author: Mr. Justice Linscott

text:
    (No. 3166
    Harold Pobanz, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 20, 1938.

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

delivered the opinion of the court:

On December 17, 1937, claimant, by his then attorney, filed his claim averring that on the 11th day of October, 1937, he was employed by the Division of Highways of the Department of Public Works and Buildings of the State of Illinois, and was painting what is commonly known as the “West Como” bridge, which spans Elkhorn Creek, being part of S. B. I. Boute No. Two, approximately four miles southwest of the City of Sterling, Illinois; that he was working on a ladder, and in some way the ladder slipped and the claimant fell to the ground, and as the result of the fall, he suffered a compression fracture of the first lumbar vertebra with complete severance of the spinal cord; fracture dislocation of the twelfth dorsal vertebra; complete paralysis of both legs; paralysis of the bladder and rectum and loss of sensation below the opproximate site of the injury.

The Attorney General concedes that the claimant will be completely and totally disabled.

All the facts were stipulated and the court finds that it has jurisdiction of the subject-matter and of the person.

An operation was performed as soon as claimant was removed to the hospital. Claimant was confined to the Public Hospital in Sterling* from the date of the injury until the 18th day of October, 1937, and he was then removed by the State to St. Luke’s Hospital in Chicago. He was treated by Dr. Henry Bascom Thomas of the Northwestern University Medical School, Professor of Hygiene and Physical Education, Medical Adviser, Armour Institute of Technology and Instructor in Orthopaedic Surgery; also a surgeon in the Cook County Hospital for ten years, probably one of the most renowned in his profession in the State of Illinois.

Claimant is about 22 or 23 years old and the operating physician did not expect him to live beyond four or five months. He has very serious injuries and it appears from the stipulation and the statements of the doctors, that he is a hopeless cripple.

At the time of claimant’s injury, he was receiving Fifty Cents (50c) per hour, and working eight hours per day.

The bridge where claimant was working was part of a hard-surfaced public highway and the Supreme Court of this State, and this court have held that:

"The construction and maintenance of a hard surfaced paved public highway is the maintenance and construction of a structure under the Workmen’s Compensation Act.”
City of Rock Island vs. Ind. Com., 287 Ill. 76, 79;
Bond vs. State, 7 C. C. R. 198, 199;
Pennington vs. State, 7 C. C. R. 253, 255.

The agreed statement of facts shows that the injuries arose out of and in the course of his employment. The evidence shows that the State had employed painters to do this kind of work between the first of April and they usually finished up along the first of November, depending somewhat upon weather conditions, but it does not appear that workmen, doing the kind of labor that claimant was doing, were employed 200 days of the year. The Workmen’s Compensation Act provides that:

"As to employees in employments in which it is the custom to operate for a part of the whole number of working days in each year, such number, if the annual earnings are not otherwise determinable, shall be used instead of 300 as a basis for computing the annual earnings: Provided, the minimum number of days which shall be so used for the basis of the year’s work shall be not less than 200.”

The petitioner was unmarried. It appears that his injury is permanent and that he will not be able to do any kind of manual labor in the future.

Under Section 8 of the Compensation Act, in case of complete disability, compensation equal to fifty percentum of his earnings, but not less than $7.50 nor more than $15.00 per week, commencing on the day after the injury and continuing until the amount paid equals the amount which would have been payable as a death benefit under paragraph (a), Section 7, if the employee had died as a result of the injury thereof, leaving heirs surviving as provided in said paragraph (a), Section 7, and thereafter a pension during life annually, equal to 12 percentum and in other cases of total and permanent disability equal to 8 percentum of the amount which would have been payable as a death benefit if the employee had died as a result of the injury at the time thereof, leaving heirs surviving, as provided in said paragraph (a), Section 7. Such pension shall be paid monthly. Provided, any employee who receives an award under this paragraph and afterwards returns to work or is able to do so, and who earns or is able to earn as much as before the injury, payments under such award shall cease; if such employee returns to work, or is able to do so, and earns or is able to earn part but not as much as before the injury, such award shall be modified so as to conform to an award under paragraph (d) of this section : Provided, further, that if such award is terminated or reduced under the provisions of Section 8, such employee shall have the right at any time within one year after the date of such termination or reduction to file a petition with the commission for the purpose of determining whether any disability exists as a result of the original injury and the extent thereof; provided further, that disability as enumerated in Subdivision 18, Paragraph (e) of Section 8 shall be considered complete disability.

The claimant had not been in the employ of the State for a period of one year continuously preceding the injury, and it does not appear that there were any other persons who were so employed during such period of time in the same employment.

Claimant’s compensation was Fifty Cents (50c) per hour, eight hours per day, or a total of Four Dollars ($4.00) per day. Figuring on a 200 day year, his annual compensation would be $800.00, and dividing said annual earning by the number of weeks in the year, or 52, makes an average weekly wage of $15.38, or a compensation rate of $7.69, since the claimant had no children under sixteen years of age at the time the injury occurred.

We, therefore, hold that claimant is entitled to an award equal to the death benefits as provided for under Paragraph (a) of Section 7, which provides for a death award of four times the annual earning. In this case that would be $3,200.00. It would, therefore, appear that the claimant is now entitled to compensation from the 12th day of October, 1937, to the 20th day of December, 1938, or sixty-two weeks, at the rate of $7.69 per week, or $476.78, leaving a balance of $2,723.22, which is payable at the rate of $7.69 per week until the full amount is paid and after the payment of such an award, a pension for life at the rate of 12% annually or $384.00 for the permanent loss of the use of both legs shall be paid to him at the rate of $32.00 per month.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” Approved July 3, 1937 (Sess. Laws 1927 p. 83), and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from said appropriation from the Road Fund in the manner provided for in such Act.


source: Caselaw Access Project

author: Me. Justice Linscott

license: Public Domain

text:
    (No. 3230
    Walter Camm, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 20, 1938.

    Alschuler, Putnam & Johnson, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

This claim was filed on March 16, 1938, and alleges that on the 23rd day of April, 1937, the claimant, Walter Camm, was an employee of the State of Illinois, and on that day, he was working on a road drag, replacing a hlade, on S. B. I. Route 47. The blade had been raised off the ground by means of a jack, and while installing a new blade the drag slipped off the jack and fell to the ground, and claimant’s second finger on his right hand was so badly injured that it was necessary to amputate it at the level of the middle of the second phalanx. Amputation was done by Dr. Emmett L. Lee of Aurora, Illinois, at St. Joseph Mercy Hospital.

The State of Illinois paid all the necessary medical, surgical and hospital bills in the total sum of $56.75. Claimant remained in the hospital until April 29, 1937.

Claimant returned to work on May 10, 1937, and his temporary total incapacity was for a period of sixteen days.

One June 25, 1937, claimant was paid the sum of $17.68 as compensation, and no further sum was paid to claimant.

All the facts are stipulated, and claimant seeks an award of $480.09. The claimant had been in the employ of the State for more than one year prior to his injury, in the Division of Highways, Department of Public Works and Buildings. His annual earnings for a period of one year previous to April 23, 1937, was the sum of $1,258.40. At the time of the injury, he was the father of one child under sixteen years of age.

It appears from the facts in this case that both claimant and respondent were under the Workmen’s Compensation Act, and that the injury arose out of, and in the course of claimant’s employment, and he is entitled to compensation for loss of his second finger on the right hand, which was amputated at the level of the middle of the second phalanx, as governed by Section 8 of the Compensation Act. His average weekly earnings were $24.20; he had given respondent immediate notice of the accident and his claim was filed in due time.

Under the Compensation Act, claimant was entitled to temporary total incapacity at the rate of $12.10 per week, for nine days, or the sum of $15.58, and under Sub-section (e) he is entitled' to an award for the complete loss of the finger, or the sum of fifty per cent (50%) of his average weekly wage during thirty-five weeks. Thirty-five weeks at $12.10 per week, equals the sum of $423.50. The sum of $423.50 plus the temporary total incapacity of $15.58 equals the sum of $439.08. However, the stipulation shows that he received the sum of $17.68, which leaves the sum of $421.40.

We hereby make an award to the plaintiff, Walter Camm, in the sum of $421.40. He is entitled to be paid this sum at the rate of $12.10 per week. If this sum had been paid at the rate provided by law, the whole amount would have been fully paid. He is, therefore, entitled to the sum of $421.40 in cash.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” Approved July 3, 1937 (Sess. Laws 1927 p. 83), and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from said appropriation from the Road Fund in the manner provided for in such Act.


author: Mb. Justice Yantis

text:
    (No. 2915
    Anne C. Deuel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1938.

