text:
    (No. 3983
    Helen G. Norman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1947.

    E. E. Denison and R. W. Harris, for claimant.
    George F. Barrett, Attorney General; and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, C. J.

This action is brought under Section 3 of the Workmen’s Occupational Diseases Act, (Illinois Revised Statutes, 1943, Chapter 48, Section 172.3), by Helen G. Norman, an employee of the respondent, for damages sustained as a result of contracting tuberculosis- while working as an attendant at the Alton State Hospital, Alton, Illinois. Claimant is a married woman whose husband was in service during the time of her employment by the respondent, is thirty-two years of age, and was first employed by the respondent on February 14, 1944. Prior to that time she was a strong and healthy young woman who had had no serious illness of any kind, and who had been active in the performance of the ordinary duties of a housewife. At the time of her employment she was thoroughly examined by a staff physician at the Alton State Hospital, and was found to be in good health. No evidence of tuberculosis was found at that" time in any of the tests which were made.

Every morning during her employment, claimant took a group of patients from wards EOF 1, in fair weather, for a walk out of doors, and in inclement weather, to the recreation room. These patients were extremely violent and combative and deteriorated, and some of them were suffering from tuberculosis. The claimant, while on duty, and in the course of her employment on the grounds and in the recreation room, came in direct contact with these patients. Being insane, they were uncooperative and not able to control their coughing and expectoration. Claimant wore the usual uniform of -an attendant at the institution, but was not provided with a special gown or mask of any kind for the covering of the mouth or nose.

Claimant, from the time of her employment in February, 1944, up to and including the summer of that year, also came in direct contact with one Sarah Brown, a patient of ward ECF 1. She took this patient out every ■ day for recreation until the patient was assigned to Maple Cottage, at the institution, a ward for tubercular patients. While she was confined in this ward, the patient died from tuberculosis.

Claimant’s regular hours of work were from 8 o’clock in the morning to twelve o’clock noon, and from one o’clock in the afternoon until five o’clock in the afternoon, five days per week, and one-half day on Saturday. Twice each week, after claimant had worked eight hours during the day, she was assigned to work at night, usually Monday night at a card party, and Thursday night at a dance for the patients, a total of more than four hours and thirty-five minutes each week. She thus worked over eight hours in a twenty-four hour period on Monday and Thursday, and worked over forty-eight hours every week while she was employed at the institution.

Shortly before May 24, 1945, claimant began feeling tired, and experienced shortness of breath. An X-ray picture of her lungs was taken, and she was given a physical examination. Dr. Alfred P. Bay, managing officer of the institution, then called claimant to his office and informed her that the X-rays and the examination indicated she had contracted tuberculosis.

On June 3, 1945, Dr. Bay ordered claimant to bed, and she was hospitalized at the institution until November 21, 1945. She still runs a temperature, is still suffering from active tuberculosis, and is unable to perform her ordinary duties as a house wife. She now has household help, sleeps late each morning, and rests each afternoon. Likewise she has not been able to return to her work at the institution, and because of her illness was granted a leave of absence on January 1, 1946.

All necessary hospital, medical, and nursing services were furnished by the respondent while claimant was hospitalized at the institution. During the year prior to claimant’s hospitalization she received a total salary of $1,367.00. Thereafter, for a period of six months, she received disability compensation in the aggregate amount of $630.00. In addition to the medical, surgical, and hospital services furnished by the respondent, claimant has expended on her own behalf the sum of $325.00. She asks damages in the total sum of $20,000.00.

Dr. Truman Gr. Drake, called as a witness on behalf of claimant, stated that he examined claimant on January 3, 1946, and took X-ray pictures at that time. He stated that claimant’s right lung, anteriorly, was slightly less resonant than the left; and in the left lung, beneath the breast, there were a few moist rales; that gastric washings for tubercular bacilli were negative, but the sedimentation rate was high, indicating a probability of chronic infectious process. The chest X-ray showed a soft opacity in the right lung between the first and second ribs anteriorly, which was interpreted as being a tuberculous lesion. The doctor also testified that subsequent examinations revealed claimant’s temperature always slightly above normal; revealed a consistent elevation of the sedimentation rate; and revealed the right upper lobe lesion to be persistent and without marked change. Dr. Drake stated:

“On clinical grounds, we must consider this case one oí pulmonary tuberculosis, which still retains enough activity to cause constitutional symptoms and which will require constant and careful observation and treatment for a long period to come.”

In a similar case, (Wheeler vs. State, 12 C. C. R. 254), it was held that the State of Illinois may properly be made respondent, in the Court of Claims, in an action for damages for injury to health, resulting from a disease 'contracted by a state employee in the course of his employment, and proximately caused by the State’s negligence, under the terms and provisions of the Workmen’s Occupational Diseases Act. The State not having elected to provide and pay compensation under Section 4 of the Workmen’s Occupational Diseases Act, the employee has a right of action, under Section 3 of the Act. That section provides that violation by an employer of any statute of this State, intended for the protection of the health of employees, shall constitute negligence of the employer within the meaning of the section.

It is apparent from the record that claimant was frequently required to work more than eight hours during any one day, and more than forty-eight hours during any one week. This was a violation of “An Act Concerning the Hours of Employment of Females in Certain Occupations,” (Illinois Revised Statutes, 1943, Chapter 48, Section 5, which provides:

“No female shall be employed ... in. any public or private institution or offices thereof, incorporated or unincorporated in this State, more than eight hours during any one day or more than forty-eight hours in any one week ...”

The violation of this statute by the respondent was clearly a violation of a statute intended for the protection of the health of employees, and constitutes negligence under Section 3 of the Workmen’s Occupational Diseases Act. (Wheeler v. State, supra.)

The claimant has met all of the requirements of Section 3 of the Workmen’s Occupational Dispases Act, and the record amply sustains the allegations of her complaint. She was confined to her bed for a period of approximately twenty-six weeks during her illness. From the time she left "the hospital on November 21,1945, until the hearing before Commissioner Jenkins, on October 18, -1946, she was unable to perform her usual duties. The disease is- still active; her future health is uncertain, and • her present physical condition is not that of a normal young woman of the same age. The court is of the opinion that claimant is entitled to damages under Section 3 of the Workmen’s Occupational Diseases Act in the amount of $2,500.00. An award is therefore entered accordingly.


source: Caselaw Access Project

author: Eckert, C. J.

license: Public Domain

text:
    (No. 3986
    Louisa Ammann, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1947.

    James M. Byrne, for claimant.
    George F. Barrett, Attorney General and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, C. J.

Claimant, Louisa Ammann, is the widow of Louis Ammann,- deceased, formerly employed by the Department of Public Works and Buildings, Division of Highways, as a laborer. On the morning of June 19, 1946, while standing on the running board of a truck which was being towed, the deceased was thrown from the truck, falling backwards, and striking his head on the pavement. Death occurred five hours later. Ammann was married and left him surviving his widow, the claimant, but no children dependent upon him for support. His earnings during the year immediately preceding his death were $1,439.05.

At the time of the accident, which resulted in the death of Louis Ammann, the employer and employee were operating under the provisions of the Workmen’s Compensation Act of this state, and notice of the accident and claim for compensation were made within the time provided by the act. The accident arose out of and in the course of decedent’s employment.

Claimant is-entitled to an award under Section 7 (a) of the Workmen’s Compensation Act in the amount of $4,000.00. The death having occurred as a result of an injury sustained after July 1st, 1945, this amount must be increased 20%, or $800.00.

An award is, therefore, made in favor of the claimant, Louisa Ammann, in the amount of $4,800.00, to be paid to her as follows:

$ 498.00 payable in weekly installments of $16.60 per week, for a period of 30 weeks, which has accrued and is payable forthwith;
$4,302.00 payable in weekly installments of $16.60 per week, beginning, January 16, 1947, for a period of 259 weeks, with an additional final payment of $2.60.

Claimant’s petition for a lump sum award is denied.

All future payments being subject to the terms and conditions of the Workmen’s Compensation Act of Illinois, jurisdiction of this cause is specifically reserved for the entry of such further 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. ’ ’


author: Damron, J.

text:
    (No. 3998
    Louis F. Opel, vs. State of Illinois.

      Opinion filed January 14, 1947.

    Claimant, pro se.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Damron, J.

On November 9,1945, this claimant was a member of a group employed by the Division of Highways in Worden, Madison County. The weather was cold, and the battery of one of the trucks assigned to the group did not have sufficient power to start the motor. It was decided to tow the truck behind another. Since the choke was not operating, claimant was ordered to ride the front end of the towed truck and pour gasoline into the carburetor as the truck was pulled as aforesaid. While the claimant was pouring the gasoline as ordered, the motor backfired setting the gasoline in the carburetor on fire and blowing flaming gas out of the carburetor onto claimant and the front of the truck. Claimant’s face, neck, head, and hands were covered with burning gasoline and burned.

