text:
    (No. 4151
    Lee Connaway, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 23, 1949.

    Frank H. Walker, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Rebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, Lee Connaway, was employed on June 10, 1948, by respondent as a laborer with the Department of Conservation at the State Game Farm at Mt. Vernon, Illinois. Mr. Connaway was doing work assigned to him by his superior and was in the process of cutting a piece of wood on an electric saw when he suffered the loss of a portion of his thumb that was cut off by the blade of thé saw.

No jurisdictional question is raised. Respondent and claimant were operating under the Workmen’s Compensation Act, and the accident in question arose out of and in the course of the employment.

Claimant testified that he was first attended by Dr. Thompson in Mt. Vernon, and Dr. Thompson dressed the thumb every day. A short time later claimant went to Dr. Fairshter of Mt. Vernon because his thumb continued •to pain, and Dr. Fairshter amputated it to the middle joint with a rounding off of part of the phalanx. The thumb became infected, and this infection was eventually cured. Claimant submitted to an examination by Dr. A. W. Modert at the Jefferson Memorial Hospital. Dr. Modert testified before the Commissioner of this Court at a hearing as follows:

Q. “With respect to Mr. Connaway’s left hand, thumb and arm, what did you find.
A. “Well, on examination the left thumb has been amputated at the middle joint with a rounding off of part of the phalanx— proximal — of the left thumb, the distal end to make it clear. It is the distal end of the phalanx, and on examination there has been a great amount of atrophy of the remaining part of the thumb. Over the end of the thumb where the amputation. was it is very fixed and a scar tissue that binds the end of the thumb to the bone at several points, nerves, tender spots on the end of the thumb. There is also very noticed atrophy between the base of the left thumb and the forefinger on the left hand. These are the thenar muscles. The base of the thumb is practically fixed. In other words there is no motion at the base or limited. However, you are able to move it some. There is considerable restriction to the movement of the left forefinger in the middle joint and at the base of the left forefinger. There is some loss of motion in the third, fourth and fifth fingers of the left hand; considerable restriction in the palm and surface of the left hand. There is considerable loss of flexibility of the left wrist. However the dorsal extension is about normal, very little change noticed in the left elbow. The left shoulder on lateral extension of the arm actively is unable to extend the arm over 45 degrees due to the restriction in the shoulder. Passively not able to raise the arm under pressure, and you see that the shoulder blade is moving rather than the bone. The left girdle shoulder muscles are slightly atrophied as compared with the right. Forward and backward motions of the left arm at the shoulder are slightly restricted, but then nothing to compare with the lateral elevation of the left arm at the shoulder; the whole picture as I see it represents that there must have been a rather terrific infection in the left thumb itself. I think that covers it.
'Q. Now Doctor on this infected thumb, in your opinion does the injury to the hand and the rest of the arm, could that be a direct cause of the infected thumb.
A. “Yes, it generally is. I didn’t see the infection and don’t know the extent of it, but they will cause a restricted shoulder and wrist and atrophy of the muscles and so on.
Q. “Would you recommend or prescribe any treatment.
A. “Nothing except the thumb, if it gives too much pain it should be reamputated and the nerves treated as treated for an amputation and more padding put over the end of the bone. That all depends upon how much is evidenced. He does have trouble, but I wouldn’t recommend it unless the patient says it is giving so much trouble, then it should be done. The shoulder should be worked on. It is becoming fixed and will gradually increase. That will happen after lots of infection.
Q. “What per cent of use of the hand and arm would you say he has now.
A. “That is very difficult to say — of course as far as the thumb, he has very little use of the thumb, possibly a good 20% loss of the left forefinger.
<Q. “What per cent of the thumb.
A. “The way the thumb is now, 100% in the thumb unless something is done with it, and the left hand is about 25% at least of the left hand. Now as to the shoulder, you are running into a different proposition. I would say all of this is due to the injury. You have about 33%% loss of use of the left arm.
Q. “What would you say the ultimate per cent of loss of use the arm and shoulder will be if something isn’t done.
A. “It shouldn’t exceed 50%.
Q. “A total of 50% is as far as it would ever be.
A. “Yes.”

The evidence discloses, that claimant sustained a permanent partial loss of use of his left arm. The medical testimony on behalf of claimant that the ultimate per cent of loss of use of the left arm will not exceed 50% is not impeached and stands without contradiction. Due to the fact that the thumb, left forefinger and left hand are all considered integral parts of the left arm, the value of the compensation rate is computed on a basis of injury to the left arm.

Claimant’s annual average wage was $2,100.00, making his legal compensation $40.38. His compensation rate, would therefore be the maximum of $15.00; since the injury occurred subsequent to July 1,1947, this must be increased 30%, making a compensation rate of $19.50' per week. Claimant is thus entitled to an award of 112% weeks at $19.50 per week, or $2,193.75. Claimant, however, was paid his regular wage of $40.38 per week during a period of forty-five days for non-productive time in the amount of $259.58. This sum must be deducted from his award.

An award is. therefore entered in favor of claimant,. Lee Connaway, in the sum of $1,934.17, payable as follows:

$1,046.92, which has accrued and is payable forthwith.
$ 887.25, payable in 45 weekly installments of $19.50 beginning September 30, 1949, with a final payment of $9.75.

as provided under the provisions of Section 8 (e) of the Workmen’s Compensation Act, as amended.

Euth E. Clark, Court Eeporter, was employed to take the transcript of the testimony for which she made a charge of $26.39. We find that this charge is fair, reasonable and customary.

An award is, therefore, entered in favor of Euth E. Clark in the sum of $26.39, payable forthwith.

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


source: Caselaw Access Project

author: Lansden, J.

license: Public Domain

text:
    (No. 4161
    Lucy M. O’Donnell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 23, 1949.

    Lucy M. O’Donnell, Claimant, pro se.
    Ivan A. Elliott, Attorney General; William J. Colohan, Assistant Attorney General, for Eespondent.
   Lansden, J.

Claimant, Lucy M. 0 ’Donnell, seeks to recover under the provisions of the Workmen’s Compensation Act for 8-2/7 weeks of temporary total disability as a result of a fall on ice in the performance of her duties as a child welfare worker in the Department of Public Welfare, Division of Child Welfare.

On the day the accident occurred, claimant was investigating at various homes cases assigned to her, and there can be no question from the record but that her injuries to her back resulted from an accident arising out of and in the course of her employment. Because of a pre-existing arthritis, claimant during the winter of 1948 did not respond to- the treatment of her attending physician, Dr. William E. Guinea, who recommended to her that she go to Florida to obtain the benefits of warmth and sunshine. This claimant did, and it is for the period of time that she was absent from her employment, on her doctor’s recommendation, that she seeks recovery for temporary total disability.

Claimant was paid her full rate of pay for two weeks ’ vacation and sick leave, and strictly speaking, she might be entitled to a greater allowance for temporary total disability than she claims in her complaint, but she testified directly at the hearing before Commissioner Young that all she was claiming was 8-2/7 weeks of temporary total disability compensation. Under such circumstances, we do not feel free to enlarge her recovery.

The evidence also shows that claimant paid Dr. Guinea the sum of $75.00 for his professional services and expended the further sum of $50.00 for drugs prescribed in the course of her treatment. Such expenditures were reasonable and claimant is entitled to recovery for them.

A. M. Rothbart, 120 South LaSalle Street, Chicago, Illinois, was employed to take and transcribe the evidence before Commissioner Young. Charges in the amount of $45.30 were incurred for such services, which charges are fair, reasonable and customary. An award is therefore entered in favor of A. M. Rothbart for such sum.

Claimant’s rate of pay was such as to entitle her to the maximum amount per week under the Workmen’s Compensation -Act, and she had no persons dependent upon her for support.

An award is entered in favor of claimant, Lucy M. O’Donnell in the sum of $286.57, all of which is accrued and payable forthwith, and is made up as follows:

8 2/7 weeks at $19.50 per week, or $161.57 and a further sum of $125.00 for doctor’s professional services and drugs.

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: Delaney, J.

text:
    (No. 4178
    Mary Frances Moody, widow, et al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 23, 1949.

    Mary Frances Moody, Claimant, pro se.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, Mary Frances Moody, is the widow of Roy Kyle Moody, deceased, who was employed on February 28,1949, as a state highway patrolman in the Department of Public Safety. On that day at approximately 10:00 A. M., while detailed to weighing trucks at the Cargill Soy Bean Mill located near the intersection of Sangamon Avenue and Illinois Terminal Railroad Tracks in the City of Springfield, Illinois, his police car was struck “by an Illinois Terminal Freight Train. Mr. Moody died at approximately 12:15 P. M. on the same day.

The record consists of the complaint, departmental report and brief and argument of respondent.

