text:
    No. 3463
    Amanda Rascher, Administratrix of the Estate of Henry Rascher, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1943.

    Miller & Shapiro, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This complaint was filed on the 23rd day of February, 1940, seeking an award for the death of Henry Bascher.

It states that the said Henry Eascher was an employee of the respondent as superintendent of the sewage disposal plant at Manteno State Hospital, Manteno, Illinois. That in performing his duties as such superintendent he received the sum of Eighty-one ($81.00) Dollars per month, amounting to the sum of Nine Hundred Seventy-two ($972.00) Dollars per annum. That during the course of his employment he contracted typhoid fever at said institution and as a result thereof died on August 30, 1939, leaving surviving him his widow, Amanda Eascher, who was wholly dependent upon him during his lifetime.

The complaint further avers that no medical services were furnished said deceased during his illness but that he was treated by Dr. O. A. Phipps, of Manteno, Illinois, until his death as aforesaid. That bills were incurred by the said deceased and his widow as follows:

For necessary items of medicine, blood tests, etc.............. $ 15.00

For .funeral expenses........................................ 516.00

Now due and owing to the said - Dr. O. A. Phipps for services rendered to deceased...................................... 53.00

That the respondent has not reimbursed the widow for these expenditures.

The complaint further avers that the respondent had notice of said injury on the 9th day of August, 1939, and that claim for compensation was made in the month of September, 1939, on the Managing Officer of the Manteno State Hospital, as provided by the Workmen’s Compensation Act. Claim is made for the above expenditures plus the sum of Pour Thousand ($4,000.00) Dollars as provided under the Workmen’s Compensation Act for the death of this former State employee.

Evidence was taken on behalf of the claimant on the 23rd day of April, 1943. The evidence shown that the averments in the complaint are substantially true. A stipulation has been filed in this case by the claimant, her attorney and the Attorney General by his assistant, which shows that the deceased was first employed by the respondent in August, 1930; that deceased’s illness began August 14,1939; that his rate of pay was Sixty-three ($63.00) Dollars per month plus maintenance estimated to be Eighteen ($18.00) Dollars; that he was classified as a laborer; that the sum of Thirty-four Dollars and Fifty-five Cents ($34.55) was paid deceased during the period of his illness for unproductive time, and that he died on August 30, 1939.

There is another stipulation filed herein that a typhoid epidemic existed at Manteno State Hospital, Manteno, Illinois, on July 10, 1939, to December 10, 1939. This court will take judicial notice and give full weight to each stipulation. This record lacks proof of marriage of Amanda Eascher to. the deceased and documentary proof must be furnished the respondent within thirty days from the rendition of this opinion.

Under the evidence before it, the court makes the following finding of fact:

■ That at the time of the accident which resulted in the death of Henry Eascher the employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State and notice of the accident and claim for compensation were made within the time provided by the Act and the court is of the opinion that the accident arose out of and in the course of his employment.

That the claimant seeks an award for medicines, blood tests, funeral expenses and doctors’ services during the illness of the deceased.

Under the Workmen’s Compensation Act the respondent is required to furnish all necessary medical and hospital care for an injured employee but is not chargeable with the funeral expenses in a case such as this one. There is no proof in this record that the respondent failed or refused or that a request was made to the respondent to furnish medical or hospitalization for this deceased employee. Therefore, these items cannot be allowed.

Decedent had been employed by the respondent for more than one year prior to his death at a salary of Eighty-one ($81.00) Dollars per month, making his annual salary amount to the sum of Nine Hundred Seventy-two ($972.00) Dollars. His average weekly wage therefore was Eighteen Dollars and Sixty-nine Cents ($18.69) and his compensation rate Ten Dollars and Twenty-eight Cents ($10.28). At the time of his death, claimant, Amanda Eascher, his wife, was his sole dependent, and he had no children under the age of sixteen (16) years dependent upon him for support.

Claimant, therefore, is entitled to an award under Section 7(a) of the Workmen’s Compensation Act in the sum of Three Thousand Eight Hundred Eighty-eight ($3,888.00) Dollars. An award is therefore made in favor of claimant, Amanda Eascher, in the sum of Three Thousand Eight Hundred Eighty-eight ($3,888.00) Dollars.

. The evidence shows that deceased had been paid the sum of Thirty-four Dollars and Fifty-five cents ($34.55) prior to his death for unproductive work, which must be deducted from the award, leaving a balance due claimant of Three Thousand Eight Hundred Fifty-three Dollars and Forty-five Cents ($3,853.45) to be paid by respondent in weekly installments for the use of the claimant. Two Thousand Two Hundred Ninety-two Dollars and Forty-four Cents ($2,292.44), representing 223 weeks at the rate of Ten Dollars and Twenty-eight Cents ($10.28) per week has accrued as of November 9, 1943, and is payable forthwith in a lump sum. The remainder of said award, amounting to the sum of One Thousand, Five Hundred Ñiñety-five Dollars and Fifty-six Cents ($1,595.56) is payable in weekly installments of Ten Dollars and Twenty-eight Cents ($10.28) for 154 weeks and an additional final payment of Twelve Dollars and Forty-four Cents ($12.44).

This claim was filed by Amanda Rascher as administratrix of the estate of Henry Rascher, deceased. Under the provisions of the Workmen’s Compensation Act, compensation for the death of an employee resulting from accidental death is payable to his beneficiaries, if any, as specified therein. This award therefore is made payable to Amanda Rascher, as the widow and sole dependent of Henry Rascher, deceased.

This court retains jurisdiction of this cause for the purpose of entering any further Orders from time to time which may be necessary in this case.

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


source: Caselaw Access Project

author: FlSHEB, J.

license: Public Domain

text:
    No. 3798
    Thomas N. Skinner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1943.

    Mark 0. Roberts, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   FlSHEB, J.

This claim was filed May 17, 1943.

Claimant alleges that he was employed by the State of Illinois as custodian at Camp Lincoln, Springfield, Illinois, from July 1, 1939, to October, 1940. That he was entitled to receive as compensation for such services the sum of $150.00 per month in accordance with an appropriation for said office by virtue of House Bill No. 254 approved July 1, 1939. Claimant further alleges that he received only the sum of $125.00 per month which payment was protested and that claimant made demand upon the respondent for additional payment but received no payment on account of such claim. Claimant seeks an award in- the sum of $400.00 being the difference between the amount appropriated for this position and the amount received by claimant.

The record consists of the complaint, motion to dismiss by respondent and statement, brief and argument on behalf of claimant and respondent.

Respondent contends that the claim should be dismissed for the reason that if claimant was legally entitled to recover he had a remedy in the courts of general jurisdiction.

Claimant had a right to receive the full sum appropriated for the position which he held. Adequate remedies existed in courts of general jurisdiction for the enforcement of this right. Claimant chose to remain in the position, accept and cash the vouchers issued to him and took no action for the enforcement of his rights.

We have consistently held that the Court of Claims does not have jurisdiction to entertain a claim where a full remedy exists or existed in a court of general juris- , diction. The Court of Claims was created to provide a remedy to persons where no other adequate remedy existed. Claimant having failed to pursue his proper remedy he cannot now maintain his claim here. The motion of the Attorney General to dismiss this claim must he allowed.

• Having concluded that we are without jurisdiction in this claim it becomes unnecessary to discuss other points raised by respective counsel.

The motion to dismiss is allowed and the claim dismissed.


author: Eckert, J.

text:
    No. 3485
    Spur Distributing Co., Inc., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion on rehearing filed November 9, 1943.

    Pope & Driemever, for claimant.
    George P. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

On May 15, 1937, the respondent began the construction of two underpasses on that part of St. Clair Avenue in East St. Louis, Illinois, which forms a part of U. S. Highway No. 66. The construction was completed on December 15,1938. The claimant had previously built and operated a gasoline filling station on property on the south side of St. Clair Avenue leased from the Wiggins Ferry Company. Because of the construction of the underpasses, the station was closed from June 27, 1937, to December 18, 1938. When it reopened, its business was materially less than it had been prior to the construction of the subway.

Claim for damages allegedly suffered by reason of the construction of the two underpasses, in the amount of $19,915.26, was filed by claimant on April 23, 1940. The claim was denied, the court holding that no award could be made to claimant because no leasehold existed during a time when a compensable loss could have been suffered, and because the alleged damages were speculative. (Nauydks, et al, vs. State, 11 C. C. R. 542.) On petition, a rehearing was granted.

In the order granting the rehearing, this court found that confusion existed in the record as to the period, if any, during which the leasehold rights of claimant continued after the construction of the subways in question. The court stated, that although it was not in accord with claimant’s theory as to the measure of damages, the petition for rehearing should be granted because the court had failed to recognize the continued operation of claimant’s lease following the completion of the subway construction.

After a consideration of the record upon rehearing, and after recognizing the continued operation of claimant’s lease subsequent to completion of the subway construction, the court is still of the opinion that the items of claimant’s loss are speculative and that the alleged damages to its leasehold interest have not been proved by competent evidence.

An award is therefore denied.


text:
    No. 3491
    Bernard J. Taub, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1943.

    Max' J. Becker, (Leo Segall, of Counsel), for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

The claimant, Bernard J. Taub, is an employee of the Department of Labor, Division of Unemployment Compensation of the State of Illinois. His employment necessitates his travel about the State by automobile. On February 10, 1940, while returning to his Chicago office from a field investigation in Southern Illinois, he was in an automobile accident and sustained a fracture of transverse processes of the third and fourth lumber vertebrae.