Claimant was at once taken to the St. Francis Hospital, Litchfield, where he was placed under the care of Dr. Harry A. Yaeger. On July 19, 1946, Dr. Yaeger sent the following report to the Division of Highways:

“Final report and resume of the case of Mr. Louis Opel of Worden, Illinois, a State highway employee.
Mr. Opel sustained extensive first to third degree burns on the entire head, face, and neck on 11-9-45, a result of a gasoline explosion. Debridement, antiseptic dressings, and shock therapy were carried out in the emergency room at St. Francis Hospital. Penicillin and sulpha drugs by injection were begun immediately. Dressings were left untouched for several days until febrile reaction indicated a change to wet dressings. These were continued up to December 4th, at which time a large graft 6 x 10 cm. was applied between the vertex and the occiput to cover about one-fourth of the total granulating area. Only this part was grafted because of the fact that a moderate amount of infection persisted which did not respond to the penicillin and sulpha drugs. At least 95% of this grafted area remained viable and grew in good shape. Subsequently on January 17, 1946, the remaining granulating area occupying the left temporal parietal and pre-and-post auricular areas was grafted with a Padgett dermatome split thickness graft. Subsequently it was found that about 85% of this grafted area remained viable. Repeated attempts to epithelize the residual granulating areas met with difficulty. Various agents including red blood cell powder, sulfa and urea powder, silver nitrate, and other usual agents were used. These areas undoubtedly would have responded well to small Thiersch grafts but the patient refused further treatment along this line. As a result it was necessary to continue with the above named agents in the attempt to heal these areas. This was accomplished with considerable difficulty and delay which was previously predicted to the patient. These dressings were applied on an average of four-day intervals. At the present time it is entirely healed. Because of the fact that the patient is bald, there is, fortunately, relatively little disfigurement and in these areas denuded of hair the hair from adjoining areas will suffice to cover to a- considerable extent. In spite of the patient’s objection to the Thiersch grafts which would have terminated the difficulty of repeated dressings, there is very little scarring evident. The skin has practically normal texture and color, and it is difficult to distinguish the burned and grafted areas from the adjoining skin. I feel that the end, result may be considered thoroughly satisfactory and disfigurement minimal.
Disfigurement of the right ear is minimal and confined to the helix. The left ear was severely burned particularly along the helix which shows, as you will notice on the picture, a moderate degree of disfigurement. I would estimate about 20% loss of the helix on the right ear and about 50% on the left ear.”

The claimant, at the request of the Court was present for observation on January 14, 1947, at Springfield.

At the time of his injuries, claimant was sixty-two years of age and had no children under the age of sixteen years dependent upon him for support. He is partially bald. When he is facing you his ears have the appearance of small horns protruding from the upper part of each ear. This is a result of the partial destruction of the helix of each ear. It is more pronounced on the right ear. There is noticeable scar tissue below his chin, on his scalp and above his left ear. These scars are the result of severe third degree burns and are permanent. He will be required to carry them throughout his liftime.

Considering this record, the medical reports, and our personal observation of the claimant, we find as follows:

That the injuries complained of were received in the course of the employment, that due notice was given respondent as required by Section 24 of the Workmen’s Compensation Act; that all necessary medical and hospital expenses amounting to $967.10 were furnished by respondent; that claimant was disabled from the date of his injuries to March 26, 1946, for which he was paid compensation in the sum of $200.42; that his earnings for one year next preceding his injuries totaled-$1,330.15; that his average weekly wage was $25.57 making his weekly compensation rate $15.35; that the scars and disfigurements received by claimant are compensable.

An award is hereby entered in favor of Louis F. Opel, the claimant, as follows:

The sum of Twelve Hundred ($1,200.00) Dollars as provided in Section 8, Paragraph (c) of the Workmen’s Compensation Act to be paid claimant at the rate of $15.35 a week. Of this amount the sum of Six Hundred and Forty-Four Dollars and Seventy Cents ($644.70) has accrued and is payable forthwith in a lump sum. The remainder, amounting to the sum of Five Hundred and Fifty-Five Dollars and Thirty Cents ($555.30), is payable to claimant at the rate of $15.35 a week commencing January 21,1947 for thirty-six weeks with one final payment of Two Dollars and Seventy Cents ($2.70).

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. 2263
    Worden-Allen Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.

    E. V. Champion, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Damron, J.

This cause is now before the Court on motion of the respondent to dismiss the complaint heretofore filed in this cause on November 9, 1933.

The record consists of the complaint, stipulation of facts, reports of the Division of Highways, brief, statement and argument of both claimant and respondent.

From the record we find that the claimant submitted its bid to the Department of Public Works and Buildings, Division of Highways, for the erection of a steel I-Beam Railroad, overhead concrete bridge which was to span the railroad right" of way and tracks of the Chicago Great Western Railroad Company in JoDaviess County, Illinois.

According to specifications this construction work was to be completed on or before October 15, 1932. But due to certain delays on behalf of respondent in negotiating with the Railroad Company, the contract was not awarded to claimant until September 23, 1932, a period of nearly two months after claimant’s bid was submitted. This neglect on behalf of the respondent thereby slowed down the construction work to such an extent that operations on the job did not commence until the middle of October causing construction work to be carried into the cold weather months, therefore the claimant was obliged, according ■ to the standard practice contained in said specifications, to heat materials entering into the concrete and likewise to protect the concrete after it had been poured, all of which increased the cost of construction, hot contemplated by the claimant at the time it submitted its bid, and would not have been necessary had the respondent awarded the contract promptly. When the award was finally made, at the request of the claimant, the termination date for the completion of this project was extended by the respondent to December 8, 1932, and during the course of the construction of said bridge the respondent changed plans and specifications on at least two occasions which caused further delay in its completion.

Claimant contends that as a result of such delays it was caused to expend $1,295.83 above the contract cost which would have been prevented, had the work been done at a time when claimant had every reason to expect it to be done, with the completion date fixed as October 15,1932, as it was at the time claimant submitted its bid. Attached to the complaint and made a part thereof is a bill of particulars, supported by affidavit, showing the additional costs incurred by claimant over and above the contract price.

' The stipulation of facts shows that final inspection on said project was made on August 18, 1933; that final payment of claimant’s estimate was September 16, 1933 and that State Warrant representing said final payment dated September 20,1933 payable to claimant,' in the sum of $290.99, was endorsed and cashed by said claimant, and that said Warrant is now in the files of the State Auditor in Springfield, Illinois. It is not contended by the respondent that the final warrant cashed by claimant included the extra expenses and costs incurred by claimant.

The respondent files its motion to dismiss the complaint on the ground that the claimant having accepted and cashed the final warrant has thereby given respondent a full release from any and all actions arising out of the contract. The motion is based on the following provision contained in the contract:

Division 1, Sec. 9.7. "The acceptance by the contractor of the last payment shall operate as and shall be a release to the Department from all claims or liability under this contract for anything done or furnished or relating to the work under this contract, or for any act or neglect of said Department relating to or connected with this contract.”

Claimant, in answer to the motion to dismiss, contends that this claim is for reimbursement due over and above the contract price for expenses incurred and loss sustained by it due to delays for which claimant contends respondent is liable.

The evidence in this case shows that claimant was an experienced contractor, was acquainted with the standard specifications as contained in the proposals, and was familiar with Section 9.7 of the “Standard Specifications For Road and Bridge Construction”, as adopted by the Department of Public Works and Buildings, January 2,1932. Yet in the face of this knowledge, claimant continued to permit its bid to stand as filed for nearly two months, and accepted the job after it was awarded to it. Claimant completed the work, cashed the final voucher without reservation, other than letters directed to the Division of Highways during the course of construction. This was an attempt to reserve some purported right although Division 1, Section 9.7 of the Specifications, specifically stated that, ‘ ‘ acceptance by the contractor of the last payment shall operate as and shall be a release to the Department from all claims or liability for anything done or furnished, or relating to the work under this contract, or for any act or neglect of said Department relating to or connected with the said contract”.

This Court has passed upon contracts including the ‘ ‘ Standard Specifications for Road and Bridge Construction”, and in claims: such as the one before us, have held that final payment under such a contract constitutes a release of all claims and liabilities under the contract and that an award cannot be made, arising out of such a contract, after final payment has been accepted by the contractor. Henkel Construction Company vs. State, 10 C. C. R. 538; Strandberg and Son Co. vs. State, 13 C. C. R. 49; Pickus Engineering and Construction Co. vs. State, 13 C. C. R. 39; Richardson vs. State, 14 C. C. R. 3.

After considering the record before us, we conclude that the claimant has no right of recovery.

The motion of the Attorney General to dismiss the complaint is well founded in law and is therefore allowed. Complaint dismissed.


text:
    (No. 3330
    Patrick J. Duignan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.

    Victor N. Cardosi, for claimant.
    George F. Barrett, Attorney General and William L. Morgan, Assistant Attorney General, for respondent.
   Damron, J.

The complaint was filed November 10, 1938; hearing completed on December 3, 1946 and the transcript filed on December 31, 1946.

No jurisdictional questions are involved. It is stipulated that the claimant and respondent were governed by and operating under the Workmen’s Compensation Act and that the accidental injuries arose out of, and in the course of claimant’s employment.

The complaint asks that claimant be awarded (1) such compensation for permanent disabilities as the evidence may show he is entitled to receive under the provisions of the Workmen’s Compensation Act, and (2) reimbursement of $357.02 expenses paid and incurred for medical, surgical and hospital treatment at the- Mayo Clinic, Rochester, Minnesota; transportation expense to and from claimant’s home to Rochester and $39.52 expenses of eight trips to the Illinois Research Hospital.

The record discloses that claimant, Patrick J. Duignan, on November 12, 1937 was employed by the Department of Public Welfare as an attendant at Manteno State Hospital. His wages were $52.50 per month, plus maintenance — the value of which is $24.00 per month.

While watching patients standing, in the supper line, claimant was struck and knocked down, without warning, by a patient. He immediately reported to the hospital at the institution where he received emergency first-aid attention and was confined to bed. An x-ray examination revealed claimant had a fracture of the left zygomatic process. He returned to work about a week later and on December 13, 1937 was admitted to the Illinois Research Hospital having been referred there by the officials at Manteno. X-rays disclosed fracture of the left malar bone with downward displacement of the lower orbital ridge whereupon an operation was performed exposing the zygomatic arch, the arch was lifted by instrumentation and the wound closed. He was discharged on December 22, the hospital report stating, “that while the depression had not been completely removed, yet his appearance was much improved.”

