text:
    (No. 4190
    Lelah E. Lohr, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1950.

    Roy A. Ptacin, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William J. Colohan and William H. Sumpter, Assistant Attorneys General, for Bespondent.
   Lansdeh, J.

Claimant, Lelah E. Lohr, was employed on February 3, 1949, as an accountant and bookkeeper by respondent at the Chicago State Hospital in the Department of Public Welfare. On that day while walking between the employee’s building and the administration building on the grounds of the above institution she slipped on an icy walk, fell, and broke her left wrist. Claimant, 58 years of age, was immediately taken to the institution’s hospital for employees. Her arm was X-rayed on the same day and placed in a cast. Miss Lohr wore the cast for four weeks and a splint for two weeks thereafter.

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 received timely notice of the claimant’s injury. The instant claim was filed within the period provided by statute. No claim is made for surgical, medical or hospital treatment, respondent having furnished same. The only question is the nature and extent of claimant’s injury.

Claimant testified she had never had any trouble with her left hand or arm prior to the instant accident. Her hand hurt with different movements. Pressure caused pain. Her fingers were stiff, and to carry books she had to hold them against her body. Her hand was slightly swayed.

Claimant demonstrated before Commissioner Young the impaired limitation of action, movement and strength of her left hand from normal and in comparison with her right hand. She stated she has exercised and endeavored to use her left hand to improve its condition. However, little change has resulted during the last three or four months. She described that she felt pain in her left wrist and hand whenever pressure was applied as when washing clothes.

Dr. Albert C. Field, physician and surgeon of Chicago, Illinois, testified on behalf of the claimant as to his medical examination of her conducted on April 15, 1949. Dr. Field stated:

“Both her upper extremities were examined, the right for comparison. All eomparitive measurements. The right forearm measures 8% and the left 7%. With some atrophy present in the left forearm. The left wrist measures 5V2 and the right 5%. Over the lower end of the radius, and ulna, the left measures 6% and the right 5%. The movements in the wrist joint are restricted. Flexion was limited about 40 degrees, bending down, and extension 85. ' Pronation is within normal limits and supination about half of its normal range. There was some shortening of the radius with a prominence at the lower end of the ulna. The hand is deviated toward the radial side. There is considerable stiffness of the fingers. The ring finger is held in a flexed deformity, a limitation of extension about 30 degrees and the little finger a limitation of extension about 30 degrees. Actively, she lacks about a half inch of bringing the tip of the fingers to the palm of the hand, to the metacarpo flange. She was unable to make a firm fist or hold a small object. I took some X-rays of her wrist, forearm and hand.”

He interpreted the X-rays taken by Mm to show that a comminuted fracture at the lower end of the radius had been suffered by claimant, the comminutions extending in the joint space. He explained that the significance of the comminuted fracture extending into the joint space as causing a rotten articulating surface and as tending to cause traumatic arthritis and pain. He explained the shortening of the radius causes a deformity of the arm. Dr. Fields stated his opinion was that the present disability of claimant’s hand was permanent.

Dr. Louis Olsman, physician and surgeon on the staff of the Chicago State Hospital, treated Miss Lohr for her injury. He testified on behalf of the respondent. After describing the treatment which he gave claimant for her injury and providing an interpretation of the X-ray films taken in connection with her case, he stated that claimant had already obtained the maximum improvement she could expert in the restoration of use of her hand.

The only essential differences in the testimony related to the percentage loss of use of claimant’s left hand. One of the doctors attached significance to osteoporosis in the left hand shown by X-rays, but conceded that it usually appears after immobilization of a member and tends to disappear with movement of the member unless age and factors other than immobilization contribute primarily to the condition.

Claimant was hospitalized until February 7, 1949, when she was discharged and she returned to her duties. During this period she received her full salary. Dr. Olsman commented that her type of work was such that could be carried on with her left arm partially immobilized. Claimant has been in the employ of respondent since 1917. During the year prior to the accident her earnings were $2,940.00. Claimant is unmarried and has no children under the age of 16 years dependent upon her for support.

From the evidence we conclude that claimant has suffered a 35 per cent loss of use of her left hand and is entitled to an award.

William J. Cleary & Co., Court Reporters, Chicago, Illinois, were employed to take and transcribe the testimony before Commissioner Young. Charges*in the amount of $63.00 were incurred, which charges are reasonable and customary, and an award is, therefore, entered in favor of William J. Cleary & Co. for such amount.

An award is entered in favor of claimant, Lelah E. Lohr, in the amount of $1,160.25, being at tbe rate of $19.50 per week for 59% weeks, payable as follows:

$1,053.00 -which has accrued and is payable forthwith;
107.25 payable in weekly installments of $19.50 per week for 5 weeks commencing on February 27, 1950, plus one final payment of $9.75.

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


source: Caselaw Access Project

author: SCHUMAN, C. J.

license: Public Domain

text:
    (No. 4194
    Paul O. David, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1950.

    Feed Branson, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   SCHUMAN, C. J.

Claimant, Paul O. David, was employed by tbe State of Illinois, Department of Public "Welfare, at tbe Illinois Security Hospital, Menard, Illinois, apd while performing the duties of bis employment on October 7, 1948, be was kicked by a patient in bis right knee and as a result thereof received a fracture of tbe bone about one inch below tbe knee.

No jurisdictional question is raised. Respondent and claimant were operating under tbe Workmen’s Compensation Act and tbe accident arose out of and in tbe course of bis employment. According to tbe record, respondent furnished complete surgical, medical and hospital treatment, except for the expenditure of $3.50 for a cane, crutches and a knee pad.

The earnings of the claimant during the year preceding the injury were $2,640.00. Claimant received his full salary subsequent to the injury and up to the date of his discharge on April 8,1949. There is no claim made in the record for any hospital, medical or surgical attention. At the time of the accident, claimant had no children under the age of 16 years, and the sole question for adjudication is the nature and extent of his injury.

Dr. Erich Often testified that he was on the staff at the Anna State Hospital, at Anna, Illinois, and that he saw the claimant on October 7, 1948. That the X-rays which were taken on October 8th showed an incomplete linear fracture through the medial plateau of the right tibia with no displacement. And that he also took a picture of an old injury and the diagnosis on the old fracture was as follows: ‘‘ old fracture of both bones involving the lower one-third of the tibia and fibula”, and that was an old injury. That in his opinion there was some permanent injury that would prevent the claimant from doing heavy physical work. He fixed the disability as some limitation of motion which would improve slowly. He stated that the flexion or extension of the leg was not limited, but was only affected in his walking, and that in his opinion the limitation was confined to his bearing of weight on his leg.

Additional testimony was offered, and Dr. E. E. Holloway testified that he saw the claimant on November 25,1949 and made an examination of his right knee. There apparently were no X-ray pictures taken by Dr. Holloway, nor did he have the advantage of any X-rays that had been previously taken of this man’s right knee. Dr. Holloway testified that lie noticed in examining the knee joint there was a crepitation in the right knee joint which he diagnosed as a fragment or chip of cartilage in the lower portion of the patella. He found a ligamental. condition in the left side of the knee just above the patella where the leg is attached to the patella. In measuring seven inches above the knee joint he found the right leg to be two inches less in circumference than the left leg. That the claimant did not have complete extension of the right leg. That the claimant has a permanent partial disability, and that it would prevent him from doing* certain types of work, and that any work that would put a strain or weight on that knee would cause disability because the knee wasn’t stout enough. The claimant couldn’t stand heavy pressure on the right knee like he could on the other one. That in his opinion, while it would be kind of guesswork, that he would judge that he had about a 33 1/3% loss or (disability of the right leg. He described it as being* kind of like a rheumatism, bad at times and other times not so bad. That the trouble with the claimant’s right knee was in the extension, and that in his opinion the condition he found would be permanent.

The record shows that the Commissioner examined the claimant’s right leg on both hearings.

The Court concludes, while the evidence is not entirely satisfactory, that there is some specific loss of the claimant’s right leg which is shown by the medical testimony in the examination by the Commissioner. The Court concludes from the evidence that the claimant has sustained a permanent partial specific loss to the right leg to the extent of 20%.

The Court finds that Eosalee Cox has rendered stenographic services in the amount of $12.00, which charge is found to be fair and reasonable.

The Court further finds that the claimant expended the sum of $5.00 for crutches, $2.50 for a knee pad, and $1.00 for a cane, for a total of $8.50, for which the claimant should be reimbursed.

The Court further finds from the evidence that the claimant necessarily expended money in going to and from his home in Anna, Illinois, where he was compelled to go for his examination, medical treatment and hospitalization and find from the evidence that he should be awarded $75.00 for these expenses.

The record shows that claimant was paid full time during the period of his temporary total disability in the amount of $752.26. His compensation during said period would have been $292.50 for 15 weeks temporary total disability. He was therefore overpaid in the amount of $459.76, which will have to be deducted from the award.

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

Twenty per cent partial specific loss of use of the right leg in the sum of $741.00 from which award will be deducted the sum of $459.76, overpayment for non-productive time, leaving a balance due of $281.24, all of which has accrued and is payable forthwith.