Said report is in words and figures as follows:

“On February 28, 1949, the date this cause of action arose, Mr. Roy Kyle Moody resided with his wife, Mary Frances Moody, at 311 W. Lawrence Avenue, Springfield, Sangamon County, Illinois. He was 55 years of age, but had no children under 16 years of age dependent upon him for support.
“Mr. Roy Kyle Moody was first employed by the Department of Public Works and Buildings, Division of State Police on July 2, 1930, as an automobile mechanic at a salary of $125.00 a month. He continued in this same classification and at the same salary rate until December 1, 1931, when he resigned to take other employment. On January 8, 1941, the Department of Public Safety, Division of State Police re-employed Mr. Moody as a police officer at a salary of $175.00 a month. He continued in this same classification until the day of his accident on February 28, 1949. During this last period of employment Mr. Moody received periodic salary increases. The last increase was on July 1, 1947, when his salary was increased from $213.00 to $235.00 a month. His earnings in the year preceding his injury totaled $2,820.00.
“February 28, 1949, Officer Moody together with other officers had been detailed by Lt. John S. Stuper to weigh trucks at the Cargill Soy Bean Mill located near the junction of U. S. 66 By-pass and Route U. S. 54. Due to the heavy traffic coming to a nearby stock yards on a relatively narrow road that passes the scales, Officer Louis Seeman, in charge of the weighing detail, decided to discontinue weighing trucks about 9:45 A.M. until the situation cleared. Officer Elmer J. Emerson was reached by radio, and Officer L. O. Cartwright walked over to Officer Moody’s post and told him to discontinue sending trucks to the scales until further notice. Officer Cartwright returned to the scale house, and it is believed Officer Moody went to the Charles Restaurant .located nearby for a cup of coffee. At approximately 10:00 A.M. Officer Moody was seen driving his police car slowly in a westerly direction on Sangamon Avenue toward a road on the right that leads to the Cargill Soy Bean Mill. The north, or right side of the pavement was lined with trucks waiting to be weighed, and as he drove past these waiting trucks, several drivers noticed that Mr. Moody’s head was turned to the right as if making a visual inspection of the waiting trucks. His progress 'was so slow that all observers thought he was aware of an Illinois Terminal Freight train approaching from the south, and which would probably cross the highway ahead of Mr. Moody. This belief was strengthened by the fact that the locomotive -whistle was blowing, the bell was ringing, and the automatic traffic signal light and bell were flashing and ringing at the railroad crossing. Apparently Mr. Moody’s preoccupation with other matters made him oblivious to these warning signals because he continued on at an estimated five miles per hour speed onto the tracks, where the left front of the car and the right front of the electric locomotive collided.
“The force of the moving train swung the front of the car to the north and threw it against the railroad crossing signal standard at the northeast corner of the intersection, breaking the standard off. The car came to rest a few feet north of the pavement slab and almost immediately burst into flame. One of the waiting truck drivers pulled Mr. Moody from the blazing car. His clothes had caught on fire, and he was badly burned in addition to a fracture of his right leg and chest injuries.
“The Division of State Police sent Mr. Moody to St. John’s Hospital, Springfield, by ambulance, where Drs. Albert T. Kwedar and Darrell H. Trumpe gave first aid and such additional treatment as they thought necessary; however, Mr. Moody died at approximately 12:15 P.M. that same day.
“March 7, 1949, Dr. Albert T. Kwedar sent the following report to •the Division of State Police:
‘Patient’s story of accident — Car hit by train. Name, of any other physician who served on this case — Dr. Darrell H. Trumpe. Was he your consultant or assistant?- — Consultant. His address— Sangamon Avenue Road. Who authorized your services?- — Patient. Nature of injury — Right hand charred, left hand charred, left leg and foot charred, comminuted fracture of right femur, fracture of sternum, crushing injury left ribs and chest with paroxymal respirations, burned eyes and hair and severe shock. Treatment— (1) shock: plasma and parental fluids administered, (2) immediate care of eyes, (3) debridement and vaseline pressure dressings to right and left hand, left leg and knee, neck and head, right chest and back, (4) immobilization fracture of right femur, (5) assisted Dr. Trumpe with surgery of left chest. Expired February 28, 1949.’
“March 15, 1949, the Division received the following report of Dr. Darrell H. Trumpe:
‘Patient’s story of accident — Police car was struck by an interurban, and the car caught fire. Patient unable to get out of car because of injuries. Name of any other physician who served on this case — A. T. Kwedar, M.D., 412 S. 7th Street, Springfield, Illinois. Was he your consultant or assistant? — Consultant. His address — 412 S. 7th Street, Springfield, Illinois. Who authorized your services? — A. T. Kwedar, M.D. Nature of injury — Depression fractures 3rd, 4th and 5th ribs of left chest; possible fracture of sternum. Traumatic pneumothorax and possibly hemothorax, left lung. Possible contusion of heart. Extensive burns of face, body and extremities. Comminuted fracture of right femur (burns and fracture of right femur and condition of shock was treated by Dr. A. T. Kwedar). Treatment — Treatment limited to chest. Under local anesthesia, skeletal traction was applied to the 3rd rib, anteriorly and elevation of rib cage; 5# of traction applied to maintain elevation. Remarks — Patient seen as an emergency consultation with Dr. A. T. Kwedar. • Patient expired approximately one hour after the above treatment was completed in an emergency room.’
“The Division of State Police has paid the following creditors in connection with Mr. Moody’s accident:
Dr. Albert T. Kwedar, Springfield....................$100.00
Dr. Darrell H. Trumpe, Springfield................... 75.00
St. John’s Hospital, Springfield....................... 127.00
Charles T. Bisch & Sons (Amb.), Springfield......... 5.00
Total...........................................$307.00”

Upon consideration of the case, the Court finds it has jurisdiction of the parties hereto and of the subject matter; that the injury which resulted in the death of Mr. Moody arose out of and in the course of his employment; that the respondent had proper notice of the accident and the death of Mr. Moody and the application for claim was filed in proper time as provided under Section 24 of the Workmen’s Compensation Act, as amended. We further find from this record that the deceased’s annual earnings during the year immediately prior to his death amounted to the sum of $2,820.00, making his average weekly wage amount to the sum of approximately $54.00. His weekly compensation rate, therefore, would be $19.50' under the Workmen’s Compensation Act, as amended and in force on July 1, 1947.

We further find that under Section 7 (a) of the Act,, claimant is entitled to an award.

An award is hereby entered in favor of claimant,. Mary Frances Moody, in the sum of $5,200.00. Of this sum there has accrued to September 23, 1949, the sum of' $565.50, being 29 weeks at $19.50 per week, which is payable -forthwith to her in lump sum.

The remainder of said award amounting to the sum <of $4,634.50 is payable to claimant, Mary Frances Moody, at a weekly rate of $19.50 commencing September 27, 1949, for 237 weeks with one final payment in the sum of $13.00.

The future payments hereinabove set forth being-subject to the terms of the Workmen’s Compensation Act of Illinois, jurisdiction in this cause is hereby retained for the purpose of making further orders that may be from time to time necessary.

An award is also entered in favor of Hugo Antonacci for stenographic services in the sum of $16.00, which .is payable forthwith. The Court finds that the amount charged is a fair and reasonable charge and customary, and said claim is allowed.

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


text:
    (Nos. 4058 and 4059
    Frank C. Weber, M.D., Claimant, vs. State of Illinois, Respondent.

      Opinion filed, October 20, 1949.

    Frank C. Weber, Claimant, pro se.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

On January 8, 1948, the claimants filed their complaints in both of the above captioned cases which were later consolidated.

The complaints allege that on September 25, 1945, Kathryn S. Clark, an employee of the Illinois Public Aid Commission, was injured in the City of Olney, Illinois, while engaged in the performance of her duties. Claimants further allege that at the direction and request of the respondent, professional services were rendered Kathryn S. Clark.

The record consists of complaint, motion of respondent to dismiss, notice to call up motion to dismiss, reply of claimant, transcript of evidence, commissioner’s report, and waiver of brief of claimant.

Section 24 of the Workmen’s Compensation Act, (Chapter 48, Paragraph 161, Illinois Revised Statutes 1947) provides:

“161. No proceedings for compensation under this Act shall be maintained unless notice of the accident has been given to the employer as soon as practicable but not later than thirty days after the accident, except in cases of hernia, in which cases notice shall be given the employer within fifteen days after the accident. In case of mental incapacity of the employee or any dependents of a deceased employee who may be entitled to compensation under the provisions of this Act, the limitations of time by this Act provided shall not begin to run against said mental incompetents until a conservator or guardian has been appointed: Provided that where such limitation bars an adult mentally competent member of a class of beneficiaries entitled to receive compensation for death, such limitation shall then bar all beneficiaries notwithstanding that another or others be mentally or otherwise incapacitated or incompetent.
“No defect or inaccuracy of such notice shall be a bar to the maintenance of proceedings of arbitration or otherwise by the employee unless the employer proves that he is unduly prejudiced in such proceedings by such defect or inaccuracy. Notice of the accident shall give the approximate date and place of the accident, if known, and may be given orally or in writing; provided, no proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident, provided, that in any case, unless application for compensation is filed with the Industrial Commission within one year after the date of the accident, where no compensation has been paid, or within one year after the date of the last payment of compensation, where any has been paid, the right to file such application shall be barred; Provided, further, that if the accidental injury results in death within said year, application for compensation for death may be filed with the Industrial Commission within one year after the date of death, but not thereafter. As amended by act approved July 24, 1939.”

Section 22 of the Court of Claim Act, (Chapter 37, Paragraph 439.22, Illinois Revised Statutes 1947) provides:

“439.22. Every claim cognizable by the Court and not otherwise sooner barred by law shall be forever barred from prosecution therein unless it is filed with the clerk of the court within two years after it first accrues, saving to infants, idiots, lunatics, insane persons and persons under other disability at the time the claim accrues two years from the time the disability ceases.”

The complaint shows on its face that more than two years had elapsed from the date of the alleged damages to the filing of the complaints. Therefore, under the law, this court is without jurisdiction to hear and determine these claims for the reason that the statute of limitations had run against the claimants.

Having concluded that we are without jurisdiction to hear and determine this claim, it becomes unnecessary to discuss any other questions.

The motion of the Attorney General is allowed. Complaint dismissed.


text:
    (No. 4148
    Wayne Caudle, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 20, 1949.