Claimant testified he was unable to work following the last operation owing to severe pain in his head.

He was absent from work about three weeks and then returned and worked another three weeks. He could not recall whether he worked from that time until he went to Rochester in August of the following year. He had been left with a large depression on the left side of his face and in an effort to correct this disfigurement in August 1938, he went to the Mayo Clinic in Rochester where an operation was performed which failed to eliminate the disfigurement.

After leaving the State’s employ in January 1938, he requested Dr. Hinton to provide further medical treatment but was merely told that he had been discharged by the Illinois Research Hospital.

He went into business with his father in 1938 but could not recall whether it was before or after going to Rochester. In 1940 he enlisted in the Canadian Army serving three and a half years and then joined the United States Armed Forces where he served in the infantry. No evidence was offered by claimant as to his present occupation or earnings.

It is obvious from this somewhat detailed statement of all the evidence that the record is insufficient to show that claimant has sustained either temporary total, or permanent partial, disability for which he is entitled to any compensation. Any award given for such disability would necessarily rest upon mere speculation, surmise or conjecture and therefore must be denied. Cross vs. State, 13 C. C. R. 174 at 178.

The proof is also entirely too vague to establish claimant’s right to reimbursement for the surgical, hospital and other expenses he incurred in connection with his treatments at Rochester, Minnesota or to dispel the reasonable inference that claimant voluntarily elected to obtain these services at his own expense.

Having been referred to the Illinois Research Hospital for further treatment by his superiors at Manteno he is clearly entitled to reimbursement of the $39.52 transportation expense for the eight trips he was required to make to that institution.

In addition to the above claims resolved as aforesaid, claimant also seeks compensation for the serious and permanent disfigurement to his face. The record, based upon the Commissioner’s observation of claimant, described that disfigurement as an indented puckered sear of purplish discoloration approximately 2% inches long, extending under the orbit of the left eye from the hair line to a point immediately under the pupil of the eye, with a marked depression of the left cheek toward the upper line of the jaw. This disfigurement having remained in this condition for over nine years, there is no good reason to assume there will be any improvement in claimant’s condition. ,

Claimant having suffered disfigurement as a direct result of an accidental injury which arose out of, and in the course of, his employment, he is entitled to an award.

The Commissioner on the basis of his observation recommends that claimant be awarded compensation under Section 8(c) in the sum of $485.65 computed at the rate of $8.83 (claimant’s weekly compensation rate on the basis of $918.00 annual earnings including maintenance) for a period of 55 weeks.

An award is hereby entered in favor of claimant in the sum of Five Hundred Twenty Five Dollars Seventeen Cents ($525.17) which includes $39.52 transportation expenses incurred in connection with medical and hospital treatment at Illinois Research Hospital and $485.65 under Section 8(c) of the Workmen’s Compensation Act, as amended, for serious and permanent facial disfigurement, all of which has accrued and is payable forthwith.

A. M. Rothbart, Court Reporting Service, 120 South LaSalle Street, Chicago, Illinois, was employed to take and transcribe the evidence in this ease and has rendered a bill in the amount of $24.80. The Court finds that the amount charged is fair, 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. 3644
    (No. 3645
    (No. 3646
    (No. 3647
    Alexander, Steele, Robert Moran, Robert Eckart, Ed Bleimehl, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.

    Harry C. Kinne, Chicago, Illinois, Attorney for claimants.
    George F. Barrett, Attorney General, and Wm. L. Morgan, Assistant Attorney General for respondent.
   Damron, J.

The above complaints were filed by' the respective claimants on October 21,1941.

The claimants and respondent by their respective attorneys filed a stipulation herein on January 4, 1947, whereby they ask to consolidate the aforesaid claims. It is further stipulated that the record shall consist of the report of the Director of the Department of Conservation dated November 18, 1941.

The evidence as disclosed by the record as above . stipulated establishes that each of. the claimants during the month of February 1941, and for a varying number of preceding months were, and had been, continu- . ously employed as tree surgeons by the Department of Conservation. Their services were terminated on February 8, 1941. They were employed pursuant to an oral agreement at “a salary of $125.00 per month, and expenses consisting of room and board and railroad fare to and from their respective places of residence in Winnetka, Wilmette, and Highland Park, and their various places of employment”.

The claimants rendered an account of expenses each month to the Department of Conservation and such expenses were paid during their entire .period of employment except for the month of January 1941, (and in one ■ instance a few days in February). The only reason given for refusing to approve the vouchers for these .field expenses incurred after January 1, 1941 was that it was. “felt that claimant’s headquarters should have been the point at which they were working”. This, of course, was a departure from, and at variance with, the terms of the employment and claimants had been given no notice of any such change prior to the time they incurred this expense.

It is not controverted, but on the contrary admitted, of record, as stipulated, that it was a condition of claimant’s employment that they were to 'be allowed their travelling and maintenance expenses when, actually engaged in work away from their homes, and moreover were so paid during their entire period of employment except for the period from January 1 to February 8 when their employment was terminated.

The amount of reasonableness of such expenses or that they were not actually incurred in good faith as itemized in the signed vouchers duly presented by the claimants, has never been questioned. The services fur- ’ nished by these claimants and the expenses which constitute the basis of their present claims were properly and duly authorized. The services were performed and the expenses incurred pursuant to such authorization and during the time the same were authorized. Vouchers were submitted with due diligence and claimants through no fault of their own were not paid, although, when the services were rendered and charges incurred, there remained a sufficient unexpended balance in the appropriation from which payment could have been made. Payment of these claims is to be distinguished from payment of additional' compensation for personal services. already performed and for which remuneration had already been paid. Claimants ’ regular salary vouchers for the month in question never included or purported to constitute payment of these expenses as itemized on their separate expense vouchers.

"We find that claimants are entitled to an award. An award is therefore made in favor of: Alexander Steele, claimant, in the sum of $61.98; Robert Moran, claimant, in the sum of $88.14; Robert Eckart, claimant, in the sum of $79.00; Ed Bleimehl, claimant in the sum of $82.95.


text:
    (Nos. 3804, 3903, 3941
    Edward J. Barrett, Claimant vs. State of Illinois, Respondent. Great American Indemnity Company of New York, a corp. Claimant, vs. State of Illinois, Respondent. Edward J. Barrett, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.

    Nash, Ahern, McDermott & McNally, of Chicago, for Claimant, Edward J. Barrett.
    Moses, Bachrach & Kennedy, Mr. Felix Visk, of Counsel, for Claimant, Great American Indemnity Company of New York.
    Arrington, Fiedler & Healy, (Mr. George Fiedler & Mr. Thomas Amberg, of Counsel) for Claimant, Edward J. Barrett.
    George F. Barrett, Attorney General, and Wm. L. Morgan, Assistant Attorney General, for respondent.
   Eckert, C. J.

On June 1, 1943, the claimant, Edward J. Barrett, filed Ms original claim in this court. (Case No. 3804). Thereafter, and until November 15, 1944, he was absent from the State of Illinois, serving as a member of the United States Marine Corps. His claim was subsequently held to have been prematurely filed because of the pendency of litigation in the Superior Court of Cook County. (Barrett vs. State of Illinois, 13 C.C.R. 13). That litigation, has since been terminated.

On February 1, 1945, the claim of the Great American Indemnity Company of New York was filed, (Case No. 3903), and on December 14, 1945, Edward J. Barrett filed a claim for the use and benefit of the Fidelity & Casualty Company of New York, a co-surety, with the Great American Indemnity Company of New York, (Case No. 3941). The subject matter of the three claims being the same, on September 12, 1946, the cases were consolidated. Evidence in the consolidated cases was taken on September 18, 1946 before Commissioner East.

The Great American Indemnity Company now asks leave to withdraw its claim. Such leave is hereby granted, and the claim of the Great American Indemnity Company of New York, ease No. 3903, is dismissed with prejudice.

The claims of Edward J. Barrett, claimant in cases No. 3804 and 3941, are based on the following facts: on November 4, 1930, Edward J. Barrett was elected Treasurer of the State of Illinois for a two year term beginning January 1,1931. On December 9,1930, he applied to the Fidelity & Casualty Company of New York to sign his official bond as a co-surety with the Great American Indemnity Company of New York, and on December 24,» 1930, he executed a second application to the Fidelity & Casualty Company of New York to sign an additional bond, likewise with the Great American Indemnity Company of New York as co-surety.

Both bonds were signed, and each was in the penal sum of $500,000.00. Each application contained an indemnifying agreement which provided that the applicant would “indemnify the Company against any losses, damages, costs, charges and expenses it may sustain, incur, or become liable for in consequence of said bond or any renewal thereof, or any new bond issued in continuance thereof or as a substitute therefor.” The Fidelity & Casualty Company of New York subsequently issued the two bonds requested, with the Great American Indemnity • Company of New York as co-surety. Premiums in the amount of $4,000.00 were paid by the State of Illinois; the bonds were filed in the office of the Secretary of State, and were duly approved by the Governor and two justices of the Supreme Court, all in accordance with statutory requirements. The bonds remained in full force" and effect from the date of their filing until the expiration of Mr. Barrett’s term of office on January 9,1933.

