text:
    (No. 4289
    Harry Wilbur Hansen and Gustave F. Adler, Claimants, vs. State of Illinois, Respondent.

      Opinion filed July 6, 1951.

    David Alswang and Lee W. Carrier, Attorneys for Claimants.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimants, Harry Wilbur Hansen and Gustave F. Adler, seek to recover from respondent for its negligence in failing to light and warn of the presence of barricades located in the right-hand lane of one of the public highways maintained and controlled by respondent.

The Departmental Report on file herein reads in part as follows:

“Marked Highway Route 83 at and near its intersection with marked highway Route 7 in Cook County, Illinois, is a part of the System of State Highways. Having that status, Route 83 has been under the jurisdiction of the Department of Public Works and Buildings from 1936 to the present for the purposes of construction, reconstruction, operation and maintenance.
At the place referred to in claimants’ complaint, Route 83 is twenty feet in width, constructed of Portland Cement concrete, and has shoulders ten feet in width. '
Between points one-half mile and one and one-half miles west of Route 7 on Route 83, the Division of Highways made what are known as four pavement patches. These patches were made during the week of October 10 to 16, 1948. A patch is made by removing a section of broken pavement from the outside edge to the centerline, reforming the subgrade, and filling the opening with new concrete. The lengths of patches are variable; in this instance they were 65, 30, 17, and 28 feet. The last of the four patches was made October 14, 1948, or three days before the accident experienced by claimants. The patches herein referred to were in the south half of the pavement — lane for east bound traffic. There were no patches or obstructions of any kind in the lane for west bound traffic.”

Shortly after 10:00 P.M. on October 17, 1948, the car owned by claimant, Gustave F. Adler, and operated by his son, Robert E. Adler, was proceeding along Highway No. 83 in an easterly direction near the intersection of said highway with Route No. 7 in Cook County, Illinois. Riding in the car were seven people. In the front seat, beside the driver, Robert Alder, were his wife, Dorothy, and son, Bobby, who was sitting on Mrs. Adler’s lap. In the back seat, sitting on the right hand side, was claimant, Harry Wilbur Hansen. Sitting next to him was his wife, Myrtle, holding the Adler’s daughter, Linda, on her lap, and on the left side was sitting Harry Wilbur Hansen, Jr. Mrs. Adler was the daughter of Mr. and Mrs. Harry Wilbur Hansen.

Earlier that evening the occupants of the car had visited another daughter of the Hansens living in Elgin, and were returning home at the time of the accident involved herein.

The car, a 1940 DeSoto sedan, was in good mechanical condition, and had been recently overhauled. Said car belonged to claimant, Gustave F. Adler, who had loaned it that day to his son, Robert Adler, for the purpose for which it was used.

The route of the Adler car proceeded in an easterly direction along Highway No. 83, and Adler was driving with his car lights in a dimmed position at a speed of 30-35 miles per hour in his lane. The terrain was gently rolling. The occupants of the car were all quiet. The car windshield was clean. It was dark, but clear, and the pavement was dry.

Just prior to the accident, a truck driven by Ralph R. Hurst, then of St. Paul, Minnesota, was proceeding toward the Adler car in its proper lane, and Mr. Hurst dimmed the truck lights about 1,300 feet from the Adler car.

Suddenly the lights of the Adler car illuminated an unlighted barricade just a few feet in front, and in the lane of the Adler car. The car crashed into the barricade, and Alder lost control. The car turned over, and was so badly wrecked that it was later sold for junk. None of the occupants of the Adler car were injured except Harry Wilbur Hansen, who was thrown out of the car, and pinned beneath the wreckage when the car came to rest.

. Several disinterested witnesses testified for claimants. The testimony of Mr. Hurst was taken by deposition at Los Angeles, California, where he was then living. Their testimony showed that the barricade area was not illuminated by flares, and that no flares were burning in any part of the area to warn Robert Adler of the impending danger.

It is our opinion that respondent was guilty of negligence. Pomprowitz vs. State, 16 C.C.R. 230; Rommel vs. State, No. 4306, opinion filed February 9, 1951.

Respondent makes no contention as to contributory negligence being an issue in this case, and the record amply shows freedom from contributory negligence on the part of claimants.

Claimants are, therefore, entitled to awards. As to the damages, Section 8 C of the Court of Claims Act limits recovery for cases sounding in tort to $2,500.00 for each claimant.

Harry Wilbur Hansen is clearly entitled to $2,500.00. He sustained serious fractures of the right humerus and right scapula, and a fracture of the fourth and fifth dorsal vertebrae. He had multiple contusions, and was in a state of shock for some time. He remained in the hospital for almost six months, and his medical and hospital bills exceeded $1,100.00. He lost six months wages as a conductor for the Chicago Transit Authority, in which position he had earned $320.00 per month. He has permanent limitation of motion in his right shoulder, and his injuries were conceded to be extremely painful.

Gustave F. Adler is entitled to be reimbursed for the damage to his automobile. He received $100.00 for the salvage, and the uncontroverted testimony shows that the vehicle was worth $895.00 just prior to the accident, leaving Mr. Adler’s loss at' $795.00.

An award is, therefore, entered in favor of claimant, Harry Wilbur Hansen, in the sum of $2,500.00.

An award is, therefore, entered in favor of claimant, Gustave F. Adler, in the sum of $795.00. • '


source: Caselaw Access Project

author: Delaney, J.

license: Public Domain

text:
    (No. 4307
    Melvin Everett Street, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 6, 1951.

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

Claimant, Melvin Everett Street, seeks to recover from respondent under the Workmen’s Compensation Act for injuries to the second and third toes of his right foot, as the result of an accident that arose out of and in the course of his employment as a construction laborer in the Department of Public Works and Buildings, Division of Highways.

On June 1, 1949 claimant was first employed at an hourly wage of $1.65. He was injured on the second day of his employment. Claimant was 32 years of age, single, and had no one dependent upon him for support. Other employees, working in the same capacity as claimant, ordinarily work less than 200 days a year.

Therefore, under Section 10 of the Workmen’s Compensation Act, claimant is presumed to have earned $1,560.00 in the year preceding the accident.

Mr. Street was assigned on June 2, 1949, as one of a group to remove sections of damaged or deteriorated pavement from U. S. Route No. 66 in Montgomery County. A compressed air-operated, jack hammer was used to outline the sections and break concrete. The pavement thus broken out was to be removed and replaced with freshly poured concrete.

At approximately 4:00 P.M., at a point about three miles south of the Village of Farmersville, Mr. Street was operating the jack hammer assigned to him, when his arm struck a fellow workman. This caused Mr. Street to lose control of the jack hammer, which bounced onto his right foot, lacerating the foot, and fracturing the second and third toes.

The group foreman knew of the accident immediately after the occurrence, and sent Mr. Street to the St. Francis Hospital, Litchfield, where Dr. Harry A. Yaeger was placed in charge of the case.

On July 9, 1949, Dr. Yaeger submitted the following report to the Division of Highways:

“Nature of Injury — Compound comminuted fracture of second and third right toes, crushing injury of soft tissues.”

On July 22, 1949, the Division learned that gangrene had developed in the second toe, and that an amputation would be necessary. At that time the Division learned that Dr. Yaeger was on vacation, and that Dr. J. R. Rebillat of Litchfield was attending Mr. Street. until Dr. Yaeger returned. Dr. Rebillat informed the Division that his services were given on an exchange basis, and that he would make no charge to the State for them.

On November 15, 1949, Dr. Yaeger prepared his final report, which is as follows:

“Nature of Injury — Compound comminuted fractures of second and third right toes, crushing injury of soft tissues. Secondary gangrene of second toe. Treatment — amputation of right second toe. X-Rays — show fracture and injuries as indicated above. Estimated date of discharge — September 7, 1949. Estimated date patient able to work — the above date. Permanent disability — amputation of right toe. Date of discharge — September 7, 1949.”

No jurisdictional question is raised.

The record consists of the complaint, Departmental Report, stipulation waiving briefs of both parties, and transcript of evidence.

Claimant’s weekly compensation rate would be the maximum of $15.00. Since the accident occurred subsequent to July 1, 1947, this must be increased 30%, making the compensation $19.50 per week.

Mr. Street was paid compensation at the rate of $18.00 a week from June 3 to August 31, 1949, a period of 12 6/7 weeks, in the amount of $231.42. Claimant was totally disabled from June 3; 1949 to September 7, 1949, for which loss he should receive from the respondent $19.50 per week for 13 6/7 weeks, or a total of $270.24, from which should be deducted the sum of $231.42, which has already been paid by the respondent, leaving a balance of $38.82 due to claimant.

The claimant is also entitled to an additional award for the complete loss of the second toe of his right foot, under Section 8, Paragraph (e) (9), Workmen’s Compensation Act, of 12 weeks at the compensation rate of $19.50 per week, or the sum of $234.00.

An award is, therefore, made to claimant, Melvin Everett Street, in the sum of $272.82, all of which has accrued, and is payable forthwith.

Betty E. Green was employed to take and trans-scribe the evidence at the hearing before Commissioner Summers. Charges in the amount of $9.40 were incurred for the services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Betty E. Green, in the amount of $9.40, 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. 4356
    Opal Fox, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 6, 1951.