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

Claimant filed Ms claim on December 22, 1948, alleging that on the evening of December 24, 1947, at about. 8:30 P. M. while driving his 1939 Dodge four-door sedan, automobile at a moderate rate of speed on State Highway-No. 37 between Olmsted, Illinois, and Mound City, Illinois, in Pulaski County, said claimant struck a hole in the pavement as he entered a curve in the road; that claimant lost control of his automobile causing said automobile to overturn twice, damaging the automobile beyond repair, and claimant also alleges that he sustained' personal injuries.

The record consists of the complaint, transcript of' evidence and claimant’s waiver of brief. The evidence-shows that a hole measuring 3 feet long, 18 to 24 inches, wide, and 3 inches deep developed in the paved road’ near the center line of said highway and that a highway maintenance employee of respondent had knowledge of this damaged pavement for four or five days prior to the-accident.

The evidence further shows that the claimant’s automobile had a value of approximately $1,200.00 at the time of the accident; that it was a total wreck and that claimant sold the damaged automobile for the sum of $300.00. The evidence further shows that claimant'received minor-injuries and had a doctor bill for treatment administered to him by Dr. Hudson in the amount of $25.00. ■ The evidence fails to prove damages for ,use of automobile, loss of wages aud physical suffering for injuries sustained as ■set forth in claimant’s complaint; that as a direct and proximate result of the negligence of the respondent claimant is entitled to an award in the sum of $900.00 representing the actual loss he sustained on his automobile and the sum of $25.00 representing professional services rendered by his doctor.

The evidence further shows that the claimant was the sole owner of the automobile which was damaged.

An award is therefore entered in favor of claimant, “Wayne Caudle, for the sum of $925.00.


author: IjANSDEN, J.

text:
    (No. 4149
    Shan Durkin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 20, 1949.

    Shan Durkin, Claimant, pro se.
    Ivan A. Elliott, Attorney General; C. Arthur Rebel, Assistant Attorney G-eneral, for Respondent.
   IjANSDEN, J.

Claimant, Shan Durkin, seeks to recover under the provisions of the Workmen’s Compensation Act for the partial loss of use of her right arm and for medical expenses incurred and paid by her in the amount of $329.00 as a result of an accident arising out of and in course of her employment as secretary to the Director of the Department of Public Works and Buildings.

The accident occurred on July 23, 1947, in the suite of offices in the Capitol Building, Springfield, Illinois, of the Director and Assistant Director of the Department of Public Works and Buildings. Claimant was going from the inner office to the reception room and was struck by the swinging gate between such rooms which caused her to lose her footing and fall to the floor. As a result of the falling, claimant sustained a comminuted displaced fracture above the elbow of her right arm and the tearing of the fascia and ligaments in her right elbow.

Claimant paid all of the medical and hospital bills incurred in connection with her accident, and treatment, continued until December 8,1948.

The record also shows that within a week after her accident, claimant returned to work and was paid her full salary and was never paid any compensation.

Claimant filed her complaint on December 22, 1948, approximately eighteen months after the accident occurred.

This Court has repeatedly held that it has no jurisdiction to hear a claim under the Workmen’s Compensation Act where the claimant fail's to file her claim within the time set by Section 24 of said Act. Stuenkel v. State, 16 C.R.R. 34; Stallard v. State, 16 C.C.R. 78; Benner v. State, 16 C.C.R. 104; Britt v. State, 16 C.C.R. 114; Rathje v. State, 16 C.C.R. 177; Clifton v. State, 16 C.C.R 298; Domianus v. State, 17 C.C.R. 197.

The Stuenkel case above cited is quite similar to the instant case on the facts and the law therein announced is controlling.

Hugo Antonacci, 502 Illinois National Bank Building, Springfield, Illinois, was employed to take and transcribe the evidence before Commissioner Jenkins. Charges in the amount of $14.20 were incurred for such services, which amount is fair, reasonable and customary, and an award is therefore entered in favor of Hugo Antonacci for such amount. o

Claimant having failed to comply with the provisions of Section 24 of the Workmen’s Compensation Act, her claim must be and is hereby denied.

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. 4155
    Frank Lewandowski, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 20, 1949.

    Frank Lewandowski, Claimant, pro se.
    Ivan A. Elliott, Attorney General; William 1L Sumpter, Assistant Attorney General, for Respondent.
   Delaney, J.

On December 29, 1948, the above named claimant, through his attorney, filed an application for benefits under the Workmen’s Compensation Act.

The complaint alleged that on or about April 22, 1947, claimant was injured by reason of an accident arising out of and in the course of his employment with the Division of Highways of the State of Illinois.

On the 23rd day of June, 1949, John R. Lamb, attorney of record for claimant herein, withdrew his appearance in this canse.

Record consists of the complaint and a motion to dismiss filed by the Attorney General.

Section 24 of the Workmen’s Compensation Act prescribes the limit of time in which an action may be brought for liability for accidental injury and, insofar as is applicable to the present injury, provides as follows:

"Provided, that in any case unless application for compensation is filed with the Industrial Commission within one year after the date •of the accident, where no compensation has been paid, or within one year after the date of the last payment of compensation, where any has been paid, the right to file such applications shall be barred.”

The filing of a claim for compensation under the Workmen’s Compensation Act is jurisdictional and a condition precedent to the right to maintain a proceeding under, the Act. Black vs. Industrial Commission, 393 Ill. 187.

This complaint shows on its face that it was filed in this court more than one year after claimant’s alleged injury; therefore, this court is without jurisdiction to hear and determine the issues raised by this complaint.

For the reasons assigned, the motion of the Attorney General to dismiss is hereby allowed.

Complaint dismissed.


author: ScHUMAN, C. J.

text:
    (Nos. 4159 and 4160
    Stella Duffie and Opal Fern Hukill, Claimants, vs. State of Illinois, Respondent.

      Opinion filed October 20, 1949.

    Bernard G. Maxwell, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   ScHUMAN, C. J.

The Opal Fern Hukiil and Stella Duffie eases have been consolidated for this opinion.

All of the evidence in this case was offered by claimants. The undisputed facts show that Opal Hukiil was driving a 1941 Chevrolet automobile over and along Illinois State Highway Number 95 at a point about two miles west of the Village of Smithfield in Fulton County; that Stella Duffie was with claimant Opal Hukiil and both were on official business for the County of Fulton in the placing-of a small child. Claimant, Opal Hukiil, was a juvenile probation officer and Stella Duffie her assistant.

The facts show that it was dark, raining and that both parties and particularly claimant, Opal Hukiil, the driver, knew of condition of the road and were familiar with it, having driven over it many times; that there was about a 400 foot gravel gap in the road and warning signs were posted showing “Slow” and “Gravel Gap”; that claimant, Opal Hukiil, saw the sign and mentioned to-claimant, Stella Duffie, about the gap before reaching it; that claimant, Opal Hukiil, applied her brakes before she-got to the gap and hit a chuck hole going about 30 miles. per hour, causing her car to swerve to the left and travel about 400 feet, going into a ravine “filled with water”.

' Witnesses, thoroughly familiar with the road, stated gap had been there since 1934 and was worked on two to three times a week because it was a bad road, all of the time constantly moving because it was believed to have quick sand underneath; that they always drove slow over it at about 8 to 10 miles per hour.

Claimants both alleged in their complaints that holes were in the road for a long time and that said place was unsafe and dangerous.

The undisputed testimony shows that claimant, Opal Hukill, knew of the bad spot in the road. However, on a dark, rainy night, with warning signs present, she drove her car at a rate of speed of 30 miles per hour, hit a chuck hole and went 400 feet into a ravine on the left side of the road, over-turning her car causing severe damages to the car and severe personal injuries to herself and to claimant, Stella Duffle.

Even though it might be contended that the gap was defective and dangerous, it was incumbent on claimant, Opal Hukill, to prove she was in the exercise of due care and caution. There is no charge of wilful and wanton misconduct on the part of the respondent. Under the circumstances of this case we feel she has not proven due care and caution. It has long been the rule in this •state that it is the duty of persons about to cross a dangerous place to approach it with care commensurate with the known danger, and when one on a public highway fails to use ordinary precaution while driving over a dangerous place, such conduct is by the general knowledge and experience of mankind condemned as negligence. (Dee v. City of Peru, 343 Ill. 36 at 41). For this reason the claim of Opal Hukill will be denied.

The testimony shows that Stella Duffie and Opal Hukill were engaged in a joint enterprise. Both parties were employed by the County of Fulton in its probation department and were on the business of placing a small child. Both were receiving compensation for their work and were engaged jointly in its performance. When two or more persons are engaged in a joint enterprise or undertaking in the use of the automobile, the contributory negligence of one will bar recovery of either, where the claimed damages arise out of a matter within the scope of a joint undertaking. When the journey in which the occupant, including the driver of the vehicle, are participating, is, itself, a part of a business enterprise in which the parties are mutually interested, they are engaged in a joint enterprise. (Grubb v. Illinois Terminal Co., 366 Ill. 330 at 338-339). The negligence of claimant being imputable to claimant, Stella Duffie, her claim will likewise be denied.

Both the claims of Opal Hukill and Stella Duffie, for the reasons assigned, are denied and the petitions dismissed.


author: SCHUMAIT, C. J.

text:
    (No. 4186
    John Shepherd, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 20, 1949.

    John Shepherd, Claimant, pro se.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   SCHUMAIT, C. J.

Claimant, John Shepherd, was employed by respondent in the Department of Public Works and Buildings, Division of Highways. He worked as a laborer, and on the 9th day of February, 1949, at the truckyard of the Division, he was cleaning frozen cinders from a dump truck body for its later use in hauling asphalt. While so engaged, the tail gate of the truck came down on his right hand. His injury included the loss of the distal phalanx of his index finger.