On December 10, 1937, a suit was started in the Circuit Court of Sangamon County, Illinois, by American Legion Post No. 279, against the Fidelity & Casualty Company of New York, the Great American Indemnity Company of New York, and others, as defendants. On December 14, 1937 a suit was also started in the United States District Court, Southern Division, in and for the Southern District of Illinois, by Gordon L. Seeger, naming the Fidelity & Casualty Company of New York, and the Great American Indemnity Company of New York, and others, as defendants. In each suit it was alleged that Edward J. Barrett, and the Fidelity & Casualty Company of New York and the Great American Indemnity Company of New York were liable on the official bonds of Edward J. Barrett to the creditors of the Ayers National Bank of Jacksonville, Illinois, which had become insolvent in November, 1932, for the proceeds of certain securities of that bank. These securities were alleged to have been wrongfully deposited by the bank as a pledge to secure moneys of the State of Illinois deposited with the bank prior to its insolvency, in an amount of approximately $1,800,000.00. The complaints charged that Edward J. Barrett, as State Treasurer, had converted these funds when he liquidated the securities in his official capacity.

Subsequent to the service of summons upon the bonding companies, they notified Mr. Barrett of the pendency of the suits, and that they would expect reimbursement for any loss or expense incurred by reason of the litigation. Although Mr. Barrett was represented by the Attorney General of the State of Illinois, the bonding companies,' by their own counsel, moved to strike the complaints and dismiss the suits. The motion to dismiss was granted by the Circuit Court of Sangamon County, Illinois, and, upon appeal to the Supreme Court of Illinois the action of the trial court was affirmed. (American Legion Post vs. Barrett, 371 Ill. 78). The suit in the United States District Court was also subsequently dismissed.

The claimants now allege that the interests of the several defendants differed in the litigation; that it was necessary for the bonding companies to employ their own counsel for their defense; that because of these suits, the Fidelity & Casualty Company of- New York sustained losses, damages, costs charges and expenses amounting to $17,541.70; that Edward J. Barrett became liable to indemnify the Fidelity & Casualty Company of New York on account of such" losses, costs, charges and expenses; that the Fidelity and Casualty Company of New York has demanded reimbursement from Mr. Barrett, and that although morally and legally liable for the payment of this money, Mr. Barrett is financially unable to pay it; that because the liability was incurred by Mr. Barrett in his official capacity as Treasurer of the State of Illinois, because the bonds were given to satisfy a statutory requirement, and because the premiums for the bonds were paid by the State, the liability is the liability of the State. Mr. Barrett further alleges, that, in incurring this liability, he was acting as an agent for the State; that such liability should be absorbed by the State; and he seeks an award for the use of the Fidelity & Casualty Company of New York in the amount of $17,541.70-to discharge the liability which it has- asserted against him.

The suit in the Circuit Court of Sangamon County, which was subsequently appealed to the Supreme Court of Illinois, was based upon the theory that the Deposit Act of Illinois was unconstitutional; that the Ayers National Bank of Jacksonville, Illinois, had no power to pledge assets with the State Treasurer of Illinois to secure the deposit of State funds; and that the State Treasurer, in selling the securities held as collateral to the deposit, and applying the proceeds in payment of the deposit, was guilty of conversion.

' Admittedly, Mr. Barrett had proceeded in accordance with statutory requirements. But, had the Illinois court reached a contrary decision, Mr. Barrett and his sureties would have been subjected to a liability of $1,000,000.00. On the other hand, through Mr. Barrett’s prompt compliance with the statute, the State benefited to the extent of more than $1,000,000.00, the other creditors of the insolvent bank having received only 25% of their claims. The expenses incurred by Mr. Barrett arid his sureties were thus incurred for the benefit of, and because of acts done for, the State of Illinois.

Mr. Barrett’s claim is therefore a claim for charges incurred by him in the discharge of his official duties as State Treasurer of Illinois, in the discharge of official duties for the benefit of the State. It is clearly a claim which the State, as a sovereign commonwealth, should discharge and pay. It is unthinkable that an elected state official, acting lawfully and in good faith, in- pursuance of the statutes of the State, should be called upon to pay personally expenses of litigation brought against him in his official capacity, expenses which are clearly expenses of the State itself, and in no sense individual or personal. -

The award prayed in this suit, in the amount of $17,541.79, includes attorneys fees of $17,500.00 and expenses of $41.07 paid by the Fidelity & Casualty Company of New York, to Wilson & Mcllvaine, of Chicago, and to Brown, Hay & Stephens, of Springfield. These attorneys handled the case in both the Circuit and Supreme Courts. Preparation in the trial court was necessarily complete and extensive. Briefs were filed, and oral argument was had before the trial judge. In the Supreme Court likewise, a large amount of time and effort was expended because the case involved important points which had few if any direct precedents. The briefs filed on behalf of the claimants, on the appeal to the Supreme Court, form part of the record in this case. From these briefs, and from the opinion of the Supreme Court, it is obvious that the issues were many and complicated, and that the questions determined in the case were involved and serious. The decision of the Supreme Court was an important decision in that it approved the legislative policy of requiring the protection of deposits of the State from losses which otherwise might be incurred in the event of the failure of banks designated as State Depositories. The record clearly establishes that the time expended by counsel was necessary for the proper presentation and defense of the case. The hourly charge of $15.00 was reasonable for a case involving the whole history of the banking law of Illinois, and the constitutionality of the Illinois Deposit Act, and for legal counsel of high competence.

This court is of the opinion that the Fidelity & Casualty Company of New York, because of the size and importance of the litigation was fully justified in engaging separate counsel for defense of the suits in question; •that the charges incurred in the employment of such counsel were both necessary and reasonable. The court is further of the opinion, that under the provisions of the indemnifying agreement the Fidelity & Casualty Company of New York is entitled to reimbursement for the costs and 'charges so incurred; that the obligation is properly that of the respondent and not of Mr. Barrett personally.

An award is therefore entered in the amount of $17,-541.70 in favor of Edward J. Barrett, for the use of the ■

Fidelity & Casualty Company of New York.


text:
    (No. 3861
    Ruth C. Marshall, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.

    Frank R. Eagleton, for claimant.
    George F. Barrett, Attorney General for respondent, C. Arthur Nebel, Assistant Attorney General, of counsel.
   Damron, J.

On June 27, 1944, Ruth C. Marshall filed her complaint in this Court, alleging that on August 16, 1941 she was a duly certified employee of the respondent under the Civil Service Act. The complaint alleges that she was employed as a Junior Clerk in the Retailers’ Occupation Tax Division of the Department of Finance, and on the last mentioned date received a “layoff notice” effective August 18, 1941; that the reason for said lay-off was “retrenchment-inadequate appropriation”.

It is further alleged in said complaint that on or about September 19, 1941, she was given suspension notice, the reason therefor being that she sought to affect the result of an election and took an active part in political campaigns contrary to the rules of the Illinois State Civil Service Commission. It is further alleged that on September 26, 1941, written charges were filed with the Illinois State Civil Service Commission by the Director of Finance and that she was given notice thereof by the mailing of a copy to her at her home address.

It is further alleged that a hearing was held before the Civil Service Commission on the 24th day of January 1942 as a result of which the removal of the claimant from her position was directed, a copy of which decision was mailed to her. She alleges in her complaint that during all of this time she held herself available for work and tendered her services to the respondent.

The questions for this Court to Determine are (1) Did the respondent have the legal right to suspend her on August 18, 1941 due to lack of funds and (2) Were the charges before the Civil Service Commission legally presented and its decision properly rendered.

Chapter 24½ (Civil Service) Par. 14a, Ill. Rev. Stat. 1945 provides, “whenever it becomes necessary, through lack of funds or work, or other cause, to reduce the force in any employment in any department, the person who was last certified to said employment shall be first laid off. . . . Any employee whose position has been abolished through lack of work or funds, may, upon application, have his name placed on the reinstatement list from which he was appointed according to the examination and seniority of his classification. ...”

Under this section of the Statute, the respondent had the authority to lay off this claimant due to lack of.funds. Claimant contends in her brief, statement, and argument that sufficient funds did exist at the time the lay-off notice was served upon her but there is no proof in the record supporting this contention and the burden of proof was upon her to prove this fact.

The remaining question to be decided by this Court is whether or not she was lawfully discharged in accordance with the provisions of the Civil Service Act by the Civil Service Commission on written charges for taking an active part in political campaigns.

The record discloses that charges were preferred against this claimant for political activity and that notice of said charges was directly served upon claimant, that a hearing was had, testimony offered in support of the charges; that claimant was represented by counsel at said hearing but offered no evidence on her behalf. The charges were sustained according to the report of the President of the Illinois Civil Service Commission which is a part of this record; thereafter, claimant failed to request a rehearing of the Civil Service Commission and did not appeal from the findings of said Commission in the manner provided by the Statute.

Claimant cites the case of Hatcher vs. State, 12 C.C.R. 304 and Rogers vs. State, 14 C.C.R. 152 in support of her position that she is entitled to recover her wages trom the time of her lay-off to the time of her suspension notice. The Hatcher case, supra, is a claim under the Workmen’s Compensation Act and -has no bearing on this claim. In the Rogers case, claimant was illegally discharged by her employer without the prior consent of the Civil Service Commission and was later re-employed. The record discloses that she was wrongfully prevented from performing her dutiés to which she was assigned. This case is not in point. Here we find this employee, Ruth C. Marshall, was first laid-off for a period of one month due to lack of sufficient funds to pay her. This action was proper under the Statute. During this lay-off period, charges were filed against her for political activity. These charges were sustained by the Civil Service Commission. Claimant was duly represented by counsel at the trial, no appeal was filed and the findings of the Commission are now in full force and effect.