He was first attended by Dr. John Horowitz at St. Mary’s Hospital in Kankakee, where he remained for twelve days. He was also attended by Dr. George Mueller of Chicago, and subsequently was moved by ambulance to the Edgewater Hospital at Chicago, where he remained for two weeks. He returned to work on April 25, 1940. He received no compensation while he was incapacitated, and respondent, although requested to do so, failed to furnish necessary medical services.

At the time of the accident, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the Act. The accident arose out of and in the course of the employment.

Claimant has paid Dr. Horowitz for his services the sum of $30.00, Dr. George Mueller, the sum of $65.00, St. Mary’s Hospital, Kankakee, Illinois, the sum of $55.45, • and the Edgewater Hospital of Chicago, Illinois, the sum of $86.10. He also paid the sum of $65.00 for ambulance transportation from St. Mary’s Hospital in Kankakee to the Edgewater Hospital in Chicago.

Claim is made for compensation for the period claimant was totally incapacitated, and for medical and hospital services. No claim is made for permanent disability.

Claimant is entitled* to an award for temporary total disability, resulting from the injury, for a period of ten and five-sevenths weeks, at a compensation rate of $16.50 per week, or a total sum of $176.78. Claimant is also entitled to be reimbursed for his hospital and medical expenses in the sum of $301.55.

Award is therefore entered in the total sum of $478.33, all of which has 'accrued and is payable forthwith.


author: Fisher, J.

text:
    No. 3554
    Gasper Vaillancourt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1943.

    Samuel H. Shapieo, for claimant.
    George F. Barrett, Attorney General; William L. Morgan”, Assistant Attorney General, for respondent.
   Fisher, J.

This claim was filed on November 6, 1940, and the record of the case completed June 9, 1943.

The record consists of complaint, transcript of testimony on behalf of claimant, stipulation and waiver of statement, brief and argument by claimant and respondent.

The claim is for benefits under the Workmen’s Compensation Act. Claimant alleges that he was employed as a Night Supervisor of Attendants at the Manteno State Hospital and that while so acting on the 24th day of August, 1939, he contracted Typhoid Fever as a direct result of his employment and seeks compensation therefor in the sum of $5,000.00, medicine and hospital expenses in the sum of $150.00 and doctor bills, etc., in the sum of $294.00.

It is shown by stipulation that claimant became ill on the 23rd day of August, 1939, that he returned to work on the 28th day of November, 1939, that his wages were paid during period of illness amounting to $251.24, claimant was confined to Manteno State Hospital during his illness and it appears that hospitalization and all medical services were furnished by respondent. Claimant testified that he paid $251.24 for medicine and nursing services, but there is no showing that it was necessary to obtain nursing service in addition to that furnished by respondent.

Claimant’s salary was $78.75 per month plus maintenance of $24.00 per month, or a total of $102.75 per month. Claimant’s compensation rate is $13.04 per week.

Claimant is entitled under the Workmen’s Compensation Act to receive the sum of $13.04 per week for 13 5/7 weeks or a total of $178.72. He was paid for unproductive time the sum of $251.24 which must be deducted from the compensation due claimant. He is therefore overpaid.

Claimant not being entitled to any further payment the claim for an award is denied.


author: Chief Justice Damron

text:
    No. 3167
    Thomas J. Walsh, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1943.

    Claimant, pro se.

      George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

The complaint in this case was filed on the 17th day of December, 1937. It alleges that claimant, on the 6th day of April, 1934, was employed as District Engineer of Materials, Public Works and Buildings, Division of Highways, and on said date while driving on U. S. Route No. 45, from Mattoon to Champaign, Illinois, on business of his employment, an automobile driven by Joe Groff of Olney, Illinois, ran into and collided with the automobile in which claimant was riding, striking the same with great force and violence and • severely injuring the claimant.

The claimant further avers that at the time of the injury his salary amounted to the sum of Two Hundred Fifty ($250.00) Dollars per month. That as a result of said collision the claimant sustained a broken left femur, concussion of the brain, cuts, bruises and a severe puncture wound of the left ischis, when a splinter of wood was driven into the flesh, muscles, tendons and other parts of claimant’s body.

The claimant further avers that after said accident he was taken from the scene thereof to the Methodist Memorial Hospital at Mattoon, Illinois, where he was attended by Dr. B. H. Hardinger; that thereafter claimant was removed to the Paris Hospital, Paris, Illinois, where he was attended by Doctors F. M. Link and H. D. Junkin; that claimant remained there for approximately three months, after which he was removed to his home. Claimant returned to work on the 5th day of August, 1934, and remained so employed by respondent until October 1, 1933, when on account of his alleged aforesaid injuries he was compelled to enter the Paris Hospital where he was again operated upon. Claimant avers he became totally disabled thereafter for a period of one month.

The complaint further avers that on the 22nd day of November, 1936, he again became incapacitated because of said injuries and was compelled to and did enter the Presbyterian Hospital at Chicago, Illinois, where he was again operated upon by Dr. Vernon C. David, from which he claims total disability to January, 1937. He claims that as a result of said injury a fistulous tract developed which constantly drained and caused a running sore which necessitated claimant to receive medical attention from time to time and that he has been advised by various doctors and physicians that it may again become necessary for him to undergo further operations and that the said fistulous tract may gradually result in the total permanent disability of claimant and may even result in claimant’s death.

It is admitted in the complaint that the following bills have been paid by the respondent on account of the said injury:

Dr. R. Vernon. David.................. $160.00

Dr. B. H. Hardinger........................................ 48.60

Dr. Mary Lyons............................................. 10.00

Dr. H. Junkin............................................... 275.00

Dr. F. M. Link.............................................. 269.50

B. Thiel, Nurse............................................. 385.00

Meth. Memorial .Hospital.................................... 32.00

Paris Hospital.............................................. 818.65

Presbyterian Hospital .....:................................. 172.50

J. H. Reed & Sons.......................................... 1.50

Wm. A. Zieren.............................................. 17.50

Rowe Drug Co.............................................. 8.10

Total ..................................................$2,198.25

The claimant’s salary was paid by respondent during all the time he was' absent from his employment on account of said injury sustained according to the complaint.

Claimant seeks an award for all compensation which may hereafter become due him in accordance with the Workmen’s Compensation Act, because of any partial or total disability which he may suffer at aiiy time in the future as a result of an aggravation or “flare up” of his disability. He further seeks an award for all medical, surgical and hospital treatment which may become essential to relieve or cure an aggravation or “flare up” of his disability.

The complaint further shows that at the time of the injury claimant had two children under 16 years of age dependent upon him for support.

The record consists of the complaint and the report of R. T. Cash, District Engineer, Division of Highways.

On October 9, 1943, in response to a rule heretofore entered by this court in the above entitled cause, the respondent files a motion to strike for the reason that the complaint does not comply with Rule 4(a) and Rule 5(a) of this court.

From a reading of the complaint it is evident that this claimant suffered a severe injury the extent of which is undetérmined by the record in this case.

Evidence must be taken on this claim to inform this court if this accident arose out of and in the course of the employment of claimant; if Section 24 of the Workmen’s Compensation Act has been complied with; the nature and extent of claimant’s injuries; the present physical condition of said claimant, and the earnings by claimant since this injury.

The complaint states that three operations were performed on claimant and that he was hospitalized in three different hospitals. The attending physician should file reports and the hospital record should be incorporated in this record.

The complaint above referred to does not comply with the two rules mentioned in said motion. And for that reason the motion must be sustained.

The claimant is given thirty days within which to amend his complaint, and if he declines or fails to so amend within this period this order of dismissal will become final as provided under Rule 31 of this court.


text:
    No. 3558
    Dovie Conway, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1943.

      Rehearing denied November 10, 1943.

    Haréis B. Gaines, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

The claimant, Dovie Conway, is the widow of Hezekiah N. Conway, deceased, a corporal, 8th Infantry Begiment, Illinois National Guard. From August 9, 1940, to the date of his death, the deceased was on active duty with his regiment at Camp McCoy, Wisconsin. In civilian life, he was a skilled laundry worker, earning approximately $1,800.00 a year.

The complaint alleges that the deceased was a man of regular habits, sober and industrious and prior to August 9, 1940, in good health except for a slight diabetic condition. The complaint also alleges that between August 9, 1940, and August 24, 1940, while' serving with his regiment, the deceased became ill from exposure to severe cold and damp weather conditions; that he contracted pneumonia as a result of his military service, and while performing his military duties; that he became acutely ill on August 23, 1940, was taken to the base hospital at Camp McCoy, and died two days later. Claim is made for compensation on the ground that the death occurred while the deceased was engaged in the line of duty with the military forces of the State of Illinois.

On August 25, 1940, a military board, called to inquire into the death of the deceased, found that Corporal Conway became ill during field maneuvers as a consequence of an affliction which existed prior to his entry on field training, and made a diagnosis of diabetes mellitus and cardio-vascular syphilis. The report shows the first diagnosis to have been made by Major Homer Cooper on August 24, 1940. The board found that the cause of death was not incurred in line of duty, but existed prior to deceased’s entry on field training.