An award of $83.50 for expenses necessarily incurred by the claimant in the treatment of his said injuries.

An award is also entered in favor of Rosalee Cox for stenographic services in the amount of $12.00, which is payable forthwith, and the Court finds that said charge is reasonable, and said claim is allowed.

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


author: Lansden, J.

text:
    (No. 4211
    Roosevelt Robertson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1950.

    David E. Silverzweig, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Eespondent.
   Lansden, J.

Claimant, Eoosevelt Eobertson, on July 12, 1949, filed a complaint seeking to recover damages from respondent for negligence.

The complaint alleged that claimant, on August 5, 1942, entered the Illinois State Penitentiary at Joliet, Illinois, after his conviction in Cook County, Illinois, and on November 15,1943, while still a convict, claimant with other inmates was assigned to work demolishing a cell house in the institution. During such work, part of the structure collapsed and as a result claimant’s left leg was so badly crushed that amputation was required.

As a basis for his action for negligence claimant alleged that respondent failed properly to supervise the work, failed to take proper and reasonable precautions to prevent claimant’s injury, assigned untrained men to the dang*erous work of demolition of the cell house and violated the provisions of the Illinois statutes relating to “Structural Work,” now found at Ill. Rev. Stat. 1949, Chap. 48, Secs. 60-69.

Claimant further alleged that he was discharged from imprisonment on July 12, 1947.

Eespondent has filed a motion to dismiss on the ground that the case is filed too late. Eespondent’s supporting brief, attached to which is a report, including a parole agreement, from the Division of Correction, which shows that claimant was released from Joliet on parole on May 18, 1944, sets forth respondent’s contentions. Eespondent contends that this Court has no jurisdiction of this case since it was not brought within two years of claimant’s release on parole, although it is conceded that claimant’s certificate of final discharge was not delivered to him until July 12, 1947.

Claimant contends that he had two years from the date his final discharge was delivered to him in which to file his claim because he could not sue while imprisoned, which imprisonment in legal - contemplation continued until receipt of his final discharge.

The contention of neither claimant nor respondent is determinative of this case as will hereinafter appear.

.Section 22 of the present Court of Claims Act, Ill. Rev. Stat. 1949, Chap. 37, Sec. 439.22, provides that the filing of a claim, unless sooner barred, within two years of its accrual is jurisdictional “saving to infants, idiots, lunatics, insane persons and persons under other disability at the time the claim accrues two years from the time the disability ceases. ’ ’

Section 10 of the prior Court of Claims Act, Ill. Rev. Stat. 1943, Chap. 37, Sec. 436, provides a five-year period of limitations, unless sooner barred, saving to the same categories of persons mentioned in the present Section 22 the same two-year period after removal of the disability.

The phrase “unless sooner barred” which appears in both, former Section 10 and present Section 22 above referred to, does not apply to this type of case.

Although the claim arose prior to the present Court of Claims Act, which took effect on July 1, 1945, and claimant’s right to recover is governed by the former Court of Claims Act, Newman v. State, 17 C.C.R. 187, this Court held in Brown v. State, 17 C.C.R. 79, that the' present Section 22 governs the jurisdictional requirement of the time in which a claim must be filed because the present law contained no saving clause as to claims that accrued prior to the present law. •

It is manifest that this Court has no jurisdiction of claimant’s claim under the prior act as limited by present Section 22, unless the saving clause in said section operates to protect him as within the category of “persons under other disability at the time this claim accrues.” Claimant was not so protected.

The precise question was answered by this Court in McElyea v. State, 7 C.C.R. 69. In that case claimant, while an inmate at the then Southern Illinois Penitentiary at Menard, was, in 1922, injured. He waited over seven years to file his claim, which was filed shortly after he was released on parole. Said Section 10 of this former Court of Claims Act was then in force and, except for the five-year period in which to file, was the same as present Section 22, which reduced the time to two years.

The Court in the McElyea case said:

“The law of this State gives unto a prisoner serving a sentence in any penal institution the right to sue or be sued in the Courts of this State during the period of such confinement. A convict does not lose his personal rights because of his imprisonment although he is deprived by law of certain rights of citizenship. Therefore, as he possessed said personal rights the claimant was entitled, able and free to exercise them, even though he was confined in the penitentiary.”

The Court in the McElyea case then dismissed the case.

That a convict in a penitentiary may sne was assumed by Judge Lindley in an action brought in the United States District Court for the Eastern District of Illinois. In Gordon v. Garrson, 77 F. Supp. 477, plaintiff’s right of action under the Civil Rights Act, 8 U.S.C., Secs. 43-48, arose while he was an inmate at the Illinois State Farm at Vandalia, and at the time he filed his complaint in the Federal Court-he was confined in the Illinois State Penitentiary at Joliet.

In view of the foregoing, claimant has filed his complaint too late.

The motion of respondent to dismiss is sustained and the case is dismissed.


text:
    (No. 4101
    Cora Schwemer and William C. Schwemer, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 7, 1950.

    Rodney A. Weight, Attorney for Claimants.
    Ivan A. Elliott, Attorney General, for Respondent.
   Lansden, J.

Claimant, Cora Schwemer, seeks to recover of respondent the value of her platinum ring- set with nine diamonds, which ring was left with the office personnel of the Elgin State Hospital, Elgin, Illinois, at the time she entered said hospital as a patient on May 10, 1945, and which, was not found at the time of and subsequent to her parole on May 22, 1946, from said institution.

On May 22, 1947, claimant, Cora Schwemer, was discharged, presumably as a cured and sane person with her civil rights restored. Her disability having been removed, she, therefore, was in a position to file her complaint in this Court within two years of her discharge, which was the date her disability ceased. Sec. 22, Court of Claims Act, Ill. Rev. Stat. 1947, Chap. 37, Sec. 439.22. This she did in apt time, her complaint having been filed on June 30, 1948.

As to claimant, William C. Schwemer, the husband of the other claimant, the Court is unable to understand his presence in this case. The ring was given by him to his wife as a present in 1935. He asserted no property right in the ring. Furthermore he, not being under any disability, learned of the disappearance of the ring within two weeks after his wife was released on parole on May 22, 1946. His claim, if he ever had one, having been filed on June 30, 1948, was filed too late and this Court has no jurisdiction of the case of claimant, William C. Schwemer. Ill. Rev. Stat. 1947, Chap. 37, Sec. 439.22.

Liability of respondent in this case is predicated on the negligence of a bailee, even though gratuitous. A bailment is based on contract. Claimant, Cora Schwemer, on May 10, 1945, as an insane person lacked capacity to enter such contract or to authorize any one to do so in her behalf. There being no bailment contract, there can be no recovery in this case on the theory of the bailee’s negligence.

But is there any other theory upon which claimant, Cora Schwemer, can recover? We think not.

Section 8 of the Court of Claims Act, Ill. Rev. Stat. 1947, Chap. 37, Sec. 439.8, confers jurisdiction upon this Court when the claim is based upon a law of the State of Illinois or upon any regulation thereunder by any executive or administrative officer or agency. No statute or regulation is pleaded, and none has been brought to the Court’s attention which will support this claim.

Said Section 8 further provides that this Court has jurisdiction of any claim based upon any contract entered into with the State of Illinois. Having eliminated the bailment contract, can it be said that when the ring was taken, if it was, from claimant, Cora Schwemer, respondent impliedly promised to keep it safely?

This Court has previously held that respondent cannot be held liable for breach of an implied contract. Dutton v. State, 16 C.C.R. 64. In that case services were performed without authority in the appropriation involved. Although the services performed in the Dutton case benefitted respondent, claimant was denied recovery.

We, therefore, are constrained to and do hold that claimant, Cora Schwemer, has alleged no statute, regulation or contract which would warrant either the assumption of jurisdiction by this Court or the making of an award.

The claims of both claimants, Cora Schwemer and William C. Schwemer, are denied.

Awards denied.


author: Delaney, J.

text:
    (No. 4162
    Charles H. Jetter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 7, 1950.

    R. W. Harris, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

This claimaiLt seeks an award for contracting active tuberculosis under the Workmen’s Occupational Diseases Act.

The record consists of the complaint, departmental report, transcript of testimony, abstract of evidence, claimant’s X-rays and claimant’s waiver of brief.

Claimant was employed by the Department of Public Welfare of the State of Illinois in the capacity of a guard at the Illinois Security Hospital at Menard, Illinois, for the period from February 16, 1944, to July 25, 1948, when his services were terminated.

The record shows that, at the time of his employment he was examined by the institution physician, which he satisfactorily passed, and that he was X-rayed at a later date. Claimant testified that he worked in the tuberculosis ward at the Security Hospital from December, 1945, to May, 1947. Dr. Alonzo N. Baker, who testified as an examining physician, stated that he took X-rays and that such picture showed two spots on the upper lobe of claimant’s left lung which was questionably active but that a sputum examination was not made. The doctor further stated that he could not establish absolutely from the X-ray whether or not the condition was active. The respondent’s Exhibit A, which includes a departmental report made by Dr. Morris Greenberg, Tuberculosis Central Physician, Department of Public Welfare, shows several sputum tests made of claimant and all of these tests were negative as to tubercle bacilli. The respondent’s report by Dr. Morris Greenberg furtlier showed that claimant was examined April 20, 1944, which examination showed from the X-ray film taken at that time that a density in the left lung of the claimant existed at a time prior to his employment by the respondent.