In Huwald vs. State, 12 C.C.R. 305, we held where an employee under Civil Service is discharged, and the order of discharge is not set aside by the Commission on complaint filed by the employee and heard by it, such discharge is effective from the date made and not from the date of the final hearing on the complaint. The burden of proof rests upon this claimant to prove her right to an award by clear preponderance of the evidence and having failed to do so, this claim for wages in the sum of $800.00 from September 18, 1941 to February 7, 1942 inclusive, must be denied for the reason that claimant was lawfully discharged under the provisions of the Civil . Service Act.


author: Bergstrom, J.

text:
    (No. 3914
    Effie Sperry, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.

    Roy H. Glockhoff, for claimant.
    George, F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Bergstrom, J.

Claimant, Effie Sperry, was employed at the East Moline State Hospital, East Moline, Bock Island County, Illinois. On November 11, 1944 while so employed and in the discharge of her duties* a patient attacked claimant and dragged her around the room, and in the course of said altercation claimant suffered a fracture of her left hip. That immediately after the said injury Dr. Walton Tackett, a physician in the State Hospital was notified of said injury, and the claimant was hospitalized at the East Moline State Hospital. That Dr. Louis Daniel Bar ding, a licensed physician in the City of East Moline was also called and assisted in reducing said' fracture, and thereafter, from time to time administered treatment to the claimant. That while claimant was convalescing, she fell from the bed in.said institution and suffered another fracture of said left hip in substantially the same place. Claimant remained under the care of Drs. Tackett and Bar ding .until July 23, 1945, when she was discharged from the hospital. She was taken to the home of her daughter-in-law, where she remained in a wheel chair until Christmas of 1945, when she started walking by pushing a chair around in front of her, and as the "leg became stronger she later could walk with the aid of a cane.

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

At the time of the injury claimant was 64 years of age and had no children under the age of 16 years dependent upon her for support.

The evidence shows that claimant, at the time of her - injury, was receiving $120.00 per month, or $1,440.00 per year. Claimant’s compensation rate is, therefore, $16.27 per week. The record shows that claimant incurred temporary total disability until. July 23, 1945 and is entitled to compensation from November 12, 1944 to July 23, 1945, a period of 36-1/7 weeks at a compensation rate of $16.27 per week, or the sum of $588.04. From this amount should be deducted the sum of $532.70 which claimant received for non-productive time, leaving a balance due her of $55.34 for temporary total disability.

Respondent paid for the medical and hospital services rendered the,claimant, excepting the charges of Dr. Louis Daniel Barding amounting to $279.00, which has not been paid.

■ Claim is made for complete and permanent disability. Claimant, testifying in her own behalf, stated that she can walk around the house provided she holds on to something or uses a cane, but can’t get along without support. This is also substantiated by the testimony of her daughter-in-law, and Dr. Barding testified that claimant had a shortening of the leg and that the hip joint was quite stiff; that, in his opinion, this condition would be permanent, and that she would require a cane or some kind of support permanently. He last examined her about the time she was discharged from the hospital, at which time he came to his conclusion with respect to the permanent character of her injuries.

From the evidence, the Court is of the opinion that claimant is entitled to an award for the total loss of the use of her left leg. Under the provisions of the Workmen’s Compensation Act she is, therefore, entitled to an award computed on the basis of $16.27 per week for 190 weeks, or $3,091.30, plus $55.34 balance due for temporary total disability, a total of $3,146.64, plus the sum of $279.00 payable to Dr. Louis Daniel Barding, East Mo-line, Illinois for medical services, plus the sum of $53.24 payable to Arne N. Bufe, 2508 23rd Ave. Ct.,. Moline, Illinois for reporting the testimony at the hearing before Commissioner Jenkins.

An award is therefore entered in favor of claimant, Effie Sperry, in the sum of $3,146.64 payable as follows:

$1,470.83, which has accrued and is payable forthwith; '
$1,675.81, payable in weekly installments of $16.27 beginning March 31, 1947 for a period of 103 weeks.

An award is also entered in favor of Dr. Louis Daniel Bar ding for medical services in the sum of $279.00, which is payable -forthwith.

An award is also entered in favor of Arne 1ST. Bufe for stenographic services in the amount of $53.24, which is payable forthwith.

This award is subject to the approval of the Governor as provided in Section 3 of 11 an Act concerning the payment of compensation awards to State employees.”


text:
    (No. 3923
    Leopold Cohen Iron Co. a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.

    George B. Cohen, for claimant.
    George F. Barrett, Attorney General and Wm. L. Morgan, Assistant Attorney General, for respondent.
   Eckert, C. J.

The claimant, Leopold Cohen Iron Company, is engaged in the scrap iron business, and operates under the Workmen’s Compensation Act of this State. On Januarx" 28, 1935, the claimant made an agreement with the Illinois Industrial Commission, by the terms of which claimant deposited with the Illinois Industrial Commission One Hundred Dollars ($100.00) in cash, and agreed to deposit the further sum of Fifty Dollars ($50.00) per month. The agreement was executed pursuant to the provisions of the Workmen’s Compensation Act to qualify claimant as a self insurer. The moneys so deposited were to be held by the Illinois Industrial Commission as a guarantee for the payment of any sums found by process of law to be due to • the employees of the claimant under the Workmen’s Compensation Act. The agreement further provided that the moneys would be surrendered to claimant upon presentation to the Illinois Industrial Commission of a certificate or a statement signed by the Illinois Industrial Commission and the claimant that no payments were due or unpaid from the claimant to its employees or others under the Workmen’s Compensation Act.

A total of Five Hundred Dollars ($500.00) was deposited by the claimant with the Commission; the receipt of the moneys was duly acknowledged by the Commission; and all the moneys were paid to L. J. O’Connell, then Chief Security Examiner for the Commission.

On April 7,1942, claimant was advised by the Illinois Industrial Commission that said L. J. O’Connell had converted the money of the claimant, as well as that of other self-insurers, to his own use. Claimant, having at that time insured itself in a responsible carrier of insurance against compensation claims, and having made the necessary proof of such insurance to the Commission, demanded the return of the Five Hundred Dollars ($500.00). The money not having been returned to claimant, claim was filed herein on July 23, 1945, seeking an award for the amount of the deposit.

On October 15, 1946, testimony was taken before Commissioner John L. Bast, Jr. The facts were not controverted, and were amply supported by documentary evidence introduced by the claimant.

The deposit of money by claimant with the Industrial Commission was an involuntary transaction, required by the law of Illinois before claimant could do business in this state. (Illinois Revised Statutes 1941, Chap. 48, par. 172.26) The Industrial Commission was authorized by law to enter into the contract with the claimant (Pinkerton’s Nat. Detective Agency vs. Fidelity (& Deposit Co., 138 Fed. 2d. 469. In the case of J. Roy Browning vs. State of Illinois, No. 3788, ante, a claim based on facts very similar, claimant was granted an award. That case is controlling here.

An award is therefore entered in favor of the claimant in the sum of Five Hundred Dollars ($500.00).


text:
    (No. 3924
    Katie Wright, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.

    John F. Gibbons, for claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, C. J.

On May 20th, 1944 the claimant, Katie Wright, employed by the respondent as an Institution Worker at the Alton State Hospital, Alton, Illinois, while carrying a pan of water from the dining room of the hospital to an adjoining kitchen, slipped and fell, sustaining a fracture of the descending ramus of the left pubis. She was hospitalized at the institution, but the following day went to St. Joseph’s Hospital, Alton, Illinois for treatment. On May 26th she was removed from the hospital to the home of her daughter, Mrs. B. J. Schaefer,' where she was confined to her bed until November 9, 1944.

At that time, claimant’s condition not having improved, she returned to St. Joseph’s Hospital for diathermic and other treatment, and remained in the hospital until December 9, 1944 when she went hack to her daughter’s home. She remained in bed there until the spring of 1945.

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

During the year immediately preceding the injury claimant’s earnings were $1,320.00. Her compensation rate, therefore, would be 50% of $25.38, or $12.60., The injury having occurred subsequent to July 1, 1943, this must be increased 17%%, making a compensation rate of $14.91. Claimant was paid by the respondent for nonproductive time the sum of $408.81.

Claimant seeks an award for the following bills which she has paid:

C. N. Streeper, Alton, Illinois ambulance service.............. $ 5.00
St. Joseph’s Hospital, Alton, Illinois..............i.......... 15.00
Prescription Shop, Alton, Illinois, medicines.................. 49.30
$74.30
For the following bills which have not been paid:
Dr. Paul O’Neill, Alton, Illinois.............................. $ 75.00
Dr. Kenneth E. Little, Alton, Illinois......................... 60.50
Dr. C. E. Merkle, Alton, Illinois.............................. 42.00
Dr. H. P. McCuistion, Alton, Illinois.......................... 35.00
Dr. Lewis Waechter, Alton, Illinois____’........................ 358.00
St. Joseph’s Hospital, Alton, Illinois.......................... ' 413.50
Mrs. B. J. Schaefer, Alton, Illinois nursing, etc............... 2,164.00
$3,138.00

For total disability from May 20, 1944, 315 weeks at $14.91 per week, and one week at $3.35, and thereafter an annual pension for life.