No jurisdictional question is raised. Respondent and claimant were operating under the Workmen’s Compensation Act and the accident in question arose out of and in thé course of the employment. Respondent furnished-complete surgical, medical and hospital treatment.

At the time of the injury claimant was 73 years of age and had no children under the age of sixteen years. The claim was filed within the time provided by the Workmen’s Compensation Act.

At approximately 10:00 A. M. on the above day, while occupied with cleaning the frozen cinders from the dump truck body, claimant, standing on the ground, was required to raise the tail gate to remove the cinders. The tail gate slipped from his grasp and fell, crushing his right hand. The end of his index finger at a point just below the nail was almost severed; the top side of his middle finger was lacerated. The respondent took claimant to the Condell Memorial Hospital, Libertyville, Illinois, where Dr. M. D. Penney amputated the right index finger at a line just back of the nail and through the mid-portion of the distal phalanx.

The middle finger has a scar running through the length of the upper side. It is much thicker in appearance than the same finger on claimant’s left hand. In making a fist claimant’s right hand cannot be closed normally, a gap of about two inches existing between the end of his middle finger and his palm. Inability to close the middle finger hinders the use of his right hand in gripping objects. As a result of his injury he cannot now use tools with his right hand.

Claimant’s earnings, exclusive of overtime, in the year preceding the accident amounted to $1,753.20. Claimant was totally disabled from February 10th to 20th, inclusive, and was paid compensation at the rate of $19.50 a week from the 17th to the 20th of February, inclusive, in the amount of $11.14.

The Departmental report contains the report of Dr. Penney, dated March 22, 1949, concerning claimant’s injury. This report in part states as follows:

“. . . Nature of Injury — Amputation distal phalanx index finger right. Laceration middle finger right. Treatment — Surgical repair of amputated finger index right hand. Stitches lacerated middle finger. Dressings. Estimated date of discharge — February 9, 1949. Estimated date patient able to work — -Possible three to four weeks."

The only question to be determined is the extent of the injury and loss of use of the fingers in question.

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

For the loss of the first or distal phalanx of the first finger, commonly called the index finger, and for 35% permanent and complete loss of the use of the second or middle finger, the sum of $628.87, payable at the rate of $19.50 per week, all of which has accrued and is ordered payable forthwith.

An award is also entered in favor of William J. Cleary & Co. for stenographic services in the amount of $26.90 which is payable forthwith. The court finds that the amount charged is a fair and reasonable charge and customary, and said claim is allowed.

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


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    (No. 4187
    Florence M. Lipple, widow, et al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 20, 1949.

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

Claimant, Florence M. Lipple, is the widow of Harold Lipple, wbo was employed by respondent in the Division of Highways, and seeks an award for the death of her husband under the provisions of the Workmen’s Compensation Act.

On January 18, 1949, a heavy snow caused the highways in the vicinity of Greenville, Bond County, to become coated with ice, which made driving hazardous. At approximately 3:00 A.M., Mr. Lipple received a telephone call at his home from a superior, who instructed him to load his truck with treated cinders, and spread them on the hills and curves of his maintenance section. Mr. Lipple with the aid of his helper at approximately 4:30 A.M., while shoveling cinders with a No. 2 scoop from the stock pile, into his truck, developed a sudden sharp pain in his chest and collapsed. He was taken to his home, and Dr. William L. Hall, his family physician, diagnosed his injury as coronary occlusion following the strain of shoveling frozen cinders. The following afternoon Mr. Lipple was taken by ambulance to St. Joseph’s Hospital in Highland and died at the hospital on January 23, 1949.

No jurisdictional question is raised. Eespondent and claimant were operating under the Workmen’s Compensation Act, and the accident in question arose out of and in the course of the employment.

Dr. William L. Hall testified that he had examined Mr. Lipple a short time before the injury and found him in good physical condition and that Mr. Lipple had never been known to complain of his heart or a pain in his chest. Dr. Hall further testified that coronary occlusion was brought on by the exertion in hurrying to put cinders on the road.

A long line of cases held that where there is no showing of pre-existing diseases and an employee while at work, usually of a heavy nature or involving unusual exertion or strain, suffers a heart attack, such attack is held to be an accidental injury arising out of and in the course of employment under the Workmen’s Compensation Act. Marsh v. Ind. Comm., 386 Ill. 11, is a recent case wherein are reviewed many of the cases falling in this category. There must, however, be an accidental injury as the immediate or proximate cause of death.

We find from this record that deceased’s annual earnings during the year immediately prior to his death amounted to the sum of $2,436.00, making his average weekly wage amount- to the sum of $46.84. His weekly compensation rate therefore would be $19.50 under the Workmen’s Compensation Act, as amended and in force July 18, 1947.

We further find that under Section 7(a) of the Act, claimant is entitled to an award.

An award is hereby entered in favor of claimant, Florence M. Lipple, in the sum of $5,200.00. Of this sum there has accrued to October 17,1949, the sum of $741.00, being 38 weeks at $19.50 per week which is payable forthwith to her in lump sum.

The remainder of said award amounting to the sum of $4,459.00 is payable to claimant, Florence M. Lipple, at a weekly rate of $19.50 commencing October 24, 1949, for’ 228 weeks with one final payment in the sum of $13.00.

The future payments hereinabove set forth, being subject to the terms of the Workmen’s Compensation Act of Illinois, jurisdiction in this cause is hereby retained for the purpose of making further orders that may be from time to time necessary.

Esther A. Kersey, Court Reporter, was employed to take and transcribe the evidence in this case and has rendered a bill of $16.69. The Court finds that the amount charged is fair, reasonable and customary, and that said claim be, and is hereby allowed.

■ This award is subject to the approval of the Grover-nor, as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees.”


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    (No. 4189
    Logan Marlin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 20, 1949.

    Logan Marlin, Claimant, pro se.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   ScHUMAN, C. J.

Complaint was filed on April 25, 1949, by Logan Marlin for an award nnder the Compensation Act. Leave was asked and granted claimant to amend his complaint to show injury to the middle finger of the left hand instead of index finger of left hand, and the compensation rate as $19.50 per week instead of $15.00 per week.

The complaint, answer of Secretary of State and the evidence discloses the following: That claimant and respondent were operating under the provisions of the Workmen’s Compensation Act, that notice and claim for compensation were made within the time provided by the act and that the accident arose out of and in the course of claimant’s employment. That claimant’s earnings during the year preceding the accident were $3,845.75, and that he had one child under 16 years of age dependent upon him for support.

The evidence further discloses that on the date of April 26, 1948, at approximately 8:30 A.M., while engaged in putting a framing in and around an exhaust fan in the capitol building basement he caught his left hand in the exhanst fan. That immediately after the accident he was taken to Memorial Hospital in Springfield and was later treated by Dr. James Graham. That the Memorial Hospital rendered a statement in the amount of $5.60 and Dr. James Graham in the amount of $22.00, and that same have not been furnished by the respondent.

The evidence further discloses that claimant received an injury to the left index finger of a minor nature and that he received injury of a permanent nature to the middle finger of the left hand. From the examination of the claimant’s hand and finger it was found that the left middle finger was badly lacerated and twisted and that the last joint is badly displaced with almost complete stiffness and total loss of use of the last joint of.said finger.

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

For the permanent, partial specific loss of use of the second finger of the left hand, an amount of 50% of loss of use is allowed, making an award of 17% weeks at $19.50 per week for a total of $341.25, all of which is accrued and is payable forthwith.

An award is also entered in favor of Memorial Hospital, Springfield, Illinois, in the amount of $5.60 for hospitalization, which is payable forthwith.

An award is also entered in favor of Dr. James Graham of Springfield, Illinois, for medical services in the sum of $22.00, which is payable forthwith.

An award is also entered in favor of Hugo Antonacci for stenographic services in the amount of $22.00, which is payable forthwith. The Court finds that the amount charged is a fair and reasonable charge and customary, and said claim is allowed.

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


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    (No. 4193
    Harley R. Ransom, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 20, 1949.

    Harley R. Ransom, Claimant, pro se.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Harley R. Ransom, seeks to recover under the provisions of the Workmen’s Compensation Act for the complete loss of use of his right hand as a result of an accident arising out of and in the course of his employment in the Department of Public Works and Buildings, Division of Highways.

On November 22, 1948, claimant was one of a group of men assigned to dry stone chips preparatory to mixing with bituminous material for road maintenance work at the State Highway storage yard at Wedron, Illinois. Claimant was shoveling damp stone chips out of a truck bed into the drum of a power driven heated mixer and while so working, his foot slipped, causing him to lose his balance and fall out of the truck toward the mixer. Claimant extended Ms right hand to break the fall, and this hand entered the opening of the mixer drum, where Ms hand was caught and crushed between the interior revolving blades and the drum.

Claimant’s injuries to his right hand were serious, and medical treatment was furnished claimant by respondent from the date of the accident until April 12, 1949, and in connection with the medical treatment furnished claimant, respondent has paid the following amounts to the following persons:

Dr. D. Raymun Dwyer, Ottawa................$100.00
Dr. S. E. Parr (Anesthetist), Ottawa.......... 10.00
Dr. H. B. Thomas, Chicago.................... 193.00
Ryburn Memorial Hospital, Ottawa............ 84.25
Louis Pelzmann (Therapist), Chicago......... 104.00
Harley Ransom (expenses), Wedron.......... 155.44
Total....................................$646.69

In addition, claimant was paid temporary total disability at the rate of $18.89 a week for the period from November 23, 1948, to April 15, 1949, in the amount of $388.61.