      Rehearing denies December 20, 1938.

    R. J. Cannell, for claimant.
    Otto Kebneb., Attorney General; Glenn A. Tbevob, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

On May 11, 1934 Anne C. Deuel was appointed Field Agent for Division 2, comprising ten northern Illinois Counties in the Division of Rehabilitation, Board of Vocational Education, at a salary of Two Hundred ($200.00) Dollars per month. Her work consists of investigating cases of physically handicapped people and aiding in seeing that they obtain educational aid and remunerative employment. She and the other agents are required to travel about their district, using the cheapest and most expeditions methods of travel. Part of such travel is by train and- part of it by personally owned automobile, for which the division allows her pay at the rate of Five (5) Cents per mile. In the conduct of her work it is sometimes necessary that the agent transport the client to or from medical offices or hospitals, arrange for surgical care, obtain necessary artificial braces and appliances when necessary, placing the patient for training in a trade or business school or factory, with visitations by the agent to the factories and other places to supervise such training work, later in placing the handicapped person in such employment as may be obtained. In interviewing prospective employers the agent finds it necessary to visit tailor shops, furniture factories, machine shops and other types of factories.

As the headquarters of the department under which claimant is employed are in the Centennial Building, owned by the State and located in Springfield, Illinois, a stipulation has been filed by claimant showing the number and type of elevators in such building and the number of stories, fire escapes, method of heating, lighting, machines and sharp-pointed instruments used in the building. It further appears that claimant’s headquarters however were in Rockford, Illinois.

The record further shows that on December 20, 1935 claimant was returning to Rockford from Freeport, Illinois, where she had been calling on eases in the course of her duties. About nine miles east of Freeport she stopped her car to adjust the winter front of her automobile. In getting out of the car she pulled loose the seat cover and as she got back into the car she pinned the seat cover in place with an upholstery pin, and in so doing pierced the middle finger of the left hand at the second joint so that the pin entered the tendon sheath. Soreness developed in the joint and infection resulted. During the night of December 23rd claimant had severe chills and fever and called Dr. Edward H. Weld on December 24th. The infection spread into the palm of the hand and on December 28th Dr. Weld opened the finger. The condition of the hand grew worse, and on January 1st patient was removed to St. Anthony’s Hospital where the hand was again opened in three places and drains were inserted. Two other operations took place on January 20th and on February 13th, and on March 9th the patient was removed to the Passavant Hospital in Chicago where Dr. Koch, orthopedic surgeon, removed the tendon of the second finger from the middle of the palm to the tip of the finger. This also resulted in a stiffening of the third finger from the knuckle where it joins the palm leaving the finger stiff, so that she can flex it only about fifty (50) per cent of normal. The fourth or little finger can be flexed about seventy-five (75) per cent. The infection affected the other three fingers so that claimant cannot completely close the hand. She returned to work on the 1st day of April, A. D. 1936 and is still employed in the same work, but finds it necessary to employ a stenographer to take care of her records and correspondence. The medical and hospital service obtained by claimant resulted in numerous bills, as she had special nurses and five different doctors and surgeons, the total of such bills being One Thousand Two Hundred Fifty-five & 55/100 ($1,255.55) Dollars, of which claimant has paid Nine Hundred Sixty-four & 55/100 ($964.55) Dollars. These bills.are as follows:

Paid Balance due
Dr. E. H. Weld, Rockford, Illinois............ $100.00 $200.00
Dr. E. W. Goembel, Rockford, Illinois........ 10.00 ........
Dr. E. G. Anderson, Rockford, Illinois........ 3.00 2.00
Dr. R. J. Mroz, Rockford, Illinois............ 25.00 ........
Dr. S. L. Koch, 54 E. Erie St., Chicago....... 75.00 ........
St. Anthony’s Hospital, Rockford, Illinois.... 275.00 89.00
Passavant Hospital, Chicago, Illinois......... 115.55 ........
Mrs. Marian Haines, R. N., Rockford, Illinois. 28.00 ........
Miss Ruth Anderson, R. N., Rockford, Illinois. 28.00 ........
Miss Phyllis Rosander, R. N., Rockford, Illinois ..................................... 305.00 ........
Total .................................. $964.55 $291.00

Claimant was unable to return to her employment for a time, and was temporarily and totally disabled from December 24, 1935 to April 1, 1936.

During that time she received as salary, the sum of Six Hundred Forty-six & 15/100 ($646.15) Dollars, all of which was for non-productive time. On May 15, 1929, plaintiff and her husband who later died on April 30, 1931, adopted two children, Betsy Deuel, aged nine years on August 1, 1936 and Reuben Deuel, aged eight years on March 2, 1936, both of said adoptions being under orders of approval by Judge Jarecki in the County Court of Cook County, Illinois. Plaintiff, by her amended complaint, filed August 5, 1937, seeks an award of Two Thousand Four Hundred Thirty-three & 83/100 ($2,433.83) Dollars for temporary total disability, specific loss of the first, second, third and fourth fingers, and hospital, medical and nursing expenses, less a credit of Six Hundred Forty-Six and 15/100 ($646.15) Dollars, heretofore received by her as salary for non-productive time.

Claimant was before the court for oral examination and there is no question as to a certain specific loss of use of the fingers in question. Notice of the accident and of claim for compensation were had by respondent within statutory limitations, and it is apparent from the record that the accident in question occurred in the course of claimant’s employment.

The Attorney General has raised two other material questions, i. e.:

1. Was the claimant such an employee as to be entitled to the benefits of the Workmen’s Compensation Act of the State of Illinois?

2. Did the accident arise out of the employment as well as during the course thereof?

As to the first of these issues, we believe the record discloses sufficiently that claimant’s duties required her to go into various factories and shops and other places in the course of her supervisory duties, where machinery and sharp-edged cutting tools are known to be operated, that we may consider her and the respondent as both being within the terms of the Illinois Workmen’s Compensation Act at the time of the injury. The question of when does an accident arise out of and in the course of the employment is in some cases difficult to determine.

Angerstein in his work on compensation (1930 Ed. p. 162) says:

“The title and section 1 of the Act make it clear, and the Supreme Court has also so construed it, that an employer is required to pay compensation for accidental injury or death only where the accident both ‘arises out of’ and ‘in the course of’ the employment. It is not sufficient that the injury occurs ‘in the course of’ the employment. It must also ‘arise out of’ the employment. As stated by the Supreme Court of another state construing a similar provision: ‘In order to restrict beyond the reach of question the words ‘in the course of the employment’ the words ‘arising out of’ were added, so that the proof of the one without the other will not bring a case within the Act.’
“In other words it is well settled that to impose a compensation liability or to justify an award, the accident must have 'arisen out of’ as well as ‘in the course of’ the employment, and the two are separate questions to be determined by different tests, for cases often arise where both requirements are not satisfied.
“The words ‘in the course of’ the employment relate to the time, place and circumstances under which the accident occurs, while the words ‘out of’ the employment relate to the origin or cause of the accident. ‘In the course of’ means about the same as within the scope of the employment. An employee may generally be said to be within the scope of his employment and an accident may be said to arise ‘in the course of’ the employment, when he is doing the work that he was employed to do, or while he is doing anything which a man so employed may reasonably do within the time during which he is employed and at a place where he may reasonably be during that time. It also may be stated that the scope of an employee's duties or employment is determined by what he was employed to do and what he actually did with the employer’s knowledge and consent or was in the habit of performing as a part of his duties.
“An accident ‘arises out of’ the employment when it is peculiar to or incidental to the employment, or when it is something the' risk of which might have been contemplated by a reasonable person when entering the employment as being incidental to it. ‘Arising out of’ has to do with the cause of the injury and there must be a causal connection between the work the employee is hired to do or the conditions, etc., under which he is required to work and the injury. So it may be said that if the accident is incidental to, and a part of and results from the work the employee was employed to perform, it arises out of the employment.”