Claimant testifying on her own behalf stated that, during her convalescence, when she was not hospitalized, she stayed in her dáughter’s home, duning which time her daughter took care of her; (that from the time of the accident, until June, 1945, she was unable to walk alone. She testified, at the time of the hearing that she was then able to walk by herself, but that she was not able to do any work; that she could not use her hand at all; that both her legs continued to trouble her; that at times, she can not sit very long; that she lies down several times a day. On cross-examination she stated that previous to her employment by the respondent she lived with her daughter; that when she left the Alton State Hospital, the day after the accident, she did so because, “I wanted to come closer to home. I wanted to go to my daughter’s home. I did not go to my daughter’s house, but went to the hospital at St. Joseph’s.” When asked whether or not the officers, of the Alton State Hospital recommended that she leave the hospital, she answered, “No, I just told Dr. Strossman I was going to St. Joseph’s.” She stated that one of the. reasons she left the institutio.n was because “it was too hard for my daughter to get out to see me.” She also testified to the employment of several doctors, all of whom were of her own choice.

Mrs. B. J. Schaefer, testifying on behalf of claimant, stated that she was Mrs. Wright’s daughter; that she had presented her mother with a bill amounting to $2,164.00 for services rendered from May 26,1944 to April 1,1945; that the bill included board and room for forty weeks at $10.00 per week, and included nursing services of $5.00 per day for 98 days, from May 26, 1944 to August 31, 1944; of $7.00 per day for 69 days, from September 1, 1944 to November 9, 1944, and of $7.00 per day for 113 days, from December 9, 1944 to April 1, 1945. Mrs. Schaefer testified that during the 40 weeks, for which she charged $10.00 per week for board and room, it was necessary to give her mother a special diet; that she was not a registered nurse, but considered herself a practical nurse. On cross-examination she stated that she had not done practical nursing outside of her own home; that she is married and living with her husband and two children.

Dr. H. P. McCuisition, a witness for claimant, testified that he first saw claimant on May 21, 1944, at St. Joseph’s Hospital; that from his examination at that time he found she had a fracture of the descending ramus and the left pelvis. He stated that the fracture was set, and rest in bed was prescribed. He had not seen claimant since the 26th of May, 1944.

Dr. C. E.' Merkle, a witness for claimant, testified that he first saw claimant on November 10,1944; that his examination at that time disclosed that claimant had two knees in a semi-flexed position from having been in bed for some months; that it was difficult and painful for claimant to extend or flex the knees to a normal position; that there was no increase in, or swelling of the knees, and that an X-ray did not show a Rheumatoid arthritic condition. Claimant did have some swelling of the right wrist and hand, but the doctor attributed it to a disuse of the joints. He had not seen claimant since November 20,1944.

Dr. P. J. O’Neill, testifying for claimant, stated that he first saw claimant at St. Joseph’s Hospital on November 20, 1944, and treated her for a period of three or four weeks; that during the time claimant was immobilized in bed, following her injury, to permit healing of the fractured pelvis, she developed a disuse-atrophy of the muscles of the legs, and a Rheumatoid condition of the right wrist and hand. The doctor stated that the immobolization made necessary by the injury probably had aggravated an arthritic condition, which had become permanent.

At the conclusion of the testimony before Commissioner Jenkins, the attorney for claimant stated that Dr. Lewis Waechter had advised claimant he wished to withdraw his statement for services to claimant, and that he desired to make no charge for such services. He refused to testify voluntarily, and neither claimant nor her counsel desired to subpoena him.

From the record, and from the personal observation of the claimant by the commissioner, the court finds, that as a result of her injury, claimant is totally disabled. She is, therefore, entitled to an award in the amount of $4,000.00. The injury having occurred after July 1, 1943, this must be increased 17%%, making a total of $4,700.00, and thereafter an annual pension for life of 8% of $4,-700.00, or $376. The sum of $408.81, paid to claimant by respondent for non-productive time, must, however, be first deducted.

No award can be made on account of medical, hospital, or nursing services since it is clear from the record that the employee elected to secure such services at her own expense.

Peggy Hamby has rendered a statement in the sum of $35.80 for the taking and transcribing of the evidence. This charge is fair and reasonable.

An award is therefore entered in favor of Peggy Hamby for taking and transcribing the testimony in this case in the amount of $35.80, and an award is entered in favor of claimant, Katie Wright, in the amount of $4,-291.19, as follows:

$2,206.68, accrued, is payable forthwith;
$2,084.51, is payable in weekly installments of $14.91 for a period of 139 weeks, beginning March 31, 1947, with a final payment of $12.02; thereafter an annual pension of $376.00 payable in monthly installments of $31.33 during the term of her natural life.

This court hereby retains jurisdiction of this cause for the making of such other and further orders herein that may be necessary in accordance with the provisions of the Workmen’s Compensation Act.

•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. 3938
    William C. Lange, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.

    Leonard W. Stearns, for claimant.
    George F. Barrett, Attorney General, Wm. L. Morgan, Assistant Attorney General, for respondent.
   Eckert, C. J.

On November 24, 1944, claimant, William C. Lange, while employed by the respondent as one of a group of four men assigned to pavement crack-filling operations on S.B.I. Route 4A in the vicinity of Austin Boulevard in the City of Chicago, lost his footing and fell from the running board of a truck. The right rear wheel of' the truck passed over claimant’s left leg, fracturing and exposing the bones just above the ankle.

Claimant was immediately taken by ambulance to the Holy Cross Hospital, where it was found that no beds were available. The hospital rendered first aid, and called Mr. Lange’s wife, who in turn called their family physician, Dr. E. Odean Bourque. In accordance' with Dr. Bourque’s instruction, claimant was then transferred to the Mother Cabrini Memorial Hospital.

Claimant remained under the care of Dr. Bourque, who was assisted in his treatment by Dr. S. Mirabella and Dr. E. J. Berkheiser, until October 4, 1945, when Dr. Bourque advised claimant to return to work. While in the Mother Cabrini Memorial Hospital, claimant occupied a private room, and had private nursing services, furnished at the request of the respondent.

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

At the time of the injury, claimant had no children under sixteen years of age dependent upon him for support. He was first employed by the respondent at a wage rate of sixty-five cents an hour on October 3, 1944; he worked eight hours per day, 5% days per week. Employees engaged in the same capacity as Mr. Lange worked regularly throughout the year and earned an average weekly wáge of $29.34. Claimant’s compensation rate is therefore $17.24 per week. No claim is made for temporary total disability, the respondent having paid claimant at the rate of $17.24 a week, for the period of November 23, 1944, to October 3, 1945, inclusive, being a total amount of $770.87.

Respondent also paid on behalf of claimant the following medical and hospital services:

Dr. N. (Mean Bourque, Chicago.............................. $1,091.00
Dr. H. B. Thomas, Chicago................................... 15.00
Mother Cabrini Memorial Hospital, Chicago..................'. 389.05
William C. Lange (expenses), Chicago....................... 139.37 $1,634.42

Claim is made, however, for special nursing services in the amount of $73.50, and for hospital services in the amount of $189.00 paid by claimant, and for which he should be reimbursed.

Claim is also made for permanent partial loss of use of claimant’s left leg. Claimant, testifying in his own behalf, stated that the leg will not bear the same weight it was able to bear prior to the injury; that since the injury, he is not able to,be on his feet for more than an hour at a time; that his left foot is so swollen that his left shoe is two sizes larger than the shoe worn on his right foot.

From this testimony, and from the report of the Division of Highways, which forms a-part of the record in the case, it appears that claimant has suffered a one-third loss of use of his left leg. Under the provisions of the Workmen’s Compensation Act of this State, he is, therefore, entitled to an award computed on the basis of $17.24 per week for -63-1/3 weeks, or $1,091.87; plus the sum of $41.30 payable to A. M. Eothbart and Associates for reporting the testimony at the hearings before Commissioner East; and plus the sum of $262.50 reimbursement for hospital and nursing services.

An award" is therefore entered in favor of A. M. Eothbart and Associates in the amount of $41.30, which is payable forthwith, and an award is entered in favor of the claimant in the amount of $1,354.37 which has accrued and 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 awards to State employees.”


text:
    (No. 3946
    Bertha Parks Grisham, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.

    R. W. Harris and D. L. Duty, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, C. J.

On April 11, 1945, claimant, Bertha Parks Grisham, employed by the respondent as an attendant at the Anna State Hospital, Anna, Illinois, while scrubbing the floor of the office of Ward E-2, slipped and fell, sustaining a transverse fracture through the body of the first segment of the coccyx. She landed in a sitting position and then fell backwards, striking the back of her head.

She was first attended by Dr. Doggett, a member of the hospital staff. X-rays were taken, and claimant was hospitalized for a period of one week. The X-rays showed the fracture of the coccyx, but showed no evidence of fracture or dislocation in the cervical region.

Upon her release from the hospital, claimant went to her home, but on May 26, 1945, returned to the institution, complaining of severe pain in the back of her neck. X-rays were again taken, including the atlas and axis; again, no evidence of fracture or dislocation appeared.

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

During the year immediately preceding the injury, claimant’s earnings totalled $1,440.00. Her average weekly wage was $27.69, and her compensation rate is $13.85. The injury having occurred subsequent to July 1, 1943, this must be increased 17%%,- making a compensation rate of $16.27 per week. The respondent furnished all medical, surgical, and hospital services, except services in the amount of $150.00 which claimant paid personally. Respondent also paid claimant, for non-productive time, from the date of the injury to. October 11,1945, the sum of $517.17. Claimant is fifty-five years of age and has no children under the age of sixteen years. She seeks an award for total permanent disability.