    Lewis and Lewis, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Delaney, J.

This is a claim against the respondent, the State of Illinois, for personal injuries sustained in a fall in the offices of the Division of Unemployment Compensation, Department of Labor, in the City of West Frankfort, County of Franklin and State of Illinois.

The complaint alleges that the floor was so highly waxed by respondent as to be extremely slippery; that the floor was of a dark color, and, as a result, a person in the exercise of ordinary care and prudence could not observe that the floor was uneven with dents and ridges. Claimant sustained a fracture of her right ankle when she fell on the floor in question.

The record consists of the complaint, motion to strike, transcript of evidence, claimant’s brief and argument, and respondent’s statement, brief and argument.

After her injury, claimant was treated by Dr. T. W. Tweedy in Royalton, Illinois. As a result of the accident, the claimant lost 13 weeks employment at $35.00 per week, or the sum of $455.00, and also expended the sum of $72.50 for doctor, hospital and incidentals, or a total of $527.50. The record does not indicate any permanent injury to claimant’s ankle.

The cases of Carrano vs. State, 18 C.C.R. 30, and Mack vs. Woman’s Club of Aurora, 303 Ill. App. 217, have been cited. In the Carrano case, this Court referred to the case of the Woman’s Club of Aurora where the plaintiff while attending a meeting in the club room, in the City of Aurora, slipped and fell on a waxed floor, thereby sustaining a broken hip. She instituted a suit for damages, claiming that the defendant was negligent in having the floor waxed, which thus rendered it dangerous and unsafe. The case was tried by a jury, which returned a verdict in favor of the plaintiff for $3,500.00.

In reversing the judgment, the Appellate Court held that the waxing of floors is a common practice, and too well known a custom to be considered negligence in the absence of evidence tending to prove some positive negligent act or omission on the part of the owner of the premises. Under such circumstances, the Court held that she must be held to have assumed any risks involved in her walking upon the floor, which were within themselves an incident to such act. There appears to have been no hidden danger.

From the record in this case it appears that-Mr. Max Chamberlain, the only witness used by respondent on cross examination, admitted that the floor was slightly uneven, that there were slight indentures, and that the contour was slightly wavy.

The Court feels that claimant has proven positive negligent acts or omissions on the part of the respondent, which were the proximate cause of the accident.

An award is, therefore, entered in favor of the claimant, Opal Fox, in the sum of $527.50.


text:
    (No. 4390
    Blanche Riggall, Admx. Estate of William B. Hickerson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 6, 1951.

    Ernest G. Utter, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Delaney, J.

This complaint arose out of the death of Mr. William Hickerson on December 15, 1950. It was filed by his daughter, Mrs. Blanche Riggall, Administratrix of his estate. Mr. Hickerson was a widower, and lived alone on Star Route, Rushville, Schuyler County, Illinois. He was 77 years of age at the time of his death. All surviving children are of age, married, and none were dependent on him for any degree of support.

Mr. Hickerson was first employed by the Division of Highways on April 8, 1949 as a common laborer at a wage rate of 90 cents an hour. Although his wage rate increased to $1.00 an hour on July 1, 1949, his classification remained unchanged. He worked continuously for the Division, weather permitting and work being available, from the date of his employment until his death on December 15, 1950. Mr. Hickerson’s earnings, exclusive of overtime, in the year preceding his death totaled $945.00.

Hourly laborers in the employment of the Division of Highways ordinarily work less than 200 days a year, and eight hours constitute a normal working day.

On December 15, 1950 at about 7:30 A.M., Mr. Hickerson met his foreman, Mr. Grover Ulter, at the Division’s storage lot in the Village of Pleasant View. There they secured a Division truck, and drove to a point on S.B.I. Route No. 100 about 1% miles south of the junction of Routes Nos. 100 and 10 in Schuyler County. They arrived at this point at about 8:55 A.M., and started loading the truck with cinders from a roadside stock pile. After shoveling cinders for approximately 15 minutes, the truck was filled to about one-third its capacity. At that time, Mr. Hickerson was heard to gasp and fall to the ground. The foreman, Mr. Grover Ulter, of the Village of Frederick examined Mr. Hickerson, and, believing he was dead, called the Sheriff of Fulton County.

Because of the sudden death, the Division was not required to pay compensation, or furnish any medical care during Mr. Hickerson’s last illness.

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

The record consists of the complaint, claimant’s exhibits Nos. 1 and 2, Departmental Report, transcript of evidence, and stipulation waiving briefs of both parties.

We find that under the provisions of Section 7, Paragraph (e) of the Workmen’s Compensation Act in force at the time of the death, the respondent is liable for funeral expenses of the decedent in an amount not to exceed $500.00, which amount is to be paid to the person incurring the expense of burial. The evidence discloses that the claimant, Blanche Riggall, Admx., paid the funeral expenses in the amount of $453.00. She is, therefore, entitled to be reimbursed therefor by the respondent to the extent of $453.00.

We further find that pursuant to the further provisions of said Section 7, Paragraph (e) of the Workmen’s Compensation Act in force at the time of the death, the respondent is also required to pay into a Special Fund, of which the State Treasurer is ex-officio custodian, the sum of Four hundred Dollars ($400.00).

An award is, therefore, hereby made as follows:

To Blanche Riggall, Admx. of the estate of William Hickerson, deceased, in repayment for funeral expenses advanced by her, the sum of $453.00.

To the State Treasurer of the State of Illinois as ex-officio custodian of the Workmen’s Compensation Special Fund, the sum of $400.00; said sum to be held and disbursed by said State Treasurer in accordance with the provisions of the Workmen’s Compensation Act of this State.

Mary L. Le Sage was employed to take and transcribe the evidence at the hearing before Commissioner Summers. Charges in the amount of $15.00 were incurred for these services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Mary L. Le Sage, in the amount of $15.00, payable forthwith.

This award being subject to the provisions of Section 3 of “An Act concerning the payment of compensation awards to State employees”, and subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing acts.


text:
    (No. 4429
    Edmond C. Birch, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 6, 1951.

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

The claimant, Edmond C. Birch, was on June 1, 1950 employed to mow vegetation on highways under the Department of Public Works and Buildings, Division of Highways. The terms of the employment provided that the work was to be done with a team and mower owned by Mr. Birch. He was paid $1.80 an hour; one dollar was for the pay of the driver, and 80 cents for the use of the team and mower. He was to cut vegetation when, if, and as the Division directed.

On June 13, 1950, Mr. Birch was mowing vegetation on S.B.I. Route No. 37 in Effingham County. At 2:30 o’clock that afternoon, he was working at a point approximately two miles southeast of Edgewood, when a wheel of the mower dropped into a hole on the highway shoulder. The resulting unexpected tipping motion of the mower caused Mr. Birch to fall from the mower seat to the ground. He fell on his left arm and shoulder, fracturing the arm at its upper extremity.

Mr. Birch’s foreman saw the accident, and took him to Effingham, where he was placed under the care of Dr. H. F. Webb of the Effingham Clinic.

On June 14, 1950 Dr. Webb submitted the following report to the Division of Highways:

"X-Rays show comminuted fracture surgical neck, left humerus.”

On June 14, 1950 the Division of Highways arranged to transfer Mr. Birch to the care of Dr. J. Albert Key and Associates, specialists in orthopedic surgery, in St. Louis, Missouri.

Dr. Key submitted a final report on April 17, 1951, which reads as follows:

“Mr. Birch was again examined on April 13, 1951, at which time it was found that there was still some atrophy about the shoulder girdle; there is limitation of elevation, and about 50% limitation of external rotation. There is no tenderness but some weakness, and the patient has some pain on motion. I believe that the shoulder will gradually improve, and feel that he has a permanent partial impairment of 20% of the arm as a whole.”

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

Claimant was 45 years of age, and unmarried at the time of the accident. There are no children under 18 years of age dependent upon him for support. Claimant was employed as a laborer at a wage of $1.00 an hour. Other Division employees, working in the same capacity as claimant, ordinarily work less than 200 days a year. Therefore, under Section 10 of the Workmen’s Compensation Act, claimant is presumed to have earned $1,560.00 in the year preceding the accident.

We find from the evidence that claimant has sustained a 20% loss of use of his left arm, as a result of the accident.

Claimant’s compensation rate would be the maximum of $15.00. The injury having occurred subsequent to July 1, 1949, this must be increased 50%, making a compensation rate of $22.50 per week. The Division paid Mr. Birch compensation at the rate of $22.50 a week from June 14,1950 to January 15,1951, inclusive, in the amount of $694.25.

The record consists of the complaint, Departmental Report, and a stipulation filed in lieu of evidence.

For a 20% permanent loss of use of his left arm under Section 8, Paragraph (e) (13), the claimant should receive from the respondent $22.50 per week for 45 weeks, or the sum of $1,012.50.

An award is, therefore, entered in favor of the claimant, Edmond C. Birch, in the amount of $1,012.50, payable as follows:

$552.84, which has accrued, is payable forthwith;
$459.66, to be paid in weekly installments of $22.50, beginning July 13, 1951 for a period of 20 weeks, with a final payment of $9.66.