In the recent case of Great American Indemnity Company vs. Industrial Commission, cited in October, 1937, claimant sought compensation for injury to his eye, which he claimed to have suffered by getting a particle of foreign substance therein while returning to his office from a trip to the Municipal Court of Chicago, where he had been on business for his employer. An award by the arbitrator was confirmed by the Industrial Commission, and the latter’s decision was confirmed by the Superior Court of Cook County. In reversing the judgment the Supreme Court said:

“Assuming that the accident occurred as alleged in the claimant’s application, the question is presented whether the injury is compensable. A prerequisite to the right to compensation for an accidental injury is that it must arise out of as well as occur in the course of the employment. The mere fact that the employment duties take the employee to the place of the injury, and that but for the employment he would not have been there, is not, of itself, sufficient to give rise to the right to compensation, but there must be some causal relation between the employment and the injury. The causative danger must be peculiar to the work and not common to the neighborhood. (Gooch vs. Industrial Com. 322 Ill. 586; Mix Dairy Co. vs. Industrial Com. 308 id. 549; Mueller Construction Co. vs. Industrial Board, 283 id. 148.) The duties of an employee involving the necessity of using the streets, expose him to the risks of the street, but if the risk is of a general nature, not peculiar to the street, an injury occurring there does not necessarily arise out of the employment. In the Mueller Construction Co. case, after a consideration of many decisions in industrial injury cases occurring in the use of the streets, we said, ‘The gist of the decisions seems to be that there must be some special risk incident to the particular employment which imposes a greater danger upon the employee than upon other persons using the streets. The criterion, however, is not that other persons are exposed to the Same danger, but rather that the employment renders the workman peculiarly subject to the danger. The question is, then, did the circumstances of the employment of the defendant in error require him to incur some special risk in using the street in the way he did.’ The employee, in that case, was required to ascertain the amount of material on hand, the amount needed for the construction work on which the employer was engaged and to take' steps to obtain needed material. Upon contracts for some buildings the construction company had installed telephones on the premises, but for the work involved in that case it had not done so, in the absence of which the employee pursued the practice of using public telephones. While in the act of crossing a street to make a telephone call the employee was struck by an automobile.
“Three cases in which injuries on streets occurred are cited in the Mueller Construction Co. case, but they are distinguished from that case. A janitor was overcome by heat on the street while taking messages from one headmaster to another. In the second case a painter, in crossing a street to obtain paint, was knocked down and injured by a tramcar. In the third case a charwoman was sent by her employer to mail a letter. While on the street going to the post office she fell and broke her leg. No recovery was allowed in any of the cases. The basis of the decision in each case was that the injury sustained did not arise out of any special risk peculiar to the line of employment greater than that imposed upon others, but originated from a cause to which all persons who use the public streets, whether employed or not, are in an equal degree exposed.”
(367 Ill. 241 at page 246.)

In tiie case at bar the injury resulted from the claimant sticking her finger with a pin while engaged in pinning a seat-cover which had come loose and which she was replacing. The court cannot find therein that claimant was being subjected to some special risk incident to the particular employment in which she was engaged and which imposed upon her any greater danger than upon other persons. The accident did not occur through any causative danger which was peculiar to the work in which claimant was engaged. The Workmen’s Compensation Act does, not intend that the employer who comes within its provisions shall be an insurer of the safety of his employees. The burden was on the claimant to establish her right to compensation under the Workmen’s Compensation Act, but she has failed to show casual relation between her employment and the accident to her finger. In line with the ruling expressed in the case of Great American Indemnity Company vs. Ind. Comm, supra, an award is herein denied and the claim dismissed.

Mr. Chief Justice Hollerich dissenting.


author: Mr. Chief Justice Hollerich

text:
    (No. 3062
    William Henry, Claimant, vs. State of Illinois, Respondent.

      Opiriion filed December 20, 1938.

    Thomas W. Borrell, Jr., for claimant.
    Otto Kerner, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

For some time prior to, and on the 13th day of July, A. D. 1936, claimant was in the employ of the respondent as a rod-man in the Highway Department. On the last mentioned date, while in the performance of his duties at Elston and Washtenaw Avenues, in Chicago, claimant was struck by an automobile owned by the Bowman Dairy Co., and injured about the left ankle, hip and side, also about his back and the left side of Ms head. He was removed to Belmont Hospital where he was given first aid, and then removed to his home. He returned to his work on JMy 27th, and was paid his regular salary during the time he was disabled as aforesaid. All medical and hospital bills were paid by respondent, with the exception of $12.00 which was paid by claimant.

Claimant’s annual earnings during the year preceding the injury were $1,500.00, and his average weekly wage was $28.85. He had no child or children under the age of sixteen years at the time of the accident.

Notice of the accident was given, and claim for compensation was made within the time required by Section 24 of the Workmen’s Compensation Act.

It appears from the evidence that prior to the accident in question claimant had an arthritic condition; that such condition was aggravated as the result of such accident; that claimant now has a permanent disability to his left foot; and that such disability is the result of the accident he sustained on July 10th, 1936 as aforesaid.

The only question in dispute is the extent of such disability.

The only medical testimony in the record is that of Dr. Andrew H. Frankel and Dr. H. B. Thomas. Dr. Frankel testified for the claimant and stated, without objection, that in his opinion claimant sustained the loss of 25% of the use of Ms left ankle. Dr. H. B. Thomas testified on behalf of the respondent, without objection, that in his opimon claimant sustained the loss of 10% of the use of Ms left foot.

The amount of compensation to which claimant is entitled is governed by Section 7, Paragraph (e) of the Compensation Act. Such section provides for compensation “for the loss of a foot, or the permanent and complete loss of its use, fifty per centum of the average weekly wage during 135 weeks”; also “for the loss of a leg, or the permanent and complete loss of its use, fifty percentum of the average weekly wage during 190 weeks”.

Neither said Section 7 or any other section of the Act makes provision for compensation for the specific loss of use of the ankle.

Upon consideration of all of the evidence, we find that claimant has sustained the loss of ten per cent (10%)' of the use of his left foot.

We therefore find as follows:

1. That claimant is entitled to have and receive from the respondent the following sums, to wit:

Fourteen Dollars and Forty-two Cents ($14.42) for one week’s temporary total disability, that being the period for which such compensation is payable under Section 8, paragraph (b) of the Compensation Act.

2. One Hundred Ninety-four Dollars and Sixty-seven Cents ($194.67) for the loss of ten per cent (10%) of the use of his left foot as provided by Section 7, Paragraph (e), sub-paragraphs 14 and 17 of such Act.

3. Twelve Dollars ($12.00) for medical services paid for by claimant; — making a total of Two Hundred Twenty-one Dollars and Nine Cents ($221.09).

We further find that all of such compensation has accrued at this date; that claimant was paid his regular salary amounting to Fifty-seven Dollars and Seventy Cents ($57.50) during the time he was disabled; that the amount so paid must be deducted from the compensation to which he is entitled as above set forth.

Award is therefore entered in favor of the claimant for the sum of One Hundred Sixty-three Dollars and Thirty-nine Cents ($163.39).

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3d, 1937 (Session Laws 1937, p. 83) and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund, in the manner provided in such Act.


text:
    (No. 2406
    William J. Connell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1937.

      Rehearing denied December 20, 1938.

    Andrews & Young, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Claimant was injured on June 21, 1933. He was employed by the State of Illinois as a painter and was returning to the Dixon Paint Shop after putting up highway signs near Kewanee, Illinois. The State truck in which he was riding collided with another vehicle and as a result, claimant received serious facial injuries and lost several teeth which thereafter necessitated the procurement of a false plate, which was furnished by the State. He was unconscious for several hours and was treated in a hospital at Annawan. He returned to work July 17, 1933 and received his full pay during his temporary incapacity. All medical, hospital and dental bills, incurred by him prior to March, 1935 were paid by respondent. On June 26,1934 claimant filed his claim with this court for “$1,000.00 additional compensation for serious and permanent disfigurement to face and head — under Paragraph 8(c) of the Workmen’s Compensation Act.” An award was entered in claimant’s favor for the specific disfigurement claimed, in the sum of Five Hundred ($500.00) Dollars; such award being found in the opinion appearing in 8 C. C. B. p. 452, decided March 13, 1935. Counsel for claimant in his final brief and argument in that ease asked that the “Claim be allowed to stand open, so that if in the future the consequence of the concussion and injuries become so serious as to amount to incapacity, claimant will not be barred from having any further award to which he may be entitled under the law.” The court declined to continue the case on the docket and in its opinion ruled, that any question as to increasing disability that plaintiff desired to urge 'in the future would be controlled by the terms of the Workmen’s Compensation Act.

Plaintiff continued to work regularly for the State until November 25, 1935. On January 13, 1936 he filed a petition to review the previous award, alleging that at the time he filed his original complaint and at the time of the hearing thereon, “certain further injuries described in his complaint were considered to be so indefinite that they did not amount to a disability — that on or about November 25, 1935 these certain pains and headaches became so acute he was forced to obtain medical treatment therefor — that his disability has increased to such an extent he has been unable to work since November 25, 1935 and has necessarily incurred medical and hospital expense of approximately Four Hundred Fifty ($450.00) Dollars; further, that he has received no compensation since November 25, 1935, and requests additional compensation under the provisions of Section 19 (h) of the Workmen’s Compensation Act.”