The evidence fails to show that claimant contracted an occupational disease while employed by respondent. The claimant, having failed to establish by the evidence that he is entitled to an award, his complaint must be dismissed. .

Award denied.

Gray Brewer, Court Reporter, has filed a bill for reporter services in this case in the sum of $120.33. The bill appears reasonable for the services rendered and is hereby allowed.

An award is hereby rendered in favor of Gray Brewer in the sum of $120.33.


text:
    (No. 4191
    Elmer A. Bell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 7, 1950.

    Francis P. Flynn, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Elmer A. Bell, seeks to recover under the provisions of the Workmen’s Compensation Act for injuries that resulted from an accident arising out of and in the course of his employment with the Department of Public Works and Buildings, Division of Parks and Memorials.

On August 24, 1948, claimant, then 71 years of age, married but having no children under 16 dependent upon him for support, was employed as park custodian at Channahon Park, northwest of Channahon, Will County, Illinois. This park is located adjacent to the Illinois-Michigan Canal. While walking along the canal bank in performance of his duties cleaning up the park wood lot, claimant, on that date,: slipped and fell down the bank slope, and his right shoulder struck a rock.

About one week after the accident, claimant started having medical treatment by respondent’s doctors, which continued for several months. Finally on March 10, 1949, an operation was performed on his shoulder by one of respondent’s doctors in an effort to correct the damage to his shoulder which caused sharp pain and marked limitation of motion in his right arm and loss of grip in his. right hand. Another reason for the operation was to remove a tumor in the under-arm which probably resulted from intravenous medication administered by one of respondent’s doctors.

Shortly after the operation and, while still in the hospital recuperating, a swelling appeared in claimant’s left leg below the calf. This trouble was diagnosed as thrombo phlebitis, a not too unusual condition resulting-, from post-operative confinement. The leg swelling persisted without appreciable improvement and added another disability to that already suffered in the right shoulder and arm.

No jurisdictional questions are involved in this case, and' the questions to be determined are the extent of loss of use of claimant’s right arm and left leg as a result of the accident and treatment furnished him by respondent.

The medical testimony in the case is not in fundamental conflict. From such testimony the Court must draw its own conclusions. Claimant contends that industrially he has lost the entire use of his right arm. Respondent does not dispute this too vigorously.

The evidence shows that the condition of claimant’s arm and shoulder is static, neither improving nor retrograding. He can raise his arm only 30 degrees from his side; forward motion is only 45 degrees and backward motion is about 10 degrees. Rotation is within normal range and his elbow is unimpaired. His grip is markedly lessened. In addition, portions of 'the mechanism of his shoulder were removed or altered by the operation performed upon him.

From these facts the Court concludes that claimant has suffered a 75 per cent loss of use of his right arm.

The case of Mandel Bros. v. Ind. Com., 359 Ill. 405, is rather analogous on the facts with this case, and the court in that case approved an award of the Industrial Commission for 66 2/3 per cent loss of use of the injured man’s arm.

The Court cannot agree with the contention of claimant that industrially he has lost the entire use of his right arm.

In Bell & Zoller Mining Co. v. Ind. Com., 322 Ill. 395, at page 402, the Court said:

“Complete and permanent loss of the use of the right arm means that he is not able to make use of it in any character of employment to earn wages. It is not sufficient to show that the use of the arm is so impaired that he can never use it to perform the work that he formerly performed in the mines or a nse of the pick and shovel in mining and loading coal.”

As to the per cent of loss of use of claimant’s left leg, the testimony shows that there has been little fundamental improvement since the thrombo phlebitic condition arose except for such benefits' that he received from hospital treatment. This condition limits to two or three hours per day the time claimant can be on his feet, and he has difficulty in climbing flights of stairs and, after standing for some time, his left leg weakens and becomes numb and tired.

That claimant’s leg condition is due to the treatment and operation furnished by respondent, at its request, is conceded by the medical testimony. That, under such circumstances, respondent is liable has been determined in Kivish v. Ind. Com., 312 Ill. 311, and Lincoln Park Coal Co. v. Ind. Com., 317 Ill. 302.

The Court, therefore, concludes that claimant is entitled' to an award for 20 per cent loss of use of his left leg.

Subsequent to his accident, claimant was paid full wages and performed light work for respondent until he was discharged in the late spring of 1949, except for the period of 28 days he was hospitalized because of and. convalescing from his operation. For the period he was paid $136.29.

All medical expenses were furnished and paid for by respondent, amounting to $1,019.20.

William J. Cleary & Co., Court Beporters, Chicago, Illinois, were employed to take and transcribe the testimony before Commissioner Young. Charges in the amount of $137.70 were incurred, which charges are reasonable. An award is, therefore, entered in favor of William J. Cleary & Co. for $137.70.

Claimant's earnings in the year prior to his injury amounted to $1,800.00. He is entitled to an award under Section 8 (e) (13, 15, 17) of the Workmen’s Compensation Act. His rate of compensation is $19.50 per week.

An award is, therefore, entered in favor of claimant, Elmer A. Bell, for $4,031.63, being the sum of $3,290.63 for 75 per cent loss of use of his right arm, and $741.00 for 20 per cent loss of use of his left leg. During the 28 day period claimant was hospitalized and convalescing from his operation, he was entitled to compensation for temporary total disability amounting to $78.00 yet he was paid $136.29. He was thus overpaid $58.29. The net award is, therefore, $3,973.34.

This award is payable as follows:

$1,560.00 less overpayment of $58.29 equals $1,501.71 which has accrued and is payable forthwith;
2,471.63 which is payable in weekly installments of $19.50 per week for 126 weeks commencing on March 15, 1950, plus one final payment of $14.63.

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. 4252
    Ralph E. Trepanier, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 7, 1950.

    Lindschin & Pucin, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, on December 16, 1949, filed Ms complaint in this Court, seeking to recover under tbe Workmen’s Compensation Act for injuries allegedly sustained in an accident arising out of and in tbe course of Ms employment.

Despondent filed a motion to dismiss based on tbe ground that no notice was given to respondent until more than thirty days after the accident.

The verified complaint alleges that the accident occurred on July 23, 1949, and notice was served on respondent on September 7, 1949. The following allegations of the complaint explain the reason for claimant’s delay in notifying respondent:

“I was asked to take care of Winnebago County at the time of the accident in addition to covering five (5) other counties in Northern Illinois. I worked alone and my superior was located at Springfield. My injury did not appear serious at first and I hoped that the pain would ease up shortly. My vacation occurred the first two weeks in August, during which time I went away for a rest to relieve the pain. When I got home, I found a letter stating that I would be re-placed and continued to remain at home while being treated by Dr. H. Floyd Cannon. It was not until I failed to respond satisfactorily to medical treatment that I finally realized how serious my. injury was and requested Dr. H. Floyd Cannon to notify the proper authorities.

The above quoted allegations of the complaint, coupled with others, conclusively show that no superior of claimant had knowledge of the facts and circumstances of the accident until claimant’s own doctor notified the State Fire Marshal by a report dated September 7, 1949. No medical, surgical or hospital treatments have been furnished claimant, and no compensation has been paid.

The giving to an employer of notice of the accident witMn thirty days, unless the employer otherwise has knowledge thereof, is jurisdictional under Section 24 of the Workmen’s Compensation Act. Stuenkel v. State, 16 C.C.R. 34; Powers Storage Co. v. Ind. Com., 340 Ill. 498; Pullman Co. v. Ind. Com., 356 Ill. 43; Gray Knox Marble Co. v. Ind. Com., 363 Ill. 210; Armour & Co. v. Ind. Com., 367 Ill. 471; Brown Shoe Co. v. Ind. Com., 374 Ill. 500.

The verified complaint herein, on its face, shows failure to comply with one of the jurisdictional prerequisites of the Workmen’s Compensation Act and the motion of respondent to dismiss must he sustained.

Motion of respondent to dismiss granted and case ■dismissed.


text:
    (No. 4028
    Della N. Corcoran, widow, et al., Claimant, vs. State of Illinois, Respondent.

      Supplemental opinion filed April 18, 1950.

    Roscoe Bonjean, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   SCHUMAN, C. J.

An award was entered in this case in an opinion •filed November 12, 1947. At the time of the award, the claimant, Della N. Corcoran, widow of Edward J. Cor- ■ coran, deceased, and the deceased had one child under 16 years of age. This child was 16 on January 8, 1948, .and reached the age of 18 years on January 8, 1950. Under the terms and provisions of the Compensation Act that when an award has been made, where the deceased left at the time of his death a widow and one child under 16 years of age him surviving, the compensation payments of death benefits to the extent same were increased because of the existence of said child, insofar as they have not been paid, shall come and become extinguished when said child arrives at the age of 18 years, if said child is physically and mentally competent at that time. It has been brought to the attention of the Court that said child is now 18 years of age as of January 8, 1950, and that said child, insofar as the Court knows, is physically and mentally sound and not in any way mentally incapacitated or mentally incompetent.