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. 4437
    Robert J. Allen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 6, 1951.

    Joseph L. Moore, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Delaney, J.

On May 15, 1951 the claimant filed his complaint. It alleges that on November 23, 1949, Robert J. Allen, an employee of the Department of Public Works and Buildings, Division of Highways, was injured in the City of Springfield, Illinois, while engaged in the performance of his duties in cleaning a striping tank, when a chemical broke through a pipe, and sprayed the eyes, face and body of claimant.

The record consists of the complaint, motion of respondent to dismiss, and notice to call up motion to dismiss.

Section 24 of the Workmen’s Compensation Act, Chap. 48, Par. 161, Ill. Rev. Stat., 1949, provides:

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

The complaint shows on its face that more than one year had elapsed from the date of the alleged injury prior to the filing of the complaint herein. Therefore, under the law, this Court is without jurisdiction to hear and determine the claim for the reason that the- statute of limitations has run against the claimant.

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

The motion of the Attorney General is allowed.

Complaint dismissed.


author: Schuman, C. J.

text:
    (No. 4182
    Flossie H. Wright, Widow, Et Al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 7, 1951.

    Sumner C. Palmer and Louis N. Blumenthal, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

The claimant, Flossie H. Wright, widow of John A. Wright, filed her complaint on March 31, 1949, seeking an award under the Workmen’s Compensation Act for the death of her husband on January 5, 1949, alleged to have resulted from an accident on December 27, 1948, arising out of and in the course of his employment by the respondent as Chief Engineer at the Chicago State Hospital.

There is no dispute that the decedent, John A. Wright, had a chronic heart ailment.

From an exanimation of the record on December 27, 1948, the decedent had left his office and gone to the general store to get some things for dinner (Record 5). While on the way to the store he slipped off of a curb, fell, and bruised his left hip. While it can be conceded from the medical testimony that the fall created a causal connection with his death in throwing extra exertion on the heart, the principal question for the court to decide is, “Did the fall arise out of and in the course of his employment?”

The burden was on defendant in error to prove that the death of the employee was the result of an accident arising out of and in the course of the employment. The rule is equally well settled that an award must be founded upon facts and inferences reasonably drawn from facts proved by the evidence, and cannot be based upon guess or conjecture. Fittro vs. Ind. Com., 337 Ill. 532-536; Town of Cicero vs. Ind. Com., 404 Ill. 487-492.

As pointed out by the Supreme Court in Jakub vs. Ind. Com., 288 Ill. 87, where the death was caused by a pre-existing heart disease, it must be shown that the disease was aggravated and accelerated by an accidental injury sustained in the course of the employment. Where there is a pre-existing disease, in order to bring the case within the rule, there must be an accidental injury as the immediate, or proximate cause of death. An accidental injury is one which occurs in the course of the employment, unexpectedly, and without the affirmative design of the employee. It is something which is unforeseen, and not expected by the person to whom it happens. Thus, in pre-existing disease cases, the evidence must show an aggravation, or acceleration of the disease, by some accidental injury. Fittro vs. Ind. Com., id. 537.

In the original opinion entered by the Court it was stated that there was no evidence in the record that deceased was in the performance of his duties as Chief Engineer. A petition for rehearing was allowed on the ground that there was apparently some dispute as to just what transactions occurred at the “General Store’’ on November 16, 1950. Additional testimony was heard, and it was shown that the general store was on the hospital grounds, and that institutional supplies were kept there; that no supplies were kept for private persons or employees, and that deceased had no personal property in said store; that in order to obtain supplies a requisition would have to be secured from a department head; that deceased’s hours were from 8:00 A.M. to 5:00 P.M., and his lunch hour was from 12:00 M. to 1:00 P.M.; that his duties included the maintenance of said store, and mechanical supplies were received at said store; and that when deceased came out of the general store he had nothing in his hands.

The business manager of the store testified that complete orders of foodstuffs and meats are received for the institution, and are not for sale to the public or to employees; that it was possible for employees to get supplies, but the rules required a requisition for the smallest item; that departmental heads could get food, and deliver requisitions later.

Flossie H. Wright, claimant, testified on the date of decedent’s fall he did not bring anything home for dinner, and that decedent never personally carried provisions home.

From the additional testimony, it is apparent that decedent’s duties required him to be about the general store; that he did sustain an injury during working hours, and on the premises of the State. While the Court does not countenance the" practice of changing testimony, it must give every liberal interpretation of the evidence before it.

In view of the additional testimony, and giving to it a liberal interpretation, the Court concludes the injury sustained arose out of and in the course of decedent’s employment, and claimant is, therefore, entitled to an award. (Town of Cicero vs. Ind. Com., 404 Ill. 487-492.)

The earnings of decedent during the year preceding his injuries and. resultant death were $6,240.00.

The claim of William J. Cleary & Co. for stenographic services in the amount of $181.10 is found to be reasonable and customary.

An award is, therefore, made in favor of the claimant, Flossie H. Wright, in the amount of $5,200.00, which is to be paid to her as follows:

$2,713.28, which has accrued to September 7, 1951, and is payable forthwith.
The balance of $2,486.72 to be paid in weekly installments at the rate of $19.50 per week commencing September 14, 1951 for a period of 127 weeks, with one final payment of $10.22.

An award is also entered in favor of William J. Cleary & Co. for stenographic services in the amount of $181.10, which is payable forthwith.

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”.


text:
    (No. 4290
    Illinois Central Railroad Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 7, 1951.

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

Claimant, Illinois Central Railroad Company, filed its claim against the State of Illinois, which, according to the complaint, was predicated solely on a written contract made and entered into between said Railroad Company and the State of Illinois, through the Division of Highways, on the 26th day of September, 1949. The complaint, among other things, alleged that on September 7,1949 one of its employees, namely, Grover Hillard, was injured by the failure of the Division of Highways to construct and maintain a gravel pit and conveyor according to the terms of the contract attached to the complaint.

The facts show that on September 7, 1949 Grover Hillard was employed by the Illinois Central Railroad Company. He testified that he was injured at Bethany, Illinois, while riding a car of gravel, and claimed that the conveyor dropped down and pinned his right arm to the gravel car. He further testified that he was familiar with the tracks and equipment, and that the injury occurred about 6:00 P.M.; that he saw the location of the conveyor around 5:50 P.M., a few minutes before the accident happened; that he had received a message from Pekin, Illinois that the conveyor was there, and that his injury was occasioned by reason of the uprights of the conveyor pinning his arm against the side of the car, and further that the vibration of the train caused the conveyor to move towards the car in which he was riding.

Harry E. McWilliams, testifying for the claimant, stated that he had made a sketch showing the location of the conveyor with reference to the tract and the location of the pit, which sketch was indicated as claimant’s exhibit No. 11. The sketch was drawn to scale, and showed the measurements of the different parts of the pit with reference to the railroad track, which exhibit was made in the early morning of September 8, 1949.

A Mr. Harry G. Siebert testified for the claimant, and identified a contract dated September 7, 1949, which contract appears as claimant’s exhibit No. 1.

Edson W. Minor, a witness for the claimant, testified that he was a railroad agent for the claimant, and lived at Bethany, Illinois; that he knew of the location of the pit, and that a Mr. Parker, foreman of the unit unloading State material at Bethany, made the arrangements for the unloading of material. He stated he knew the conveyor was placed in the pit on the morning of September 7, and had contacted the Division engineers of the claimant’s company with reference to its installation.

Thomas H. F. Norris, Superintendent of day labor for the Division of Highways of the State of Illinois, testified for claimant, and identified a letter dated September 9, 1949, which appears as claimant’s exhibit No. 12. He advised the claimant that he would sign a pit agreement as soon as received, and further stated that paragraph 7 referring to indemnity would be stricken from the agreement.

The statement of the attorney for claimant before the hearing on February 8, 1951 indicated that the sole contention of the claimant for recovery against the State was based on alleged violation of paragraph 4 of the contract, which appears as follows:

“Said pit, except while being actually used, shall be kept covered with suit' able iron grating or planking, and if planking is used, such planking shall not be less than two (2) inches in thickness. Said conveyor, or any part thereof, save while in actual use, shall not be permitted to come within eight and one-half (&Hj) feet from the center line of said track of the railroad company. Licensee agrees to indemnify and save harmless the Railroad Company from any liability for death of or injury to persons due to the failure of the licensee to keep and fulfill the obligations-in this paragraph 4 provided.”

The additional facts show that claimant paid to Grover Hillard the sum of $750.00 for which they took a release and assignment. They also paid a $25.00 doctor bill, $18.30 hospital bill, and $7.00 for ambulance, making a total claim of $800.30. The claim was made against the State on the theory that the contract provided that the State agreed to indemnify and save harmless the Railroad Company from any liability for injury to persons, due to the failure of the State to maintain the conveyor at least eight and one-half feet from the centerline of said railroad track.

