employee and the State every reason exists to facilitate and expedite the settlement of a claim by imposing limitations that are present in a suit before the Industrial Commission between individuals. No good reason appears why the statute of limitations under the Compensation Act should not be enforced against an employee of this State just simply because he is an employee of this State.

Section 24 of the Compensation Act, as subsequently amended, provides that when no proceeding for compensation has been made within six months after the accident, and when no application for compensation is filed within one year after the date of the injury or within one year after the date of the last payment of compensation, the right to file such application shall be barred.

In the case of the City of Rochelle vs. Ind. Com., 332 Ill. 386, the Court held that unless such claim has been made within the time fixed by the statute, the Industrial Commission would have no jurisdiction in the case.

It is claimed that the State paid for medical services as of September 10, 1932, and, therefore, paid compensation within one year from the time the claim was made, and each warrant was stamped on the face over the printed word “Appropriation” the following words: “Compensation for Injured Employees.”

These warrants used for payments in such matters are in printed forms and cannot be used to deny the truth.

Prior to 1925, the furnishing of medical and hospital services was held to be a payment of compensation in the same manner and with the same effects as the payment of weekly or other compensation under Section 8. That presented .a very unsatisfactory and unfair situation. The prompt furnishing of proper medical and hospital services was of great immediate importance both to the employee and to the employer, and yet the employer was placed in the position that if he provided such service and then it developed that there was no compensation liability, as for example that the condition was not due to accidental injury arising out of and in the course of employment, yet the furnishing of such service was a payment of compensation, and an admission of liability, it affected the matter of limitations as to making claim under Section 24, and was subject to review under Section 19 (h) as being conclusive of any and all questions of liability and left open for consideration only the question whether there had been a recurrence or increase of disability since the time of the payment for such services.

The statute now provides that the payment for medical and hospital services is not an admission of liability to pay compensation and not a payment for compensation.

We, therefore, hold that there has been no payment of compensation within the meaning of the statute in this case, and proper application was not filed within the time fixed by the statute, and this view is supported by Chicago Board of Underwriters vs. Industrial Commission,, 329 Ill. 543, and Arnold & Murdock Co. vs. Industrial Commission, 312 Ill. 251, and other decisions.

We, therefore, sustain the Attorney.General’s motion to dismiss for want of jurisdiction and the claim is accordingly dismissed.


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    (No. 3287
    Apex Motor Fuel Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1939.

    Claimant, pro se.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

The complaint herein alleges in substance that during the period beginning January 1,1935, and ending July 31,1937, it paid to the respondent, oil inspection fees of three cents (3c) per One Hundred (100) gallons on 2,322,650 gallons of range oil, to wit, the sum of $696.80; that all of said oil was purchased and sold by claimant as range fuel oil for heating purposes, and was not subject to inspection by the respondent; that the operating department of the claimant mistakenly reported the arrival of the range oil cars to the Division of Oil Inspection of the respondent; that the respondent charged, and the claimant paid, the inspection fees thereon as above set forth; that such inspection fees were not being paid by any other firm in the industry; and claimant therefore asks for a refund of the fees so paid by it as aforesaid.

The Attorney General has entered a motion to dismiss the case on the grounds that the fees in question were paid voluntarily and under a mistake of law and therefore are not recoverable.

The Oil Inspection Act (Cahill’s Ill. Revised Statutes, 1935, Chap. 104) requires an inspection and the payment of an inspection fee on “petroleum products.” Section 1 of such Act provides that “petroleum products” as used in such Act “means gasoline and kerosene.”

Section 5 of such Act requires the consignee of petroleum products to notify the Department of Trade and Commerce within twelve (12) hours after the receipt thereof. Section 13 fixes the inspection fee at three cents (3c) for each 100 gallons, and Section 14 provides for the payment or collection thereof.

It appears from the allegations in the complaint that the tax was paid voluntarily, and we have repeatedly held that where a tax is paid voluntarily, and with a full knowledge of the facts, it cannot be recovered. See Western Dairy Co. vs. State, 9 C. C. R., 499; Butler Paper Co. vs. State, 9 C. C. R., 503, and eases there cited.