At the time when the child became 18 years of age, approximately .478 of the award had been paid; .478 of $540.00, the increase for the child, would amount to $258.12, which has accrued and should be added to the $4,800.00 award to the widow, making a total of $5,058.12. Deducting the sum of $2,556.00, already paid, leaves a balance of $2,502.12 to be paid. The award is therefore modified and said sum of $2,502.12 is to be paid at the-rate of $18.00 for 138 weeks and one final payment of $18.12.

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


author: Lansden, J. Lansden, J.

text:
    (No. 4131
    Charles D. Wood, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 23, 1949.

      Supplemental Opinion filed April 18, 1950.

    Walter D. Boyle, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William J. Colohan, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Charles D. Wood, seeks to recover under the provisions of the Workmen’s Compensation Act for a period of temporary total disability, and for partial loss of use of both his rig-ht leg and left arm, as a result of an accident arising out of and in the course of his employment in the Department of Public Works and Buildings, Division of Highways. The departmental report on file in this case reads in part as follows:

“At approximately 8:00 P.M. on December 31, 1947, Mr. Wood was called out to operate a snow plow for the purpose of keeping certain sections of State maintained highways open to traffic during a snow storm. Mr. Wood ■continued to operate the plow throughout the night and until approximately 11:00 A.M. on January 1, 1948, when he was relieved. At about 11:30 A.M. this same ■day, Mr. Wood’s superior, Marvin McKirgan, called at the Wood home and requested Mr. Wood to take Ms personal car, a 1938 Ford sedan, secure some gasoline, and take it to a Division snow plow truck which had become stalled in a ditch filled with snow about six miles east of the village of Henry on Illinois .marked Boute No. 18 in Putnam County. Mr. Wood delivered the gasoline to the stalled truck and plow, - assisted in removing them from the ditch, and got into his car to return home. He had turned his car around and traveled easterly but a short distance when, due to the severity of the storm, heavy snow and wind, he was compelled to stop and remove the excess snow from the windshield of his car.

“Just as his car came to a stop it was struck by a car approaching from the east and driven by Mr. Allen Ash of B.F.D. No. 4, Peoria. The force of the impact practically demolished both cars, and Mr. Wood received the injuries complained of.”

Oral testimony at the hearing before Commissioner Young confirms the above.

The uncontradicted medical testimony of Dr. B. W. Dysart of Henry, Illinois, attending physician, indicates that claimant has a 25 per cent loss of use of his right leg, and 15 per cent loss of use of his left arm.

There are no questions in the record as to claimant’s compliance with all the jurisdictional requirements of the Workmen’s Compensation Act, and claimant is therefore entitled to an award uilder Section 8(e) thereof.

Jennie Miglio, Hennepin, Illinois, was employed to take and transcribe the evidence before Commissioner Young. Charges in the amount of $30.00 were incurred for such services, wMch charges are fair, reasonable and customary, and an award is therefore entered in favor of Jennie Miglio for such amount.

Claimant is 45 years of age, married, and had three children under 16 years of age dependent upon him for support on the date the accident occurred. His rate of pay was such as to entitle him to the maximum under the Workmen’s Compensation Act. All medical services have been paid for by respondent.

An award is therefore entered in favor of claimant, Charles D. Wood, in the amount of $1,961.42 less the sum of $110.32, payment for non-productive time, or $1,851.10, all of which is accrued and is payable forthwith, and is made up as follows:

2 4/7 weeks temporary total disability at $23.40 per week, or.. .$ 60.17
25 per cent of 190 weeks times $23.40 for the partial loss of use of his right leg, or.................................... 1,111.50
15 per cent of 225 weeks times $23.40 for the partial loss of use of his left arm, or..................................... 789.75
$1,961.42
Less overpayment for non-productive time......7............ 110.32
$1,851.10

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

Lansden, J.

On September 23, 1949, an award was entered by this Court in favor of claimant, Charles D. Wood, in the amount of $1,851.10 under the provisions of the Workmen’s Compensation Act.

Subsequently thereto respondent filed a petition to vacate or modify said award for the reason that claimant as a plaintiff in an action against one Alan L. Ash in the Circuit Court of Putnam County, Illinois, was paid the sum of $300.00 in settlement of an action at law brought by claimant for injuries arising out of the-same accident for which he brought his action in this. Court.

Claimant answered respondent’s petition admitting-that the amount of $300.00 had been paid to claimant herein.

Upon consideration of the petition and answer thereto, it is the conclusion of this Court that the award in favor of claimant, Charles’ D. Wood, should be reduced by $300.00, the same being the amount he received in settlement of his action at law in the Circuit Court of Putnam County, Illinois.

The next to the last paragraph of our opinion filed herein on September 23, 1949, is hereby stricken and in lieu thereof is substituted the following paragraph:

An award is therefore entered in favor of claimant,. Charles D. Wood, in the amount of $1,961.42 less the sum. of $110.32, payment for non-productive time, and further less the sum of $300.00 paid to claimant in settlement of' his action in the Circuit Court of Putnam County, Illinois, or $1,551.10, all of which is accrued and is payable forthwith, and is made up as follows:

2 4/7 weeks temporary total disability at $23.40 per week, or.. .$ 60.17
25 per cent of 190 weeks times $23.40 for the partial loss of use of his right leg, or.................................... 1,111.50’
15- per cent of 225 weeks times $23.40 for the partial loss of use of his left arm, or..................................... 789.75
$1,961.42
Less overpayment for non-productive time................... 110.32
$1,851.10
Less amount received in settlement of an action at law in the Circuit Court of Putnam County, Illinois................... 300.00
$1,551.10


text:
    (No. 4184
    Joseph Dybala, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1950.

      Petition of Claimant for rehearing denied April 18, 1950.

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

Claimant, Joseph Dybala, seeks to recover under the Workmen’s Compensation Act for total permanent disability allegedly resulting from an accident that occurred on August 27, 1948. Dybala on that date was employed as a common laborer in the Division of Highways, Department of Public Works and Buildings, and, while working at his assigned job of hooking a chain to the rear of a State truck, which chain was attached to a small tree to be pulled out, the truck rolled backward and pinned him between the rear of the vehicle and a signpost. Upon being released, Dybala was rushed to a hospital where he was treated, X-rayed and his abrasions and contusions dressed. He went home that evening and was treated until September 6, 1948, when he was discharged as able to work.

Dybala returned to work on September 9, 1948, and worked his regular hours, although as he states, at light work, until early in March, 1949, when he was discharged.

Later in that month he was examined by a doctor who discovered an inguinal hernia and a chronic myocarditic condition.

Dybala filed his complaint shortly thereafter. No’ jurisdictional questions are before us by reason of a. stipulation of counsel, but we must decide whether on the evidence in the record, claimant is entitled to an award.

First, however, we must dispose of an issue which must be decided, although not stressed by counsel for either party. Claimant’s present physical condition on the evidence is such that he is apparently totally and. permanently disabled by a combination of his hernia and his chronic myocarditic condition. The record is silent, however, on the point of whether his heart condition in and of itself is sufficient to render Dybala totally and permanently disabled. We must, therefore, assume that his heart condition is a contributory but not crucial fact. Therefore, unless Dybala is entitled to recover for his. hernia, the proof about his heart condition alone will not support an award for total permanent disability.

Claimant testified as to the circumstances of the accident. He further testified that he had continuous pain in the region of his groin and that he was often nauseated. He also testified that the truck struck him in the abdominal region, and that he had never had any hernia before.

Claimant’s doctor testified in his behalf: This doctor, who examined Dybala twice in March and June, 1949,. stated that the inguinal hernia and chronic myocarditis from which he found Dybala to be suffering, were such as to make Dybala a poor operative risk and that an operation to correct the hernia would be a substantial, hazard to claimant’s life. He further testified that the hernia was of recent origin, basing this opinion on its size and development and also an the presence of musclespasticity in the lower abdomen and tissue tenderness. Claimant’s doctor further testified that sometimes protrusion of the hernial sac into the inguinal canal did not occur immediately but that when it did pain was present. He also stated that a hernia would fall into the inguinal canal within a week or ten days after the injury in this type of case.

The doctor who treated Dybala on the date of the-accident and until he was discharged from further treatment as able to work on September 6, 1948, testified for respondent. This doctor unequivocally stated that Dybala never complained to him of pain in the abdominal region and that he bandaged Dybala in such a way around his chest in connection with the abrasions and the possible injuries to his chest and ribs that his breathing would .be-altered so that, if Dybala had a hernia resulting from the accident pain would have been present. Dybala was thus bandaged for ten days and his manner of breathing' was for that time known as “abdominal breathing,” and,, of necessity, put a strain on muscles of the groin as well as other muscles of the abdominal area.

Respondent’s doctor stressed the fact that Dybala’s. complaints related only to his chest, arms and his difficulty in breathing, and categorically stated that he never complained of pain belo-w the belt line on any of the four different days he was treated commencing with the date-of the accident and ending on September 6, 1948. This-doctor did admit that he never examined Dybala’s groin..