A motion by respondent to strike the petition was denied, plaintiff’s motion for review granted, and additional evidence by claimant and medical authorities has been introduced.

It now appears from the transcript of additional evidence, that in November, 1935, claimant complained to his superior at the Dixon Paint Shop, Mr. Goeke, that the headaches and pain in his neck had increased, and that Mr. Goeke advised him to again go to Dr. Young, the physician who had attended him immediately following his accident, and for him to follow Dr. Young’s orders; that the latter examined him and sent him to Dr. Mock, and the latter sent him to St. Luke’s Hospital where he remained from November 25, 1935 until January 25, 1936 and to which he again returned from February 25, 1936 until March 4, 1936. Contrary to claimant’s statement in his petition for review and contrary to the affidavit of his counsel, filed January 13, 1936, “That he had received no compensation,” the record shows that compensation had in fact been paid to him from the time he stopped work on November 25, 1935 until May 23, 1936, the last of such payments having been made to him on June 4, 1936, and such compensation being, according to his testimony, the amount of one-half (%) pay, plus ten (10) per cent additional for two children, or approximately Sixty ($60.00) Dollars per month.

“Any right which the claimant has at this time must be by virtue of Section 19 (h) of the Compensation Act. The fact of the injury and the disability arising therefrom, as it existed at the time of the original hearing, are not open to review.”
(Summit Coal Co. vs. Ind. Com., 308 Ill. 121.)

Only the extent of the disability, so far as the same may have recurred, increased, diminished or ended, is a proper subject matter for consideration at this time.

At the time of the original hearing plaintiff represented in his complaint that “In addition to his disfigurement, the accident had resulted in a condition in the back of his head and neck, which constantly caused him to be afflicted with reverse headaches at frequent intervals.” No award was asked for the physical discomfort or disability caused thereby, but the existence thereof was established by the record. If such condition justified an effort to obtain compensation at that time, claimant had a right to contend therefor. This, he elected not to do, representing at the time' of the hearing, as above indicated, that such further injuries were considered to be so indefinite that they did not amount to a disability. This was the conclusion of claimant and his counsel at that time, notwithstanding that claimant had been a continuous patient of Dr. J. M. Young of Annawan from the date of the injury, and had been receiving medicine, massage and diathermy treatments for his neck and head during all of the time prior to the original award.

Unless the disability as it existed at the time of the former hearing has increased therefore, no award can now be granted as prayed, for under the provisions of Section 19(h). "What is the evidence? On August 24, 1936 claimant testified that he went back to, work about July 15, 1934; that he had pain at that time in the back of his neck and at the base of the skull; that such pain was constant and that it had never ceased since the injury, and that he had such pain at all times when working. The record shows he had been back at work for nine months at the time the previous award was entered. The only testimony given by him as to an increase in physical disability since the former hearing, is his statement, that “along in November, 1935 his neck was getting worse right along — that the nerves or cords pulled toward the left side.” He further testified that the treatment given him by Dr. Young consisted of massage, some pills and some medicine to rub on the back of his neck; that Dr. Mock advised “light treatments,” and it was that form of treatment that he was given at the hospital; that since he returned home his treatment has consisted of “sitting in the backyard two or three hours and then going in and having his wife massage the back of his neck. ’ ’

Dr. James M. Young, a witness called by plaintiff, testified that he had examined plaintiff on June 21, 1933 immediately following claimant’s accident. He described the patient’s facial and head injuries as existing at that time, stated that the neck was then rigid and that plaintiff complained constantly of pain in his neck and face; that he again examined the patient in November, 1935, at which time plaintiff complained of the same stiff condition of the muscles of the neck and of extreme pain; that he, Dr. Young, did not find anything out of the ordinary or abnormal about the patient in November, 1935, except apparent pain from motion of the head. Dr. Young again examined plaintiff about August 3, 1936 and testified as follows in regard to his condition then:

“Q. Did you examine him three weeks ago (i. e., August 3, 1936?
A. Yes, Sir.
Q. Did you observe any abnormal condition at that time?
A. Nothing other than the constant stiff condition of the muscles of neck and pain on moving the head forward or laterally.
Q. Have the complaints of the claimant with reference to pain in the neck and the back of the head been constant since his original injury?
A. Apparently so. Everytime I have seen him he has complained of the same thing.
A. The symptoms were mostly subjective.
Q. Dr., did you say that you found the condition of Mr. Connell any different at the last examination than you did at the last examinabetween the period of July 30, 1933 and January 1, 1934?
A. I think it is not as rigid. There is not as much pain at times. There was extreme pain then.
Q. With reference to Mr. Connell’s condition last November and his condition as you found it at the time of your last examination, do you find he is in better condition, as far as his ability to work is concerned, now than he was then?
A. I think some of the rigidity has left the muscles and he might have improved somewhat since last November.
Q. Was that condition that you found last November prevalent during the preceding year?
A. Yes, Sir.”

Dr. Young further stated that in his opinion plaintiff was unable to engage in ordinary labor, but it also developed in the course of his testimony that he did not know that plaintiff had in fact returned to his work in 1933 and had in fact worked thereafter until November, 1935, or that he had previously been allowed compensation and an award. However, during all this period from July 30, 1933 and continuing to February 20,1936 plaintiff had received medicine, treatments and massage from Dr. Young from one to six times per month, as evidenced by the latter’s bill, filed February 10, 1937.

Dr. Harry E. Mock, one of the Senior Surgeons of St. Luke’s Hospital in Chicago, and a member of the Faculty at Bush Medical and Northwestern Medical Schools, was also called as a witness on behalf of claimant. He testified that he first examined plaintiff on November 25,1935, and received a history of the case from plaintiff at that time. Dr. Mock stated,

“That he found no external evidence of injury to the head or neck. Head was erect but there was a restriction in flexion of forward and lateral movement due to some rigidity of the muscles of the neck. No sensory changes in the back of the neck. Found pain or tenderness in the cervical vertebrae by pushing hand on them. Complaint by patient of pain in jaws, but no abnormalties found there. Found a considerable thickening between the vertebrae, a condition of Osteitis. Condition resembles Osteoarthritis changes rather than fracture changes. Patient has eight cervical vertebrae instead of the usual seven. The condition of stiffness in the neck, tenderness and rigidity improved under rest, heat, massage, and exercise of the neck. The fifth cervical vertebrae showed some deformity and the lines suggestive of a fracture in the lateral process on the left side. At this late date it would be impossible for me to say absolutely that this was a fracture, but I can say it is suggestive of a fracture. The localized new bone formation found there could either be callous or it could be an Osteoarthritic change. I came to the conclusion that this patient may or may not have had a fracture in the fifth cervical vertebrae, but he has developed localized Osteoarthritis. If that was a fracture in the fifth cervical vertebrae, new bone has been forming since the day of the injury. It is wasn’t a fracture it has been forming from two or two and one-half years. My opinion when I saw Mr. Connell on March 4, 1936 was that he might start at very light work and gradually get himself back into condition where he could do ordinary labor.”

Dr. Henry Bascom Thomas, a Senior Orthopedic Surgeon of St. Luke’s Hospital in Chicago, and an outstanding authority on Orthopedic Surgery, testified

"That he gave plaintiff a general examination to test his various reflexes. That patient holds his entire spine somewhat resistant, but can touch chin to chest and backward bending of neck is quite free. Very little limitations of motion actually found in the neck in any direction. Felt a pulling on the left side when patient brought his right ear over to the right shoulder. X-rays show an arthritic spur on the anterior surface of the sixty cervical vertebrae. Also a large spur found on the back of the skull. If you touch patient’s skin very lightly he jumps. That is mental, a sign of fear. I believe he ought to be able to work with his back the way it is. In my opinion the pain which Mr. Connell shows upon contact is hysterical, and that there is no physiological disability that would prevent him. working as a laboring man. From my experience and observation in many types of cases, the spur appearing below the seventh cervical vertebrae of plaintiff was too big to have grown since June, 1933. In my judgment it is an old spur.”

No sufficient showing appears from the record to support the claim that there has been a recurrence or increase of plaintiff’s disability since the former hearing and award. While plaintiff may have a condition of Osteoarthritis existing, it is not shown to be the result of the accident in question. It further appears that whatever pain and disability plaintiff may have in the head and neck is the same or less now than at the time of the former hearing, and the record does not entitle plaintiff to any additional award. Any further allowance by virtue of the provisions of Section 19(h) is denied and the claim is dismissed.


author: Me. Justice Yantis

text:
    (No. 3296
    Gulf Refining Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 21, 1938.