Assuming, but not deciding, that the statute did not require an inspection of range fuel oil, yet the act of the claimant in reporting the arrival of such range fuel oil, the inspection thereof, and the payment of the inspection fees by the claimant, were all made under a mistake of law.

It is a well established rule of law that a tax or fee paid under a mistake of law cannot be recovered. Walzer vs. Board of Education, 160 Ill. 272; Yates vs. Royal Ins. Co., 200 Ill. 202; School of Domestic Arts vs. Harding, 331 Ill. 330; Richardson Lubricating Co. vs. Kinney, 337 Ill. 122.

Under the law as above set forth, we have no authority to allow an award, and therefore the motion of the Attorney General must be sustained.

Motion to dismiss allowed. Case dismissed.


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    (No. 3281
    John Bettinardi, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1939.

    Max J. Becker, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The complaint alleges that on the 13th day of March, 1937, John Bettinardi, the claimant, was injured by reason of an accident arising out of and in the course,of claimant’s employment by the State of Illinois.

The record discloses that claimant is an unmarried man with no child under sixteen years of age, and that claimant was in the employ of the respondent in the capacity of orderly at the Illinois Research and Educational Hospital, a charitable institution maintained and operated by the "State of Illinois at 1819 Polk Street, Chicago, Illinois; that he was receiving a salary of $85.00 per month, plus maintenance valued at $18.00 per month; that he had not been in such employment for one year previous to March 13, 1937, but it was stipulated that claimant’s annual earnings for the purpose of computing compensation should be considered at $1,236.00. Claimant’s duties consisted of emptying the patient’s vessels, handling bottles containing medicine, waiting on the patients, moving beds and tables, assisting in the service of meals, collecting laundry, taking patients to the dispensary and handling oxygen and gas tanks. He also operated the elevators when the occasion required. The Research and Educational Hospital is a five-story brick building accommodating about three hundred patients and employing about seventy-five people. It is equipped with four electrically operated elevators, and the kitchen where the meals for patients and employees are prepared is equipped with knives, gas stoves, a refrigerator and electrically operated meat grinders and bread slicers. The laundry at the institution is equipped with electric washing machines, mangles and driers.

On March 13, 1937, while claimant was handling a urinal, a piece of enamel pierced the middle finger of his right hand, causing it to bleed. He immediately reported the incident to his superior, and Dr. Reynolds, a physician at the institution, examined the finger. In January, 1938, the finger bothered him and on January 4, 1938, Dr. Roberg, a physician at the institution, opened the finger and removed a small particle of enamel therefrom. The condition of the finger grew worse and on January 17, 1938, claimant was hospitalized at the institution and remained in the hospital for nine weeks.

Claimant had worked from March 13,1937, until January 17, 1938, at his regular employment and received his regular salary. After his discharge from the hospital he received intermittent treatment at the dispensary and on May 13, 1938, was again hospitalized at the institution and a sequestrum of bone was removed from the distal phalanx of the finger. The claimant was again discharged from the hospital on May 16, 1938, and thereafter received intermittent treatment and observation at the dispensary while the wound was still draining. Subsequent to June 27, 1938, a skin graft was done on the claimant’s finger and the claimant was able to return to his regular duties November 21, 1938. The claimant did not work from January 17 to November 21, 1938, but was paid one month’s salary of $85.00 in February, 1938.

All the hospitalization and medical services have been furnished by the respondent.

Dr. Arthur H. Schoenwetter was called on behalf of the claimant and testified that claimant’s right middle finger was one-half inch shorter than the corresponding finger of the left hand; that claimant has lost about one-half of the distal phalanx of the finger; that the finger is flexed at a 45 degree angle and that the distal phalanx cannot be extended completely; that the finger closes only to one-half inch of the palm.