The case is submitted to the court upon the verified complaint, the report of The Adjutant General, Leo M. Boyle, the report of the military board, and three affidavits. Fleetwood M. McCoy, one of the affiants, and a Second Lieutenant, 8th Infantry, Illinois National Guard, stated that the regiment encountered unusually cold and severe weather conditions during the period of August 9th to August 24th, 1940; that Corporal Conway’s assignment to supply service necessitated long and continuous hours of work; that his principal duties confined him to a tent, the entrance of which was exposed to the elements continuously; and that Corporal Conway was apparently well and in good health at the beginning of the period of field training. Lieutenant McCoy further stated that it was his belief the illness contracted by Corporal Conway was in line of duty and was a result of exposure.

Roosevelt Brooks, a Junior Officer in the same regiment, stated that he made a preliminary examination and diagnosis of Corporal Conway on August 23, 1940, and directed that he be taken to the Base Hospital; that Corporal Conway, during the period of August 9, 1940, to August 23, 1940, was exposed to unusually rainy, damp, and chilly weather; that the diabetic condition of the deceased was under control and inactive during the time he was at Camp McCoy. He was of the opinion, based upon his knowledge and experience as a physician, and upon reasonable medical certainty, that the secondary cause of Corporal Conway’s death was diabetes, but that the primary and immediate cause was pneumonia due to unusual exposure.

William O. R. Bourne, Captain, 8th Regiment, Illinois National Guard, and Personnel Adjutant, stated that the diabetic ailment of Corporal Conway during the period in question was apparently under control, and that he appeared fit and hardy. In the light of bis experience as a soldier and officer, and the previous state of health of Corporal Conway, the Captain stated he was convinced Corporal Conway died as a result of exposure, aggravating the diabetic condition, occasioned in the line of duty while participating in regimental field training.

The claim arises under Section 11 of Article XVT of the Military and Naval Code of this State, which provides that in every case where an officer or enlisted man shall be injured, wounded, or killed while performing his duty in pursuance of orders from the Commander-in-Chief, he or his heirs or dependents, shall have a claim against the State for financial help or. assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand. Pending action of 'the Court of Claims, the Commander-in-Chief is authorized to relieve emergency needs upon recommendation of a board of three officers, one of whom shall be an officer of the medical department.

Under the statute, it is incumbent upon the claimant to prove that the injury or death occurred while the officer or enlisted man was performing his duty in pursuance of orders from the Commander-in-Chief. In other words, the injury or death must occur in the line of duty. The military board, which was convened immediately upon the death of Corporal Conway, found that the injury or death was not so incurred, but was due to an affliction which existed prior to the time the deceased entered upon his field training. The board found that the death was caused, not by exposure or pneumonia, but by diabetes mellitus and cardio-vascular syphilis. The report of the Adjutant General indicates that the deceased entered the hospital in a very emaciated condition.

The affidavits which have been submitted in behalf of the claimant are in substance the conclusions of three members of deceased’s regiment who believe the deceased died as a result of exposure rather than as a result of the physical disability found to exist by the military board. The inference which Lieutenant McCoy draws from the facts stated in his affidavit is not justified by the facts themselves. The same is true of the affidavit of Captain Bourne. The affidavit of Roosevelt Brooks, although of greater value because of his examination of the Corporal when he was first taken acutely ill, is less persuasive than the report of the military board.

Upon consideration of the entire record, the court is of the opinion that the findings of the military board are correct; that Corporal Conway’s death was caused by diabetes mellitus and cardio-vascular syphilis, and was not caused by any injury or disease suffered or contracted in the line of duty, or while performing his duty in pursuance of orders from the Commander-in-Chief.

An award is therefore denied.


text:
    No. 3759
    Jeff Aldridge, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1944.

    Lloyd H. Melton, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom and 0. Arthur Nebel, Assistants Attorney General, for respondent.
   Fisher, J.

The complaint in this case was filed on September 28, 1942, asking for benefits under the Illinois Workmen’s Compensation Act. It is alleged that claimant was employed by the Department of Public Works and Buildings, Division of Highways, of the State of Illinois, and that claimant was injured while in the performance of his duties. The complaint alleges that while engaged in the act of mowing weeds and grass along Highway Route No. 34 about two miles south of the city of Harrisburg, Illinois, claimant was struck by a trailer which came loose from a passing car, with the result that the bone of his right leg was fractured above the ankle.

The complaint further alleges that the injury arose out of and in the course of his employment.

The complaint further alleges that claimant received medical treatment at the Lightner Hospital in Harrisburg, Illinois, and that respondent paid the medical and hospital expenses and compensation to claimant for ternporary total disability from September '30, 1941, to February 28, 1942, in the sum of $310.70.

The complaint further alleges that respondent had notice of the injury on the date the accident occurred; that at the time of the injury claimant had two children under the age of 16 years; that claimant’s average weekly earnings were $24.00; that no corporation or third party has any interest in the claim; and that claimant is entitled to compensation for the partial loss of the use of his right leg.

The record in this case consists of the complaint, report of the Division of Highways, testimony presented on behalf of the claimant, a stipulation between the claimant and respondent that the report of the Division of Highways shall constitute the evidence of the respondent and have the affect as being introduced on direct testimony, a waiver of statement, brief and argument on behalf of the claimant, and statement, brief and argument on behalf of respondent.

The facts as alleged by the claimant, are sustained substantially by the report of the Division of Highways. All jurisdictional requirements have been met, and this Court has jurisdiction of the claim. The claimant is entitled to the benefits provided in the Workmen’s Compensation Act.

Claimant was an employee of the State of Illinois, Division of Highways, and engaged in the performance of his duties at the time of the accident. It appears from the record that the injury on September 29, 1941, arose out of and in the course of his employment. As the claimant is asking solely for compensation for a permanent disability, the only question before this Court appears to be whether or not a permanent disability does exist, and if so, to what extent.

The report of the Division of Highways, stipulated as part of the record in this case, shows that compensation was paid to the claimant for total temporary incapacity for the period from September 30, 1941, to February 28, 1942, in the amount of $310.73, and this is admitted in the complaint. Compensation for total temporary incapacity was paid for 152 days or 21 5/7 weeks. The report further shows that the claimant was first employed on May 21, 1941, and had not been engaged in the employment of the respondent for one year at the time of the injury. Therefore, the basis for computing his compensation must be in accord with paragraphs (c) and (e) of Section 10 of the Workmen’s Compensation Act.

The report shows that claimant was employed at the rate of 50c an hour; that eight hours constituted a normal working* day; and that employees engaged in the same capacity at the time of the accident worked for the Division less than 200 days per year. By paragraph (e), Section 10, claimant’s compensation is computed on the basis of $4.00 a day for 200 days, giving him an annual wage of $800.00, or an average weekly wage of $15.38. Paragraph (b), Section 8, Workmen’s Compensation Act, provides that compensation for temporary total incapacity shall be 50% of the weekly wage, but not less than $7.50 nor more than $15.00 per week. Paragraph (j) subparagraph 2 of Section 8, provides that where a weekly minimum of $7.50 is provided, and the employee has children under the age of 16 years, the minimum shall be increased according to the number of children. The claimant in this case had two children under the age of 16 years, and is therefore entitled to the minimum rate of $12.00 per week, which amount is further increased by 10% by paragraph (i). Therefore, claimant is entitled to $13.20 per week for 21 5/7 weeks, or $286.63, as compensation for Ms temporary total incapacity.

As the claimant has been paid $310.73, there has been an overpayment in the amount of $24.10, wMch must be deducted from any award found due Mm.

It is not disputed that claimant has suffered a permanent partial loss of the use of Ms right leg, but there is some disagreement as to the degree of the loss.

From all the evidence, we are of the opimon that claimant, as a result of the injury, has permanently lost 20% of the use of Ms right leg. He is, therefore, entitled to receive the sum of $13.20 per week for a period of 38 weeks, or $501.60. TMs amount must be reduced by $24.10, the amount wMch he was overpaid for Ms temporary total incapacity.

An award is therefore entered in favor of claimant, Jeff Aldridge, in the sum of $477.50, all of wMch is accrued and is payable forthwith.

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


author: Chief Justice Damcbon

text:
    No. 3810
    Chicago Cold Storage Warehouse Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1944.

    Robert W. More, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Chief Justice Damcbon

delivered the opinion of the court: ■

The Chicago Cold Storage Warehouse Company, claimant herein, seeks a refund in the sum of $689.19 representing a franchise tax paid by said claimant to the Secretary of State.

The facts, about which there is no dispute,. show that the claimant on February 6, 1903, was incorporated in the State of Illinois to carry on a cold storage and general warehouse business in this State. On May 15, 1943, the claimant received ,a statement from the Secretary of State in pursuance to his duties as provided in the Business Corporation Act demanding a franchise tax from the claimant in the sum of $689.19 based upon a paid-in surplus of $1,378,373.54 for its tax from July 1, 1943, to June 30, 1944. On the 19th day of May the claimant, by its assistant treasurer, remitted to the Secretary of State said tax. On the 24th day of May the claimant, held a meeting of the Board of Directors of the corporation at which a resolution was presented and adopted authorizing the officers of said corporation to dissolve, and pursuant to said resolution claimant was legally dissolved by the Secretary of State of Illinois on the 3rd day of June, 1943. On the 18th day of August, 1943, the claimant made demand upon the Secretary of State for a refund of the aforesaid franchise tax due to the fact that it had dissolved and surrendered its charter, which demand was refused by said secretary in a letter dated August 20, 1943, giving as a reason the fact that payment had already been made by his office to the Illinois State Treasurer. Upon receipt of this letter the complaint in this case was filed in this court on the 25th day of September, 1943, seeking a refund as aforesaid.