Other than the original accident report which was-introduced in evidence by respondent without objection, the Division of Highways had no other record of any complaint from claimant until his complaint was filed. in this case. It is of some significance that the space on the printed report relating to hernia was left blank, and the form provided that, if hernia was involved, a special form was to be filled ont.

Section 8 (d-1) of the Workmen’s Compensation Act provides:

“An injured employee to be entitled to compensation for bernia, must prove:
1. Tbe. bernia was of recent origin;
2. Its appearance was accompanied by pain;
3. That it was immediately preceded by trauma arising out of and in tbe course of employment;
4. That tbe bernia did not exist prior to the accident.”

Each of the four enumerated conditions must be proven by a preponderance of the evidence. Cuneo Press Co. v. Ind. Com., 341 Ill. 569; Joyce Bros. Storage Co. v. Ind. Com., 399 Ill. 456.

Even if we assume that conditions 1, 3 and 4 have been met, we feel that condition 2 has not been proven by a preponderance of the evidence. In fact, the evidence strongly preponderates, as regards condition 2, in favor of respondent.

Claimant’s doctor states that Dybala’s type of hernia would protrude into the inguinal. canal within ten days .and when it did sharp pain would be experienced. Respondent’s doctor treated Dybala for ten days and at no time did Dybala complain of pain in his groin, even though his chest was bandaged in such a way as to accentuate any pain he might have in the region of his groin.

Other facts above set forth further tip the scales in favor of respondent, and an award must, therefore, be denied.

The legislature has made hernia the subject of special provisions and exceptions under the Workmen’s Compensation Act. None of the above quoted requirements can be ignored. Proof must be made of tbe concomitant circumstances and conditions prescribed by the statute. To grant an award in tbis case would tend to nullify tbe special statutory provision and place claims-for hernia in an identical position with, if not preferred position over, other compensable claims. Mirific Products Co. v. Ind. Com., 356 Ill. 645.

Rothbart and Sewell, Court Reporters, Chicago, Illinois, were employed to take and transcribe tbe testimony before Commissioner Summers. Charges in tbe amount of $72.55 were incurred, which are reasonable and customary, and an award is, therefore, entered in favor of Rothbart and Sewell for such amount.

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


author: ScHUMAN, C. J.

text:
    (No. 4224
    Roy S. Vancil, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 18, 1950.

    R. Wallace Karraker, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   ScHUMAN, C. J.

The claimant, Roy S. Vancil, a civil service employeeóf the Department of Public Welfare of the State of Illinois, was employed at the State Hospital at Anna, Illinois, as an attendant. On October 20th, 1948, under the charge of “alleged to have been abusive to a patient by the name of Milo G-aravoglia”, claimant was suspended for 30 days until November 20, 1948. ■

On .November 18, 1948 claimant was served with notice of discharge effective November 20, 1948 on the .same ground used for his suspension. Claimant requested a hearing by the State Civil Service Commission and on the 25th day of July, 1949, said Commission found that claimant was not discharged for just cause and ordered that he be immediately reinstated to his certified position of attendant at the Anna State Hospital. In accordance with the order of the Civil Service Commission, claimant returned to service as of July 25, 1949. Claimant’s salary at date of suspension was $175.00 a month. Prom the record the only deduction that can be made is that claimant had been diligent in the protection of his own rights, and at all times for which he seeks payment of salary, he was ready, willing- and able to perform the duties of his position, tendered performance thereof, and such tender was refused. These facts have to be taken as true as no affirmative defenses were offered to the contrary.

Under the holdings of this Court in Clay Wilson vs. State of Illinois, 12 Court of Claims 413, and Herman Drezner vs. State of Illinois, 15 Court of Claims 16, the claimant is entitled to an award.

The evidence shows that claimant is entitled to recover the amount set forth in his complaint, being :$1,385.41.

An award is therefore entered in favor of the claimant in the sum of $1,385.41.


text:
    (No. 4245
    Hans A. Hexdall, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 18, 1950.

    Root & Hoffman, Attorneys for Claimant:
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Bespondent.
   Lansden, J.

On November 23, 1949, claimant, Hans A. Hexdall, filed Ms complaint under the Workmen’s Compensation Act, seeking to recover for permanent partial disability, as a result of an accident arising out of and in the course of his employment with the Department of Public Works and Buildings, Division of Highways.

The accident allegedly occurred on December 10, 1947, and the complaint, in part, states as follows:

(d) State whether medical, surgical and hospital treatment were furnished by Respondent, and if so to what extent: Respondent has furnished medical and hospital treatment to claimant up to present date. (November 21, 1949).......
(f) Amount of payments, if any, received from Respondent during period of Claimant’s disability; and any other action taken by Respondent: Claimant didn’t lose a day’s pay. Went back on job one month after accident. Discharged March 15, 1949.

On the basis of the allegations in the complaint, especially those above quoted, respondent has filed a motion to dismiss, asserting that claimant has filed Ms complaint too late and that, therefore, this Court is without jurisdiction to entertain it.

Because Section 8D of the Court of Claims Act provides that this Court shall determine all claims for personal injuries or death arising out of and in the course of employment of any State employees in accordance with the substantive provisions of the Workmen’s Compensation Act, claimant argues that Section 24 of the latter act is procedural and not substantive, Therefore, this Court is governed not by said Section 24“ with its one-year limitation but by the two-year limit in Section 22 of the Court of Claims Act.

Claimant cites two cases which hold that Section 24 of the Workmen’s Compensation Act is procedural and not substantive. Diamond T Motor Car Co. v. Ind. Com., 378 Ill. 203; Hilberg v. Ind. Com., 380 Ill. 102. With the holding of those cases, there can be no disagreement.

But what claimant has failed to perceive is that any distinction between procedure and substance in so far as this case is concerned is immaterial. What is really involved is the jurisdiction of this Court to hear this case.

Section 22 of the Court of Claims Act reads as follows :

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

It is settled beyond any further argument that said Section 22 is jurisdictional and that unless a claim is filed within the time prescribed therein this Court has no jurisdiction of the case. Ross v. State, 16 C.C.R. 116; Schuemann et al., etc., v. State, 17 C.C.R. 132; Brown v. State, 17 C.C.R. 79. In this Court, failure to file a complaint in time is not a matter of affirmative defense, failure to plead which may result in a waiver thereof.

Rule 32 of the rules of this Court reads identically with said Section 22 except that after the word “law” appears an asterisk which refers to the following explanatory statement: “See limitation provisions of specific statutes, including Workmen’s Compensation and Occupational Diseases Act.”

Section 24 of the Workmen’s Compensation Act provides a one-year limitation for filing claims. It has uniformly been held to be jurisdictional in numerous cases of which Black v. Ind. Com., 393 Ill. 187, is one.

Said Section 24 applies to this Court and operates to reduce the period prescribed in said Section 22 if the facts warrant it, and is likewise jurisdictional. Scott v. State, 12 C.C.R. 163; Britt v. State, 16 C.C.R. 114; Stallard v. State, 16 C.C.E. 78; Stuenkel v. State, 16 C.C.R. 34; Rathje v. State, 16 C.C.R. 177; Clark v. State, 17 C.C.R. 117; Domianus v. State, 17 C.C.R. 197.

In this case, claimant was injured on December 10, 1947. Conceding that respondent had notice of the accident within 30 days and that the payment of his full salary with such knowledge constituted a payment of compensation for the period claimant was unable to work, such compensation payments ceased not later than January 15,1948. Said Section 24 grants a claimant one year from the date of the last payment of compensation within which to file his claim. By delaying until November 23, 1949, to file his claim, this claim comes much too late.

The furnishing of first aid, medical and surgical services by respondent is of no benefit to claimant, for, by Section 8 (a) of the Workmen’s Compensation Act, “the furnishing of any such services ... by the employer shall not be construed as the payment of compensation. ’ ’

Upon the authority of the above cited decisions of this Court, which we follow, we held that, claimant having filed his complaint more than one year after the date of the last payment of compensation, this Court is without jurisdiction to hear it.

This opinion has been extended to some lengths primarily for the purpose of demonstrating the uniformity with which this Court has. passed upon the questions involved. Almost every volume of the Court of Claims Reports contains cases deciding the questions as decided herein.

The motion of respondent to dismiss must be and is hereby sustained.

Case dismissed.


text:
    (No. 4254
    Mary E. Seaton, widow, et al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 18, 1950.

    Graham & Prentiss, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Mary E. Seaton, widow of Ben R. Seaton, deceased, brings this action to recover under the Workmen’s Compensation Act for the death of her husband, an employee of respondent, in an accident that arose out of and in the course of his employment as a State police officer in the Department of Public Safety.

All jurisdictional requirements have been complied with and the uncontroverted facts disclose that the deceased, on October 24,1949, was assigned to drive a State vehicle from Keithsburg, Illinois, to Oneida, Illinois, where he was to assist a detail engaged in weighing trucks. At approximately 4:00 P.M. on that day, the car deceased was driving collided with another vehicle while traveling in an easterly direction on State Aid Route No. 2, near Oneida, Illinois. Deceased was almost instantly killed.