Under the Compensation Act the loss of the first phalange of the thumb or of any finger shall be considered to be equal to the loss of one-half of such thumb or finger and compensation shall be one-half of this amount; and the loss of one-half of the distal phalange of the finger constitutes the loss of the phalange. Generally speaking, compensation for temporary total incapacity is payable only for that period immediately following the accident during which the employee is totally incapacitated from work by reason of the illness attending the injury — the period of the healing process.

The record shows that the respondent had immediate notice of the accidental injury sustained by the claimant on March 13, 1937, and that claimant was paid his regular salary for non-productive time from January 17 to February 17, 1938, which constituted the payment of compensation under the case of United Air Line vs. industrial Commission, 364 Ill. 346. No demand for compensation was therefore necessary. The claim was filed within one year from the payment of this compensation, and all the jurisdictional requirements have been complied with.

It has been stipulated that claimant’s annual earnings for compensation purposes is the sum of $1,236.00, or an average weekly wage of $23.76, one-half of which equals $11.88. It appears that the claimant is entitled to the benefits of the Workmen’s Compensation Act and under that Act is entitled to compensation in the sum of $207.90 (which is 50 per cent of 35 weeks times $11.88) for the specific loss of 50 per cent of the middle finger of the right hand.

We are also of the opinion that claimant is entitled to total temporary incapacity for that period following the accident during which he was unable to work because of the effects of the injury, even though the injury did not manifest itself immediately after the accident. It is admitted that the' injury was caused by the piece of enamel embedding itself in the finger. We are of the opinion that under Section 8 (b) of the Workmen’s Compensation Act the Legislature did intend to provide compensation for total temporary incapacity, even though it did not follow the injury for several months. Claimant was injured on March 13, 1937, and he lost no time from his employment on account of the injury until January 17, 1938, ten months after the accident. We believe that it would be a narrow construction of the Act to say that the temporary total incapacity must immediately follow the injury, and we hold that the claimant is entitled to compensation equal to fifty per cent of his average weekly wage for the period from January 17 to November 21, 1938. The record shows that the claimant was either in the hospital or undergoing treatment with his finger still draining or submitting to a skin grafting process during this period, and that his finger was not completely healed, and consequently he did not return to work until November 21, 1938, or a period of forty-three weeks. Compensation for this period at the rate of $11.88 would amount to $510.84. He did, however, receive $85.00 for non-productive time and this should be deducted from the above amount.

Holding as we do, that claimant is under the Workmen’s Compensation Act, he is entitled to $207.90 for the specific loss of the first phalange of the second finger, plus 43 weeks ’ temporary total incapacity at the rate of $11.88 per week or $510.84, less the one month’s salary paid to claimant in the sum of $85.00, or the total sum of $633.74.

Claimant was injured on March 13, 1937. He lost no time from his employment on account of the injury until January 17, 1938, a little more than ten months after the accident. From the time he went to the hospital until he returned to work, 43 weeks had elapsed. He is entitled to receive the compensation for the specific loss of the first phalange of the second finger and for temporary total incapacity in a lump sum for the reason that more than that amount has accumulated at $11.88 per week up to September 12, 1939, the date of this award.

An award is therefore made in favor of John Bettinardi, the claimant, in the sum of $633.74.

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 July 3, 1937 (Session Laws 1937, page 83), and being subject further to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Moneys until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly” ( Senate Bill 123, as amended), approved July 8, 1939; and being, by the terms of the first mentioned 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 by the foregoing Acts.


text:
    (No. 2504
    Leo Bray, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1939.

    William M. Scanlan, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The complaint was filed on September 17, 1934, claiming the sum of $1,077.50 for compensation alleged to be due under the Workmen’s Compensation Act for an injury suffered by the claimant in an accident which occurred on September 29, 1933, while the claimant was in the employ of the State of Illinois, in its Division of Highways, Department of Public Works and Buildings. The respondent was at the time of claimant’s injury engaged in maintaining a concrete paved highway. The claimant sustained an accidental injury while cleaning up a mud jack, which was used for raising low places in the pavement.