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

delivered the opinion of the court:

Claimant seeks an award for Three and 36/100 ($3.36) Dollars for twenty (20) gallons of gasoline at a contract price of Three and 36/100 ($3.36) Dollars sold to L. F. Doyle, Maintenance Patrolman, for the use of respondent’s Division of Highways.- The gasoline was bought under purchase order No. B87830 in January, 1937 at Decatur, Illinois, and claimant failed to submit its bill prior to the time the appropriation out of which payment could be made, had lapsed.

The commodity was bought in the due course of regular purchase and the allowance of the bill is proper under the law pertaining thereto:

“Where claimant has rendered services or furnished supplies to the State on the order or request of an official authorized to contract for the same, and submits a bill therefor within a reasonable time, and due to no neglect or fault on the part of claimant, same is not approved and vouchered for payment before the appropriation from which it is payable lapses, an award for the reasonable and customary value of the services or supplies will be made where at the time the expenditure was contracted there were sufficient funds remaining in the appropriation to pay for same.”
Indian Motor Cycle Co. vs. State, 9 C. C. R. 526.

Claim allowed, and award made in favor of claimant in the sum of Three and 36/100 ($3.36) Dollars.


text:
    (No. 3102
    John Allen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1939.

    Glenn Batcliff and Lachlan Ceissey, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Tbevoe, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

John Allen made application for adjustment of claim for compensation under the Workmen’s Compensation Act for an injury alleged to have occurred while he was working for the Department of Public Works and Buildings in the Division of Highways of the State of Illinois, on the 5th day of July, 1935, as a laborer for the State Highway Maintenance Patrolman in the District of Peoria about two miles west of Havana, Illinois, on State Highway Route No. 78.

From the record before us, it appears that the parties to this litigation were under and subject to the provisions of the Workmen’s Compensation Act; that the accident to Allen arose out of and in the course of his employment; that notice of the accident was made in accordance with the Act; that medical and surgical aid had been furnished to Allen by the State and that he has been paid as to the result of his injuries by the State, at the rate of $9.60 per week up to the 20th day of February, 1936; all told he received the sum of $316.80. The record shows that he was a married man but had no children under sixteen years of age.

At the time of the accident, claimant was coupling a two-wheel concrete mixer to a truck. In some manner his foot slipped and he fell, injuring his groin and hips. The evidence shows that this accident occurred about 4:00 on the 5th day of July, 1935; that claimant worked until about 7:00 that evening and also the next day. Having been advised by his foreman to see a doctor, he consulted Dr. R. T. Ewan on July 8, 1935. Dr. Ewan’s examination disclosed a large external ring in the inguinal canal and from his examination, Dr. Ewan diagnosed the case at the time as beginning hernia. He also examined the claimant a number of times after that, but at later examinations, he was unable to find any hernia. At the time of the hearing, he had not examined the claimant for some eight or nine months. The hearing was on the 12th day of August, 1937.

The claimant requests compensation from the 20th day of February, 1936, to the 1st day of April, 1937, at the rate of $9.60 per week, making 58 weeks at the rate of $9.60 per week, or a total of $556.80, and also claims a permanent partial disability and requests compensation to be paid to him at the rate of $6.00 per week for a period of eight years, amounting to the further sum of $2,496.00, making a total of $3,052.80.

The question for the court to determine is the nature and extent of claimant’s injuries, whether he continued to suffer from temporary total disability from the date of the last compensation until April 7, 1937 and whether he has suffered and will continue to suffer permanent partial disability from the date of the accident for á period of eight years.

Claimant had been a farmer and a day-laborer. A number of former co-employees testified. One or two of them testified that he had a hernia. They were not physicians and had never examined him. All agreed that he was not as good a worker as he had been prior to the accident; that he had been employed for a part of the time on WPA work and had loaded long poles on a wagon or other conveyances for the purpose of sawing them up for himself. Manifestly, under the evidence, he was not totally disabled.

The burden is upon the claimant to prove by a greater weight or preponderance of the evidence, his actual condition, and loss of wages, if any, before this court can make an award.

Claimant contends that he suffers great pain when he does any heavy work. Dr. Ewan, who had been his attending physician for many months, testified to the effect that it was pretty hard to say whether there was anything to cause him pain. Then again he said: “I can see how it would be possible it would cause him some pain to perform heavy labor.” Dr. Ewan testified that he examined claimant at different times, but didn’t examine him very much after the first nine months; that he was always sensitive, but was not as sensitive at the end of the nine months, as at the beginning. Dr. Ewan also testified, ‘ ‘ That it was hard to say whether his condition was permanent.” On cross-examination this doctor said that the large opening in the external inguinal ring may have been congenital; that he did not know whether the large external ring had always been there or not; that it might have been a large vein that was probably congenital; that his later examinations disclosed that it was not a hernia; that he had given him some medicine for pain; that at the time he advised him to be careful about heavy labor; that the symptoms of pain were purely suggestive; that he did not know at the time that claimant was engaged in cutting and sawing wood; that later, claimant had told him about doing some chopping, getting-some wood up. This doctor also testified that he found no evidence of tearing or ditches of abdominal wall; that all he found was on the first examination; that the sensitiveness, of pain diminished as time went on.

Dr. Harold A. Vonachen and Dr. Harry J. Ireland, both of Peoria, testified and their testimony corroborates a report that they made to the department on August 11, 1936 and on February 19, 1936. Dr. Vonachen, whose principal business is industrial surgery stated that he examined the claimant at the request of the State Department of Public Works and Buildings, Divisions of Highways on August 11, 1936. On cross-examination by claimant’s counsel, he testified that he had had many cases similar to claimant’s case in industrial work; that he found a slight enlargement of the right inguinal ring, and without the presence of any bulging or impulse through the ring it doesn’t signify anything particularly; that he found enlarged external rings in many normal individuals; that his diagnosis showed a right epididymitis; that epididymis is the anatomical term for the junction of the spermatic cord with the testicle, and that was slightly enlarged at the time of his examination, and that would not indicate anything unusual. He stated in his opinion that claimant had been able to work for sometime and thoug’ht he should be returning to work, and that opinion was based upon his examination. On cross examination he was asked this question:

Q. But it is true that he could have suffered from pain sufficient to keep him from working and still you couldn’t detect it ?

He made the following answer:

A. I think if there is sufficient pain there to keep him from work, there has to be some reason for the pain and that ordinarily should be manifested by some objective finding.

He was further asked:

Q. Isn’t it true that he could be suffering from pain while exerting’ himself and still not suffer while in a dormant condition ?

A. You mean suffer pain or any pain?

Q. Couldn’t he be suffering pain while he worked and still not while he was in your office ?

A. A question like that is difficult to answer. In my opinion there was nothing there that would justify sufficient pain to keep him from working.

Q. That isn’t what I asked you. Is it possible that he could be suffering from pain when he was under heavy exertion and still not be suffering when he was in your office and there would be nothing to show that he was suffering from pain?

A. I suppose anything is possible but it isn’t very probable in this particular case.

Dr. Ireland of Peoria testified and on cross-examination said that his diagnosis at the time of the examination was a previous sacro-iliac strain and a strain of the inguinal muscles and fascia. He had recommended that a scrotal support should be applied and that the man’s activities should be increased; that the patient should not necessarily refrain from any heavy lifting or hard labor, but it is usually advisable for a time after the initial injury that there should not be excessive lifting. He also testified that it was possible to have pain without any objective symptoms.

There is no conflict between the testimony of the various doctors.

In the consideration of testimony of medical experts, much credibility cannot be placed thereon when the testimony delves into the realm of conjecture. All an expert can do is to give an opinion based upon a reasonable degree of medical certainty, and laymen cannot be permitted to go this far. There is direct positive evidence in the record, being the evidence of Dr. Yonachen that claimant was able to work and had been able to do so for a long time prior to the date of his report, which was August 11, 1936. Dr. Ewan did not express any opinion contrary to these views.

There is nothing in the record that would justify an award in this case. Therefore, the petition will be denied.


text:
    (No. 3306
    Kansas City Fire and Marine Insurance Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1939.

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

delivered the opinion of the court:

The claimant is an insurance corporation organized under the laws of the State of Missouri, having its principal office at Kansas City in the State of Missouri, and has been duly authorized by the Director of Insurance of the State of Illinois to transact business in the State of Illinois. In accordance with the provisions of Article XXV, Section 409 of the Illinois Insurance Code, effective July 1st, 1937, claimant became liable to pay to the State of Illinois for the privilege of doing an insurance business in the State of Illinois, for the year commencing July 1, 1938, a tax in the amount of two per cent of the gross premiums received by claimant in Illinois during the year ending December 31, 1937 less fire department taxes paid by claimant to the Municipalities within the State of Illinois during the year 1937. The gross premiums received in Illinois during the year ending December 31st, 1937 amounted to $26,302.35, two per cent of which is $526.05; but due to an oversight claimant calculated that only $231.89 had been paid by the claimant in fire department taxes to Municipalities of the State of Illinois during the year 1937, and consequently vouchers were furnished to the Director of Insurance and returned to the claimant on February 28, 1938, along with a letter stating that $231.89 might be allowed against said tax as set forth above, and the Insurance Department assessed against the claimant the amount of $294.16 based upon the vouchers of claimant itself.