Respondent has made no payments as a result of the deceased’s accidental death.

At the time of decedent’s death, his widow, Mary E. Seaton, and his two minor children, Neil D., born February 8,1941, and Mary Constance, born August 30,1944, were totally dependent upon him for support. Deceased’s earnings from respondent in the year preceding his death amounted to $2,910.58.

Claimant is entitled to an award under Section 7 (a), (h) (3), (L) of the Workmen’s Compensation Act in the sum of $7,500.00, payable at the rate of $24.00 per week.

Mrs. George O. Hebei, Aledo, Illinois, was employed to take and transcribe the testimony before Commissioner Wise. Charges in the amount of $23.90 were incurred, which charges are reasonable and proper. An award is, therefore, entered in favor of Mrs. George O. Hebei in the amount of $23.90.

An award is entered in favor of claimant, Mary E. Seaton, in the amount of $7,500.00, to be paid to her as follows:

$ 603.43, which lias accrued and is payable forthwith
$6,896.57, payable in weekly installments of $24.00 beginning on April 25, 1950, for a period of 287 weeks, plus one final payment of $8.57.

All future payments being subject to the conditions of the Workmen’s Compensation Act, jurisdiction of this case 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. 3025
    Elva Jennings Penwell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1950.

    John W. Preihs, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant was injured on February 2, 1936, in an accident arising out of and in the course of her employment as a supervisor at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The injury was serious, causing temporary blindness and general paralysis. The facts are fully detailed in the case of Penwell v. State, 11 C.C.R. 365, in which an award was made to the claimant of $5,500.00 for total permanent disability, $8,215.95 for necessary, medical, surgical, and hospital services expended or incurred to and including October 22, 1940, and an annual pension of $660.00. On February 10, 1942, a further award was made to claimant for medical and hospital expenses incurred from October 22, 1940, to January 1, 1942, in the amount of $1,129.82. On March 10, 1943, a further award was made to claimant for medical and hospital expenses from January 1, 1942, to December 31, 1942, in the amount of $1,164.15. On March 15, 1944, a further award was made to claimant for medical and hospital expenses from January 1, 1943, to and including September 30, 1943, in the amount of $853.07. On April 17, 1945, a further .award was made to claimant for medical and nursing expenses incurred from October 1,1943, to and including February 28,1945, in the amount of $1,955.29. On September 12, 1946, a further award was made to claimant for medical and nursing expenses incurred from February 28, 1945, to and including April 1, 1946, in the amount of $1,646.12. On June 5, 1947, a further award was made to claimant for medical and nursing expenses incurred from April 1, 1946, to and including April 1, 1947, in the amount of $2,108.30. On September 22, 1948, a further award was made to claimant for medical and nursing expenses incurred from April 1,1947, to and including April 1, 1948, in the amount of $2,207.80. On April 19, 1949, a further award was made to claimant for medical and nursing expenses incurred from April 1, 1948, to and including February 1, 1949. Claim is now being made for an additional award of $2,316.09 for medical and nursing expenses from February 1,1949, to and including February 1, 1950.

Claimant remains totally paralyzed from the waist down, the paralysis being of a spastic type; her physical condition has not improved. She has no control over her lower limbs, nor over ber urine and fasces. From April 1, 1948, to and including February 1, 1949, she has been required, to relieve her of her injury, and to prevent deformity and to stimulate circulation, and for relief of bed sores, to employ and receive medical services and nursing attention. She remains helpless, requiring the services of nurses or attendants to move her to and from her bed, to change her bed clothing at least three or four times a day, to administer light treatment to the affected parts of her paralyzed body, and to rub her body with ointments prescribed by her physician. Because of the complete paralysis of her lower abdomen and legs, the functioning of her kidneys and bladder is impaired, and medical attention is required to flush these organs and to prevent infection arising from her impaired circulation and paralysis. The services of a physician are needed almost daily and must be rendered at her home.

Claimant has, therefore, employed a physician on a monthly basis at a charge of $90.00 per month, which is a lesser rate than ordinarily charged, and for massage treatment, and for which she seeks reimbursement, in the total sum of $1,103.00. Claimant also seeks reimbursement at the rate of 75 cents per day in the amount of $273.75 for room and board of attending nurses. Such expenditure obviates the employment of both a day and night nurse. In addition, claimant has expended, for nursing services, $777.60, and for drugs and supplies, $161.74. She has submitted to the Court, with her verified petition, the original receipts and vouchers showing payment of these respective items.

Award is, therefore, made to the claimant for medical and nursing expenses from February 1, 1949, to and including February 1, 1950, in the sum of $2,316.09, which has accrued and is payable forthwith. The Court reserves for future determination claimant’s need for further medical, surgical and hospital services.


text:
    (No. 4140
    Claude Lavender, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1950.

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

Claimant, Claude Lavender, was employed on December 11, 1947, as a laborer by respondent in the Division of Highways. On that day while carrying a partially filled can of molten bituminous material claimant stepped on some freshly poured material, lost his balance and fell on the pavement, and the molten contents of the pouring can splashed on his hands, forearm and face. He was taken to Dr. Y. H. Burkhart at Hurst, Illinois. Dr. Burk-hart reported that he had received first degree burns of the face, second degree burns on his left forearm and hand, and third degree burns of the right forearm and hand.

On November 30, 1948, the claimant was examined by Dr. John S. Lewis, who stated claimant’s disability is due to disfigurement caused by the resultant scar from his burn.

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 employment.

The record consists of the complaint and departmental report and statement, brief and waiver of claimant.

From the evidence in this case and an examination of the scars by Commissioner Summers, the claimant should receive from the respondent for disfigurement to right hand and face twenty-five percent (25%) of the amount paid, under Section 8, Paragraph C, Workmen’s Compensation Act. The Division of Highways has paid Mr. Lavender temporary disability at the rate of $18.00 a week from December 12, A.D., 1947, to February 15, A.D., 1948, inclusive, a total of $169.71. The bill of Dr. Burkhart for treating Mr. Lavender amounting to $72.00 was paid by the Division of Highways. Claimant is, therefore, entitled to an award computed under Section 8, Paragraph C, Workmen’s Compensation Act, as amended, in the sum of $325.00, all of which has accrued and is payable forthwith.

Genevieve Farmer, Court Reporter, has filed a bill for reporter services in this case in the sum of $15.25. The bill appears reasonable for the services rendered and is hereby allowed.

An award is hereby rendered in favor of Genevieve Farmer in the sum of $15.25.

Genevieve Farmer, Court Reporter, has filed on record a bill for reporter services at a hearing to take additional testimony in this cause, in the.sum of $22.58. The bill appears reasonable for the services rendered and is hereby allowed.

An award is hereby rendered in favor of Genevieve Farmer in the sum of $22.58.

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. 4169
    John G. Sanders, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1950.

    Lawrence B. Moore, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, John G. Sanders, 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 his employment in the Department of Public Works and Buildings, Division of Highways.

On May 8, 1947, the clothing of claimant, who was using a kerosene torch, accidentally caught on fire and as a result he suffered severe burns to his right leg from his ankle to his hip. Respondent furnished* all medical and hospital services to claimant at a cost to it of $1,992.21. Two skin grafts were required, and the record discloses that the skin grafts were highly successful. '

Claimant was paid $491.12 compensation at the rate of $18.00 per week from May 9,1947, up to and including November 15, 1947, during the period he was totally and temporarily disabled. No other payments of compensation were made to claimant.

Shortly after November 15, 1947, claimant returned to work at a lighter, easier job that did not require him to be on his feet. Claimant worked almost continuously until he was discharged in March, 1949.

On February 23, 1949, claimant filed his claim in this Court. His complaint was dismissed on motion of respondent on the ground that under Section 24 of the Workmen’s Compensation Act his failure to file his claim within one year after the last payment of compensation operated to divest this Court of jurisdiction.

Leave was granted claimant to file an amended complaint, which was done on April 5, 1949. The only addition to the complaint was an allegation to the effect that respondent had furnished medical services to claimant-as late as November 16, 1948, and on claimant’s theory this operated to extend the date within which he was required to file his complaint.

For reasons best known to him, counsel for respondent failed to plead to the amended complaint, and, under Rule 11 of the rules of this Court, a general denial was deemed to have been filed.

A hearing was held before Commissioner Wise on January 18,1950. The evidence showed that claimant had been furnished medical services by respondent in April and November, 1948, which consisted primarily of a reexamination and check up by a St. Louis specialist.

Although respondent has failed to raise the question of this Court’s jurisdiction of this case, such question can and must he raised by the Court of its own motion. Flynn v. State, No. 4209, opinion filed December 7, 1949.

Under Section 24 of the Workmen’s Compensation Act, a complaint must be filed within one year from the date of the last payment of compensation, otherwise this Court is without jurisdiction to hear the case. Such has been the uniform and undeviating holding of this Court. A recent decision of this Court, which we follow, so holds and collected therein are numerous previous decisions of this Court. Hexdall v. State, No. 4245, opinion filed April 18, 1950. Such case discusses and rejects contentions similar to those made by claimant herein.