At the time of the injury claimant was 41 years of age and had the following children under sixteen years of age at that time:

Josephine Bray, age 13;
Leo Robert Bray, age 10;
Edward Bray, age 8;
William Bray, age 6;
James Bray, age 2.

No compensation was paid to the claimant on account of the injury and no hospital or doctor bills were paid.

The State had due notice of the injury and according to Dr. Edgcomb, his attending physician, the claimant received a cut eight inches long on the posterior surface of the right forearm. The cut went through the skin, the subcutaneous tissues and into the tendon and extensor longus pollices. It did not completely cut the tendon but cut into it. Dr. Edgcomb took care of him and testified that there was no complete disability. He was under the doctor’s care approximately six weeks. There was a scar five inches long at the site of the wound that is healthy; it is not attached to the fascia. The sensitiveness is gone, the scar is not tender now, and there is full extension and flexion, but there is loss of pronation. The doctor estimated that he would have been able to return to work about two weeks after the six-week period that he treated him.

This accident occurred on September 29, 1933; the claim was not filed until September 17, 1934, and the Statement, Brief and Argument on behalf of respondent was not filed until June 27, 1939. The State had due notice of the accident and demand was made for compensation by the claimant within six months after the date of the accident.

The Court finds that the petitioner was under the Compensation Act and received an additional injury arising out of and in the course of the employment; that he had been, prior to the accident, a railroad engineer, and when work opened up he went back to his employment and received more for his employment than he was receiving operating the mud jack. At the end of the day it was the custom to clean the mud jack. The accident occurred about 4:45 p. m. Claimant was paid at the rate of 35 cents per hour for an eight-hour day, and during the ten calendar weeks that he had been employed by the Division of Highways he had worked 291 hours at 35 cents per hour, making a total of $101.85, and two hours at 50 cents per hour, or $1.00.

As stated above, claimant had five children under sixteen years of age who were living with him and dependent upon him.

The Court finds that the bill for medical services was $13.00 and that this was a fair and reasonable charge. The Court also finds that the hospital bill amounted to $5.50 for the use of the operating table, and that this was a fair and reasonable charge. As to the specific loss, the claimant testified that he was doing the same general type of work, for the same company, with the exception of such changes as had been made in the equipment by that company, that he had been doing before he secured employment with the State Highway Department.

Dr. Edgeomb testified that claimant should have been able to return to his regular employment in about two months after the accident. His regular employer was the American Silica Sand Works.

Under Section 8 of the Illinois Workmen’s Compensation Act, an employee having four or more children under the age of sixteen years at the time of the injury is entitled to $14.00 per week.

It is admitted that this accident arose out of and in the course of the employment, and that all parties are under the Compensation Act, and that nothing has been paid by the State, either by way of compensation, hospital or medical bills.

We, therefore, make an award in favor of the claimant, Leo Bray, for eight weeks at $14.00 per week, or the sum of $112.00; and an award to the claimant, Leo Bray, for the use of Byburn King Memorial Hospital in the sum of $5.50, and an award to the claimant, Leo Bray, for the use of Dr. J. H. Edgeomb in the sum of $13.00.

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 July 3, 1937 (Sess. Laws 1937, p. 83), and being subject further to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Moneys until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly” (Senate Bill 123, as amended), approved July 8, 1939; and being, by the terms of the first mentioned 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 by the foregoing" Acts.


text:
    (Nos. 2267, 2268, 2269, 2270, 2271, 2272, Consolidated
    Blanche Bulli, No. 2267, Eliza Pozzi, a Minor By Anna Galli, Her Mother and Next Friend, No. 2268, Rudolph Belletini, No. 2269, Anna Galli, No. 2270, Fred Castelli, No. 2271, Albert Galli, No. 2272, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1939.

    Woleberg & Kroll, for claimants.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

All of these cases arose out of the same accident, and on motion of the Attorney General they were consolidated.

The basis for the claim is an accident which occurred on the 13th day of August, A. D. 1933.