The question involved in this claim has been passed upon by this court in Russell Johnson, Assignee of the Bud’s Shoe Store, Inc. vs. State, 12 C. C. R. 157. The facts in that case show that this corporation paid a'franchise tax, without any compulsion or duress to the Secretary of State on May 23, 1940, although same was not due until July 1, 1940, as in this case. On June 29, 1940, before the commencement of the period for which said tax was paid, the corporation voluntarily surrendered its charter and was issued a certificate of dissolution. It sought a refund based on the belief that the franchise tax paid to the State on May 23, 1940, was due from it to the respondent for the preceding year instead of the year commencing after date of payment. We held that this was a mistake of law, as a payor must be held to have full knowledge of the law providing for the assessment of said tax and we further held that where a franchise tax is paid voluntarily, under mistake of law, there is no legal basis for an award for a refund thereof and none can be made on the grounds of equity and good conscience.

To the same effect is the ruling in Orchard Theatre Corporation vs. State, 11 C. C. R. 271.

These cases are controlling here.

The Attorney General, representing the respondent, has filed a motion to dismiss this complaint. The motion must be sustained, and the claim is therefore dismissed.


author: Chibe Justice Damron

text:
    No. 3801
    Hibbard, Spencer Bartlett & Co., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1944.

    Claimant, pro se.
    George F. Barrett, Attorney General; Egbert Y. Ostrom, Assistant Attorney General, for respondent.
   Chibe Justice Damron

delivered the opinion of the court:

Hibbard Spencer Bartlett & Company is a corporation doing business in the' State .of Illinois and as such it is engaged in a wholesale hardware business in Chicago.

On July 24, 1940, it received from the Jacksonville State Hospital of Jacksonville, Illinois, an order desig-' nated by said hospital as Purchase Order No. C-63468 for eighteen packages of clinching nails and for two kegs of one-hundred pounds each of galvanized- fence staples; on July 26 said shipment went forward to said hospital as per order. On July 29 two orders for exactly the same merchandise were received by claimant from the said Jacksonville State Hospital on Purchase Orders No. C-67285 — C-67286, containing the following statement “This cancels the above item of P. O. C-63468.” All purchase orders were filled. Orders No. C-67285 and C-67286 were paid by the hospital. The hospital returned no merchandise shipped on these orders by claimant.

The Attorney General admits that this claim should be paid. The goods were as represented, the price was reasonable and there was an existing appropriation from which said goods could have been paid had they been vouchered before the lapse of the biennium appropriation. There is no contention on the part of the respondent that the goods were not received or that they were-not as represented.

We have repeatedly held that an award may be made for supplies for a State institution after the lapse of an appropriation out of which payment should be made where there was sufficient unexpended balance therein at the time of purchase and where a bill therefor in correct amounts was presented within a reasonable time and due to no fault of claimant before such lapse.

This claim was presented for payment in apt time. We find the bill therefor had been submitted within a reasonable time but that the appropriation had lapsed without any fault or neglect on the part of the claimant, and we further find that at the time the bills were incurred there remained a sufficient unexpended balance in the appropriation to pay for same. This claim comes within the requirements as set out in City of Kankakee vs. State, 12 C. C. R. 393.

The invoice and bill of particulars shows the fair and reasonable charges on Purchase Order No. C-63468 amounted to the sum of $15.80.

An award is therefore made in favor of claimant in the sum of Fifteen Dollars and Eighty Cents ($15.80).


text:
    No. 3805
    John Lewson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1943.

      Rehearing denied January 12, 1944.

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

The claimant, John Lewson, on June 30, 1943, filed his claim in this court for $4,000.00 and interest from September 1, 1923. He alleges that from 1916 to 1922 he was employed by the Attorney General of the State of Illinois to edit and compile the opinions and to prepare the biennial report of the Attorney General at an arm pal salary of $3,600.00; that in July, 1922, at the request of the Attorney General, he agreed to continue these services at a reasonable compensation to be determined thereafter; that in accordance with the agreement, he compiled the opinions and prepared the report of the Attorney General for the biennium 1921-1922; and that the sum of $4,000.00 was and is the usual, customary, and reasonable sum to be paid for such services.

Claimant also alleges that on November 10, 1923, he filed claim in this court for the sum of $4,000.00 for said services; that the matter was heard by the court, and “for purely technical reasons and not upon the merits” the court dismissed the claim; that such dismissal was contrary to the evidence and unfounded both as to the facts and as to the law applicable thereto. The claimant alleges that subsequently appropriation bills were prepared and introduced at several sessions of the Illinois General Assembly for an appropriation to pay this claim; that these various bills remained in committee and were not reported out; that because of Section 13 of the Court of Claims Act, which provides that no appropriation shall be made by the General Assembly to pay any claim or demand over which the Court of Claims has jurisdiction unless an award therefor has been made by the Court of Claims, he is unable to secure an appropriation from the Legislature for the payment of his claim; that said Section 13 is unconstitutional.

The respondent has filed its motion to dismiss the claim on the ground that it is barred by the statute of limitations, and by the application of the rule of res adjudicata. Claimant has filed his motion to strike the motion of the respondent on the ground that the claim as now filed is based upon a quantum meruit for services rendered to the State of Illinois and not upon a breach of contract, as was the claim filed on November 10, 1923, and on the ground that the rule of res adjudicata is not applicable to an order of dismissal by this court.

The motion of the claimant to strike the motion of the respondent must be denied, and the motion of the respondent must be granted. It is immaterial whether or not the present and the original claim are the same. If the claim as filed on June 30, 1943, differs from the claim filed on November 10, 1923, the present claim is barred by Section 10 of the Court of Claims Act. This section provides that every claim against the State, cognizable by this court, shall be forever barred unless it is filed within five years after it first accrues. From the face of the complaint it appears that this claim was not filed within such five-year period. The court would therefore be without jurisdiction to make an award, and a plea of the statutory limitation would be sustained. Miller vs. State, 11 C. C. R. 490; Chicago Park District vs. State, 11 C. C. R. 499.

On the other hand, if the claim now filed is the same as the claim filed on November 10, 1923, it has already been heard and determined by this court. Lewson vs. State, 5 C. C. R. 80. That claim, having been heard by this court and denied, cannot now be reopened.

It is unnecessary to pass upon the constitutionality of Section 13 of the Court of Claims Act. If this section were -unconstitutional, it would afford no ground for an award in this case.

Claimant’s motion to strike motion of the respondent is denied, and respondent’s motion to dismiss the claim is granted. Claim dismissed.


text:
    No. 3809
    Joseph M. McDonough, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1944.

    William G. Jijebgens, for claimant.
    Geobge F. Babbett, Attorney General; C. Abthtjb Nebel, Assistant Attorney General, for-respondent.
   Fisher, J.

Claimant filed Ms complaint on August 31, 1943, alleging therein that on the 14th day of December, 1942, he was employed by the State Highway Division, engaged in working on and maintaimng hard roads; that about 9:45 A. M. on said date, while working on S. B. I. Boute No. 3 near Buma, Illinois, claimant was handling a barrel of liquid asphalt when it exploded, the head of the barrel blowing out and striking him on the left hand, whereby he suffered a permanent partial loss of the use of his left hand.

The record consists of the complaint, report of the Division of Highways, stipulation, statement, brief and argument on behalf of claimant, and also of respondent. The facts as contained in the report of the Division of Highways, were agreed to by stipulation entered into by and between claimant and the Attorney General, and constitute the evidence in this case.

From the report of the Division of Highways, it appears that during the year preceding his injury claimant was regularly employed and earned a total of $1,-360.20; that at approximately 10:00 A. M. on December 14, 1942, the group to wMch claimant had been assigned was preparing asphalt material with which to patch holes in the pavement of the highway in the village of Buma in Bandolph County, Illinois. Claimant was tending a fire built under a drum of BC-3 asphalt at a storage lot leased by the Division of Highways. The fire had been built to heat the asphalt so that it would flow from the drum. WMle stooping in front of the drum placing fuel on the fire, the drum exploded, blowing the top of the drum out and splashing hot asphalt on claimant’s face and hands. The top of the drum struck claimant on his left hand, causing fractures of the first, second, third and fourth fingers. The Division had notice of the injury immediately following the accident.

Claimant was taken immediately to Dr. E. A. Pautler of Bed Bud, Illinois, who placed him in St. Clement’s Hospital of that village, where he remained until the next day, December 15, 1942.

Claimant received the sum of $93.50 for compensation for temporary total disability, which was for the period from December 15, 1942, to January 18, 1943, at the rate of $18.70 per week. The medical and hospital bills, amounting to $69.65, were paid by the Division of Highways. Accordingly, there is no claim for temporary total disability or medical and hospital bills.

Inasmuch as the Division of Highways had immediate notice of the accident and claim was filed within one year from the date of the accident, this court has jurisdiction.

From the evidence, the injury occurred in the course of and out of claimant’s employment, so the only question for the court to determine is the amount of the award.