But claimant’s principal contention is that the furnishing of medical services is the payment of compensation. Such is not and has not been the case in this State since 1925. Section 8 (a) of the Workmen’s Compensation Act specifically provides that the furnishing of medical services “shall not be construed as the payment of compensation.” Madsen v. Ind. Com., 383 Ill. 590; Lewis v. Ind. Com., 357 Ill. 309.

Implicit in this record, however, is another contention of claimant to the effect that,’ since he returned to work at different, easier and lighter duties, the payments made to him were compensation payments and not payment of wages.

Although such payments were at a rate greater than claimant’s rate of compensation, claimant has nowhere in the record evidenced a desire to reduce the award he seeks by such manifest overpayments.

But we hold that claimant was paid wages for what he did, not compensation. Neither the Supreme Court nor this Court, so far as we have been able to ascertain after an extensive search, has expressly passed on the question. However, we are not unmindful of the fact that specialists in the Illinois Workmen’s Compensation Act are generally of the opinion that, if any services are performed, payments are to be construed not as compensation but as wages. We are inclined to agree with this view, for we can well see that an unlimited field of additional disputes would be opened up under the Act. Certainty is a desideratum, the effect of which in the long run operates beneficially on both employers and employees.

In view of the foregoing, claimant is not entitled to an award because this Court has no jurisdiction to hear his case.

Esther Farrington, Paris, Illinois, was employed to take and transcribe the testimony before Commissioner Wise. Her charges of $26.40 are reasonable, and an award is entered in her favor for such amount.

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.”-

Award to claimant denied.


author: Lahsdeh, J. Lansden, J.

text:
    (No. 4209
    Florence M. Flynn, admx., et al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 7, 1949.

      Supplemental Opinion filed, May 9, 1950.

    James R. Reilly, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lahsdeh, J.

On July 6, 1949, a complaint was filed in this Court seeking to recover from respondent the sum of $2,500.00 for the wrongful death of James A. Flynn, a patient .at the Peoria State Hospital, which death was alleged to have resulted from the negligence of the agents and .servants of respondent.

Paragraph 5 of the complaint alleged that a coroner’s inquest was held in Peoria County which inquired into the circumstances attending the death of said James A. Flynn, and said paragraph further contains the allegations that the death of said James A. Flynn was found hy the coroner’s inquest to he due to injuries received in a fall over a stairway banister on the third floor, of one of the buildings of said Peoria. State Hospital as .a result of which fall James A. Flynn sustained injuries which caused his death the following day.

Paragraph 6 of said complaint quotes from the findings of the coroner’s jury, which in substance state that open stairways at the Peoria State Hospital are a dangerous hazard to all patients at the hospital, and the jury recommends that the stairways he enclosed in the future for the safety of all patients.

On September 16, 1949, more than thirty days subsequent to the filing of the complaint, respondent filed a motion to strike the complaint for the reason that the allegations of paragraphs 5 and 6 as above set forth are improper and are pleaded in contravention of Ill. Rev. Stat. 1949, Chap. 31, Sec. 19, which in substance provides that neither the coroner’s verdict nor a copy thereof shall be admissible in any civil action a“s evidence to prove or establish any of the facts in controversy.

Respondent has called up this motion to strike for determination by the Court, and claimant has filed a. brief in opposition to the motion to strike.

A written opinion is being filed herein for the sole purpose of informing practitioners before this Court of the interpretation given to the rules of this Court, specifically Rules 11 and 24.

Aside from the fact that respondent’s motion to strike is not directed to the entire complaint but only to' two paragraphs thereof, and on the basis of said motion only .those two paragraphs could be stricken if the motion were granted, respondent’s motion has been filed too late..

Rule 11 of this Court provides that respondent shall answer within thirty days after the filing of the complaint and further provides that if respondent fails to' answer “a general traverse or denial of the facts set forth in the complaint shall be considered as filed. ’ ’

Rule 24 of this Court, among other things, provides, that if a motion to dismiss is denied, respondent shall plead within thirty days thereafter.

This Court does hereby construe Rules 11 and 24-to mean that respondent.has thirty days from the filing-of the complaint to file either an answer to the complaint or a motion directed against the complaint. If respondent fails to file either a motion or an answer directed against the complaint within thirty days after the filing: thereof, respondent is held to have filed a general traverse or a denial of the facts set forth in the complaint and cannot after the expiration of the thirty day period raise questions by motion which could have been raised by a motion filed within the thirty day period. However, the jurisdiction of the Court to hear and determine a particular case may be raised at any time.

We do not intend by anything said herein to express an opinion at this time as to the admissibility of the facts pleaded in paragraphs 5 and 6 of the complaint in view of Ill. Rev. Stat. 1949, Chap. 31, Sec. 19, but we do hold that this case is at issue and ready for assignment to a Commissioner for hearing.

The motion of respondent to strike the complaint, having been filed too late, is hereby overruled.

Supplemental Opinion

Lansden, J.

Claimant, Florence M. Flynn, Administrator of the Estate of James A. Flynn, deceased, on July 6, 1949, filed a complaint in this Court in which she sought to recover the sum of $2,500.00 for the wrongful death of claimant’s intestate, a patient at the Peoria State Hospital.

Previously an opinion was filed in this case, Flynn v. State, No. 4209, opinion filed December 7, 1949, in which we discussed the effect of the failure of respondent to plead within the 30 day period allowed by Rules 11 and 24 of the rules of this Court. We held that the case was at issue and that respondent was deemed to have filed a general traverse or denial of the facts set forth in the complaint. The case was thereupon assigned to Commissioner Wise for hearing.

On March 21, 1950, snch hearing was scheduled at the Peoria County Court House, Peoria, Illinois. Counsel for both parties appeared before Commissioner Wise and counsel for claimant announced that he had no evidence to offer maintaining that the complaint stated a prima facie case. Thereupon, counsel for respondent moved for what amounted to either dismissal for want of prosecution or for judgment for failure of claimant’s proof. After a discussion, counsel for respondent offered in evidence the Departmental Report of the Department of Public Welfare. Thereupon counsel for claimant moved for a continuance, which motion Commissioner Wise denied. Counsel for claimant then announced he was standing-on the complaint and that he had no objection to the Departmental Report being received in evidence as such but that he did object to conclusions appearing therein. He further admitted that a copy of the Departmental Report had been received by him prior to the hearing. The Departmental Report was then admitted in evidence, and claimant and respondent then rested and proofs were closed.

We hold that the refusal of Commissioner Wise to grant claimant’s request for a continuance after the hearing had commenced was a proper exercise of his discretion, and we hereby approve his action.

We do further hold that a verified complaint filed in this Court does not make out a prima facie case. Any claimant still has the burden of offering- evidence and proving a case by a preponderance of the credible evidence.

Claimant herein has failed even to prove her authority to act as administrator; she has not shown who are the next of kin of decedent, nor has she even attempted to prove any allegation in the complaint that is basic to her recovery. The Departmental Report contains no statement of any facts that can be the basis of a finding that the negligence of any agent or servant of respondent was the proximate cause of decedent’s death.

For such utter and complete failure of proof an award must be and is hereby denied.


text:
    (No. 4216
    Mabel E. Bathe, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 18, 1950.

      Supplemental Opinion filed May 23, 1950.

    Mabel Bathe, Claimant, pro se.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

On February 16, 1949, claimant, Mabel E. Bathe, was injured in an accident that arose out of and in the course of her employment with the Department of Public Welfare at the Lincoln State School and Colony, Lincoln, Illinois.

On the date of the accident, claimant was on her way to lunch on the institution grounds, stumbled over a raised place on the sidewalk and fell, as a result of which she fractured her right wrist and left knee-cap and also injured her left arm and wrisL.

After emergency treatment, claimant was taken, the next day, upon the authorization of the Assistant Superintendent of the State institution to Evangelical Deaconess Hospital, Lincoln, Illinois, where she remained for two months under the care of Dr. E. C. Gaffney of that city.

Upon discharge from the hospital, claimant convalesced at her home until she was able to return to work, which she did on June 11, 1949.

During the time claimant was unable to work, she was paid compensation at a rate greater than that provided in the Workmen’s Compensation Act. Such payments, in accordance with the policy of the Department of Public Welfare, were sixty per cent of her monthly wage of $175.00 per month or $105.00 per. month.

No jurisdictional questions are involved. There is no claim or proof of any specific loss or permanent partial disability.

Other than emergency treatment, respondent has neither furnished nor paid for any medical or hospital services required as a result of claimant’s accident, but. such services as claimant.received were furnished upon the authorization of respondent.

Claimant has paid of obligated herself to pay the following hospital and doctors bills, which are reasonable and were necessary and required:

Evangelical Deaconess Hospital, Lincoln, Illinois, (paid).......$576.90
St. Joseph’s Hospital, Bloomington, Illinois, (blood plasma) (paid) .................................................... 6.00
Dr. E. C. Gaffney, Lincoln, Illinois (unpaid)................... 150.00
Total..................................................$732.90 '

Patricia M. Beckholt, 303 Lincoln Avenue, Lincoln, Illinois, was employed to take and transcribe the testimony before Commissioner Wise. Charges in the amount of $6.75 were incurred, which are reasonable and customary, and an award is hereby entered in favor of Patricia M. Beckholt for such amount.