The State contended in its answer that the contract was entered into on September 26, 1949, subsequent to the date of the alleged itijury, and, therefore, could create no liability on behalf of the State; that the claimant was engaged in interstate commerce, and that the. injury to the said Grover Hillard was the result of the negligence of the claimant. It further contended that the claimant’s demand had been released, and by reason thereof the State was released from all liability.

It is contended by claimant in its brief that it has the right to recover under the theory of indemnity, and cites numerous cases in support of this contention. Under this principle, it would be necessary to charge and prove that the State was negligent in the maintenance of the conveyor, that the negligence of the State was the primary cause of the injury, and whose positive acts negligently done, produced the defective condition, which caused the injury. It is sufficient to say that the complaint is not predicated on any charge of negligence, but solely on a contractual provision, which is definitely shown by the complaint and the opening statement of claimant’s attorney. There are no cases cited by the claimant, which sustain the principle that the State of Illinois can be bound by indemnity contracts of the kind in question here, which, in the Court’s opinion, are illegal. It is elementary, for various reasons, both constitutional and otherwise, that the State could not contract to indemnify private individuals or corporations for losses of the nature indicated in paragraph 4 of said agreement. It is apparent from the letter written by Mr. Norris that the indemnity provisions of the contract were to be eliminated. While it is true that he referred only to paragraph 7, it is apparent that he was speaking of all provisions relating to indemnity. This Court has held in numerous cases that the authority to enter into such a contract must be definitely shown and proven, and, upon failure to do so, the contract could not be enforced. We think that Section 19 of Article 4 of the Illinois Constitution of 1870 is pertinent to the claim wherein it provides:

“The General Assembly shall never grant or authorize extra compensation, fee, or allowance, to any public officer, agent, servant, or contractor,....., nor authorize the payment of any claim or part thereof hereafter created against the State under any agreement or contract made without express authority at law.”

Nothing has been shown to the Court that such contract of indemnity is authorized by law, and, therefore, the Court feels that such contracts are illegal and void.

For the reasons above assigned, the claim will be denied.


text:
    (No. 4313
    Joseph Burns, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 7, 1951.

    Leonard, Hoellen and Raszus, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Claimant, Joseph Burns, while on duty as a police officer for the City of Chicago on July 27, 1948, was struck by an Illinois National Guard jeep driven by Sergeant James T. O’Connor of the 109th A.A.A. Brigade, Fort Sheridan, Illinois, and sustained rather severe personal injuries.

The complaint alleges that Sergeant O’Connor was operating the jeep as an agent of the State of Illinois, and charges certain specific acts of negligence.

The first question to determine is whether Sergeant O’Connor was an agent of the State, and on its business; or in the scope of any agency at the time of the accident and resultant injuries to the claimant.

The undisputed evidence shows that Sergeant O’Connor did not have competent authority to use the jeep, identified as “Government Vehicle #20136574”, and that he was not on official government business, and, hence, not in the line of duty. The evidence showed that Sergeant Nester had issued to Sergeant O’Connor two off post passes, but none to use any government vehicle.

It is apparent from the record that Sergeant O’Connor did not have proper authority to use the government jeep, nor was he on any lawful business authorized by any of his superiors, or in the line of duty.

Claimant cites the case Hansen vs. State, 6 C.C.R. 548, in which an airplane on an authorized flight crashed into an automobile; and the case of Gyenes vs. State, 9 C.C.R. 185, in which a National Guardsman, while on active duty, killed a man, and the Court allowed an award, because the statutes exempted the guardsman from any liability. The above cases were both predicated on evidence showing acts, which occurred in active discharge of duties. For this reason, these cases are not in point.

The complaint herein is based on the negligence of Sergeant O’Connor, and the fact that he was an agent of the State. There is no proof of any agency in this record, and for this reason the claim will be denied. Moreover, the evidence clearly shows that Sergeant O’Connor used the jeep for purely personal reasons.

The Court recognizes the injuries sustained by claimant, but he will be confined to his remedy against Sergeant O’Connor.

Claim denied.


text:
    (No. 4316
    Grace W. Morris, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, September 7, 1951.

    G. William Horsley, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, Grace W. Morris, filed her complaint on June 30, 1950, wherein she alleges that on June 30, 1949 she was employed by the respondent, State of Illinois, in the State Department of Public Instruction, Division of Special Education for Handicapped Children: While in the course of her employment, she was in the north balcony of the House of Representatives. As she approached a seat, she missed a step, and fell. In falling she hit her back, which caused her pain immediately thereafter.

Claimant went to St. John’s Hospital on July 7, 1949. She was treated by Drs. Schilsky and Barringer for a ruptured disc between the sixth and seventh vertebra, a severely strained right lumbar muscle, and torn ligaments.

The claimant was paid full salary for time lost as a result of the accident. There is no compensation due claimant for loss of time.

Claimant expended the sum of $518.95 in her efforts to recover from the injuries received on June 30, 1949, and this figure has been introduced into the record without objection on the part of the respondent.

The record consists of the complaint, Departmental Report, Supplemental Departmental Report, transcript of evidence, claimant’s exhibit No. 1, Supplemental Departmental Report dated November 15,

1950, transcript of evidence, stipulation waiving briefs of both parties, and motion of claimant for leave to waive the filing of abstract of evidence.

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

An award is, therefore, hereby entered in favor of claimant, Grace W. Morris, in the amount of Five Hundred and Eighteen Dollars and Ninety-five Cents ($518.95), payable forthwith.

Harry L. Livingstone was employed to take and transcribe the testimony in support of this claim, for which he made charges of $16.00 and $60.00, making a total charge of $76.00. We find this charge to be fair, reasonable and customary for the services rendered.

An award is, therefore, hereby entered in favor of Harry L. Livingstone in the sum of Seventy-Six Dollars ($76.00).

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


author: Lansden, J.

text:
    (No. 4351
    Harry Whitney, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 7, 1951.

    Director, Liebenson and Sheppard, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Harry Whitney, seeks to recover from respondent for its alleged negligence.

On October 18, 1949, the Division of Unemployment Compensation of the Department of Labor had an office at 862 East 63rd Street, Chicago, Illinois. Such office was leased from the LaSalle National Bank as Trustee in Trust No. 11135. Lessor under the terms of the lease provided all janitor and maintenance service for the space occupied by respondent’s office.

A common stairway and landing led from the ground floor to the entrance to respondent’s office, said stairway and landing not being leased to respondent.

Claimant had visited this office several times prior to October 18, 1949. On that day he arrived at the building where the office was located at about 9:30 A.M., walked upstairs, entered the office, was informed he was early for his scheduled appointment, and told to wait. A few minutes later he felt faint, left the office, and went out on the landing alongside of the common stairway.

Then, claimant testified, he started back into the office, and slipped and fell just inside the door of respondent’s office. He did not look at the floor, and could not say what, if anything, he slipped, on. He never did categorically state he slipped on cigarette butts or papers on the floor, and he did not remember the degree of polish on the floor.

The injuries, according to claimant’s testimony, were serious, especially to his hand, some bones of which were fractured.

However, we are unable to receive claimant’s version of the accident at its face value.

Immediately after his fall he stated to George Scott, then manager of respondent’s office, that he had fallen outside the office, and, therefore, not on the premises of respondent.

But the portion of this case, which most impels us to give claimant’s testimony very little weight, is that which shows that he continuously received Unemployment Compensation benefits from October 18, 1949 to April, 1950. One receiving such benefits is required to certify he is able to work. Yet, claimant at the hearing stated he could not work during the period except with one hand. According to the numerous interview cards introduced in evidence in this case, claimant stated he was able to work, and no interviewer deemed his injuries serious enough to prevent him from working.

We, therefore, decide that the evidence in this case preponderates in favor of respondent, that claimant’s fall did not occur on respondent’s premises, and that claimant is not entitled to an award.

There is a further ground for denial of an award. The evidence of claimant, taken at its strongest, shows that claimant did no more than slip on a floor, and not on any foreign substance thereon. The premises were well lighted, and claimant had already that morning been over the area where he claimed he slipped and fell. It was not negligence for respondent to have the floor waxed, or even highly polished. This Court has expressly so decided in Carrano vs. State, 18 C.C.R. 30, on the authority of Mack vs. Woman’s Club of Aurora, 303 Ill. App. 217. Claimant has shown no negligence on the part of respondent, which would warrant an award.

Award denied.


author: Delaney, J. Delaney, J.

text:
    (No. 4363
    Austin Powell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 6, 1951.

      Supplemental Opinion filed September 7, 1951.

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

The claimant, Austin Powell, was on May 17, 1950 employed by the respondent in the Department of Public Works and Buildings, Division of Parks and Memorials. On May 17, 1950, the claimant, in the course of his employment by the respondent, was operating a winch for the raising and lowering of a dredge suction line, which was being used to deepen the lake at Grand Marais State Park. While the claimant was so operating the winch for the drop of the suction line, it went out of control, causing the winch crank to spin around and strike the right arm of the claimant twice. These two blows to the claimant’s arm caused a fracture of the proximal portion of the radius of the right arm.