On May 10, 1943, claimant was sent to Dr. J. Albert Key, Professor of Orthopedics and Head of the Department of Orthopedics, Washington University, St. Louis, Missouri, for an examination and such treatment as he should advise.

On May 11, 1943, Dr. Key reported as follows:

“I examined Mr. Joseph McDonough yesterday on account of pain and disability in the left hand and wish to submit the following report:

According to the history this man was injured December 14, 1942, when an asphalt barrel exploded, the lid of the barrel striking the left hand and causing fractures and abrasions, as well as burns of the hands and face. The burns have healed. The fractures are now united, but the patient is unable to close his fingers and complains of pain and weakness and limitation of motion in the hand.

Physical Examination — There is moderate irregularity of the knuckles, that of the middle finger being moderately enlarged, and there is a shortening of the 5th metacarpal bone with a bone prominence on the back of the hand over this bone. Movements of all joints of the middle, ring and little fingers are limited about 75 per cent, as are movements of the metacarpophalangeal joints of these fingers. There is slight pain when the movements are forced. Movements of all joints and of,the metacarpophalangeal joint of the index finger are limited approximately 50 per cent. Over the dorsal surfaces of the first interphalangeal joints of the three outer fingers are scars from lacerations which have healed. The grip of the hand is very weak and the patient is unable to extend fully his fingers or to close them to make a fist or to grip anything except a relatively large object. Extension is limited about 15 per cent and flexion is limited about 60 per cent in the three outer fingers and the limitation in the index finger is slightly less.

X-rays — X-rays which the patient brought with him and new x-rays taken yesterday show the following fractures: (1) Fracture of the 5th metacarpal at the junction of the distal and middle thirds which has united with considerable posterior bowing and about one-third of an inch of shortening; (2) fracture of the base of the 1st phalanx of the middle finger which has healed with rather marked compression and broadening at the base of this bone (this accounts for the swelling of this knuckle; (3) fracture of the distal portion of the 1st and of the head of the 1st phalanx of the ring finger; and (4) fracture of the base of the 1st phalanx of the little finger.

Conclusion — This man will have rather marked permanent disability of all four fingers of this hand. I believe that with continued use there will be some increase in movement and power in the hand. I do not think that any specific treatment other than exercises and the heat which he is using at home are indicated at this time.”

Claimant seeks an award based on 50 per cent loss of the use of Ms left hand. TMs appears justified by the evidence and the Court will make its award on tMs basis. Claimant earned the sum of $1,360.20 during the year preceding Ms injury, or an average weekly wage of $26.16. As claimant has suffered a 50 per cent loss of the use of Ms left hand, he is entitled to receive under Section 8, paragraph (e), sub-paragraph (12) and also sub-paragraph (17) of the Workmen’s Compensation Act, 50 per cent of Ms average weekly wage for a period of eighty-five (85) weeks. Fifty per cent of his average weekly wage is $13.08. As claimant had four cMldren under 16 years of age, under paragraph (j) of Section 8, he would be entitled to an increase of 15 per cent, or a total of 65 per cent of Ms average weekly wage, wMch would entitle Mm to a weekly compensation in the sum of $17.00. TMs is further increased 10 per cent by paragraph (1) of Section 8 of the Act, so claimant would be entitled to the sum of $18.70 per week for eighty-five (85) weeks, or a total award of $1,589.50.

An award is therefore entered in favor of claimant for the sum of $1,589.50, payable as follows:

(1) The sum of $1,047.20, compensation for a period of 56 weeks accrued from December 14, 1942, to January 10, 1944, is payable forthwith;

(2) The balance of said 'award, being the sum of, $542.30, is payable in 29 weekly installments of $18.70 each, commencing January 17, 1944.

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


author: Fisher. J. Fisher, J.

text:
    No. 3795
    Moke Owens, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1943.

      Supplemental opinion filed January 12, 1944.

    Lawrence B. Moore, for claimant.
    George F. Barrett, Attorney General; Egbert Y. Ostrom, Assistant Attorney General, for respondent.’
   Fisher. J.

This claim was filed May 10,1943, for benefits under the Workmen’s Compensation Act for the loss, by claimant, of the sight of his right eye and for temporary total disability alleged to be the result of an injury sustained by claimant in the course of and out of his employment.

Claimant alleges that he was employed as a garage and automobile mechanic at the State Highway Garage, operated by the Division of Highways of the State of Illinois at the City of Paris, Illinois, and while being engaged as such mechanic on February 15; 1943, while attempting to straighten a metal brace of a snow-plow a piece of metal struck claimant in the right eye causing the complete loss thereof.

The record consists of the complaint, amended complaint, supplemental complaint, stipulation of facts, waiver of statement, brief and argument on behalf of claimant and statement, brief and argument on behalf of respondent.

All jurisdictional requirements have been complied with and claimant is entitled to benefits claimed. The-allegations of claimant are admitted by a report of the Division of Highways and made a part of the stipulation filed herein.

While in the course of his employment, as an employee of respondent, Division of Highways, claimant was struck in the right eye by fragments of steel, which became deeply embedded in the eyeball and the report of the attending physicians, which is also a part of the stipulation, shows the complete loss of the sight of claimant ’s right eye.

Subsequently, on or about August 6,1943, as a result of said injury it became necessary for claimant to have his right eye removed and claimant thereby incurred medical and surgical expenses in the sum of $202.60 for which he is entitled to be reimbursed.

Claimant is entitled to receive for temporary total disability 7 weeks at $17.87 per week or $125.09. He was paid for unproductive time the sum of $120.40 which must be deducted leaving a balance due claimant for temporary total disability the sum of $4.69.

Claimant’s average weekly wage was $36.39. He had one child under the age of 16 years at the time of the injury and under the Workmen’s Compensation Act claimant is entitled to have and receive from respondent for the loss of his eye the sum of $2,144.40, being $17.87 per week for 120 weeks—

Reimbursement for medical expenses and supplies............$ 202.60

For temporary total disability................................ 4.69

For the complete loss of his right eye......................... 2,144.40

Total ...................................................$2,351.69

An award is therefore-entered in favor of claimant, Moke Owens, in the sum of $2,351.69 payable as follows: $886.35 which is accrued and payable forthwith, and the balance of $1,465.34 in 82 weekly installments of $17.87 each commencing November 15, 1943.

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

SUPPLEMENTAL OPINION

Fisher, J.

On May 10, 1943, claimant filed his claim seeking an award for the total loss of the sight of his right eye and for temporary disability in accordance with the provisions of the Workmen’s Compensation Act. An Amended Complaint was later filed, alleging that it had become necessary for claimant to have his right eye removed, and prayed for the necessary medical and surgical expenses incurred thereby.

We found from the record that while in the course of his employment, as an employee of respondent, Division of Highways, claimant was struck in the. right eye by fragments of steel, which became deeply embedded in the eyeball, causing the complete loss of the sight of claimant’s right eye and necessitating the enucleation thereof.

An award was entered at the November term, 1943, in favor of claimant in accordance with the provisions of the Workmen’s Compensation Act.

At the time the award was entered herein, the Attorney General presented to the court the following statement:

“The Attorney General as a duly authorized representative of the State Treasurer has received the notices in the case now before the court and hereby suggests to the court that an award to the Special Fund of which the State Treasurer is the ex-officio custodian should be made in the amount of $100 as is provided by Section 8, Paragraph e, Subparagraph 20.”

It was suggested by the Attorney General that

“The Special Fund is not a State Fund, but is a fund held in trust for the workmen of the State. The Special Fund was created by the Act of the Legislature along with the Workmen’s Compensation Act but the monies therein which are the subject of the trust have been paid as required by the Act and are held in trust' for the benefit of employees who may suffer a total and complete disability as defined in the Act. There is no exception of State employees or of the State of Illinois from the operation of the provisions of the Workmen’s Compensation Act, providing for the Special Fund.”

Section 7, Paragraph 2 of the Workmen’s Compensation Act reads in part as follows:

* * The State Treasurer, or his duly authorized representative, shall be named as a party to all proceedings and receive the usual and customary notices of hearing in all cases involving claim for the loss of, or the permanent and complete loss of the use of one eye, one foot, one leg, one arm or one hand. In case of settlement contract or award involving the loss of, or the permanent and complete loss of the use of any one of the said members, it shall be the duty of the Industrial Commission, or a Commissioner or Arbitrator thereof, to award to the said Special Fund provided for in paragraph (2) of this section, the sum now payable under sub-paragraph (20) of paragraph (2) of Section 8 to be paid by the employer or the insurance carrier if such employer is insured.”

The jurisdiction given to the Court of Claims is to hear and determine the liability of the State for accidental injuries or death arising in the course of and. out of the employment by an employee of the State. The liability of the State is not limited to the payments to the injured employee, but also includes payments which should be made into the special fund. Leech et al. vs. State, 11 C. C. R. 394.

Claimant herein suffered the complete loss of an eye. which, under Section 8, paragraph (e), sub-paragraph 20, requires that payment be made into the Special Fund in the amount of One Hundred Dollars ($100.00).

Award is therefore hereby made as follows:

To the State Treasurer of the State of Illinois, as ex-officio custodian of the Workmen’s Compensation Special Fund, the sum of One Hundred Dollars ($100.-00); said sum to be held and disbursed by the said State Treasurer in accordance with the provisions of the Workmen’s Compensation Act of this State.