The claimant, Blanche Bulli, in claim number 2267, alleges that at the time of the injury the respondent was a commonwealth and was in possession and control of a certain public highway known as Illinois Route No. 5, at or near the city of Mendota, Illinois, and that it was the duty of the re-' spondent to exercise ordinary care to keep the said public highway in a reasonably safe condition for the purpose of public travel thereon; that at the time of the injury and for a long time prior thereto the respondent had carelessly and negligently failed and neglected to exercise ordinary care to keep said public highway at the place aforesaid in a reasonably safe condition; but on the contrary thereof, on the day df the injury and for a long time prior thereto carelessly and negligently permitted and allowed said Illinois Route No. 5, especially at a certain point, to-wit: near the farm of Stanley M. Wujek, on the said Illinois Route No. 5, to be and remain in a dangerous and unsafe condition, and carelessly and negligently permitted and allowed divers holes, depressions and uneven places to be and remain in said public highway at the place aforesaid. Claimant further alleges that the respondent had notice of the dangerous and unsafe condition of the public highway at the place aforesaid, or by the exercise of ordinary care should have had notice; that at the time of the injury claimant was riding as a passenger in a certain automobile which was then and there being driven along and upon said Illinois Route No. 5, at the place aforesaid, in a northerly direction, and that while the claimant was then and there in the exercise of ordinary care for her own safety, by reason of the carelessness and negligence of the respondent, as aforesaid, the said automobile ran and was precipitated into one or several of the holes in the pavement, and the said automobile was thrown from the road into the ditch by the side of the road and overturned, by means of which the claimant received certain injuries, and she claims damages in the sum of $1,500.00.

Elisa Pozzi, a minor, by Anna G-alli, her mother and next friend, makes substantially the same allegations in her complaint and also claims damages in the sum of $1,500.00.

To the same effect is the complaint of Rudolph Belletini, and the same amount of damages is alleged, except he avers he was driving the automobile.

Anna Galli avers that she was a passenger in the car and the other facts hereinbefore related are also averred, and she also claims damages in the sum of $1,500.00.

Fred Casíelli also avers that he was a passenger in the said car, and makes like charges, and also claims damages in the sum of $1,500.00.

Albert Galli makes similar charges, and also avers that Anna Galli was the mother of Anita Marie Galli, a minor aged four and one-half months, who was killed in said accident. Albert Galli charges that he is entitled to the earnings of the minor child until said minor reaches the age of majority; and that he expended large sums of money for funeral expenses for the said Anita Marie Galli, and claimant asks damages in the sum of $2,500.00.

The complaints allege that this accident occurred on Route No. 5 near the City of Mendota, Illinois. Route No. 5 at the time of the accident is what is known as U. S. No. 20 now and does not run near Mendota, Illinois, nor in LaSalle County, in which Mendota is located, but extends westerly from the City of Chicago, Illinois, through the City of Rockford, Illinois, to Dubuque, Iowa, and on west. It is not averred in said complaints that the said highway is a State Bond Issue highway under the supervision and control of the respondent, but if there was a cause of action in this case at all, proper amendments could have been made.

The Attorney General has made a motion to dismiss each of the complaints on four different grounds:

“1. That each of said declarations filed herein are substantially insufficient in law and fail to state a proper legal cause of action against the respondent.

2. That the doctrine of respondeat superior has no application to the respondent herein, for the reason a sovereign state in the exercise of a governmental function cannot be held liable for the misfeasance, malfeasance or nonfesance of its officers, agents or employees.

3. That while it is alleged in said complaints the accident occurred upon a public highway designated as ‘Illinois Route No. 5’ located ‘at or near the City of Mendota, Illinois,’ it does not affirmatively appear from the allegations in the complaints that said paved highway is a State Bond Issue Route under the control and supervision of the respondent so as to give this Court jurisdiction of the alleged claim.

4. That this Court should take judicial notice of the fact that the paved highway officially known and designated as State Bond Issue Route No. 5 is not located at or near the City of Mendota, Illinois.”