Claimant was treated at St. Mary’s Hospital where an X-Ray was taken, and a cast put on his right arm by Dr. Robert E. Shea. The X-Ray showed that the radius of the right arm was fractured. This fracture of the right radius healed in such a position as to cause some degree of deformity. The proximal portion of the radius healed with a slight lateral inclination, also a slight medial inclination of the distal fragments. X-Ray of the healed fracture showed excess callus to be present.

From the medical testimony of Drs. Robert E. Shea and Olin B. Boyd, as well as from the Commissioner’s examination of the claimant’s arm, we feel that claimant has suffered a 25% permanent loss of use of his right arm.

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

The record consists of the complaint, Departmental Report, stipulation waiving briefs of both parties, transcript of the evidence, claimant’s X-Ray exhibits Nos. 1, 2 and 4, and claimant’s exhibit No. 3.

On the date of his accident, claimant was 46 years of age, married, and had no children under 18 years of age dependent upon him for support. His rate of pay was $1.00 per hour; and, although he had worked for respondent for less than one year, employees engaged in similar work earned in excess of $1,560.00 per year. Claimant’s compensation rate would, therefore, be the maximum of $15.00 per week. The injury having occurred subsequent to July 1, 1949, this must be increased 50%, making a compensation rate of $22.50.

For 25% permanent loss of use of his right arm, under Section 8, Paragraph (e) (13), the claimant should receive from the respondent $22.50 per week for 56)4 weeks, or the sum of $1,265.63. Although claimant was off duty seven days, he was paid his regular salary, so from the award must be deducted the sum of $56.00, making a total amount due of $1,209.63. Claimant is also entitled to be reimbursed on account of medical and hospital expenses due to Dr. Robert E. Shea in the amount of $95.00.

An award is, therefore, entered in favor of claimant, Austin Powell, in the amount of $1,304.63, all of which has accrued, and is payable forthwith.

Igatha Broach was employed to take and transcribe the evidence at the hearing before Commissioner Summers. Charges in the amount of $23.90 were incurred for these services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Igatha Broach in the sum of $23.90, 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”.

Supplemental Opinion.

Delaney, J.

On July 6, 1951 an award was entered by this Court in favor of claimant, Austin Powell, in the amount of $1,304.63 under the provisions of the Workmen’s Compensation Act.

Subsequent thereto, respondent filed its petition for rehearing, attaching thereto as exhibit No. ly a cancelled warrant containing the endorsement of Dr. Robert E. Shea. The warrant is numbered 690012, and is dated April 23, 1951. This payment was made to Dr. Shea as satisfaction for medical services rendered to the claimant in this matter, for which he made a charge of $95.00.

Therefore, paragraphs four and five of page two of the opinion filed herein on July 6, 1951 are hereby stricken, and, in lieu thereof, there are substituted the following two paragraphs:

For 25% permanent loss of use of his right arm under Section 8, Paragraph (e) (13), the claimant should receive from the respondent $22.50 per week for 56% weeks, or the sum of $1,265.63. Although claimant was off duty seven days, he was paid his regular salary, so from an award must be deducted the sum of $56.00, making an award due of $1,209.63.

An award is, therefore, entered in favor of claimant, Austin Powell, in the amount of $1,209.63.


text:
    (No. 4369
    Aurilla Updike, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 7, 1951.

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

The claimant, Aurilla Updike, was on November 30, 1949 employed by the Department of Public Welfare at the Lincoln State School and Colony. On November 30, 1949, the claimant, in the course of her employment as Seamstress I, was operating a cutting-machine in the sewing room; the cutting blade of said machine being about six inches long. While cutting apron collars, she noticed some wrinkling in the material, which she attempted to smooth before cutting. At that instant the cutting blade came down causing an injury, classified as serious, and described as a deep laceration extending in an oblique direction from the medial side of the left little finger just proximal to the distal interphalangeal joint across to the lateral side at the level of the proximal end of the fingernail. The portion, distal to the laceration, is almost completely severed from the rest of the finger. It is possible that there is sufficient injury to the digital arteries so that the blood supply may be inadequate, necessitating amputation of the entire distal phalanx.

Claimant at the time of the accident was married', and had no children. Her annual earnings during the year immediately preceding her injury were $2,005.00.

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

The record consists of the complaint, Departmental Report, and stipulation filed in lieu of evidence.

Claimant is entitled to an award for 50% loss of her left fourth finger, commonly called the little finger, under Section 8, Paragraph (e) (5) of the Workmen’s Compensation Act, amounting to $225.00. It appears from the Departmental Report that claimant was off duty for a period of one month, and that she was paid the sum of $181.00. Claimant’s compensation rate is the maximum of $15.00 per week. Since the accident occurred subsequent to July 1, 1949, this must be increased 50%, making her compensation rate $22.50 per week. As claimant was entitled to four weeks while temporarily totally incapacitated, she should have received $90.00. Claimant, therefore, was overpaid the sum of $91.00, which must be deducted from her award, leaving a total award due in the sum of $134.00.

An award is, therefore, entered in favor of claimant, Aurilla Updike, in the sum of $134.00, all of which has accrued, and is payable forthwith.

This 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. 4381
    James A. Chully, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 7, 1951.

    C. George Dimas, Attorney for Claimant.

      Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Claimant, James A. Chully, was employed by the Division of Highways, as a highway section helper, and on May 26, 1950 was earning $198.00 a month. His annual earnings preceding his injury on said date would have amounted to $2,376.00. Claimant was married, and on said date had two children under sixteen years of age dependent on him for support.

There are no jurisdictional questions involved, and the only question presented is the nature and extent of disability.

Claimant, while in the performance of his duties, was helping to close the end gate on a state truck, when his left index finger was caught between the gate and the truck body. Medical testimony showed claimant suffered laceration of the left index finger with a comminuted fracture of the distal phalanx, and lateral ligaments torn at joint.

At the hearing, claimant’s finger was examined, and, from the examination and medical testimony, it is concluded that claimant sustained a 30% permanent loss of use of the left index finger.

Claimant lost 12/7 weeks from work during which time he was temporarily totally incapacitated. For this he would be entitled to compensation for 2/7 weeks.

Julia Hertz furnished stenographic services, for which she has submitted a statement in the amount of $27.50, which the court finds reasonable.

The following awards are entered:

2/7 weeks at $24.00 per week in the amount of $6.86 for temporary total disability; the sum of $288.00 for 30% permanent loss of use of the left index finger, computed at 12 weeks at $24.00 per week, making a total of $294.86, less $58.34 previously paid as wages, making a total net award of $236.52, all of which has accrued and is payable forthwith.
The sum of $27.50 payable to Julia Hertz for stenographic services.

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. 4383
    George E. Wright, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 7, 1951.

    Herbert N. Tragethon, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

George E. Wright, claimant, was employed by the Military and Naval Department of the State of Illinois at the Camp Lincoln Armory in Springfield, Illinois. He seeks to recover from respondent under the Workmen's Compensation Act for injuries suffered on April 9, 1950.

Claimant was employed as a fireman and watchman, and, in performing his duties on the date of the accident, he was returning to the boiler room after a routine check of the building. Upon entering the boiler room claimant slipped on the stairs, leading to the floor of the boiler room, and fell. The accident occurred at approximately 3:00 to 3:30 A.M., and claimant was not given first aid or medical attention until about 6:30 A.M. when the relief man arrived on the job.

He was removed to his home, a doctor summoned, and on April 10th he was removed to St. John’s Hospital. He was first attended by Drs. Franklin Maurer and George Fleischli, who performed an operation on his right hip. The most serious injury was a com-minuted fracture of the surgical neck of the right femur, along with abrasions to the right elbow, and injury to the back. He was hospitalized from April 10, 1950 to September 10, 1950. At the time of the hearing there was extensive testimony by both Drs. Maurer and Fleischli as to the nature and extent of the injuries, and the present condition of the claimant. There was extensive testimony as to the condition of the right leg, left leg and back. In addition to the injury, claimant was suffering from an aggravated condition of his left leg, having had varicose veins for a period of years, ankylosis of the right hip, stiffness and soreness in the back, and a hernia, which did not arise out of this accident. Both Drs. Maurer and Fleischli were of the opinion that claimant was totally and permanently disabled, and that be would never be able to pursue a gainful occupation.

On the date of the hearing, claimant was walking with a cane, and, after listening to the medical evidence, talking with the claimant, and observing him in moving, our Commissioner, Henry S. Wise, was of the opinion that he was totally and permanently disabled. He only has an eighth grade education, and has done manual labor all of his life. There is no question that he will never be able to do manual labor again.

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

The record consists of the complaint, Departmental Report, abstract of record, stipulation waiving briefs of both parties, Supplemental Departmental Report, and transcript of evidence.

Claimant was 73 years of age at the time of the accident, married, but had no dependent children. Claimant was paid full salary of $165.00 for the months of May, June and July, and 50% of his monthly salary, or $82.50, for the months of August and September, a total of $660.00. This must be deducted from any award made to claimant.