It is now contended by claimant that in addition to the said $231.89 of fire department taxes paid during the year 1937, credit for which was given to claimant in said tax assessment, the claimant paid to municipalities of the State of Illinois in fire department taxes for the year 1937, $164.50 credit for which was not given claimant in said tax bill due to the oversight.

No dispute arises over the facts and counsel for respondent has made a motion to dismiss this case, and that the claimant be barred from maintaining this action. As grounds for said motion, respondent urges that claimant’s complaint does not set forth a claim which the State of Illinois, as a sovereign commonwealth should discharge and pay for the reason that claimant seeks an award predicated upon the liability in the respondent to refund to the claimant a portion of a sum paid to respondent for insurance privilege tax alleged to represent an overpayment of said tax, and the complaint shows upon its face that said alleged overpayment resulted from the claimant’s own error in submitting to the Insurance Department information on which the tax was computed and assessed, and that said tax as assessed was paid voluntarily without protest and not under duress.

We have heretofore held that:

“Where a tax voluntarily paid was computed and assessed correctly on the basis of information submitted by the claimant, there is no liability upon the part of the State to refund any portion thereof alleged to have been excessive on account of an error made by the claimant in furnishing the information upon which the tax was computed.”
Seith Seiders, Inc. vs. State, 7 C. C. R. 9.
Monarch Fire Insurance Co. vs. State, 9 C. C. R. 538.

For these reasons, the motion of the Attorney General will be sustained. Cause dismissed.


text:
    (No. 3310
    Public Service Company of Northern, Illinois, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1939.

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

delivered the opinion of the court:

In this case the claimant seeks an award in the sum of $66.11 for the reason that it rendered electrical service to the State of Illinois, Department of Public Works and Buildings, Division of Highways, at State Aid Route 21, Section 1280, at the grade separation of Dempster Street and Milwaukee Avenue, in or near Morton Grove, Cook County, Illinois; that in connection with the operation of electric pumps for removal of water from the subway and the installation of electric lights it became necessary during the period of service to make a change in meters. Claimant performed this service in July and August, 1936, and rendered its bill for the same in the sum of $66.11, but through a misunderstanding the district office of the. Division of Highways did not schedule claimant’s bill for payment in time for it to have been paid from the Fifty-ninth biennium appropriation. The report of the Division of Highways states that the rate upon which the service was based and the claim is made is in accord with the contract then existing between the claimant corporation and the Division of Highways.

This court has repeatedly held that:

“Where claimant has rendered services or fúrnished supplies to the State on the order or request of an official authorized to contract for the same, and submits a bill therefor within a reasonable time, and due to no neglect or fault on the part of claimant, same is not approved and vouchered for payment before the appropriation from which it is payable lapses, an award for the reasonable and customary value of the services or supplies will be made where at the time the expenditure was contracted there were sufficient funds remaining in the appropriation to pay for the same.”
Rock Island Sand & Gravel Co. vs. State, 8 C. C. R. 165;
Indian Motor Cycle Co. vs. State, 9 C. C. R. 527.

No conflict arises as to facts, and it appearing that the services were properly ordered and duly rendered and through no fault of its own, claimant’s bill was not paid before the appropriation from which it was payable lapsed, we make an award to claimant in the sum of $66.11.


text:
    (No. 3311
    Shell Petroleum Corporation, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1939.

    W. W. Yeagee, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

In this case, claimant seeks an award in the sum of $8.65, and the claim is submitted on the claimant’s complaint and a report of the Division of Highways. The report was filed as a part of the record pursuant to Rule 21, a copy having first been forwarded to the claimant’s attorney.

The facts are that in the month of February and May, 1937, the claimant furnished, pursuant to proper authorization, a total of twenty-five gallons- of gasoline and ten gallons of motor oil for the use of the respondent in certain motor vehicles operated by the Division of Highways. The claimant did not submit bills covering these items until after the appropriation for the Fifty-ninth biennium had elapsed, September 30, 1937.

It appears from the department records that this merchandise was actually furnished, and we have repeatedly held that:

“Where claimant has rendered services or furnished supplies to the State on the order or request of an official authorized to contract for the same, and submits a bill therefor within a reasonable time, and due to no neglect or fault on the part of claimant, same is not approved and vouchered for payment before the appropriation from which it is payable lapses, an award for the reasonable and customary value of the services or supplies will he made where at the time the expenditure was contracted there were sufficient funds remaining in the appropriation to pay for same.”
Rock Island Sand & Gravel Co. vs. State, 8 C. C. R. 165;
Indian Motor Cycle Co. vs. State, 9 C. C. R. 527.

Therefore, an award will be made in favor of Shell Petroleum Corporation, in the sum of $8.65.


text:
    (No. 3188
    H. D. Ludlow, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1938.

      Award vacated January 11, 1939.


author: Mr. Justice Tantis

text:
    (No. 3314
    A-1 Tire Company, an Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 1, 1939.

    Harold L. Eisenstein, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant seeks an award for Fifty-six and 68/100 ($56.68) Dollars. The evidence discloses that pursuant to purchase order the claimant, on June 4, 1937, delivered to respondent’s Division of Highways certain automobile tires and tubes, the price of which was Fifty-six and 68/100 ($56.68) Dollars. On July 6, 1937 claimant submitted its bill for said merchandise, but through no fault of claimant, the bill was lost and no warrant was. issued in payment of the account prior to the lapse of the appropriation for the 1935-37 biennium on September 30, 1937. The merchandise was regularly purchased and delivered, and payment therefor is legally due.

“Where claimant has rendered services or furnished supplies to the State on the order or request of an official authorized to contract for the same, and submits a bill therefor within a reasonable time, and due to no neglect or fault on the part of claimant, same is not approved and vouchered for payment before the appropriation from which it is payable lapses, an award for the reasonable and customary value of the services or supplies will be made where at the time the expenditure was contracted there were sufficient funds remaining in the appropriation to pay for same.”
(Rock Island Sand & Gravel Co. vs. State, 8 C. C. R. 165.)

An award is hereby entered in favor of claimant in the sum of Fifty-six and 68/100 ($56.68) Dollars.


author: Mr. Justice Yantis

text:
    (No. 3195
    Mandel Brothers, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 1, 1939.

    Taylor, Miller, Busch & Boyden, for claimant.

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

delivered the opinion of the court :

On August 9, 1937 claimant submitted its bid in the sum of Five Hundred Seven ($507.00) Dollars on certain merchandise to be furnished respondent at the East Moline State Hospital; such bid being made in conformity with all the formalities required by Illinois statute and in accordance with provisions and conditions of a proposal and specification issued by the Division of Purchases and Supplies, Department of Finance of Illinois. Claimant was the bidder. Its bid was accepted and on April 23, 1937 a purchase order was issued for the carpet in question. The latter was delivered to the East Moline State Hospital in due course. On August 10, 1937 the managing officer of said institution requested Mandel Brothers to forward the invoices for such merchandise. On August 24th a further notice was sent by the managing officer to Mandel Brothers, calling their attention to the complaint of August 10th of failure to send invoices, and further notifying claimant that their continued failure to furnish such invoice in triplicate at once would necessitate submitting their bill to the Court of Claims. On September 9,1937 a third complaint was directed by the managing officer to Mandel Brothers for failure on the latter’s part to send an invoice for said merchandise. The rugs in question had previously been shipped in due and regular course. On September 21st the managing officer telegraphed claimant, “Invoices Still Not Received Must Have By Return Mail. Acknowledge Receipt of This Telegram.” A copy of such message was forwarded by mail on the same day. On the following day, September 22nd, Handel Brothers wired Dr. J. A. Campbell, managing officer of the hospital that they were sending the bills by mail that day. On September 23, 1937 the managing-officer acknowledged to Handel Brothers, receipt of invoices and called their attention to the fact, that the purchase order was for Five Hundred Seven ($507.00) Dollars and the invoices were billed at Five Hundred Eighty-six and 46/100 ($586.46) Dollars, further informing claimant that he was changing the amount of the invoice to conform to the order, .and that if this was not correct, for Handel Brothers to contact H. S. Bibo, State Purchasing Agent. The latter promptly instructed Handel Brothers to amend the price quoted on their purchase order to read Five Hundred Eighty-six and 46/100 ($586.46) Dollars, which would conform to their bill. In the meantime, i. e. on September 30, 1937, Voucher No. 4718 had cleared from the State Auditor ”s Office, payable to Handel Brothers in the sum of Five Hundred Seven ($507.00) Dollars for the account in question. On October 8th Handel Brothers notified the State Auditor that they were unable to place this check to the credit of the State because their bill totalled Five Hundred Eighty-six and 46/100 ($586.46) Dollars. On October 11th the Division of Finance, in answer to an inquiry from the managing officer of the hospital advised the latter that as the appropriations from the 59th General Assembly had lapsed on September 30, 1937, any further action on the Handel account would go through the Court of Claims. Handel Brothers were so notified on October 16, 1937, and on February 2, 1938 filed their claim herein for recovery of the sum of Seventy-nine and 46/100 ($79.46) Dollars balance due on “purchase price amended,’’ of the merchandise in question.