This motion must be sustained, and any one of these grounds is sufficient. We further base our decision on the second reason; that is, that the doctrine of respondeat superior has no application to the respondent herein, for the reason a -sovereign state in the exercise of a governmental function cannot be held liable for the misfeasance, malfeasance or nonfeasance of its officers, agents or employees.

In the building and maintenance of a system of improved and hard-surfaced highways the State acts in its sovereign capacity in carrying out one of its governmental functions and cannot be held liable for the misfeasance, malfeasance or nonfeasance of its officers or agents. This Court has so held in many cases. See Story on Agency, 9th Ed., Sec. 319, p. 390.

For the reasons above mentioned the motion of the Attorney General to dismiss these complaints will be sustained. Each cause is, therefore, dismissed.


author: Mb. Justice Linscott

text:
    (No. 3313
    Frank Burns, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1939.

    Knoblock & Sloan, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Tbevob, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

The facts in this case have all been stipulated. The claimant, Frank Burns, was employed by the respondent in the Division of Highways as a crane operator, and had been so employed since October 20, 1931. On November 24, 1937, the date of the accident, the claimant was operating a gasoline motor-driven Austin Badger shovel owned by the Division of Highways and was loading gravel from a gravel pit into trucks. About 3:30 in the afternoon a part of the gravel bank gave way, and part of the bank crushed the left leg of the claimant against the shovel boom.

Claimant was taken to the office of Dr. John T. France in Findlay, Illinois, and from there to St. Mary’s Hospital in Decatur, Illinois, where he was placed under the care of Dr. Ciney Rich. Dr. Rich reported that the tibia and fibula of claimant’s left leg were fractured at the middle third and lower third, and that the tibia was fractured longitudinally through the middle fragment, and that the skin, muscle, nerves and blood vessels were badly crushed in the middle area of the lower leg.

On December 10, 1937, the claimant was taken on a stretcher to St. Luke’s Hospital, Chicago, Illinois, and placed under the care of Dr. H. B. Thomas. On December 27, 1937, Dr. Thomas amputated the claimant’s left leg above the knee, and on January 7, 1938, claimant returned to St. Mary’s Hospital in Decatur and was again placed under the care of Dr. Rich. On February 21, 1938, claimant returned to his home in Edelstein, Illinois, and on March 17, 1938, returned to Chicago for examination by Dr. Thomas. Claimant was in Chicago from March 21 to March 26 under the care of Dr. Thomas and received his board and room at the T. M. C. A. Hotel in Chicago at the expense of the respondent. On May 2, 1938, claimant went to Chicago and was fitted for an artificial limb by the Merrick-Hopkins Company and returned to Chicago on May 20 for such artificial limb. On June 3, 1938, the claimant went to Dr. H. B. Thomas in Chicago for a final examination, and as a result of such examination Dr. Thomas reported that the artificial limb furnished to the claimant by the respondent was satisfactory and functioning properly.

Claimant’s total temporary disability ceased on June 8, 1938, and during that period of claimant’s temporary total disability the respondent paid him the total sum of $544.04.

Claimant was unmarried and had no child under sixteen years of age.

The State of Illinois has furnished transportation, through the Division of Highways, or reimbursed the claimant for the expense of all his trips to the City of Chicago, and has paid all the doctor, hospital and medical bills and nurses ’ bills and has furnished the claimant with an artificial limb. The respondent has paid, through the Division of Highways, for such services the sum of $2,811.04.

The Court finds that it has jurisdiction of the person and of the subject matter. Due notice was properly given. Construction, excavating or electrical work, except as is provided in Paragraph 8, is declared to be extra-hazardous and is automatically under the Workmen’s Compensation Act. He was actually employed by the respondent at the time of the injury and the injury arose out of and in the course of his employment.

Compensation should be computed on the basis of the annual earnings which the injured person received as salary, wages or earnings, if in the employment of the same employer continuously during the year next preceding the date of the injury.