Claimant is entitled under Section 8, Paragraph (f), to an award of $6,000.00 for permanent total disability, less the sum of $660.00 heretofore paid to him as salary, or the sum of $5,340.00, which is payable as follows:

$1,655.34, which has accrued from April 10, 1950 to September 7, 1951, less $660.00 heretofore paid to claimant as salary, or $995.34, which is payable forthwith;
$4,344.66, to be paid in weekly installments of $22.50 beginning September 14, 1951 for a period of 193 weeks, with a final payment of $2.16; thereafter a pension for life in the sum of $480.00 annually, payable in monthly installments of $40.00.

All of the doctor and hospital bills were paid by respondent with the exception of $20.00 due Dr. H. B. Henkel, and an award of $20.00 is hereby entered in favor of Dr. H. B. Henkel, payable forthwith.

The testimony at the hearing was taken and transcribed by Harry L. Livingstone, who has submitted a statement' of $77.00 for his services. This charge is reasonable and proper.

An award is made in favor of Harry L. Livingstone for stenographic and reporting services in the amount of $77.00.

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


text:
    (No. 4385
    Henry I. Brown, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 7, 1951.

    George W. Kasserman, Jr., Attorney for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, Henry I. Brown, seeks to recover for, complete and permanent disability under the Workmen’s Compensation Act, as the result of an accident that arose out of and in- the course of his employment as an employee of respondent.

Mr. Henry I. Brown was married, and 40 years of age on February 15, 1950, the date on which the injury complained of arose. He informed the Division that he had four children under 18 - years of age dependent upon him for support. He resides in the City of Newton, Jasper County, Illinois.

He was first employed by the Division of Highways on February 14, 1949 as a maintenance labor foreman at a salary of $223.00 a month. He worked continuously in this same classification from the date of his employment until the date of his injury. His salary was increased to $246.00 a month on July 1, 1949, and he earned a total of $2,849.33 in the year preceding his injury.

On February 15, 1950, Mr. Brown was in charge of a group of men engaged in placing sandbags on a levee to protect it from flood waters of the Wabash River. The work was being done approximately one mile south of Russellville in Lawrence County. At about 2:00 P.M. a tractor, which was being used to haul filled sandbags to the levee, bogged down in soft ground near the levee. The tractor was stalled in a low place,, which would be covered with water if the weakened levee, which was nearby, should give away. Mr. Brown and his men gathered around the tractor, and pushed it out of the mud. While pushing on the tractor, Mr. Brown felt a burning pain in his left chest, which radiated down his left arm. Although he felt poorly, he continued working until approximately 5:00 P.M., and then went to a hotel in Palestine, Lawrence County, for the night. He had a light dinner, and went to bed early. At approximately 10:00 P.M. he was awakened by the return of the pain in his left chest. This pain, which was severe enough to cause him to break out in a sweat, lasted approximately 30 minutes and then subsided.

At approximately 5:45 A.M. on February 16, while Mr. Brown was dressing to begin his day of work, the pain returned again, and was so severe that Dr. L. R. Illyes was called to the hotel. Dr. Illyes made a diagnosis of an acute heart attack, and administered medication to relieve the acute symptoms. Later that morning, Mr. Brown became comfortable enough to be moved to the Olney Sanitarium, Olney, Illinois, where he was placed in the hands of Dr. Charles W. Harrison for treatment.

On March 3, 1950, Dr. Illyes submitted the following report:

“Heart attack — probably brought on by the heavy lifting and exertion he did the previous day. Treatment — kept patient quiet and gave him medicine to relieve the pain. Estimated date patient able to work — Indefinite. Date patient was discharged — 2-16-50.”

Dr. Harrison submitted a report on April 11, 1950, which is quoted below:

“Patient suffered from an anterior myocardial infarction, which came on sometime after exertion. Treatment — Sedation. Bed rest. Vaso-dilators. X-Rays— No Remarks — Electrocardiograms diagnostic of anterior myocardial infarction. Estimated date patient able to work — Light work about July 1, 1950. What permanent disability do you expect? — Unable to state at present time what the cardiac status will be.”

On July 8, 1950, Dr. Harrison reported again, as follows:

"Mr. Brown was last seen by me on June 6, 1950, and an EKG was taken at that time. The results were quite satisfactory, with progress expected following a myocardial infarction.
I anticipate that Mr. Brown will be able to return to light work sometime within the next month to six weeks.”

Dr. Harrison again reported on July 15, 1950, as follows:

“Mr. Brown was in yesterday, and another electrocardiogram was run. The results of this continue to show improvement, with this last tracing being practically normal. He still does have some tiredness on exertion, which is to be expected, and some pains in the chest, which I attribute to muscle, rather than the heart.
I am releasing him for light work as of August 1st, and would appreciate it if he would be allowed to work only to the point of fatigue, rather than past it, for a week to ten days. This is a trial period for him, and if he handles the first week or so as far as his mental outlook is concerned he would be in a much better position to carry on a normal life thereafter. I believe we have no worries about his heart, other than what might come whether he worked or not. If you have any questions, I shall be glad to answer them for you.”

On July 27, 1950, Dr. Harrison sent the Division the following report:

“Mr. Brown was in my office the other day with a rather severe common cold. I talked to his wife today, and she said he was still running some fever and not feeling up to par. If it isn’t asking too much, I would like to postpone his return to work until the middle of August.
Thank you kindly.”

Dr. Harrison called the Effingham office of the Division of Highways on August 9, 1950 to ask authorization to send Mr. Brown to St. Louis for an examination by Dr. Edward Massie, a specialist in heart diseases :

Dr. Massie submitted the following report on August 17, 1950:

“This letter concerns your patient Mr. Henry Brown. He gives a history of having had a coronary thrombosis. The story is typical. The electrocardiograms which you sent along are also typical of an anterior myocardial infarction. Six months have now passed, and he still has pain. The pain, however, is more in the left upper shoulder, and it seems to sometimes occur down the arm, and he has some numbness of two fingers of the left hand. Moving of his shoulder and arm seem to make the left upper shoulder discomfort worse. It has a duration of some hours, and it does not occur on exertion, and may occur at any time. If he lies down and rests his arm quietly, it seems to go away. In questioning about precardial discomfort on exertion there is now no history suggestive of coronary artery pain. He has become a little anxious about himself, and, although he was not nervous before, he feels more tense, and at times he feels quivering in the left chest.
Examination revealed a well developed man who was slightly overweight with normally reacting pupils, normal optic fundi, negative throat, normal thyroid, no definite cardiac enlargement, fairly good heart sounds, regular rhythm, no significant murmurs, pulse rate 84 per minute, blood pressure 140/100, clear lungs, negative abdomen and no dependent edema.
I took an electrocardiogram with twelve leads as you had done, and find that there is now a good looking tracing, which is just about normal. This resembles your last tracing. Certainly there is tremendous improvement over the initial tracing when he had his acute attack. I fluoroscoped him, and found his lungs to be clear, and the heart size and shape not to be unusual, although the heart size might be at the upper limits of normal.
I feel that this patient still has residuals of a shoulder-arm syndrome. This accounts for the discomfort in his left shoulder and left arm, and the numbness in the two fingers of his left hand. When he had the acute attack cf coronary thrombosis I believe he developed an acute bursitis and arthritis of the shoulder as may occur in acute coronary thrombosis, and it takes a long time for it to get better. I do not feel that his left shoulder pain or left arm pain is associated with coronary disease at this time. From the point of view of this shoulder condition, what I usually do is refer them to the physical therapy department at Barnes Hospital where they seem to be quite successful in relieving most of this shoulder arm discomfort. Usually the pain goes away, and the patient will feel better after daily treatments there with heat and other types of manipulation, which they do. Sometimes these shoulder pains are just as severe as the original coronary pain, but this is not the case here. It is sufficiently troublesome, however, to make him anxious. Perhaps working the shoulder itself with the use of heat might be worthwhile, but I never seem to get the results they do.
In addition the patient is anxious and concerned. He finds that he is fearful if he has to leave town and stay away from home because his attack occurred in the hotel away from home. In talking to him about returning to work, it appears to me that if he could go to one destination not too far from home, and then return home to sleep that he could go back after several weeks. It should be on the basis of a little work at first and more later. He should not do active physical work, but perhaps do desk or supervisory type of activity. He asked me about his weight, and I told him that it would be worthwhile becoming a little thinner, although he has lost weight, which has been a good thing. As he gets more confidence in himself, I believe he will be in better shape and frame of mind to return to work. If you have anyone there, who knows the art of physical therapy in regard to the shoulder arm syndrome, this would be a worthwhile step in rehabilitating this man. I did not give any specific medications. He told me about what you are giving, and I told him to continue this medication. I do appreciate very much your referring this patient to me, and, if you have questions concerning him, please let me know. Best regards.”

On August 29, 1950, Dr. Harrison reported as follows:

“Treatment — Hypnotics. Sedation. Bed-rest. Vaso-dilators. X-Rays — None. Estimated date of discharge — Unknown. Estimated date patient able to work— September 5, 1950. What permanent disability do you expect? — Unable to do manual labor.”

On November 2, 1950, Dr. Harrison wrote the report, which is quoted below:

“I believe Mr. Brown’s condition has reached a permanent stage as far as his heart is concerned. However, it is my policy to keep a patient under observation for one year following a myocardial infarction. If this meets with your approval, I will continue to do so. I do not expect much change in his condition between now and a year from the date of onset.”