It is admitted by a stipulation on file that claimant has received the sum of Five Hundred Seven ($507.00) Dollars but has not received the additional amount of Seventy-nine and 46/100 ($79.46) Dollars which is asked.

The Attorney General’s office contends that when claimant’s bid of Five Hundred Seven ($507.00) Dollars was accepted, a binding- contract was created between claimant and respondent, and that upon delivery of the goods and the issuance of the warrant for the price bid, the contract was completely executed; that the claimant has been paid the contract price and that the payment of any additional amount would violate the constitutional restriction imposed by Section 19 of Article 4, Illinois Constitution of 1870. This provision reads in part as follows:

"The General Assembly shall never grant or authorize extra compensation, fee or allowance to any * * contractor, after service has been rendered or a contract made, nor authorize the payment of any claim or part thereof, hereafter created against the State under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void.”

The attempted increase of the purchase order was void and there is nothing in the record to support Mr. Bibo’s action in attempting to authorize same. Claimant herein contends that as the original contract was authorized by law, the restraint on payment set forth in the constitutional provision above quoted is not applicable. The law does not contemplate that bids may be made in one amount and then after having been accepted as the low bid, be increased and a larger amount paid, in the absence of a proper showing of a law permitting such increase.

We believe the constitutional provision to be applicable in the present case. Claimant cites the case of Rock Island Sand & Gravel Co. vs. State of Illinois, 8 C. C. R. 165 and quotes the following:

“Where the facts are undisputed that the State has received supplies as ordered by it and that such supplies were legally bought by the State and that a bill therefor was not presented before the lapse of the appropriation out of which such payment could be' made, and further that claimant has not permitted an unreasonable length of time to elapse in so failing to present the bill, an award for the amount due will be made by the Court of Claims. Shell Petroleum Corp. vs. State, 7 C. C. R. 224.”

One of the essentials in the allowance of claims under the above conditions is as above stated, “that claimant has not permitted an. unreasonable length of time to elapse in presenting its bill.” In the present case the record discloses that it was only after repeated requests by letter and telegram that respondent was able to obtain a bill for the merchandise in question. Had claimant not ignored such requests it might have obtained an adjustment of its account before the appropriations of the 1935-37 biennium lapsed. As to that, we cannot say, but as the matter now stands before this court, no award can be legally made. Award denied and claim dismissed.


text:
    (No. 2611
    William J. Pentoskey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 1, 1939.

    Wm. Martin Garvey, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant, William K. Pentoskey, was a guard at the Illinois State Penitentiary at Stateville, Illinois. On September 10, 1934 while performing his usual duties as a guard claimant was seized by three inmates who were attempting to escape. In the struggle one of such inmates cut one of claimant’s nostrils with a knife and he received a bullet.wound in the right forearm, also a stab wound on the left side of the chest and two other cuts in his back. The complaint alleges that the knife wound in plaintiff’s nostril left a scar about one-half inch in length, but there is no evidence in the record in support of this. The complaint does not specifically seek an award under the Workmen’s Compensation Act for either temporary total, partial permanent or specific disability, but seeks an allowance of his claim for Ten Thousand ($10,000.00) Dollars in equity and good conscience for pain suffering and physical difficulties in performing his duties subsequent to said attack. There is no bill of particulars attached to the complaint and the latter is not sworn to as required under the rules of court.

The record herein discloses that claimant on the occasion in question apparently conducted himself in a gallant and brave manner. It further discloses that his injuries incapacitated him for twenty (20) days, during which time he was paid his full salary. That thereafter he returned to work and continued to work up to the time of the taking of the testimony. On March 22, 1937 he was ordered transferred to the Menard Branch of the Penitentiary, but failed to report for duty at that Institution, and according to the official record is no longer employed by the State. There is nothing in the record upon which to grant an award for temporary total disability or for disfigurement or for specific loss. As to total permanent disability, the evidence shows that he returned to his employment at the end of twenty (20) days after the accident and continued therein as above stated to the time of the taking of the testimony. According to his testimony there was no change in his work since the date of his injury, and his discontinuance of such work thereafter was apparently voluntary upon his part, as he was notified to report for duty at Menard and failed to do so. The only evidence that would tend toward authorizing any partial permanent disability award is that of Dr. Frank A. Chmelik, a Doctor at the State Penitentiary, who testified that after an experience such as claimant had a fear is apt to develop in such person causing him to be of a nervous strain.

Dr. Emil J. Viscocil testified that he had made one examination of claimant about a week prior to the taking of evidence in the case, and that he found the claimant to be suffering from an umbilical hernia and a left sacro-illiac sprain and of a nervous disposition. That such condition was apparently caused by an injury, and that such condition had the appearance of not having originated in the past few months. That the direct result of all of his condition would be one of nervousness.

No award in the nature of a reward for claimant’s conduct can be made by the court. The rule has repeatedly been announced that,

“Before a claimant can have an award against the State, he must show that he comes within the provision of some law making the State liable to him for the amount claimed. If he cannot point to some law giving him the right to an award he cannot invoke the principal of equity to secure such award.”
England vs. State, 9 C. C. R. 59.
Crabtree vs. State, 7 C. C. R. 207.

As no sufficient proof appears in the record upon Avhich an award could be based, the claim is hereby denied and the same is dismissed.


text:
    (No. 2922
    Olga Schobert, Widow, and Elmer and George John Schobert, Jr., Dependent Minor Children of George John Schobert, Deceased, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 8, 1939.

    Joseph E. Fleming, for claimants.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant Olga Schobert is the surviving widow, and Elmer Schobert and George John Schobert, Jr., are the children of George John Schobert, deceased. The latter, according to a stipulation filed herein, was an employee of the Division of Highways of Illinois, and on the 26th day of June, A. D. 1935 was working as a patrolman’s helper repairing the ‘ ‘Belleville-Shiloh Road. ’ ’ A severe rain had washed a heavy film of clay soil onto the pavement, and when the truck which Mr. Schobert was driving struck same it became unmanageable and ran off' the road, turned over and Mr. Schobert was thrown to the ground and the truck wheels crushed his chest, so that he died before arriving at the hospital within thirty minutes after the accident.

From the record filed herein the court finds that George John Schobert and the respondent were, on the 26th day of June, 1935, both operating under the provisions of the Workmen’s Compensation Act; that on said date the former sustained accidental injuries which arose out of and in the course of his employment, and which resulted in his death; that respondent had immediate notice of such accident, and claim for compensation was made within the time required by the provisions of said Act; that said employee had been regularly employed by respondent for more than one year prior to said accident, and his earnings during that time were Six Hundred Fifty-four and 55/100 ($654.55) Dollars, and his average weekly wage was Thirteen and 28/100 ($13.28) Dollars; that necessary first aid, surgical and hospital services were rendered, which bills remain unpaid, i. e.

G-undlach & Co., Funeral Directors, Belleville, Ambuance charge ................................................... $5.00
St. Elizabeth Hospital, Belleville............................. 1.00
Dr. August F. Bechtold, Belleville............................ 5.00
Total ........:.........................................$11.00

Further, that said George John Schobert left surviving, his widow, Olga Schobert, and his two children, Elmer Schobert, aged fourteen years, and George John Schobert, Jr., aged eight years at the time of their father’s death, both of whom were totally dependent upon the earnings of their father for support and maintenance.