This Court has repeatedly held that the construction and maintenance of a hard-surfaced public highway is the maintenance and construction of a structure under the Workmen’s Compensation Act.

Manhart vs. State, 8 C. C. R. 356;
City of Rock Island vs. Industrial Commission, 287 Ill. 76;
Bond vs. State, 7 C. C. R. 197 ;
Pennington vs. State, 7 C. C. R. 253.

The amount of compensation which shall be paid to the employee for an injury not resulting in death shall be:

(a) The employer shall provide the necessary first aid medical and surgical services, and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the injury.
(b) If the period of temporary total incapacity for work lasts more than six working days, compensation equal to fifty per centum of the earnings but not less than $7.50 nor more than $15.00 per week, beginning on the eighth day of such temporary total incapacity and continuing as long as the temporary total incapacity lasts, but not after the amount of compensation paid equals the amount which would have been payable as a death benefit under paragraph (a), section 7, if the employee had died as a result of the injury at the time thereof, leaving heirs surviving as provided in said paragraph (a), section 7; Provided,, that in the case where the temporary total incapacity for work continues for a period of more than thirty days from the day of the injury, then' compensation shall commence on the day after the injury.
(e) Por injuries in the following schedule, the employee shall receive compensation for the period of temporary total'incapacity for work resulting from such injury, in accordance with the provisions of paragraphs (a) and (b) of this section, for a period not to exceed sixty-four weeks, and shall receive in addition thereto compensation for a further period subject to limitations as to amounts as in this section provided, for the specific loss herein mentioned, as follows, but shall not receive any compensation for such injuries under any other provision of this Act.
15. For the loss of a leg, or the permanent and complete loss of its use, fifty percentum of the average weekly wage during one hundred and ninety weeks.

Section 8, Workmen’s Compensation Act.

In Payne vs. Industrial Commission, 296 Ill. 223, the Court held that under the Workmen’s Compensation Act, amputation of the leg ten inches above the ankle constitutes loss of the leg.

Compensation for temporary total disability was paid by the respondent to the claimant from the date of the accident through June 7,1938, and no further claim is now made. Both the State and the claimant are clearly under the terms and conditions of the Compensation Act.

It was stipulated that the average annual earnings of the claimant were $1,753.50. This does not take into consideration over-time. On these earnings his average weekly wage would be $33.73, but under the Act he is only entitled to $15.00 per week compensation. During the twenty-eight weeks from November 24, 1937, to June 8, 1938, which the report of the Division of Highways shows to have been the period during which the claimant was temporarily totally disabled, the claimant should have been paid compensation in the amount of $420.00 at the rate of $15.00 per week. However, he was paid for that period on the basis of $19.43 per week, or a total of $544.04, which makes an over payment of $124.04, and this should be deducted from any specific loss award hereinafter made. . >. „

We are of the opinion that claimant has suffered a complete loss of the leg and under Section 8 (e) 15, the compensation payable for the loss of a leg is one hundred ninety weeks at the compensation rate, which in this case is $15.00 per week, or the - sum of $2,850.00, less the over payment of the temporary total disability of $124.04, leaving a net award of $2,725.96.'

We, therefore, make an award to claimant, Frank Burns, in the sum of $2,725.96.

One year, three months and four-sevenths weeks had elapsed since the date that claimant’s temporary total disability ceased, which was June 8, 1938, up to September 12, 1939, and compensation figured at the rate of $15.00 per week for this period of time amounts to $983.58, and we hold that claimant, Frank Burns, is entitled to said sum of $983.58 to be paid to bim in cash. We further hold that the balance of said award or the sum of $1,742.38 shall be paid to claimant, Frank Burns, at the rate of $15.00 per week, commencing as soon after September 12, 1939, as it shall be convenient for the Department to so do.

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 July 3, 1937 (Session Laws 1937, page 83), and being subject further to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Moneys until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly” (Senate Bill 123, as amended), approved July 8, 1939; and being, by the terms of the first mentioned 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 by the foregoing Acts.