Dr. Harrison submitted his final report on December 15, 1950, which is as follows:

“Mr. Brown was in to see me the first part of this week, and at that time we discussed the probabilities of his being able to carry on with his work. He does not feel that he is able to do his job and himself justice by continuing; and, although his heart condition at the present time is apparently quite adequate, he must have complete freedom from mental unrest and worry. I, therefore, advised him to cease work and follow whatever occupation of an entirely sedentary nature he might find.”

Mr. Brown returned to light supervisory work on September 1, 1950. Although Mr. Brown was never able to do more than limited supervisory work, he continued work for the Division until December 31, 1950, at which time he asked for and secured an extended leave of absence, because of his inability to do the work satisfactorily.

Following the injury, Mr. Brown was paid full salary through March 20, 1950 in the amount of $280.86. He was paid compensation at the rate of $27.00 a week for the period of April 1 to August 31, 1950, inclusive, in the amount of $632.56. Payments for total temporary disability equaled $913.42. Compensation was terminated August 31, 1950, because it was Mr. Brown’s desire to return to work at the beginning of the month, rather than September 5th, as suggested by Dr. Harrison.

The Division has paid the following creditors in connection with Mr. Brown’s injury: Dr. L. R. Illyes, Palestine - $6.00; Dr. Edward Massie, St. Louis, Missouri - $50.00; The Olney Sanitarium Clinic, Olney - $249.30; and the Parker Funeral Home (ambulance), Newton - $18.00, totalling $323.30.

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

The only question is the extent of permanent disability suffered by claimant.

The record consists of the complaint, Departmental Report, stipulation waiving briefs of both parties, transcript of evidence, and abstract of evidence.

From the undisputed medical testimony, and the observations of our Commissioner, Henry S. Wise, the record shows that the claimant is permanently disabled; and has not been able, and is not able to do work of any kind.

We conclude, therefore, after a careful consideration of the record, that the claimant is entitled to an award for permanent total disability.

Claimant’s compensation rate with four children is $20.00 per week. Since the accident occurred subsequent to July 1, 1949, this must be increased 50%, making the compensation rate to claimant of $30.00 per week.

The claimant is, therefore, entitled to an award of $8,499.99 under Section 8, Paragraph (f) and Section 7, Paragraphs (a) (h) (3), less the sum of $913.42, which was paid claimant as wages and for temporary total disability, or a total award of $7,586.57, payable as follows:

§2,434.29, which has accrued from February 16, 1950 to September 7, 1951, from which must be deducted the sum of §913.42, making a sum of $1,520.87, which is payable forthwith;
§6,065.70, to be paid in weekly installments of $30.00, beginning September 14, 1951, for a period of 202 weeks with a final payment of $5.70; thereafter a pension for life in the sum of $680.00 annually, payable in monthly installments of $56.66.

It is recommended that the Division of Highways obtain the amount of the bill of Dr. Harrison of Olney, Illinois, and make payment of same.

The testimony on the hearing before Commissioner Henry S. Wise was taken and transcribed by Neva June Matson, who has submitted a statement for $84.00 for her services. This charge is reasonable and proper, and an award of $84.00 is hereby entered in favor of Neva June Matson, 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. 4389
    Emily Paschal, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 7, 1951.

    Herman W. Snow and John H. Beckers, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Emily Paschal, seeks to recover from respondent under the Workmen’s Compensation Act for injuries sustained in an accident that arose out of and in the course of her employment as an Institution Worker and acting Chief Housekeeper at the Manteno State Hospital, operated by the Department of Public Welfare.

On February 6, 1950, claimant, then 70 years of age, was struck by a truck, which backed into her while she was engaged in her duties on the hospital grounds. She was examined and treated by a doctor on the staff of the hospital the same day, but was not hospitalized at the time.

From April 17, 1950 to April 28, 1951, claimant was hospitalized at the Institution for what is commonly known as milk leg. After this period of hospitalization, claimant took some of her annual vacation.

■ Except for a few days sick leave, vacation, and the one period of hospitalization above referred to, claimant has worked continuously since February 6, 1950 drawing her full salary of $193.00 per month, which was her rate of pay at the time of the accident.

Obviously claimant is not entitled on this record to compensation for total permanent disability, nor is she entitled to any compensation for partial permanent disability, because the record shows no differential in earnings, or diminution in her ability to earn. Cogdill vs. State, 18 C.C.R. 24. Therefore, an award to claimant must be denied under Section 8 (d) (f) of the Workmen’s Compensation Act.

Claimant also claims reimbursement for drugs and a medical examination in Chicago. Such expenditures were not authorized by respondent, and claimant elected to make them herself, and is not entitled to recover therefor. (Section 8 (a) of the Workmen’s Compensation Act.)

We are not unmindful of the fact that the record shows aggravation of a pre-existing osteoarthritis in the spine, and that in the year subsequent to her accident claimant displayed a progressive disability. Through dieting, she had lost about 50 pounds in weight without any material benefit to her condition of ill-being. However, we have been unable to find any section of the Workmen’s Compensation Act that would allow claimant an award on the record before us.

Sylvia Mac Queen, Kankakee, Illinois, was employed to take and transcribe the testimony at the hearing before Commissioner Wise. Her charges of $15.00 are reasonable, and an award is entered in her favor for $15.00.

An award to claimant, Emily Paschal, is denied.

This award is subject to the approval of the Governor. Ill. Rev. Stat., Chap. 127, Sec. 180, as amended 1951, July 1, Laws 1951, p. 1441, H.B. 1077, Sec. 1.


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    (No. 4391
    Sol Nash, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 7, 1951.

    Sol Nash, Claimant, pro se.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Sol Nash, seeks to recover from respondent under the Workmen’s Compensation Act for the loss of his right index finger in an accident that arose out of and in the course of his employment as a janitor in the Division of Highways.

On October 30, 1950, claimant was helping two other men lift a heavy oil drum at the South Side Garage, Markham, Cook County, Illinois. The drum slipped, and the rim thereof traumatically severed claimant’s right index finger, which was caught under the drum on a work bench. Later the bone stump was smoothed, and claimant has lost all of such finger distal to the middle of the proximal phalanx.

No jurisdictional questions are involved, and respondent has furnished and paid for all hospital and doctor bills required to cure and relieve claimant of the effects of his accident.

Claimant was temporarily and totally disabled for five weeks after the day of the accident, and during the period of such disability he was paid $267.70.

On the date of the accident, claimant was 69 years of age, married, but had no children under 18 years of age dependent upon him for support. His rate of pay was $250.00 per month, and, although he had worked for respondent less than one year, his earnings were such as to make his rate of compensation $22.50 per week.

William J. Cleary & Co., Chicago, Illinois, was employed to take and transcribe the testimony at the hearing before Commissioner Wise. Charges in the amount of $23.50 were incurred, which charges are reasonable and customary. An award is entered in favor of William J. Cleary & Co. for $23.50.

Although claimant was entitled to five weeks total temporary disability under Section 8 (b) of the Workmen’s Compensation Act, or the sum of $112.50, he was paid the sum of $267.70, or an overpayment of $155.20.

An award is entered in favor of claimant, Sol Nash, under Section 8 (e) (2) (7) for the loss of his right index finger, or 40 weeks at the rate of $22.50, or the sum of $900.00, less overpayment of $155.20 above referred to, leaving a net award of $744.80, all of which has accrued, and is payable forthwith.

This award is subject to the approval of the Governor. Ill. Rev. Stat., 1949, Chap. 127, Sec. 180, as amended 1951, July 1, Laws 1951, p. 1441, H.B. 1077, Sec. 1.


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    (No. 4401
    Mary Mitchell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 7, 1951.

    Eva L. Minor, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Claimant, Mary Mitchell, was employed as an attendant at the Kankakee State Hospital on August 9, 1950. She was married, but had no dependent children. Her earnings in the year preceding the injury were $2,309.78.

On August 9, 1950, claimant was injured in an altercation with a patient. No jurisdictional questions are raised. Claimant sustained a contusion above the left eye, a hemorrhage of the eyeball, an open laceration of about 1½" over the left eye, and numerous bruises about the face with considerable swelling.

Dr. G. W. I. Bard testified for claimant that she would have a permanent scar on her forehead over the left eye, but that it would not have any influence on the eye or face. Other medical testimony tended to minimize the resultant scar. Claimant was examined at the hearing.

Testimony showed claimant expanded the sum of $68.00 for medical expenses in the treatment of her injuries.

Claimant seeks payment for temporary total disability, complete and permanent disability, and for disfigurement. There is no evidence in the record to substantiate the claim for any temporary total disability, or for permanent disability. However, there is some evidence of disfigurement.

Frances Regnier has submitted a bill in the amount of $18.00 for stenographic services, which the Court finds to be reasonable.

On the basis of this record we make the following awards:

The sum of $68.00 to Mary Mitchell for reimbursement of medical expenses necessarily expended by her in the treatment of her injuries, which is payable forthwith.
The sum of $135.00 for disfigurement of the face, payable at the rate of $22.50 for 6 weeks, all of which has accrued, and is payable forthwith.
An award of $18.00 payable to Frances Regnier for stenographic services.