The amount of compensation to be paid by respondent herein, under the provisions of Sections 7 (a) and 7 (h) 1 is found to be Three Thousand One Hundred ($3,100.00) Dollars; said compensation having been due in weekly installments of Twelve ($12.00) Dollars per week, commencing June 26, 1935; further that the share or portion of such compensation as would otherwise be payable to each of said children above named, should be paid to their mother for the support of said children; that the said Olga Schobert is now entitled to have and to receive from respondent such amount of compensation as has accrued from June 26, 1935 to February 9, 1938, and to monthly payments of the balance as hereinafter provided.

It is Thebefobe Obdebed that the share of compensation payments which otherwise would be payable to said Elmer Schobert and George John Schobert, Jr., shall be paid to their mother, Olga Schobert, for the support of the said Elmer Schobert and George John Schobert, Jr.

It is Fubtheb Obdebed that an award be entered herein in favor of the claimant Olga Schobert for the sum of Three Thousand One Hundred ($3,100.00) Dollars; such award to be payable as follows, i. e.:

The sum of One Thousand Six Hundred Forty-four ($1,644.00) Dollars to be paid forthwith, this being the amount of compensation which has accrued from June 26, 1935 to February 10, 1938.
The balance of such award shall be payable from month to month in weekly installments of Twelve' ($12.00) Dollars per week for one hundred twenty (120) weeks and one final payment of Sixteen ($16.00) Dollars.

It is Further Ordered that there shall be paid to—

Olga Schobert
For Gundlach & Co., Belleville, Ill., Ambulance Charge........ $5.00
For St. Elizabeth Hospital, Belleville......................... 1.00
For Dr. August F. Bechtold, Belleville....................... 5.00
Total ..................................................$11.00

The foregoing award being made under the provisions of the Workmen’s Compensation Act for the death of a State employee, is subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Claims Arising Out of Injuries to State Employees, and Providing for the Method of Payment Thereof,” approved July 3, 1937, (Sess. Laws of 1937, p. 83).

In accordance with the provisions of such Act, this award is subject to the approval of the Governor, and upon such approval is payable from the appropriation from the “Road Fund” in the manner provided in such Act.


text:
    (No. 2897
    Herbert Rommell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1939.

    Immenhausen & Banovitz, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant was formerly a member of the Illinois National Guard and seeks an award of One Thousand Four Hundred Fifteen and 60/100 ($1415.60) Dollars, claiming that on August 6, 1935 he was stationed at Camp Grant, Rockford, Illinois, as Captain of Company G of the 132nd Infantry; and that on said date he received injuries while in the line of duty which resulted in loss of time and hospitalization after he returned to his home in Chicago, following the encampment.

The claim comes before the court on claimant’s complaint, a report made by the Adjutant General’s office, a transcript of the testimony, and the respective briefs of the parties. From a consideration of the record it appears that there was a lot of crushed stone around the front of claimant’s tent at Camp Grant. He testified that he had returned from the drill field on the day in question, and that in going into his tent he turned an ankle and upon trying to regain his balance stubbed his toe on the tent flooring which was about four inches above the ground, and crashed against the side of his metal cot striking his ribs on the right side and his lip; that he went over to the medical tent and they plastered up his lip; that the next morning he had severe pain in the right chest, and he again went over to the medical tent and "they taped his side.” Claimant further testified that pain increased and he returned to the medical tent three or four times during the camp period, and they readjusted the tape.

That during the camp they went out on bivouac duty and had to sleep on the ground, which was damp with dew; that in the maneuvers it is necessary to run, lie down, get up and run again, etc., and that he reported to an officer in charge that he was unable to do that, so the latter pinned a tag on him which relieved him from such activity. The tag in question is dated "August 13, 1935 5 A. M. bivouac area. Diagnosis: Fracture ribs 8 & 9 right. Treatment: Adhesive strapping. Disposition: Duty. Signature: Johnson, 1st. Lt.” Claimant remained in camp until August 17th. After he returned to Chicago he reported to Lieutenant Johnson who instructed him to see Major Weil; that he was unable to find Major Weil, so he went of his own accord to the Northern Hospital at 2314 North Clark Street, operated by Dr. Doyle, where he remained from August 21, 1935 to September 28, 1935. He seeks payment for alleged expense incurred in such treatment at the rate of $5.00 per day for thirty-nine (39) days for room, board and nursing, One Hundred Ninety-five ($195.00) Dollars and for fourteen (14) days special nurse hire at the hospital at the rate of $8.00 per day, One Hundred Twelve ($112.00) Dollars, with additional laboratory, X-ray and medical charges, making a total hospital bill of Three Hundred Eighty-one ($381.00) Dollars, and a personal bill for services of Dr. Doyle of Five Hundred Fifty-three ($553.00) Dollars. In addition to seeking payment of these bills he asks for an award "for lost earnings during the period from August 18th to September 30,1935. His pay as a captain in the National Guard was Three Hundred Fifty ($350.00) Dollars per month while in active service. His civilian wages as a mail carrier were One Hundred Seventy-five ($175.00) Dollars per month.

At claimant’s request a Military Line-of-Duty Board was appointed pursuant to National Guard regulations, to consider his illness. Such appointment was made on June 1, 1935 and the board convened on December 20th at the 132nd Infantry Armory in Chicago to investigate the reported sickness of Captain Rommel. A transcript of such hearing discloses the following questions and answers: (By Major Weil and Capt. Rommel respectively).

“Q. When, did you first become ill?
“A. I awakened Wednesday morning, August 7, 1935 with pain in right chest. * * *
“Q. Were any X-rays taken after your admittance to the Northern Hospital?
“A. No.
“Q. Were any efforts made to get in touch with a Regimental Medical Officer prior to your admittance to the hospital?
“A. No.”

This and other testimony before the medical board is not in accord with other testimony appearing in the record. Neither does it support a charge of $10.00 for X-ray shown in Dr. Doyle’s bill from the Northern Hospital.

Awards that are made to those in military service for injuries alleged to have been incurred in such service are made under and by virtue of the provisions of Chapter 129, Illinois Revised Statutes, known as the Military and Naval Code. Section 142 of such Act provides as follows:

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

Section 143 of such Act has the further provision:

"(When killed or wounded in service — claim against State.)
“In every case where an officer or enlisted man of the National Guard or Naval Reserve shall be injured, wounded or killed while performing his duty as an officer or enlisted man in pursuance of orders from the Commander-in-Chief, said officer or enlisted man, or his heirs or dependents, shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand. Pending action of the Court of Claims, the Commander-in-Chief is authorized to relieve emergency needs upon recommendation of a board of three officers, one of whom shall be an officer of the medical department.”

In the present case the record shows that the Line-of-Duty Military Board which considered Captain Rommel’s case, returned the following findings:

“1. Captain Rommel was not on sick report at any time during the Field Training Period, August 3rd to August 17th, 1935.
“2. Captain Rommel was able to discharge his regular and required duties during this entire Field Training Period.
“3. Following the return to home station, Captain Rommel did not report for medical attention to any of the Regimental Medical Officers.
“4. Captain Rommel’s statements and the affidavits of Major Weil and Lieutenant Johnson do not agree as to the cause of alleged disability at Camp Grant.
“Therefore: This Board concludes that line of duty status was not established and that hospitalization during the Field Training Period was not required, and finds no evidence has been submitted to connect the disability of Captain Rommel during the Field Training at Camp Grant, Illinois, August 3rd to 17th, 1935, with his alleged subsequent illness and hospitalization after return to home station.”

The statutory provisions above cited both contemplate that injuries suffered by those in the National Guard or Naval Reserve, to be compensable must have been incurred while in the line of duty. The Military Board appointed in the present case has found that “line of duty” status was not established. This court is not inclined, under the record before us, to go back of the finding made by such Military Board upon the point of the military service in question. In the absence of a finding that claimant’s injuries were incurred in the line of duty or while performing his duty under orders from his commander-in-chief, no award is justified by this court upon the claim in question.

Section 145 of the Military and Naval Code contains a further provision, i. e.:

“(Hospital charges.)
“Necessary hospital charges incurred in cases stated in Sections 10 and 11, and for beds in open or general wards, shall be paid by the State on proper vouchers made out by the attending medical officer, approved by the Surgeon General.”

The services obtained by claimant from Dr. Doyle at the Northern Hospital do not come within either of the above sections, and no vouchers have been produced from the attending medical officer, approved by the Surgeon General, and no basis for payment by the State for either the hospital bill or Dr. Doyle’s bill is shown.

Claimant cites the case of Paul H. Boyers vs. State, C. C. R. 9, 530. Inspection of that case will disclose that a medical board there convened returned a finding that Private Boyer’s injury was incurred “in line of duty.”

No legal basis appearing for an award in the present case,, same is denied and the claim dismissed.