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


text:
    No. 3789
    Bessie M. Tanner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1944.

    Thompson, Chambers & Thompson, for claimant.
    George F. Barrett, Attorney General; William L, Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This' complaint was filed on April 2, 1943. It is for benefits under the Workmen’s Compensation Act for the permanent partial loss of the use of the claimant’s right arm and for temporary total disability suffered as a result of an accident received in the course of her employment at the Chicago State Hospital, 6500 West Irving Park Road, Chicago, Illinois.

The record consists of the complaint, testimony, abstract of same, brief on behalf of claimant and brief and argument on behalf of respondent, report of the Acting-Managing Officer of said hospital and stipulation.

By virtue of the stipulation entered into by counsel it was agreed that the plaintiff was injured on January 23, 1943, while in the course of her employment and that ■her wages were $1,062.00 per year and that at the time of said injury both the respondent and the employee were under the Workmen’s Compensation Act of this State.

The testimony consists of that of the claimant and Dr. Albert C. Field, orthopedic surgeon of Chicago, called on her behalf; the report of the Managing Officer of the Chicago State Hospital, and the evidence of Dr. Catherine L. McCorry, who testified for the respondent.

The evidence shows that while claimant was walking on the sidewalk on the grounds of said institution she slipped on the ice on the sidewalk and fell fracturing the lower end of the radius, and causing a bóny injury to the styloid process of the ulna, and there is evidence of a bony injury to the trapezius. All of these injuries were to her right arm.

Dr. Field’s testimony as to the limitation of motion in the arm and hand is as follows:

“Flexion is limited to about 20 degrees out of a normal 85 degrees; a loss of about 75 per cent; eversion is normal; inversion is about 50% of the normal range; an inability on the part of the patient to bring the tip of the thumb to- the 5th metacarpal phalangeal joint; difficulty in bringing the tip of her hand to the wing of the scapula; loss of one-half of claimant’s normal range on supination; pronation normal.”

Dr. Field further testified that the injuries' in question were permanent and that claimant had lost between 40% and 50% of the use of her right arm. Dr. Field also testified to an inward bowing- of the claimant’s right forearm at the lower third; and that the hand is deviated toward the radial side, causing a prominence of the lower end of the ulna.

Dr. McCorry testified on behalf. of respondent that she gave claimant first aid. She diagnosed the injury as a 11 silver forked deformity” of the right wrisfi She was not an orthopedic surgeon and was basing her testimony on the feport of the Department of Public Welfare. This report in paragraph 6 diagnosed the injury as a Colies fracture, and states “she will have a 95% function of her injured wrist.”

Claimant testified that she was immediately taken to the hospital where Dr. Brocopie set her arm two days after the accident in a plaster of Paris cast. This cast she wore for five weeks which was then removed and a solid aluminum one applied, which she wore for two weeks. This doctor did not testify and neither did Dr. Cohen of the hospital staff, who at the time examined the claimant’s arm.

X-rays were made by the respondent but they were not introduced in this case.

There is considerable disagreement between the respondent and claimant as to the extent of the permanent injury to her arm. The claimant contends that there is between a 40% and 50% loss of the use of her right arm. The respondent has no record of loss of percentage except the departmental report which states there will be a 95% recovery although this is not supported by medical testimony. The testimony shows that claimant has certain definite restrictions in the use of this arm and this necessarily must impair the efficient use of her arm. Claimant will have a permanent impairment from many physical exercises that the use of the arm requires, and she will be incapacitated in the performance of her duties.

From a. consideration of all the evidence it would appear to this court that a reasonable conclusion would be that claimant has been permanently injured to the extent of 40% of the use of her right arm, and the court so finds.

The court further finds from the evidence that the claimant at the time óf the injury was 58 years of age and had no children under the age of sixteen years dependent upon her and that all necessary medical, surgical and hospital services were provided by the respondent.

From the record the court, finds that the annual wages of the claimant for more than one year prior to her injury was $1,062.00; her average weekly wage therefore amounted to the sum of $20.42; that under Section 8, paragraph (e) and (1) her compensation rate would be $11.23. The court further finds that this claimant was incapacitated for eleven weeks and six days for which she is entitled to temporary compensation at the above rate, amounting to the sum of $133.13. The court further finds that under the above section and paragraphs of the Workmen’s Compensation Act claimant has suffered a 40% loss of the use of her right arm which entitled her to receive the sum of $1,010.70, together with her temporary compensation which amounts to the total sum of $1,143.83. The court finds, however, that claimant was paid during January and February, 1943, the sum of $60.36 salary for unproductive work, which must be deducted from the last mentioned sum, leaving a balance now due her of $1,083.47.

The court further finds that fifty weeks have elapsed since the date of her injury, and therefore the sum of $561.50 has accrued as of January 8, 1944, and is now payable in a lump sum, leaving a balance due her of $521.97. This last amount to be paid to her at the rate of $11.23 per week for a period of forty-six weeks with a final payment of $5.39.

An award is therefore entered in favor of claimant as above indicated.

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


text:
    No. 3604
    Myrtle Tate, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1944.

    Daniel D. Carmell and Leo Sbgall, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

The claimant, Myrtle Tate, was employed by the respondent in the State Department of Labor as an assistant supervisor in the Division of Women’s and Children’s Employment. Her employment first began according to the record in May, 1935.

The record shows that on the 31st day of July, 1940, it was necessary that she visit the courthouse in Gales-burg, Illinois, in order to examine certain records in said courthouse in order to prosecute a violator of the eight hour law. After entering the courthouse and attending to her business, and as she attempted to descend the outside steps of said courthouse, she slipped and fell headlong down the steps striking- her head on the edge of one of them. After she was able to walk, she reentered the courthouse and asked for the services of a doctor. Dr. Charles A. Boss, Galesburg, came at her request and rendered first aid. He then took her to his office and later to St. Mary’s Hospital in Galesburg. She remained there for some time.

On August 2, 1940, the claimant notified her department, and more particularly Kate 0 ’Connor, its superintendent, who instructed her to secure whatever medical services were necessary in order to aid in her recovery.

As a result of this permission she incurred the following bills which she testified she paid:

Dr. Charles A. Ross, medical attention......................... ! 73.00

Dr. Paul Harr, medical attention.............................. 75.00

St. Mary's Hospital, hospitalization............................ 78.60

Passavant Memorial Hospital.................................. 35.20

Jeane Mosley, massages....................................... 336.00

Chicago Burlington & Quincy Railroad, travel for medical attention ................:...................................... 23.90

LaSalle Hotel and Morrison Hotel............................. 11.60

Winkler Optical Shop, glasses................................. 7.00

Riggs Optical Co.............................................. 7.00

Dr. Sanford R. Gifford, medical care........................... 8.00

$655.30

This claim is for the above items only. The State having paid her regular salary to her during the period of her recuperation. She has now fully recovered from the effects of her injuries.

It appears from the record that at the time of this injury, claimant was actually in' and about the business of the respondent and that her injury therefore arose out of and in the course of her employment. Under Section. 8, paragraph a of the Workmen’s Compensation Act, claimant is entitled to such care as is reasonably required to relieve her of the effects of the injury. It appears from the record that the services that were rendered to her were necessary and that the charges were reasonable and just.

An award is therefore entered in favor of claimant in the sum of $655.30 to reimburse her for the necessary expenditures as set out in the above items.

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


author: Eckebt, J.

text:
    No. 3579
    Louis F. Thompson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1944.

    Sidney H. Dilks, for claimant.
    Geobge F. Babbett, Attorney General; Glenn A. Tbevob and Robebt Y. Ostbom, Assistants Attorney General, for respondent.
   Eckebt, J.

On January 18, 1940, the claimant, Louis F. Thompson, an employee of the State of Illinois, Department of Public Works and Buildings, while unloading cinders from a State truck, slipped and fell to the ground. He sustained an oblique fracture of the upper, outer edge of the left tibia, and a fracture of the upper end of the left fibula.

Immediately following the accident, claimant was taken to the office of Dr. H. L. Shinall in Gibson City, and from there was taken by ambulance to St. Joseph’s Hospital in Bloomington and placed under the care of Dr. H. W. Wellmerling. Claimant was hospitalized until February 9th, when he returned to his home. He was treated by Dr. Shinall until April 1st, when he was placed under the care of Dr. H. B. Thomas, Professor of Orthopedics, University of Illinois, College, of Medicine, at Chicago. He was discharged by Dr. Thomas on November 16, 1940.

At the time of the accident, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the Act. The accident arose out of and in the course of the employment. '

During the year immediately preceding the injury, claimant was employed by the respondent in the capacity of maintenance patrolman at a salary of $135.00 per month. He was incapacitated from January 19th to September 22nd, and from November 11th to November 16th, 1940, a total period of 36 2/7 weeks. At the time of the accident, he had two children under the age of sixteen years dependent upon him for support, so that Ms rate of compensation is $16.00 per week, plus ten per cent, or $17.60, making total of $638.62 due Mm for temporary total disability. Claimant, however, has received on account of temporary total disability the sum of $796.39, or an overpayment of $157.77. The respondent has also paid $465.60 for medical services.