From the report of the Department of Public Welfare, which forms a part of the record, it appears that claimant was treated, during the summer of 1944, by Dr. Henry A. Utter for rheumatic fever, and that X-rays taken at that time showed claimant to have a chronic productive osteoarthritis, as evidenced by a lipping and roughening of the vertebral body in the cervical and lumbar region. X-rays taken approximately a year later, and following the injury, showed a marked increase in the osteoarthritis deposits, in the lipping on the anterior surface of the bodies óf all cervical vertebrae, and a beginning bridging between the vertebrae. As of July 28, 1945, it appeared that claimant had a far advanced productive progressive osteoarthritis involving the bodies of all the cervical vertebrae which had progressed i rapidly during the preceding year. This report also indicated that X-rays of the coccyx, taken on July 28, 1945, showed a strong union at the point of fracture, with good alignment, and no deformity.

The claimant, testifying on her own behalf, stated that she has not been able to work since the accident, that she suffers constant pain in the region of the coccyx, that when she sits down, she changes from side to side in an unsuccessful attempt to obtain relief, that she is unable to be on her feet very long at a time, and that she is able to do only a little house work, such as cooking, making her bed, and keeping the house in order. She employs others to do her washing and cleaning. She testified that her “head has never been right” since the fall, that her neck hurts, and is stiff, and difficult to turn in either direction. She stated:

“I haven’t improved, I think, in fact that I am just gradually growing worse. I don’t feel that I am as well as I was after I recovered to a certain extent when I first got injured.”

Upon cross-examination, claimant stated that she has not tried to take any employment since the injury; that she is able to talk and to use both of her arms; that prior to her work at the Anna State Hospital, she kept house for herself and her husband; that her husband is still working at the institution; and that she keeps house, excepting that she is not able to do the washing and heavy cleaning. She also admitted that on December 12, 1945, she had a cerebral hemorrhage, and since that time has not had full use of the entire right side of her body.

Dr. Henry A. Utter, called as a witness for claimant, testified that he first saw claimant in December, 1945, at the time she suffered the cerebral hemorrhage. The doctor ’s examination at that time revealed an arteriosclerotic condition, and a possible arthritic condition. Dr. Utter indicated that such a condition would be accelerated or aggravated by a fall. He considered claimant’s condition to be permanent.

On cross-examination, Dr. Utter stated that arteriosclerosis could not be caused by a fall. He stated that he was unable to determine the cause of the arthritic condition, or how long it had existed. On re-direct examination, the doctor indicated that claimant’s present condition could be caused by a fall, if the fall were severe enough.

Dr. William A. Baker, testifying on behalf of claimant, stated that he first saw claimant on June 4, 1945, at which time he examined claimant and took X-rays. The X-rays showed a chronic osteoarthritis, and his examination disclosed a moderate degree of arteriosclerosis. Dr. Baker stated that the fracture of the coccyx would not cause a permanent disability, but stated that the arthritic condition or the arteriosclerotic condition would likely be aggravated by claimant’s-fall.

Dr. Baker also testified that he last examined claimant on July 29, 1945, and at that time found the condition of the cervical region worse than it had been previously, but that the region of the coccyx had much improved. Dr. Baker stated that he believed the arthritic ■condition in the cervical region was aggravated by the injury, but he expressed the opinion that the cerebral hemorrhage had no connection with the fall. On cross-examination Dr. Baker stated that the arthritis had nothing to do with the fall whatsoever.

Although the medical testimony is contradictory, it appears that the claimant, prior to the fall, was suffering from arteriosclerosis and a chronic osteoarthritis; that subsequent to the injury,. she suffered a cerebral hemorrhage which was not caused by the injury; and that the fall aggravated the pre-existing arthritic condition. The record, on the whole, sustains claimant’s contention that as a result of the injury she is totally and permanently disabled within the meaning of the Workmen’s Compensation Act of this State.

Claimant is, therefore, entitled to an award in the sum of $4,700.00 less the sum of $517.17, paid claimant for non-productive time, or the sum of $4,182.83, and thereafter a pension for life equal to 8% of $4,700.00, or $376.00 per year, payable in equal monthly installments.

Claimant is also entitled to be reimbursed in the sum of $150.00 on account of moneys expended by her for medical services.

The testimony on hearing before Commissioner Jenkins was transcribed by Ruth A. Coffman who has submitted a statement of $27.40 for her services. This charge is reasonable and proper.

An award is therefore entered in favor of claimant, Bertha Parks Grisham, in the amount of $4,332.83 payable as follows:

$ 150.00 Reimbursement for medical services, is payable forthwith;
$1,627.00 Which has accrued, is payable forthwith;
$2,555.83 To be paid in' weekly installments of $16.27 per week beginning March 20, 1947 for a period of 157 weeks, with a final payment of $1.44;
Thereafter a pension for life in the sum of $376.00 annually, payable in monthly installments of $31.33.

An award is also made in favor of Ruth A. Coffman for stenographic services in the amount of $27.40 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 awards to State employees.”


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    (No. 3952
    Herman O. Rathje, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.

    Charles G. Seidel, attorney for claimant.
    George F. Barrett, Attorney General, and William L. Morgan, Assistant Attorney General, for respondent.
   Bergstrom, J.

Claimant, Herman 0. Rathje, was employed by the State of Illinois at the Elgin State Hospital, Elgin, Illinois, and while so employed on April 22, 1944 in the discharge of his duties, a patient by the name of Richard James kicked him in the abdomen, immediately after which he suffered severe pain and called for help: He made a report of his injury the following day, April 23, 1944, to the Chief Nurse of said institution, and shortly thereafter was examined by Dr. Beim, a physician employed by the State of Illinois. The doctor informed him that he had a bad hernia on the left side and indications of another one on the right side. Subsequently, in July of that year, he talked to Dr. Charles Reed, the Managing Officer of the Elgin State Hospital, and asked Dr. Reed whether he could have his own doctor and hospital care for an operation, as his hernia was bothering him. Claimant testified that Dr. Reed said he would have to take the matter up with the State Commission, and later informed claimant that he had received a letter- from the Commission stating that any employee had a right to select his own doctor and his own hospital. Claimant went to the hospital and had a hernia operation on August 30, 1944, and stayed in the hospital until September 10,1944. He also testified that Dr. Reed advised him to send in the doctor and hospital bills in triplicate, and when so presented later, payment of them was refused; that the claimant then paid the bills.

Claimant reported back to work on October 19, 1944, worked one day and was then given a sixty-day leave of absence. After his leave of absence he reported back to work on December 19, 1944 and worked continuously thereafter until June 16,1945 when he claims he was sick for a week or ten days, but there .is no evidence in the record with respect to the nature of,this last illness. He commenced work in other employment about July 4,1945.

Claimant was paid by the,State of Illinois his regular salary of $75.00 per month, plus $32.00 maintenance per month during the time of his illness and leave of absence, which he now claims was due him for accumulated sick leave and vacation, and that the amount so paid should not be applied in payment of the amount he alleges is due him for temporary total disability. He also requests payment of his medical bills.

Claimant’s accident occurred on April 22, 1944, and he returned to work the last time on December 19, 1944.

This Court has repeatedly held that under Section 24 of the Workmen’s Compensation Act, the right to file application for compensation shall be barred unless such application is filed within one year after the date of the accident where no compensation has been paid, or within one year after the date of last payment of compensation where any has been paid. The Court of Claims is without jurisdiction to enter an award unless claim is filed within the time fixed by said Section 24.

The complaint on its face, and the evidence, shows that the accident occurred on April 22, 1944 and that no compensation was paid other than the regular salary of claimant during his period of disability and sick leave. From the record, this terminated on December 1944, the date claimant went back to work. The record also shows that the complaint, on its face, was not filed until March 4, 1946. Accordingly, this Court is without jurisdiction to hear this complaint.

The testimony on the hearing before Commissioner East was transcribed by A. M. Rotkbart Court Reporting Service, 120 South LaSalle Street, Chicago, Illinois, and invoice rendered for.$25.95. This charge is reasonable • and should be paid.

Claim of claimant, Herman O. Rathje, is denied..

An award is entered in favor of A. M. Rothbart Court Reporting Service for stenographic services in the amount of $25.95, which is payable forthwith.


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    (No. 3967
    John Thomas Waggoner, an Infant, by Opal Waggoner, His Mother, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.

    Maurice E. Gosnell, for claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Bergstrom, J.

On July 11, 1945 claimant, John Thomas Waggoner, was one of a group of men painting a bridge on S.B.I. Route 1 over the Embarrass River near the northern limits of the City of Lawrenceville, Lawrence county, Illinois. He was using a saddle seat, or painter’s swing, to support himself while painting the higher parts of the steel truss bridge. About 10:00 A. M. while shifting the position of his support, the hook which held his seat to a brace slipped off and allowed claimant to fall to the bridge deck, lacerating and bruising his face and body, dislocating his right ring finger, and fracturing his right middle finger and wrist.

The foreman of the group took claimant to Dr. W. I. Green, Lawrenceville, who rendered first aid and ordered claimant hospitalized at the Good Samaritan Hospital, Vincennes, Indiana. There he was placed under the care of Dr. William Schulze of Vincennes. Dr. Schulze reduced the fracture, released the patient from the hospital, and returned him to the charge of Dr. Green on July 14,1945.

From the report of the Division of Highways, which forms part of this record, on September 19, 1945 Dr. Green sent his final report and stated therein “Nature of Injury — Fracture right radius just above wrist. Fracture right finger just above second articulation. Dislocation right ring finger. Lacerated wounds of nose and face. Minor wounds left hand and fingers.”