Claimant has complied with all of the jurisdictional requirements of the Workmen’s Compensation Act and is entitled to an award.

Claimant on- the date of his injury was 53 years of age, unmarried, resided in the Village of Wedron, Illinois, and has no children under the age of 16 years dependent upon him for support. The correct rate of compensation in his case is $18.89 per week based on annual earnings in the year preceding his injury of $1,511.10.

The only question for this Court to determine is the extent of the loss of use of claimant’s right hand.

The departmental report on file in this case discloses that claimant’s right hand was seriously mangled, ripped, torn and deformed by tbe accident, and various medical reports indicate that, although claimant was administered to with great skill by doctors to whom he was sent by respondent, nevertheless, his fingers and hand were for some time after the accident in a splint, infected due to dying bone, and his hand was affected by atrophy and loss of movement. The treatment furnished by respondent cleared up all infections, but some of the fingers or joints thereof were necessarily removed.

Claimant was treated at respondent’s expense by Dr. H. B. Thomas, Professor Emeritus of Orthopedics, University of Illinois, College of Medicine, Chicago, Illinois, from November 30, 1948, to April 12, 1949, and on the latter date, Dr. Thomas wrote to respondent the following :

“I examined the above named patient (claimant) this morning. I am dismissing him as of today with a disability of 100 per cent for the right hand . . . ”.

Commissioner Young, who conducted the hearing in this case and examined claimant’s right hand at the hearing, has reported to the Court in part as follows:

“Examination of the condition of claimant’s right hand caused by the injuries received as a result of the accident in question discloses the first joint of the thumb to have been amputated. The hand is deformed with scar tissue present on the upper and lower side of the fingers as well as the upper half of the palm. The fingers are bent and deformed as if they had been broken. In comparison with the finger’s of claimant’s left hand the fingers appear much thinner as if the muscular tissues were atrophied. Claimant cannot oppose the stub of his thumb with his other fingers. In making a fist he cannot touch his palm with his fingers.”

An award will therefore be entered in favor of claimant as hereinafter computed.

The court reporting firm of William J. Cleary & Co., 134 North LaSalle Street, Chicago, Illinois, was employed to take and transcribe the evidence before Commissioner Young. Charges in the amount of $36.30 were incurred for such services, which charges are fair, reasonable and customary, and an award is hereby entered in favor of William J. Cleary & Co. for such amount.

An award is entered in favor of claimant, Harley R. Ransom, for the complete loss of use of his right hand in the amount of $3,211.30, being at the rate of $18.89 per week for 170 weeks, to be paid to him as follows: $887.83, which has accrued as of October 19, 1949 and is payable forthwith; $2,323.47, which is payable in weekly installments of $18.89 per week for 123 weeks beginning October 26, 1949.

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


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    (No. 4195
    Grace Rickelman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 20, 1949.

    J. L. McLaughlin, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Rebel, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Grace Rickelman, seeks to recover from respondent the snm of $73.67 for damages to her automobile as a result of her driving it into a subsided portion of State Highway No. 32 at 5:30 P.M. on January 4, 1949, one and one-half miles northwest of Sullivan'1, Moultrie County, Illinois. She also alleged that there were no warning signs or flares near the hole she drove into.

The evidence discloses that the claimant is the owner of the 1936 Ford sedan and that the car was repaired by the Shasteen Motor Company and that said bill in the amount of $73.67 was paid by claimant. Such charges are reasonable.

The departmental report on file in this case reads in part as follows:

“A short time prior to January 4, 1949, Division of Highways maintenance employees installed a line of 15 inch tile across and under said Route 32. This installation is located north and west of the city of Sullivan, approximately two and one-half miles. To place the tile, which is 9.71 feet below the center of pavement, it was necessary to cut out and remove a strip of concrete pavement five feet wide. This strip extends the full width of pavement, which is eighteen feet.

“After the tile had been laid and connected with a catch basin, the trench was backfilled with the earth previously removed. The backfill was surfaced with gravel and, from time to time, more gravel was added as settlement and compaction took place. When, in the judgment of the field engineer, the filled material had reached its ultimate settlement, the gap in the pavement was given a four inch premix asphalt wearing surface. The surface of this premix section was laid to the same grade as the adjoining bituminous surfaced concrete pavement.

“Intermittent rains during the two days prior to the accident in question apparently caused a subsidence over the tile. The accident occurred about 5:30 P.M. on Tuesday, January 4, 1949. At approximately 2:30 P.M. on that date an inspection by Division of Highways personnel showed no settlement over the tile or irregularity in the asphalt wearing surface over it. By reason of those findings it was not found necessary to install signs, lights, or barricades as a warning to the travelling public. The night of January 4,1949, Division maintenance employees were advised of claimant’s accident a short time following its occurrence, and proceeded immediately to make necessary repairs. It was found that the maximum settlement did not exceed ten inches in depth. ’ ’

Claimant and the two occupants of her car at the time of the occurrence after dark all testified and their testimony is in agreement as to the lack of visible warning signs or flares at the place of the accident, and claimant further testified that she frequently traveled on the •portion of Highway No. 32 involved, and that two days before the accident she passed over the spot where the subsidence later occurred, and that the road was smooth. She also testified, and was corroborated by other witnesses, that when there was a dangerous condition previously at the place of the accident flares and sometimes barricades were used to warn approaching drivers.

The previous conduct of State highway maintenance-personnel indicated an awareness of the possibility of a dangerous condition resulting.

This case discloses the obligation that respondent has assumed in maintaining and repairing the Illinois State Highway system. The 1945 Court of Claims Act in effect recognizes that obligation by removing respondent’s sovereign immunity for suit in this type of case. Ill. Rev. Stat. 1947, Chap. 37, Sec. 439.8. That the maintenance of state highways is a governmental function is now immaterial. Newman v. State, 17 C.C.R. 187; Cf. Cerri v. U. S., 80 F. Supp. 831. This Court’s inquiry is now directed to the determination of the existence of negligence on the part of respondent proximately resulting in the injury complained of.

Stated differently, in any tort case four elements must necessarily be alleged and proven by claimant. 1) The duty of the respondent to claimant. 2) The violation of such duty. 3) A causal connection between the violation of the duty and the injury complained of, and 4) damages to claimant.

Respondent’s duty to maintain State highways in a safe condition or to warn of unsafe conditions is manifest. That such duty was violated in this case is also evident and that there was a causal connection between the violation of the duty and the injury complained has been proven. The damages sustained, although small, are uncontradicted.

Claimant, Grace Rickelman, is therefore entitled to an award, and one is hereby made in her favor in the amount of $73.67.


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    (No. 4196
    Earnie Roberson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 20, 1949.

    Glenn E. Moore, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

On January 8, 1949, claimant was the owner of a 1947 four-door Chevrolet sedan automobile used in claimant’s taxicab business. On said date at approximately 9:00 A.M., claimant by his agent, James D. Joplin, was driving said automobile in a northerly direction on North Main Street near the intersection of Lawrence Street, in the City of Benton, Illinois. On January 8, 1949, about 9:00 A.M., respondent, by its agent, was driving and operating a Ford truck in a southerly direction along North Main Street at the intersection of Lawrence Street in the City of Benton. Said truck being marked State of Illinois, Game Preserve.

The record in this case consists of the complaint, the amendment to complaint, Report of the Department of Conservation, the transcript of testimony, waiver of statement, brief and argument of claimant, and the statement, brief and argument of respondent.

The evidence shows that the respondent, by its agent, Harrison Sexton, in following another truck of respondent into a gasoline filling station, made a sharp left hand turn directly in front of claimant’s car, causing respondent’s truck to strike the left front of claimant’s automobile, wherein claimant sustained damage to his said automobile in the amount of $446.98.

The evidence further shows that the claimant’s automobile was repaired in 17 days and that this was a reasonable length of time; that the net daily income of this automobile as a taxicab, after deducting the wages of the driver and the cost of gasoline and oil, was approximately $12.00 per day or a total of $204.00; that as a direct and proximate result of the negligence on the part of the respondent, through its agent, in violation of Section 69 of the Uniform Act Regulating Traffic on Highways, Chapter 95%, Section 166, Illinois Revised Statutes of 1947, claimant is entitled to an award in the sum of $650.98, representing the damages to his automobile and the loss he sustained in his business as the operator of a taxicab while the automobile was being repaired.

The evidence further shows that the claimant was the sole owner of the automobile which was damaged.

An award is, therefore, entered in favor of claimant, Earnie Roberson, for the sum of $650.98.


author: Delaney, J. Delaney, J.

text:
    (No. 4081
    Henry D. Hinkle, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 23, 1949.

      Supplemental Opinion filed November 9, 1949.

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

On January 7, 1947, the claimant, Henry D. Hinkle, an employee of the respondent in the Department of Public Works and Buildings, Division of Highways, was assigned to scatter cinders on icy hills and curves on State Aid Route No. 2. The work was done manually from a truck loaded with cinders. The truck was driven by Earl S. Fowler, a highway sectionman’s helper, and claimant shoveled cinders from the rear of the truck. While working two miles south of Alto Pass, in Union County, the truck skidded and claimant lost his balance, fell backward, and his lower back struck the top of the cab and signal lamp. He lay for several minutes because of pain, and then resumed his work. He worked until January 10, 1947, when his discomfort became so great that he was unable to continue.

On the day he was injured, claimant consulted his family physician, Dr. Ernest Radcliff, at Jonesboro, who prescribed rest, analgesics, anti-spasmodics, and heat. A week later, being dissatisfied with his progress, claimant consulted James C. Kincaid, a chiropractor at Anna, Illinois, who gave him thirty adjustments between January 15, 1947, and April 18, 1947.