Dr. Harold L. Shinall, of Gibson City, the treating physician, testifying on behalf of claimant, stated that claimant has a lateral deviation of the left leg below the knee, and is unable to flex completely the knee joint; that this condition is a result of the injury suffered on January 18, 1940; that claimant has sustained a twenty-five to thirty-five per cent loss of use of his left leg; that the lateral deviation below the knee tends to throw claimant’s knees together and somewhat impairs his walking; that the deviation also makes claimant unable to place his heels together. On cross-examination, Dr. Shinall testified that the injury was confined to the knee; that in the knee there are normally only two motions, flexion and extension; that claimant has complete extension; that claimant has about ninety degrees of flexion in his left knee instead of the normal of one hundred and twenty degrees; that of the two motions of the knee, it is more important to an individual to have complete extension than to have complete flexion; and that the degrees of flexion of the knee lessen in importance as the maximum number is approached.

The claimant testifying on his own behalf stated that his left leg aches and swells whenever he lifts anything very heavy or stands for any considerable period of time; that the injury has resulted in his knees rubbing together when he walks; that he is unable to place his heels together; that he is unable to do any kind of work necessitating considerable weight being placed upon his left leg, and that at times his leg becomes numb because of poor circulation.

From the evidence and from personal observation of the claimant by the court, it appears that claimant has sustained a 20 per cent permanent partial loss of use of his left leg. He is therefore entitled to an award of $668.80, from which must be deducted the over-payment of $157.77.

Award is therefore made to claimant in the sum of $511.03, all of which has accrued and is payable forthwith.


text:
    No. 3812
    Whiting Paper Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1944.
    Claimant, pro se.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, J.

On September 27, 1943, claimant, a Massachusetts corporation, with offices in Chicago, Illinois, filed its claim in this court for refund of annual franchise taxes allegedly overpaid to the State of Illinois for the years 1934 to 1943, inclusive, or for such over-payments, the recovery of which has not been barred by statutory limitation.

The complaint alleges that the claimant, in the years 1934 to 1943, inclusive, filed the annual reports required under the provisions of the Business Corporation Act of the State of Illinois; that it erroneously reported its earned surplus as “paid-in surplus” in the reports filed in each of the years 1934 to 1942, inclusive; that on the basis of the information so reported by claimant, the Secretary of State, of the State of Illinois, assessed annual franchise taxes for the years 1934 to 1943, inclusive, in amounts in excess of the taxes properly assessable against the claimant for such years; that the taxes assessed were paid by the claimant within the time allotted for payment, and none was delinquent.

The complaint further alleges that during the entire period of 1933-42, inclusive, the claimant’s stated capital and paid-in surplus was $300,000.00 ; that at no time during this period did the claimant have any “paid-in surplus” as defined by the Business Corporation Act of the State of Illinois; that its 1 ‘ stated capital and paid-in surplus” consisted solely of its stated capital represented by three thousand shares of common stock at a par value of $100.00 per share; that as a result of its error, an over-assessment during this period was made in the total sum of $1,184.40.

The respondent has filed its motion to dismiss the claim, contending that it fails to state a cause of action and shows on its face: (1) that claimant seeks a refund for a franchise tax not paid under protest, without a request for hearing; and (2) that claimant seeks a refund for -a voluntary payment of a franchise tax properly assessed.

The rule is well established in this State that where an illegal or excessive tax is paid voluntarily, with full knowledge of all the facts, the same can not be recovered in the absence of a statute authorizing such recovery. Alton Light & Traction Company vs. Rose, 117 Ill. App. 83; Yates vs. Royal Insurance Company, 200. Ill. 202; Cooper Kanaley and Company vs. Gill, 363 Ill. 418; American Can Company vs. Gill, 364 Ill. 254. The rule is the same where such tax is paid under a mistake of law, but where it is paid under a mistake of fact, it is not considered'as having been voluntarily paid, and may therefore be recovered.

Payment of a franchise tax which is illegal or is in excess of amount due, however, has been held to be payment not under a mistake of fact and voluntarily paid. Chicago Foundation Company vs. State, 8 C. C. R. 22; Mohawk Carpet Mills Inc. vs. State, 8 C. C. R. 37; Arundel Corporation vs. State, 8 C. C. R. 506; Western Dairy Company vs. State, 9 C. C. R. 498; Butler Company vs. State, 9 C. C. R. 503; Stotlar-Herrin Lumber Company vs. State, 9 C. C. R. 517; Handy Button Machine Company vs. State, 10 C. C. R. 22; Orchard Theatre Corporation vs. State, 11 C. C. R. 271. Where a corporation pays an excessive franchise tax as a result of its own mistake or error, the tax is considered to- have been voluntarily paid, and such payment, resulting from the negligence or inadvertance of the taxpayer, is not made under a mistake of fact. Western Dairy Company vs. State, supra. Likewise, where the statutes provide a remedy for a taxpayer of which he fails to avail himself, any payment made is considered voluntary. Butler Company vs. State, supra.

The payment of the excessive franchise tax alleged by the claimant, is a result of its own mistake or error; it filed no objection with the Secretary of State; it made no inquiry in regard to the tax assessed; and it made no request for hearing as provided by the statutes. The mistake was one of law, and the payments must be held to have been voluntarily made. Johnson vs. State, 12 C. C. R. 157.

The motion of the respondent to dismiss is therefore granted. Claim dismissed.


author: Chief Justice Damroh

text:
    No. 3210
    J. W. Klapman, J. Marcovitch, J. L. Ranes, C. F. Ritchie, D. K. Hur, B. Skorodin, K. H. Tutunjian, N. G. Becker, I. Berger, J. L. Cass, J. R. Hunter, A. Learner, S. W. Reagan, A. H. Gollmar, Leah Lurie, S. B. Meyerson, N. B. Fitsjerrell, R. J. Grape, B. D. Hart, C. F. Powell, C. C. Rowley, C. Tarnawski, H. Costeff, E. P. Domke, L. Z. Gordon, L. Rich, M. D. Robertson, L. B. Shapiro, I. Turow, A. Y. Tazarian, C. H. Anderson, H. B. Carriel, E. A. Chapman, E. I. Falstein, I. Finkelman, B. L. Greene, F. J. Griffin, E. A. Gunderson, D. Haffron, J. R. Jacobson, C. E. Lengyel, J. Morgan, H. H. Nierenberg, J. Ricketts, W. J. Riley, M. A. Schiller, M. G. Schroeder, A. Simon, D. L. Steinberg, S. Wick and G. A. Wiltrakis, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1943.

      Rehearing denied January 12, 1944.

      Petition to vacate order denying rehearing denied March 14, 1944.

    Collins, McKenna & McCullough, for claimants.
    George F. Barrett, Attorney General; Egbert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damroh

delivered the opinion of the - court:

The fifty-two above named claimants join in this claim seeking awards totalling $33,974.62, alleged to be due them for professional services rendered the respondent at various State institutions as senior physicians, junior physicians and assistant physicians during the years 1933, 1934, 1935, 1936 and the first half of 1937.

The complaint was filed on February 19, 1938, and alleges that the Illinois State Civil Service Commission had, prior to such periods, fixed the salaries of physicians and senior physicians at a minimum of $170.00 per month with an automatic increase of $5.00 per month on and after one year of service, and the salaries of junior physicians and assistant physicians at a minimum of $150.00 per month.

That during their respective employments, claimants were paid 10% less than their respective alleged minimum salaries.

That this reduction was made possible because the claimants and each of them executed to the respondent a personal service compensation adjustment in 1933. This document, marked claimants’ Exhibit 1 is in words and figures as follows:

“In consideration of the necessity of reducing governmental costs to correspond with the shrinkage in the general income, and in view of the decrease in the cost of living and the reduction in the pay of employees and workers in industry, I hereby voluntarily agree to accept the sum-monthly, in full compensation for personal services to the State of Illinois, effective February 1, 1933.

Date....................., 1933 ...............................

From the record it appears that claimants were paid approximately 10% less on salaries after the execution of the aforesaid compensation adjustment (Claimants’ Exhibit 1). The complaint and bill of particulars attached thereto show that each claimant accepted the reduced salary paid him during the period involved. The claimants, through their counsel, take the position that they were Civil Service employees although the complaint does not establish that fact and say that their salaries, as fixed by the Civil Service Commission, are controlled by the said commission until action is taken to reduce or modify the employment status of an employee in the classified service and cite Sec. 12 of Chap. 54% Ill. Rev. Stat. 1937 to support this view.

The respondent takes the position that when the claimants signed waivers and accepted compensation for a less amount than that which they are alleged to have been entitled, it estopped them from prosecuting this claim and precludes them from an award for the alleged difference, relying on Sub-par. 3 of Par. 145, Ohap. 127, Ill. Rev. Stat. 1937 (State Finance Act) which provides:

“Amounts paid from appropriations for personal services of any officer or employee of the State, either temporary or regular, shall be considered as full payment for all services rendered between the dates specified in the payroll or other voucher and no additional sum shall be paid to such officer or employee from any lump sum appropriation, appropriation for extra help or other purpose or any accumulated balanees in specific appropriations, which payments would constitute in fact an additional payment for work already performed and for which remuneration had already been made.”