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

Dr. Green discharged claimant from further medical treatment on September 15, 1945 and certified him’ able •to work on October 1, 1945. Claimant was paid compensation amounting to $124.97 for temporary total disability at the rate of $10.80 per week for the period from July 12, 1945 to September 30, 1945 inclusive, 11-4/7 weeks. At the time the cause of action arose claimant’s wages were 75c an hour. Eight hours constituted a normal working day, and employees in the same classification as claimant worked less than 200 days a year. Claimant earned during his period of employment with the Division of Highways the total sum of $222.95. For compénsation purposes, claimant’s earnings should be computed on the basis of $1,200.00 per year, or $23.07 per week, and he is entitled to compensation on the basis of $13.83 per week instead of $10.80. He is, therefore, entitled to receive the additional sum of $35.06 as compensation for temporary total disability.

The medical charges incurred in the treatment of claimant’s injuries were paid by respondent, as follows:

Dr. Wm. Schulze, Vincennes, Indiana...........................$35.00
Dr. W. I. Green, Lawrenceville, Illinois...........'.............. 34.00
Dr. Tom Kirkwood (x-ray) Lawrenceville...................... 5.00
Good Samaritan Hospital, Vincennes, Ind...................... 25.00

From the medical testimony, it appears that claimant • has practically no flexion of his right ring finger at the first or proximal inter-phalangeal joint, that it is practically useless and interferes with his work when he grasps anything; when the other fingers go down the injured finger stays up. There is also some curtailment in the flexion of his right hand wrist, which together with the finger injury will permanently restrict claimant’s use of his right hand. After consideration of all of the evidence, claimant is entitled to an award based on 25% of total loss of use of his right hand, or the sum of $587.77, which is computed on the basis of $13.83 per week for a period of 42y2 weeks.

An award is therefore entered in favor of claimant, John Thomas Waggoner, in the amount of $622.83, payable to Opal Waggoner, (mother and next friend of claimant, John Thomas Waggoner, an infant, and for his use and benefit), all of which has accrued and 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 awards to State employees.”


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    (No. 3981
    Harmon Odle, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.
    William J. Lawler, for claimant.
    George F. Barrett, Attorney General; and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Damron, J.

This claim is brought under Section 3 of the Workmen’s Occupational Diseases Act by the above named claimant, for damages sustained as a result of contracting tuberculosis during the course of his employment by - the above named respondent.

The evidence discloses that he was employed by the Kankakee State Hospital, Kankakee, Illinois, as a barber, on or about the 20th day of January 1925 and remained in the employment of the respondent until the 5th day of August 1945.

During the course of his employment, he was required to go to a ward in said institution, on occasion, where approximately 100 patients, suffering from tuberculosis in various, stages were confined in their beds, and shave them. He was furnished an assistant who was a patient.

The testimony shows there was no running water, in this ward and in order to shave these patients, a pail of water, one mug and one brush was furnished them. The assistant would dip the brush in the pail of water, make the lather in the mug, lather the patient and claimant would then shave him. After one patient was shaved, the assistant would again dip the brush in the pail of water then into the mug, more lather was made and applied to the next patient and this procedure was followed from . patient to patient until approximately 100 had been shaved. The water was never changed, the mug was never cleaned nor the brush or razor sterilized from patient to patient.

The evidence further discloses that the claimant complained to the officials of the Kankakee State Hospital on many occasions and requested that sanitary precautions be adopted and that he be furnished equipment to properly sterilize Ms instruments and appliances used by Mm. No precautions of any kind were directed to be taken by the authorities of said hospital nor were any taken to avoid contracting tuberculosis by claimant, wMle engaged in shaving these bedfast tubercular patients.

On August 5, 1945, X-rays were made of the chest of this claimant which disclosed that he was suffering from tuberculosis. He was admitted as a tubercular patient at the Livingston County Sanatorium, Pontiac, Illinois, where he is now confined. He has not been able to do any type of work since Ms admission to the sanitorium.

In this record, and admitted in evidence, are two letters from Dr. O. L. Bettag, Medical Director and Superintendent of the Livingston County Sanatorium. The letters being dated January 3, 1947 in part state:

“There was x-ray evidence of lung disease which, on bacteriological sputum examination, was confirmed as being caused by the tubercle bacillus. This organism was found on at least seven examinations. The last sputum found positive for tubercle bacilli was August 14, 1946. Examinations since then have been negative for this bacteria. Mr. Odle’s weight increased from 145% pounds to 205 pounds. The highest recorded weight was in May 1946. The weight at the present time is 183% pounds.
He has been treated on bed rest, collapse of the left lung by artificial pneumothorax, , and graduated up-privileges under observation. There, has been definite improvement in the lung pathology. At the present time, based upon the nomenclature of the National Tuberculosis Association, his moderately advanced pulmonary tuberculosis is considered apparently arrested.
Mr. Odle’s past history is free of close contact with open cases of tuberculosis except during the over twenty years of employment in the Kankakee State Hospital. No entrance x-ray examination of the chest was made in the employment of Mr. Odie. It is, therefore, reasonable to assume that he entered the State service in a condition free of active pulmonary tuberculosis, since he worked a good number of years before symptoms of the disease appeared. Assuming the Illinois Department of Registration and Education rules regarding sanitary conditions for barbers and the public were not carried out, it is medically sound to think this may have contributed toward his contracting pulmonary tuberculosis. Of greater importance, however, in my opinion, is the fact that Mr. Odie is reported to have worked repeatedly among tuberculous patients, and these unfortunates, because of tlieir mental disease, are often unable to consciously control their methods of coughing. It is reasonable to deduct in consequence that there must have been considerable coughing directly into the face of Mr. Odie during his many years of service. This is one of the surest ways of infecting another. Under the circumstances, it is difficult to assume a better setting for the contraction of active pulmonary tuberculosis by an employee.
Mr. Odie not only worked on the State Hospital property, but lived there most of the time of his employment. He was married approximately ten years ago and, during the first fifty percent of this time, lived with-his wife on the State grounds. The remainder of the time, he lived with his wife in the city of Kankakee. Mrs. Odie however, has been examined by repeated chest x-ray study and has been found free of infectious pulmonary tuberculosis. She, therefore, could be eliminated as a source of pulmonary contagion in regard to Mr. Odle’s present disease.
At the present time, Mr. Odle’s right lung is partially collapsed by artificial pneumothorax. The question as to his prognosis is again a difficult one. Presumably, he' will become well enough to reengage in gainful occupation. Provided there are no relapses, Mr. Odie should progress very satisfactorily. Any patient, however, having had active pulmonary" tuberculosis is a potential candidate for re-activation of this disease.”

It is well recognized by health authorities that barber shops or any other place where barber service is rendered is a source of spreading disease unless operated and kept in a sanitary condition at all times. And, in order to protect the public, the Legislature passed an act concerning the operation of barber shops (Chap. 16¾ Sec. 19, Ill. Rev. Stat. 1937). It provides that the Department of Registration and Education shall be empowered to promulgate rules and regulations which shall have the force and effect of law. Pursuant to the authority granted the Department in said Act, rules were adopted and approved March 19,1942. Among these rules are the following: Rule 7 which provides, “All barber shops or any other place where barber service is rendered, .... shall be required .... to supply hot and cold running water, in the room where barber service is rendered.” Rule 13 which provides, “. ... all razors, shears, clippers, applicators, cups, or other instruments or appliances after being used on any patron, shall be thoroughly sterilized immediately either by boiling for three minutes in water or kept for five minutes in a solution of one of the following, namely: 50% alcohol, 5% carbolic acid, 20'% formaldehyde, or other established germicidal solution ....”

The Health and Safety Act, (Ill. Rev. Stat. 1945, Chap. 48, Par. 137.3) makes it the duty of every employer to provide reasonable protection for the lives, health, and safety of all persons employed, to effectuate its purpose. In Wheeler vs. State 12 C.C.R. 254, we held that the State of Illinois may properly be made respondent in the Court of Claims, in any action for damages for injury to health, resulting from a disease contracted by a state employee in the course of his employment, and proximately caused by the State’s negligence, under the terms and provisions of the Workmen’s Occupational Diseases Act. The State not having elected to provide and pay compensation. under Section 4 of the Workmen’s Occupational Diseases Act, the employee has a right of action, under Section 3 of the Act. That section provides that violation by an employer of any statute of this State, intended for the protection of the health of employees, shall constitute negligence of the employer within the meaning of the section.

The rules adopted by the Department were intended to promote the health of claimant and to prevent the spreading of contagious or infectious disease, including open tuberculosis, and should have been followed by the officials in charge of the institution. Not only for the benefit of its employees such as claimant, but for the unfortunate inmates in the ward.

It cannot be denied that the sanitary rules adopted by the department, if followed, would lessen the exposure to claimant. That the method used by claimant in shaving the tubercular patients was unhealthy and exposed him 1 to extra hazards which finally undermined his health. The razor used by him, the brush, mug, and water must have been germ laden after a few patients had been served, and claimant came into contact with ¿11 the above articles in shaving the patients.

Respondent having violated the rules of the Department of Registration and Education and the terms of the Health and Safety Act, which are intended for the protection of the health of employees, such as claimant, constitutes negligence under Section 3 of the Workmen’s Occupational Diseases Act and therefore justifies an award for damages.

While the claimant was employed, he received a salary of $2,400.00 per year. He is now suffering from active, moderately advanced, pulmonary tuberculosis with cavitation. He seems to be improving but he will- have to remain at the Sanatorium until his tuberculous condition becomes arrested. The length of time required is uncertain. The Court is of the opinion that claimant is entitled to damages under Section 3 of the Workmen’s Occupational Diseases Act in the sum of Twenty-five hundred ($2,500.00) Dollars. •

An award is therefore entered accordingly.