On February 4, 1947, Dr. Radcliff reported to the respondent that the claimant’s injury consisted of a small bruise at the level of the fifth lumbar spine and down and outward toward the left iliac-sacral joint. The doctor considered the bruise inconsequential, and stated that the major injury consisted of a bad sprain of all the muscles attached to the area; he expected no permanent disability.

On March 8, 1948, Dr. Radcliff again reported to the respondent, stating that claimant could do light work, but that he was fearful claimant might have a lame back for many years. Thereupon respondent arranged for claimant’s examination and treatment by Dr. J. Albert Key and Dr. Fred Reynolds, orthopedic specialists, in St. Louis, Missouri. The first examination was made on March 25, 1947, and Dr. Reynolds reported to the respondent as follows: .

“Examination shows the patient to stand with a moderate stoop-shoulder. There is a good range of motion of the hack but the patient complains of pain in the low back on all motions. There is a mild discomfort in the back on straight leg raising. There is tenderness over the spinous processes of the lumbar vertebrae, most marked over the sacrum. There is also some tenderness over the left gluteal region.
“X-rays showed moderate arthritis with spur formation on the three lumbar vertebrae.
“It is our feeling that this patient was suffering from a mild disc and from aggravation of his arthritis. We recommended that he have a belt and hard bed and take Vitamin B and requested that he return in three weeks so that we might again examine him.”

On May 9, 1947, Dr. Reynolds again reported to the respondent as follows:

“We wish to advise that Henry Hinkle was seen again on the 5th day of May, at which time he had been unrelieved by his brace. However, on inspection of the brace it was noted that it did not fit. He was therefore instructed to return to Lehde and Brown so that he might be given a proper fitting brace. Furthermore, examination at this time revealed that the patient’s physical signs had become much more definite and that at this time he had very suggestive findings of a ruptured intervertebral disc at the lumbo-sacral junction.
“Should he fail to obtain relief with a satisfactory fitting belt, it may be necessary to consider removal of this disc.”

Again on July 2, 1947, Dr. Reynolds sent the following report to the respondent:

“Mr. Henry D. Hinkle was examined again on the 23rd of June, 1947, at which time he stated that his back was causing him more pain than, at the time of his last visit. The pain seems to run up his back and causes headaches. He is also complaining of pain which goes into the left leg to the ankle. These pains are such that he is unable to do any type of work.
“Examination at this time, although it varies somewhat from his previous examination, confirms in our opinion that this man probably has a rupture of an intervertebral disc.
“We recommend that he be admitted to the Barnes Hospital for study at which time a myelogram would be made of the spine and should this reveal that°he does have a disc, it should then be removed. These procedures would require the patient to be in the hospital from 10-14 days and should surgery be necessary, the cost of the operation would be $300.00.
“Will you please review this case at your early convenience and let us know whether or not you wish these recommendations carried out.”

Claimant was admitted to Barnes Hospital at St. Louis on December 11, 1947, and an examination there disclosed tenderness at the lumbo-sacral junction with limitation and pain on straight leg raising on the left side but with free motion of the spine without much pain. A myelogram revealed no defect in the spinal canal, and the spinal puncture for doing the myelogram gave the claimant almost immediate relief from pain.

Dr. Reynolds stated:

“This remarkable relief of pain from the spinal puncture together with other negative findings is very suggestive that Mr. Hinkle’s trouble is mostly imaginary.
“We are sending him at this time exercises and would suggest that he be put back to some kind of work at the earliest possible date.”

Following this report, Mr. Hinkle was offered work as a flagman, but he refused, saying the relief obtained from his hospitalization was of short durati.on and he was unable to work. Arrangements were then made for another examination by Dr. Reynolds, and on February 19, 1948, Dr. Reynolds sent the following report to the Division of Highways:

“We wish to advise that this patient was again- seen on 18th of February, 1948, at which time the patient stated that about two weeks from the time he went home from the hospital his pain returned. Because of this return of pain he has not been able to go back to work. The pain is now just the same as it was before he went to the hospital, being located in the low back mostly on the left side and running into the left hip. Since he was last seen there has been a new development in that the pain now runs up his back to the head and causes him .severe headaches with dizzy spells, and at times he is unable to get up because of these dizzy spells. He further states at this time that when trying to walk he drags his left leg.
“It was difficult to make a complete examination at this time because every time the patient would lie down he would grab his head and complain of severe pain and dizzy spells. I do not see that this could have any connection at all with the injury to his back, and from the examination I was able to make, I was unable to come to any conclusion.”

Following this report, the case was discussed by Dr. Reynolds and a representative of the Division of Highways. It was agreed that a psychiatric examination was indicated; accordingly arrangements were made for Dr. C. D. Nobles and Dr. D. T. Cole, superintendent and .assistant superintendent respectively, of the Anna State Hospital, to make the examination. The examination was made on March 12,1948. The doctors reported as follows:

“This is to certify that Dr. D. T. Cole, assistant superintendent of the Anna State Hospital, and Dr. C. D. Nobles, superintendent of the Anna State Hospital, have today examined Henry Hinkle of Union County, Jonesboro, Illinois. He gives his age as 52. He is a native of Union County and has a home south of Jonesboro, Illinois. He had been working with the highway department about six years before January 7, 1947, when he received an injury while working on Route 51, unloading cinders, when he fell back against the cab and light, injuring his back. He states that he has suffered with' pain in his back, espe- ■ eially in the lumbar region since that time and since December, 1947, when he had a spinal puncture made in St. Louis, Missouri. This relieved him for a couple of days but since that time he has suffered more or less pain, affecting his neck and having dizzy spells at times. When he has these pains it apparently affects his stomach, having a .drawing sensation. He also complains of the lumbar region in the left side, the pains extending down to the anterior surface of the femur. When he carries a bucket of water he has to carry it with his left arm 'because it hurts him to carry it with his right.
“The petellar reflexes were found to be slightly hyperactive, more on the left than on the right. Tactile sense is normal. There were coarse .tremors of the extended fingers, more of the left than the right. Fine tremor of the extended tongue. Slight Romberg. No other neurological findings found.
“He makes the statement that he has not been able to sleep well since the injury, being restless, suffering with pain. He is unable to. walk any distance. "When asked about his education, he made the statement he had not finished the eighth grade because he had to work on the farm.
“Mentally, he is well oriented, memory is especially good for a man of his education. He claims he carries a notary public commission and at times has been capable of taking oil leases. Prom the examination which we have found today, the man is not what we would call mentally ill. There is nothing in his mentality that would keep him from working. The only thing we found was somatic complaints which could be explained on the basis of arthritis following the injury.”

Again on February 3, 1949, Dr. Reynolds again reported to tbe respondent as follows:

“In regard to the above captioned case, we wish to advise that this patient was again examined today, at which time he states that he is steadily getting worse, that he has constant pain in his back and in the left leg; the pain going down the leg into the foot and into the great toe. He also states that the leg is getting dead and because of these complaints, he has been unable to work since the 7th of January, 1947.
“Examination at this time shows the patient to have limitation and pain on extension of the spine, there is limitation and pain on flexion of the spine. Bending to both sides is painful, but more so on the left than on the right. Straight leg raising on the left is limited and painful. There was tenderness, most marked at the fourth lumbarinterspace, also some tenderness at the fifth. The left ankle jerk was. decreased and there is weakness of extension of the toes.
“On this date, this patient has a perfectly typical picture of a ruptured intervertebral disc. These symptoms were not present at the time he was hospitalized in March of 1948. I feel that I missed the diagnosis at that time as a result of the lack of findings.
“At this time, I recommend that the patient have removal of the-disc and a special fusion operation.”

At tbe time of tbe accident, claimant and respondent were operating under tbe provisions of tbe Workmen’s. Compensation Act of tbe State, and notice of tbe accident and claim for compensation were made witbin tbetime provided by tbe Act. Tbe accident arose out of and in tbe course of tbe employment.

Claimant testified that lie had been taking beat and massage treatments for which he had expended $51.00, and that these treatments gave him temporary relief, and the further sum of $12.00 for medicine, making a total of $63.00 expended.

Claimant’s earnings during the year immediately preceding his injury were $1,212.00, making a weekly salary of $23.30. His compensation rate is, therefore, 50% of $23.30, or $11.65. Since the injury occurred subsequent to July 1, 1945, this must be increased 20%, making a compensation rate of $13.98 per week.

The Court finds that claimant is totally and permanently disabled, and that he is entitled to an award of $4,800.00. From this award of $4,800.00 must be deducted the sum of $819.38, payment for non-productive time.

An award is, therefore, entered in favor of claimant, Henry D. Hinkle, in the amount of $3,980.62, payable as follows:

$1,151.80, which has accrued and is payable forthwith.
$2,828.82, payable in weekly installments of $13.98 for 202 weeks, with one final payment of $4.86.

Claimant is also entitled to be reimbursed in the sum ■of $63.00 expended on account of massage treatments and medicine.

An award is also made in favor of claimant, Henry D. Hinkle, in the amount of $63.00 for massage treatments and medicine, which is payable forthwith.

The testimony taken at the hearings before Commissioner Jenkins was taken and transcribed by Imogene Ward Steph, who made charges therefor in the amount •of $74.58. These charges appear reasonable and proper.

An award is, therefore, made to Imogene Ward :Steph in the amount of $74.58, payable forthwith.

Future payments being subject to the terms and conditions .of the Workmen’s Compensation Act of Illinois, jurisdiction of this cause is respectfully reserved, for the entry of such orders as may from time to time be necessary.

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

Supplemental Opinion

Delaney, J.