This Statute was in full force and effect during the term of the employment of the claimants and is controlling. If they were Civil Service employees as claimed by counsel, they still would be “employees of the State.” They voluntarily entered into an agreement' with the respondent reducing their salaries 10% and it was binding upon each claimant who signed said document. The claimants herein in each instance throughout the terms for which they seek an award received regular monthly salary warrants from the State of Illinois and accepted same from month to month as received, as shown by respondent’s Exhibit 1-6, inclusive, and as was said in Broderick et al, vs. State, (9 C. C. R. 461), “Regardless of any rights which they may have had to have demanded and received salaries in any other amounts, claimants accepted said monthly warrants regularly through their term of service . . ..”

We hold that the decisions of this court'in Broderick vs. State, supra, and Mills vs. State, (9 C. C. R. 69) are controlling in the instant claim, and that claimants are, and each of them is barred from securing an award.

The complaint is dismissed.


text:
    No. 3827
    Ruth N. Gustafson, Widow and Carol Louise Gustafson, Minor Child of Leslie L. Gustafson, Deceased, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1944.

    Philip Nye, for claimant.

      George F. Barrett, Attorney General; 0. Arthur Nebel, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

The record in this case consists of the complaint, copy of letters of administration, departmental report and stipulation attached thereto, and waiver of brief, statement and argument on behalf of claimant and respondent.

Under rule 21 of the Court of Claims the report of the Division of Highways filed herein is prima facia evidence of the facts set forth therein. Said report recites that Leslie L. Gustafson resided in Monroe Center, Illinois, and was first employed by the Division of Highways on March 1, 1941, as a supervising foreman in the Maintenance Department at a salary of $160.00 per month. His rate of salary was increased to $170.00 per month on July 1, 1943, and remained at that level until Saturday, October 30, 1943. That he received $1,960.00 as salary during the year next preceding his death on November 1, 1943. That deceased was 45 years of age and had a daughter, Carol Louise, age ten, and his wife, Ruth N. Gustafson, dependent upon him for support.

That the area supervised by Mr. Gustafson as an employee of the division embraced the major part of Ogle County and a small section of an adjoining county. That he was required as supervising foreman to secure time cards from maintenance foremen at different points in Ogle County, which- he delivered in person or sent to the district highway office at Dixon. That October 30, being the last working day of the month, it was his duty to secure and deliver to the district highway office these cards as- soon as practicable. That deceased secured time cards at the Division of Highways garage at Polo, Ogle County, at approximately 11:20 A. M. on October 30, and additional time cards at the division garage at. Forreston at 12:00 noon on said day. That at approximately 6:35 P. M. the deceased was found in his car on the Leaf River Bridge on State Bond Issue Route 72, approximately one-half mile east of the Village of Leaf River. He had been badly injured. His car was facing east against the south bridge handrail and the entire right side of the car was totally demolished.

A passing motorist took Mr. Gustafson to the office of Dr. M. S. DuMont at Mt. Morris where first aid was administered. He was then removed by ambulance to the Warmoltz Clinic at Oregon, where he remained until he died at 11:15 on Monday, November 1, 1943. Dr. DuMont made the following report to the Division of Highways on November 2, 1943:

“Extreme shock — internal injuries consisting of crushed chest— several ribs broken — medio-sternum crushed — hemoperitoneum—rupture of liver — four rents in right superior dome from costal margin to esophagus — hemorrhage.”

The Division of Highways paid the following bills incident to the injury:

Dr. M. S. DuMont, Mt. Morris..................................$45.00

Warmoltz Clinic, Oregon....................................... 36.50

Farrell Funeral Home, Oregon................................. 7.50

Total .....................................................$89.00

From a consideration of the evidence before it, the court finds that the deceased, Leslie L. Gustafson, and the respondent, were at the time of the accident and death, operating under the terms of the Workmen’s Compensation Act; that the injury and death of claimant’s intestate was caused by an accident which arose out of and in the course of his employment by the State of Illinois; that respondent had actual knowledge of the accident and that notice of claim and application for compensation were made within the statutory limits of said Act; that the deceased’s annual earnings for the year preceding his death in the employment in which he was then engaged were $1,960.00, or an average weekly wage of $37.69. That he' left surviving him the widow, the claimant herein, who was dependent upon him for support, and Carol Louise Gustafson, age ten, his daughter, who was dependent upon him for support.

The court further finds that the respondent has paid Dr. DuMont the sum of $45.00; Warmoltz Clinic the sum of $36.50; and the Farrell Funeral Home $7.50.

An award is hereby entered in the sum of $5,228.75 for the use of Ruth 1ST. Gustafson, as widow, and Carol Louise Gustafson, as minor dependent child of Leslie L. Gustafson, deceased, as provided in Section 7 (a) and (k) of the Workmen’s Compensation Act.

Documentary proof of the marriage of claimant and deceased on January 11, 1918, is filed herein.

The court further finds that the claimant is now entitled to have and receive from the respondent the sum of $334.97, being the amount of compensation that has accrued to the 11th day of March, 1944. The remainder of said award is to be paid to said claimant in weekly payments of $17.63, commencing one week from the date last above mentioned until the award has been fully paid.

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


text:
    No. 3781
    Cora Hinton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1944.

    Boy A. Ptaoin and J. W. Kottoky, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

The complaint in this case was filed on March 11, 1943. It alleges that the claimant resides at 2204 West Irving Park Bo ad, Chicago, Illinois, and that prior to and on or about December 30, 1942, and January 23, 1943, claimant was in the employ of the respondent at the Chicago State Hospital under the jurisdiction of the Department of Public Welfare, Cook County, State of Illinois. The claimant was employed by respondent in the dining room of said institution and as such on the days and dates aforesaid, she was engaged in her employment in said hospital, and on the 30th day of December, 1942, was injured by reason of an accident arising out of and in the course of her employment when she was struck by a steam table door upon her right foot on the large toe, and that as a result thereof she suffered a fracture of her right foot which has caused her great loss of use of same.

It further alleges she was unable to perform her duties for a period of three weeks following injury. Thereafter she returned to her employment and was again injured on the 23rd day of January, 1943, during the course of her employment by the respondent at said hospital when she stepped on some object lying on the floor which caused her to slip and fall suddenly and with great force down and upon and against the floor, as a result of which she suffered a fracture of her left arm, and thereby has suffered great loss of use of same.

It is alleged that she has been totally incapacitated from the 23rd day of January, 1943. At the time of taking the testimony in this case on the 3rd day of November, 1943, claimant dismissed her claim against the respondent with prejudice for the injury as of December 30, 1942. She makes claim only for the injury sustained by her on the 23rd day of January, 1943, for the loss of use of the left hand and the sum of $50.00 paid by claimant to Dr. C. L. Crean.

The only question to be decided therefore is the nature and amount of the disability arising from the accident of January 23,1943, and the question of medical expenses in connection with said accident.

Dr. Albert C. Field, orthopedic surgeon, was called on behalf of claimant, who testified that he examined claimant and took x-rays. He testified that an examination of her left forearm, including her hand, discloses a shortening of the radius with an inward bowing', causing a prominence of the lower end of the radius; that there was a swelling of the left wrist amounting to a half inch or an inch; that on passive manipulation, extension is limited to about 25 degrees and that flexion was limited to about 25 degrees out of a possible 85 degrees; that eversion and inversion was about half the normal range. He testified that she had suffered a permanent injury and that the loss of motion and swelling and the other conditions about which he testified would interfere with the use of her hand, and that in his opinion the disability amounted to 40% permanent loss of use of her hand.

Dr. Catherine M. McCorry was called on behalf of the respondent. She testified that she agreed with the diagnosis and findings of Dr. Field and that in her opinion this claimant had suffered a 40% permanent loss of the use of her left hand.

Dr. McCorry also testified that she was the treating physician at the time of the last injury. She ordered the claimant to bed, put on a temporary splint and ordered her wrist packed in ice and extended, and informed the claimant she would put on a plaster of Paris cast on Wednesday after the arm had been reduced. But notwithstanding her orders to remain in bed, claimant left the hospital and employed the aforesaid Dr. Crean.

The court finds from the evidence and from the stipulation on file that the claimant, Cora Hinton, at the time of the alleged injury, was an employee of the respondent at the Chicago State Hospital, Chicago, Illinois, which operated under the provisions of the Workmen’s Compensation Act; that notice of said accident was given and claim for compensation was made in accordance with the provisions of said Act; that the petition was filed within the time allowed; that claimant was away from her employment three months; that claimant’s earnings during the year next preceding the injury were $972.00 and that the average weekly wage was $18.69. That claimant at the time of the injury was 49 years of age and had no children under sixteen years of age. That necessary first aid, medical and hospital services had been provided by the respondent herein. That her claim for medical services in the sum of $50.00 to Dr. C. L. Crean must be denied for the reason all medical, surgical and hospital services were offered claimant. She elected to employ her own physician. The respondent is not liable under the Workmen’s Compensation Act for this claim.

An award is therefore entered as follows: That the claimant is entitled to have and receive from the respondent the sum of $10.27 per week for a period of 68 weeks, as provided in paragraph e of Section 8 of the Workmen’s Compensation Act, as amended, for the reason that the injury sustained caused a 40% permanent loss of use of the left hand of the claimant; that the sum of $605.93, representing 59 weeks has accrued to the 12th day of March, 1944, and is payable in a lump sum forthwith, the remainder of said award in the sum of $92.43 to be paid to said claimant by said respondent in weekly payments, commencing one week from the date last above mentioned.

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