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. 4431
    John T. Nelson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 7, 1951.

    John T. Nelson, Claimant, pro se.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, John T. Nelson, seeks to recover under the provisions of the Workmen’s Compensation Act for the loss of his left index finger, as the result of an accident that arose out of and in the course of his employment in the Division of Printing.

On January 23, 1951 at approximately 1:30 P.M., claimant, while trimming books, had his left index finger caught by a clamp, and severed by a trimming knife, resulting in the amputation of the terminal and middle phalanges of the left index finger.

No jurisdictional question is raised. Respondent and claimant were operating under the Workmen’s Compensation Act. Respondent furnished medical, surgical and hospital care.

The record consists of the complaint, Departmental Report, and stipulation filed in lieu of evidence.

On the date of the accident claimant was 40 years of age, and had four dependent children under the age of eighteen. His earnings were $290.00 per month, and in the year immediately preceding the accident he earned $1,750.00. His compensation rate would, therefore, be $20.00 per week, and the injury having occurred subsequent to July 1, 1949, this must be increased 50%, making a compensation rate of $30.00 per week.

Claimant is entitled to an award for three weeks temporary total disability, and forty weeks for the loss of his left index finger under Section 8, Paragraph (e) (2) of the Workmen’s Compensation Act, making a total award of $1,290.00. Claimant received full salary in the amount of $217.50, and this must be deducted from his award, making a net award of $1,072.50.

An award is, therefore, entered in favor of claimant, John T. Nelson, in the amount of $1,072.50 to be paid to him as follows:

$968.58, less overpayment for temporary compensation of $127.50, or $841.08, which has accrued, is payable forthwith;
$231.42, is payable in weekly installments of $30.00 per week beginning on the 14th day of September, 1951 for a period of 7 weeks, with an additional final payment of $21.42.

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. 4432
    Lorraine L. Goetting, Widow, Et Al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 7, 1951.

    Lorraine L. Goetting, Claimant, pro se.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Lorraine L. Goetting filed her complaint on April 24, 1951, as widow of Arthur L. Goetting, for compensation under the provisions of the Workmen’s Compensation Act.

The record consists of the complaint, Departmental Report, and stipulation filed in lieu of evidence.

Mr. Goetting was first employed by the Division of State Police on January 9, 1950, as a State Highway Police Officer at a salary of 1259.00 a month. He was married, but had no children under 18 years of age dependent upon him for support. He worked continuously in this classification and at the same salary rate until the date of his death, February 4, 1951. Earnings in the year preceding his injury totaled $3,108.00.

On February 4, 1951, Officer Goetting’s assignment consisted of patrolling highways in Madison County by means of a Division of State Police automobile. On the morning in question, Officer Goetting was proceeding in a southerly direction on S.B.I. Route No. 157 in the car assigned, to him. At approximately 10:13 A.M., he approached a crossing of the Illinois Central Railroad in or near the unincorporated community of Peters Station, Apparently Officer Goetting failed to see an Illinois Central Passenger train approaching from the west, and he drove his car into the side of the two-section diesel locomotive. The impact threw Mr. Goetting out of the police car, and drug the car for some distance to the east on the railroad right-of-way.

A passing motorist, who saw the accident, notified the Division of State Police, and called an ambulance. Although it was thought that Officer Goetting was dead, he was removed to St. Elizabeth’s Hospital, Granite City, where he was pronounced dead. The car was completely demolished.

The Division of State Police has paid no compensation in connection with this injury, neither has it paid any medical bills.

There is no jurisdictional question presented by the record, and we find that the fatal injuries to the decedent arose out of and in the course of his employment by respondent. The facts have been stipulated to between the parties hereto.

Decedent’s compensation rate will, therefore, be the maximum of $15.00 per week. The accident having occurred subsequent to July 1, 1949, this must be increased 50%, making a compensation rate of $22.50 per week.

Claimant is entitled to an award of $6,000.00 compensation under Section 7, Paragraphs (a) and (1) of the Workmen’s Compensation Act.

An award is, therefore, made to claimant, Lorraine L. Goetting, in the sum of $6,000.00 payable as follows:

$687.84, which has accrued, is payable forthwith;
$5,312.16, payable in weekly installments of $22.50, commencing September 14, 1951, and continuing for 235 weeks, with a final payment of $2.16.

All future payments being subject to the provisions of the Workmen’s Compensation Act, jurisdiction is hereby reserved in this cause for the entry of such further order or 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”.


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    (No. 4249
    Earl Francis, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 5, 1951.

    Root and Hoffman, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter and Charles H. Evans, Assistant Attorneys General, for Respondent.
   Lansden, J.

On January 9, 1951, an opinion was filed in this case denying claimant, Earl Francis, an award for permanent partial disability under the Workmen’s Compensation Act, because the record was lacking in proof of a differential in his earning capacity before and after the accident. However, claimant was granted an award for thirty weeks compensation, because he sustained fractures to the bodies of three vertebras in his accident, Section 8 (d) of Workmen’s Compensation Act.

On March 9, 1951, we granted claimant a rehearing, and then remanded the case to Commissioner Wise for the purpose of hearing testimony on claimant’s differential in earning capacity. Such hearing was held on April 30, 1951, and the case was orally argued before this Court on September 7, 1951.

In 1948, claimant was employed as a maintenance worker in the Division of Highways of the Department of Public Works and Buildings. On April 8, 1948, claimant was one of a group of men assigned to remove a dead tree from the right-of-way of State Aid Route No. 11, one mile south of Coal City, Illinois, in Grundy County. A steel cable was attached to the tree approximately 20 feet from the ground, and a truck was slowly pulling on the cable. Claimant was watching for kinks in the cable, when the truck moved faster than planned, snapping the cable upward and taut in such manner that claimant was struck in the abdomen thereby, hurled into the air, and thrown to the ground on his head and shoulders :

No jurisdictional questions are involved, and respondent has furnished and paid for all medical, hospital and surgical services, and for all appliances required to cure or relieve claimant from the effects of his accident.

The medical testimony and X-Rays in the record show that claimant sustained fractures to the bodies of three vertebras in his back, that pre-existing arthritis in his spine was greatly aggravated, and that the injuries to his back are permanent.

Prior to his accident claimant earned $187.00 per month, or $43.16 per week. After the accident, claimant, in the opinion of this Court, displayed sincere diligence in trying to find employment, and finally did secure two different jobs, where he was able to work one-half to two-thirds of the time. His average weekly earnings in these jobs amounted to $15.26. In addition, claimant had been elected a Justice of the Peace, and, based on the fees collected by his predecessor in office, he would average $3.00 per week additional earnings. We feel that claimant has furnished figures adequate for us to calculate his differential in earning capacity, and has thereby brought himself within the rule announced in permanent partial disability cases in Groveland Coal Mining Co. vs. Ind. Com., 309 Ill. 73; Franklin County Coal Co. vs. Ind. Corn., 398 Ill. 528. We do not feel that a claimant in a permanent partial disability case is required to exhaust every employment opportunity within a certain radius of his home, or become a migrant in his search for work, but we do feel that he must make reasonable efforts to find and hold a job, so that the rule announced in the two cited cases can operate. Molsen vs. State, No. 4-168, opinion filed February 14, 1950.

Claimant is, therefore, entitled to an award under Section 8 (d) of the Workmen’s Compensation Act for permanent partial disability.

Based on his rate of pay at the time of his accident of $43.16 per week, and his average weekly earning capacity of $18.26 per week subsequent thereto, a differential of $24.90 per week is established, one-half of which is $12.45.

On the date of his accidental injury, claimant was 62 years of age, married, but had no children under 18 years of age dependent upon him for support. His rate of compensation is $12.45 per week, which must be increased by 30%, as provided in Section 8 (1) of the Workmen’s Compensation Act, or a total rate of $16.18. Such payments shall commence as of April 1, 1949, the day after his employment by respondent was terminated.

Claimant was totally and temporarily disabled from the date of his accident through August 31, 1948,' and for 12 additional days at various times, the last of which was May 31, 1949. He was paid total compensation of $532.28, which will have to be credited against the award hereinafter made.

Phyllis M. Cohenour, Morris, Illinois, was employed to take and transcribe the testimony at the two hearings before Commissioner Wise. Her charges amount to $54.00 and $37.50, respectively. An award is entered in favor of Phyllis M. Cohenour in the sum of $91.50.

An award is entered in favor of claimant, Earl Francis, for $5,200.00 under Section 8 (d) of the Workmen’s Compensation Act, Ill. Rev. Stat., 1947, Chap. 48, Sec. 145, Par. (d), which is within the limitations prescribed in subparagraphs (b) and (h) thereof, payable as follows:

$2,119.58, less $532.28 already paid for temporary total disability, or the sum of $1,587.30, which has accrued, and is payable forthwith;
$3,080.42, which is payable in weekly installments of $16.18 per week commencing on October 12, 1951, for a period of 190 weeks, plus one final payment of $6.22.

This award is subject to the approval of the Governor. Ill. Rev. Stat., 1949, Chap. 127, Sec. 180.