At the recent September term of this Court an opinion was rendered in this cause allowing the claimant, Henry D. Hinkle, the sum of Forty-eight Hundred Dollars ($4,800.00). The Court’s attention is now directed to a pension award in claimant’s behalf.

An award is, therefore, entered in favor of claimant, Henry D. Hinkle, after the completion of his payments for total and permanent disability of a pension for life in the sum of $384.00 annually, payable in monthly installments of $32.00.

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: ScHUMAÜsT, C. J.

text:
    (No. 4197
    Clifford H. Olsen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1949.

    James E. Boyle, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Eespondent.
   ScHUMAÜsT, C. J.

Claimant, Clifford H. Olsen, was first employed by tbe State of Illinois by tbe Division of Highways, Department of Public Works and Buildings, on December 21, 1941. That on May '28, 1948 be was assigned to mow vegetation with a power driven mower on tbe right-of-way of Route H. S. 34 in DeKalb County. That be encountered difficulty with tbe mower and in adjusting tbe belt control, bis left index finger was caught by tbe moving belt and crushed between tbe belt and belt pulley.

No jurisdictional question is raised. Respondent and claimant were operating under tbe Workmen’s Compensation Act, and tbe accident arose out of and in tbe course of employment. Tbe facts show that tbe claimant’s earnings for tbe year preceding tbe accident were $2,225.35.

Tbe State furnished medical and hospitalization and no claim is made for any additional medical and hospital expenses.

Tbe medical report, tbe evidence and an inspection of tbe claimant’s finger reveals tbe following:

That the distal end of the left index finger was severed and 14 inch of bone of the distal phalanx was removed by the doctor. The examination of the finger by Commissioner Wise revealed it to he approximately % inches shorter than the right index finger; that there is almost complete loss of motion of the distal joint of said finger and that claimant has only about 45% motion in the distal joint when pressure is applied with the right hand; that the nail has grown back and is smaller than on the other hand and that the finger was scarred and sensitive and numb.

Tbe facts show that tbe claimant was married and was standing in loco parentis with reference to two stepchildren under the age of 16 years who were dependent upon him for support.

The evidence clearly establishes that the claimant has sustained permanent partial specific loss of the index finger of the left hand to the extent of 50%.

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

For the permanent,, partial specific loss of the use of the index finger of the left hand, claimant is entitled to an award of $416.00 for a period of 20 weeks at $20.80 per week or 50% loss of use of the index finger of the left hand.

All of this compensation has accrued and is payable forthwith.

An award is also entered in favor of Emma Tweed,. 261 East Lincoln Avenue, DeKalb, Illinois, for stenographic services in the amount of $21.50, which is payable forthwith. The Court finds that the amount charged is fair and reasonable and customary and said claim is allowed.

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


text:
    (No. 4093
    David S. Hendricks, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 7, 1949.

    Eugene H. Widman, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

On June 18, 1948, the claimant filed his complaint in the above entitled cause.

The complaint alleges that on April 29, 1943, while claimant was employed as an electrician at Granite City Street Plant in Granite City, Illinois, he was taken from his employment and wrongfully detained by officers, agents or employees of the State of Illinois.

The record consists of a complaint, a motion of respondent to dismiss, notice to call up motion to dismiss, an amended complaint, a motion of respondent to dismiss amended complaint and notice to call up motion to dismiss.

The claimant, David S. Hendricks, was held by the State of Illinois by virtue of the judgment of the County Court of St. Clair County, signed by J. E. Fleming, Judge of the County Court of St. Clair County, Illinois, whereby it was ordered and adjudged that the said David S. Hendricks be re-committed to the Alton State Hospital at Alton, Illinois, a copy of which judgment) finding and order, duly certified to by George Renner, Jr., Clerk of the County Court in St. Clair County, is in the record.

Having concluded that claimant had been properly detained, it is unnecessary to discuss any other questions.

The motion of the Attorney General is allowed.

Complaint dismissed.


text:
    (No. 4137
    Oliver Leadley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 7, 1949.

    Brian T. Wilson and Harry C. Heyl, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur. Nebel, Assistant Attorney General, for Respondent.
   ScHUMAN, C. J.

Claimant, Oliver Leadley, was first employed by the-Division of Highways on October 25, 1926, as a maintenance patrolman. He continued in this position until February 1, 1933, when he resigned. He again re-entered State employment on April 1, 1941 as an extra gang foreman. He continued in this capacity until the date of the alleged injury on November 10, 1947. The salary of Mr. Leadley previous to his injury on November 10, 1947, totaled $2,515.00. ‘

On November 10, 1947, Mr. Leadley was in charge of a group building a concrete culvert drop box about one mile west of Mackinaw on Route 9 in Tazewell County. The job for the day was to pour a concrete footing at the bottom of a 15-foot hole. They began pouring the concrete early in the morning. About eleven o’clock that morning the sky became overcast and intermittent rain began to fall. The evidence showed that unless the concrete was completed in the footing before heavy rain set in, all of the previous work and material would be' lost. That in order to speed up the work, Mr. Leadley got down into the hole to puddle and properly place the fresh concrete. The men on the ground above poured the concrete into the form as rapidly as Mr. Leadley could take care of it.

This work continued through the noon hour and until three o’clock that afternoon when it was completed.

Sometime after one o’clock P.M., Mr. Leadley felt a sharp pain in his left chest and noticed that he was short of breath; however, because of the urgency of the task, work was continued until the footing was completed.

That after completing the work down in the hole, Mr., Leadley lifte dthe concrete mixer by himself, which the' evidence shows was a two-man job, and also lifted the water pump and the hose, which was also a two-man job. And he did this in order to get the mixer and the pump off of the highway.

That after completing the work, Mr. Leadley and the group ate their lunch. Mr. Leadley ate a few bites, but became ill and vomited what he had eaten. After eating their lunch the group started for their headquarters at Peoria, and Mr. Leadley was driving the truck; however, they had only gone a short distance when Mr. Leadley became violently ill and asked his helper to drive for him. By the time the truck had reached East Peoria, Mr. Leadley was so ill that the helper, in alarm,, stopped at the office of the nearest physician, Dr. W. A. Lowy, for aid.

Dr. Lowy testified that he examined Mr. Leadley about 3:30 in the afternoon on November 10, 1947, and that from his examination he concluded that Mr. Leadley had had a heart attack. That he had him removed to St. Francis Hospital in Peoria, Illinois, where he remained until December 15,1947. That a few days after Mr. Leadley was admitted to the hospital, Dr. Lowy had an electrocardiogram made, and a few days before he was sent home from the hospital on the first occasion, he had another electrocardiogram made. Dr. Lowy saw Mr. Leadley periodically through March and April of 1948, and he was again brought to St. Francis Hospital May 31st, where he remained through June 3rd and at that time was brought back because of paint fume poisoning. That on June 1, 1948 Dr. Lowy again took another electrocardiogram. That in the doctor’s opinion the electrocardiogram shows that Mr. Leadley had sustained a coronary thrombosis on November 10, 1947 and that the future examination by the electrocardiogram showed his old heart attack, but nothing new. That in his opinion the only heart attack that Mr. Leadley ever sustained was the one on November 10, 1947. That in his opinion the coronary thrombosis which he found on November 10, 1947 was caused from over-exertion, and from the type of work he was doing on November 10, 1947. That the condition he found, relative to his heart, was permanent and that it would prevent Mr. Leadley from doing any manual labor.

The evidence shows that Mr. Leadley never had any previous physical trouble before, with the exception of minor cold ailments. That he took a physical examination when he applied for the State job and before he resumed work for the State. The evidence further shows that Mr. Leadley had worked hard all of his life and that the only kind of work that he ever performed was manual labor.

The facts show that Mr. Leadley returned to light supervisory work ou July 1, 1948, and continued on that basis until November 23, 1948 when he was unable to continue work, and that he has not done any work since that time, either manual or otherwise.

The facts show that Mr. Leadley was paid compensation from November 10, 1947 until July 1, 1948. That he was again placed on compensation beginning November 23, 1948 until November 30, 1948, when he filed a claim with the Court of Claims.

The burden on the claimant was to prove that the physical disability of the claimant was the result of an accident arising out of and in the course of his employment. This rule is too well settled to require any extended citation of authorities, either in the Court of Claims, or by any other decisions of the State Court.

In this case the undisputed evidence is that Leadley’s disability was caused by a coronary thrombosis. The proof, without question, shows that coronary thrombosis of the heart may result from over-exertion from manual labor. The record in this case shows that on the day in question, on November 10, 1947, Leadley had performed considerable extra work in the course of his employment. That because of rain the men working felt that all of their labor would be lost, and materials used in pouring the footing would also be lost, unless the work could be accomplished before heavy rain set in. That in order to speed up the work, Mr. Leadley got down into the hole himself and puddled the concrete, and took care of it as fast as the men poured it down into the form, and that this work continued on through the noon hour until sometime around 3 o’clock in the afternoon,- and at that time Mr. Leadley, himself, lifted the concrete mixer and the pump and hose, which ordinarily was the work of two men, off the hard road. This character of work subjected Mr. Leadley to unusual exertion. Tbe unusual exertion, basically and logically, resulted in tbe condition as found by Dr. Lowy. Mr. Leadley suffered the attack at a place where the duties of his employment required him to be, and while he was in the discharge of those duties. There can be no question about this, as there is no dispute of these facts in the evidence.

In the opinion of the Court the facts in this case are almost identical with that set forth in Fittro vs. Industrial Commission, 377 Ill. page 532, where the Court on page 538-539 said:

“The evidence shows that over-exertion and fatigue is liable to induce and bring about acute dilation of the heart. The proof further .shows that during the day preceding and up to the time of the accident, Fittro, in the discharge of his duties under his employment was subjected to unusual exertion and activity of a character which was calculated to bring about an acute dilation of the heart.”

As said by this Court, in the City of Joliet vs. Industrial Commission, supra:

“The attack was suffered at a definite time and place and the cause ■of attack arose out of and in the course of the employment. This brings the case clearly within the definition of an accidental injury, within the meaning of the Act.”

There is no dispute that statutory notice of the injury was given within the time required by the statute and that notice of and the filing of the claim was made within time.

From the additional medical testimony and other, ■evidence in support thereof at a hearing ordered by the Court on November 14, 1949, it is determined that claimant is permanently disabled at the present time.

After a careful consideration of the record, we conclude that the claimant is entitled to an award. We therefore make the following findings:

That the claimant and the respondent were on the 10th day of November, 1947, operating under the provisions of the Workmen’s Compensation Act; that on the date last mentioned above, said claimant sustained accidental injuries; and that said accidental injuries arose out of and in the course of his employment; that notice of said accident was given said respondent and claim for compensation on account thereof was made on said respondent within the time required under the provisions of said Act.

That the earnings of the claimant during the year next preceding the injury were $2,515.00.

That the claimant at the time of his injury was 55 years of age and had no children under 16 years of age dependent upon him for support.

That all medical and hospital expenses and other expenses have been paid by the respondent and there are no further claims made for such expenses.

The testimony on hearing before Commissioner Jenkins was transcribed by Mary I. Reynolds, who has submitted a statement of $52.00 for her services. This charge is reasonable and proper.

The testimony on the last hearing before Commissioner Wise .was transcribed by Mary I. Reynolds, who has a statement of $58.40 for her services. This charge is reasonable and proper.

The claimant is, therefore, entitled to an award of $5,200.00, less the sum of $92.96, paid said claimant for non-productive time, or the sum of $5,107.04.

An award is therefore entered in favor of the claimant, Oliver Leadley, in the amount of $5,107.04, payable as follows:

$1033.50 being 53 weeks @ $19.50 per week, less $92.96 overpayment equals $940.54, which has accrued and is payable forthwith; and the balance of $4166.50 to be paid in weekly installments of $19.50 per week beginning December 14, 1949 for a period of 213 weeks with a final payment of $13.00,
And thereafter a pension for life in the sum of $416.00 annually, payable in monthly installments of $34.66.

Future payments being subject to tbe terms and provisions of tbe Workmen’s Compensation Act of Illinois, the jurisdiction of this cause is specifically reserved for the entry of such other future orders as from time to time may be necessary.

An award is also made in favor of Mary I. Reynolds for stenographic services in the total amount of $110.40, which is payable forthwith.

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


text:
    (No. 4154
    Nell Mae Leuthold, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 7, 1949.

    Irving M. Greenfield, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William J. Colohan, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Nell Mae Leuthold, 58 years of age, was employed by respondent on July 9, 1948, in the Elgin State Hospital, Elgin, Illinois, under the Department of Public Welfare. Claimant was one of two supervisors in the laundry department of the institution and was in charge of about seventy patients who did the ironing of clothes by means of steam presses. On the above day, about ten o’clock in the morning, claimant had occasion to inspect and check the operation of a broken press which had just been repaired. She put a cloth on the bottom of the steam press and suddenly the top slammed down. Her arm was caught between the top and bottom half of the press. As the press clamped down it generated steam, burning claimant’s left arm. The top half of the press locked in down position and would not raise. Her arm, pinned in the press, had to be pulled out.

Claimant was immediately hospitalized in the General Hospital, a section of the institution dedicated to treatment of acute surgical and medical problems of both patients and employees. She was confined there for five weeks after which she stayed at her home in Elgin, Illir nois, where she continued to follow the instructions given her for application of medical dressings. On August 30, when first able to resume her employment, she returned to work.

The upper layer of claimant’s skin was destroyed in the area burned. Describing the treatment she received claimant stated that for the first nine days her arm was elevated in a pressure pack to keep the air away from the burn; during this time she was given penicillin. Thereafter she was required to soak her arm in a solution for a half hour each day and keep her arm in wet packs. Although considered, skin grafting was not accomplished. The 'burned area of her arm, evidenced by reddened skin and scar tissue, extended from a point about three inches below claimant’s elbow to the tip of her fingers. In this area the only part of her skin not so affected was the small portion of her wrist which was protected by a wrist watch. The most pronounced area of scar tissue on the top or back of her hand is characterized by a reddened smooth and glazed surface. Claimant described at night when her hand lies in a'certain position her fingers go to sleep. She has difficulty in lifting objects with her left hand. She cannot make a fist or bend her fingers to enable the grip of small objects as in crocheting. She has not the requisite strength to handle heavier objects as a coffee pot. She said the weakness in her hand handicapped her as when shopping for groceries. Upon attempting to make a fist, claimant could not close her fingers further than about % to % inch from her palm. She cannot oppose her left thumb to the other fingers of her left hand so that in picking up small objects she must use the side of her thumb against the side of her fingers.

Mrs. Leuthold told that since her injury the scar area of her hand becomes chapped and irritated by soap when washing and when handling wet clothes. She has noticed that in the last three months when touching a certain part of her arm near her elbow that she feels an irritation to the end of her fingers and that her fingers get to clenching’. She said that during cold weather her hand aches and gets blue requiring her to wear k glove.

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

The wages of claimant during the year next preceding the accident were $1,635.00, constituting a weekly wage in excess of $30.00 per week. At the time of the accident, claimant had no children under the age of 16 years and the only question for adjudication is the nature and extent of the injuries to claimant’s left arm resulting from the aforesaid accident. No claim for compensation is made on the grounds of temporary total disability, because a special pay fórmala was evolved for claimant which, in effect, paid this.

Two doctors testified in the case, one for each side. Their testimony in substance agrees as to the extent of claimant’s loss of use of her left arm. It would serve no useful purpose to detail their testimony, which was clear, convincing and uncontradicted. Suffice it to say that on the evidence in the record, claimant has suffered a 50 per cent loss of use of her left arm.

Rothbart & Sewell, Court Reporters, were employed to take and transcribe the testimony before Commissioner Young. Charges in the amount of $83.50 were incurred for such services, which charges are reasonable and customary. An award is therefore entered in favor of Rothbart & Sewell for such amount.

An award is entered in favor of claimant, Nell Mae Leuthold, in the amount of $2,193.75, being at the rate of $19.50 per week for a period of 112% weeks, to be paid to her as follows:

$1,443.00, which has accrued and is payable forthwith;
750.75, which is 'payable in weekly installments of $19.50 per week, beginning on the 17th day of December, 1949, for a period of 38 weeks, plus one final payment of $9.75.

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


text:
    (No. 4164
    Matie P. Henderson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 7, 1949.

    Frank R. Eagleton and John F. McGinnis, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Matie P. Henderson, seeks to recover from respondent under Section 3 of the Workmen’s Occupational Diseases Act because she contracted tuberculosis while employed as an attendant at the Alton State Hospital. That she did contract tuberculosis is conceded, her condition having been diagnosed in 1947.

Claimant commenced work for respondent on January 3, 1944. At that time she was free of tuberculosis. Three times per week for twenty weeks after her employment commenced she was required to and did attend a one-hour instruction class for newly hired attendants, which class was conducted immediately after her eight hour working day. Claimant alleges that this constituted a violation of Ill. Rev. Stat. 1949, Chap. 48, Sec. 5, which limits the hours of labor for females in State institutions to eight in any one day. We do not think it does, because her regular work was over and her exposure to tuberculosis patients had ceased when she went to class. Furthermore, it is inherent in the construction to be given to such statute that there must he some possible causal connection between the violation of the statute and the injury complained of. In this case, the chain of causation was lacking in vital links.

Her classroom work did not expose her to tuberculosis, and according to Claimant’s Exhibit 2-C, chest X-rays taken of her in November, 1944, February, August and November, 1945, and February and May, 1946, showed no tuberculosis. Thus the proof in this case negatives conclusively any conclusion that claimant contracted tuberculosis from the violation of the eight-hour law if there was such a violation.

Section 3 of the Workmen’s Occupational Diseases Act further provides that an ‘ ‘ action for damage for injury to the health shall be commenced within three (3) years of the last exposure to the hazards of the disease. . . . ” If a claimant chooses to rely on a statutory violation, the next logical step in the construction of Section 3 is that the action must be commenced within three (3) years of the last date upon which the statute was violated. This claimant has failed to do. Her instruction classes ended not later than May, 1945, yet her complaint herein was filed February 15, 1949.

Claimant testified that she wore a mask and gown at all times in the tuberculosis ward and that the ventilation in such ward was very good.

Claimant was off work for some time and was paid by respondent at a reduced rate for her time off in accordance with a departmental policy. She returned to work in August, 1948, and her tuberculosis is now considered arrested and is no longer active.

Under the previous decisions of this Court, claimant has failed to establish her claim that she acquired tuberculosis as a result of negligence of respondent, and her claim must be and is hereby denied. Wheeler v. State, 12 C.C.R. 254; Norman v. State, 16 C.C.R. 128; Domke v. State, 12 C.C.R. 452; Odle v. State, 16 C.C.R. 183; McNutt v. State, 17 C.C.R. 18.

Hugo Antonacci, Springfield, Illinois, was employed to take and transcribe the testimony before Commissioner Summers. Charges in the amount of $56.70 were incurred, whi,ch charges are reasonable and customary. An award is therefore entered in favor of Hugo Antonacci for such amount.