On the date of the accident, claimant was 54 years of age, married but had no children under the age of sixteen years dependent upon her for support. Her earnings in the year preceding her injury amounted to $2,100.00, and her rate of compensation was, therefore, :$19.50 per week.

Claimant was temporarily totally disabled for 16 2/7 weeks and was entitled to be paid for such temporary total disability the sum of $317.57. During such period .she was paid the sum of $391.12, or an overpayment of :$73.55.

Claimant is entitled to an award under Section 8 (a) ■of the Workmen’s Compensation Act for hospital and doctors bills as set out above in the sum of $732.90 which should be reduced by the overpayment of $73.55, leaving .a net award of $659.35.

An award is, therefore, entered in favor of claimant, Mabel E. Bathe, for $659.35, payable as follows:

$150.00, which, is payable forthwith, to claimant for the use of Dr. E. C. Gaffney, Lincoln, Illinois.
509.35, the remainder of the award, which has accrued and is payable to claimant forthwith.

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

Supplemental Opinion

Lansden, J.

On April 18, 1950, the original opinion was filed in this case. On May 9, 1950, respondent filed a petition for rehearing, which subsequently we granted.

The petition for rehearing points out that we have misinterpreted the Departmental Report as to the .amounts paid claimant while she was totally and ternporarily disabled. With this contention we agree, and the original opinion should be revised to reflect such corrections, starting with the fourth paragraph from the end thereof as follows:

“Claimant was temporarily totally disabled for 16 2/7 weeks and was entitled to be paid for such temporary total disability the sum of $317.57. During such period she was paid the sum of $461.13, or an overpayment of $143.56.

“Claimant is entitled to an award under Section 8 (a) of the Workmen’s Compensation Act for hospital and doctor bills as set out above in the sum of $732.90, which should be reduced by the overpayment of $143.56, leaving a net award of $589.34.

“An award is, therefore, entered in favor of claimant, Mabel E. Bathe, payable as follows:

$150.00, which is payable forthwith, to claimant for the use of Dr. E. C. Gaffney, Lincoln, Illinois.
$439.34, the remainder of the award, which has accrued and is payable to claimant forthwith.

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


author: Lansdeh, J.

text:
    (No. 4218
    County of Will, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1950.

    John Irving Pearce, State’s Attorney, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansdeh, J.

Claimant, the County of Will, State of Illinois, within the borders of which is located' the Illinois State Penitentiary, seeks to recover from respondent the sum of $528.00. The action is brought by virtue of Ill. Rev. Stat. 1947, Chap. 65, Secs. 37-39, to recover the necessary expenses incurred by its officers by reason of court proceedings in such county involving petitions for Writs of Habeas Corpus by or on behalf of inmates of a State charitable or penal institution who were not residents of such county at the time of their commitment and were not committed by any court therein.

Claimant has previously been granted an award of $561.50 by this Court in a similar case under the same statute, in which case claimant was awarded reimbursement for expenses incurred in Habeas Corpus cases for the period September, 1947, through June, 1948. County of Will v. State, 18 C.C.R. 189. That case and County of Randolph v. State, No. 4157, opinion filed February 14, 1950, control this case and are authorities for an award in this case.

Claimant and respondent have filed a stipulation of facts in this case. Such stipulation is hereby approved.

The stipulation discloses that claimant has complied with all of the statutory prerequisites to recovery and that, during the period from July, 1948, through March, 1949, seventy-nine petitions for Writs of Habeas Corpus were filed in the Circuit Court of Will County, Illinois, by inmates of the Illinois State Penitentiary who were not residents of the County of Will or committed by any court therein. In each case the clerk would be entitled to a fee of $5.00, or a total of $395.00. In addition, in connection with twenty-one of snch petitions, photostatic copies of certain records and documents were required to be furnished by the clerk to the Attorney General of the State of Illinois at a cost of $133.00.

No other reimbursable expenses are sought by claimant herein.

An award is, therefore, entered in favor of the County of Will, State of Illinois, in the sum of $528.00.


text:
    (No. 4231
    Rufus H. Brown, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 18, 1950.

      Petition of Claimant for Rehearing denied May 9, 1950.

    W. T. Dennis, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   SCHUMAN, C. J.

Claimant, Rufus H. Brown, was employed in the Division of Highways of the State of Illinois as a highway section man’s helper.

No jurisdictional questions are raised. Claimant’s', earnings for the year preceding his claim were $2,158.06.. He is married, but has no children under 16 years of age dependent upon him for support.

On October 27, 1948, Mr. Brown was one of a group of men assigned to remove broken concrete and other debris from the shoulders of SBI 1, about 3% miles north of Norris City. At approximately 10:00 A.M., Mr. Brown started to pick up a piece of concrete. As he lifted, he felt a sharp pain in his right hip region. Although the pain persisted, Mr. Brown continued working. He consulted his family physician, Dr. J. Bryant, who on November 4, 1948, recommended an examination by a specialist in back injuries.

The Division of Highways completed arrangements for an examination of Mr. Brown on November 8, 1948 at the office of Dr. J. Albert Key, professor of clinical orthopedic surgery, .Washington University, School of Medicine, St. Louis, Missouri. Dr. Key has as associates, Dr. Fred Reynolds, instructor of clinical orthopedic surgery, Washington University, School of Medicine, and Dr. Lee T. Ford, a specialist in orthopedics.

Doctors Reynolds and Ford submitted medical reports, which showed that claimant was operated on on December 7,1948; that an old rupture of the lumbo sacral disc on the right was found and removed, and at the ■space between the fourth and fifth lumbar vertebrae on the right a completely ruptured disc was present, which was removed.

The last medical report showed the following:

“Mr. Rufus Brown, who was operated upon on December 7, 1948 at Barnes Hospital, was seen on June 9, 1949. He had moderate limitation of back motions in all directions. The right ankle jerk is still absent, and the left is diminished. He complained of a little tenderness in the incisional scar in the lower back. Straight leg raising was limited on each side at 80°, but there was no pain. He was advised to attempt to do more work. He was dismissed from further care here, unless he should have further trouble.”

The testimony of the claimant taken on November 29, 1949 shows that he has not been back to the doctors, since Jnne 9, 1949.

From a review of the record it is shown that claimant was paid $538.19 for a period of 24 2/7 weeks through May 15, 1949. On June 9, 1949 the doctors dismissed him from further care and he was advised to do more work. Extending his compensation - payments through June 9, 1949, claimant would be entitled to 27 6/7 weeks- or a total of $543.20. He was paid $538.19, leaving a. balance of $5.01. This would fully compensate claimant for temporary total disability.

There is no showing in the record of the nature and extent of a permanent partial disability. There is no showing of a difference in earning capacity, or proof of' what claimant is able to earn in some suitable employment. Any claim for permanent or permanent partial disability will have to be denied.

An award is entered in favor of claimant for $5.01,. balance on total permanent, and is payable forthwith.

The claim of Marie Springs for stenographic services "in the amount of $12.29 is found reasonable and an award in the amount of $12.29 is hereby allowed.

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


text:
    (No. 4239
    Carl Palmer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1950.

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

On March. 24, 1949, the claimant, Carl Palmer, employed by the respondent in the Department of Public Works and Buildings, Division of Highways, as a laborer, was assigned to remove brush and other vegetation from the right of way of U. S. Route 24, northwest of Rush-ville in Schuyler County. While chopping down a mulberry bush, the claimant misjudged the force necessary to chop off a branch. The axe carried through the brush and struck his left foot, severing a portion of the left great toe longitudinally.

Dr. Hugh Cooper, a specialist in diseases of the bones and joints, made the following report to the Division of Highways:

“Carl Palmer was taken to surgery and a split-thickness skin graft taken from the thigh and used to cover the denuded area on his great toe. About one-third of the great toe was removed, the line going the full length of the toe and going into the metatar-sophalangeal joint. He came to me with a large denuded area exposing the bones of the toe and the head of the first metatarsal. I believe it would amount to probably 60 per cent permanent loss of function of the great toe.”

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

Claimant was temporarily totally disabled as a result of the injury from March 25, 1949, to September 26, 1949, inclusive. Compensation at the rate of $18.00 a week and in the aggregate amount of $478.27 was paid by respondent to claimant, so that claimant has been fully compensated for Ms temporary total disability. Medical and hospital expenses, in the amount of $407.14,, have also been fully paid by the respondent.

Claimant, however, has sustained a sixty per cent loss of the use of Ms left great toe. At the time of the-injury he had been employed by the respondent for a. short time at a wage rate of $7.20 per day. He had no-minor children dependent upon him for support. Employees engaged in a similar capacity worked less than, two hundred days per year. Claimant’s compensation rate, based on annual earnings of $1,440.00 is, therefore, $18.00 per week. For a sixty per cent permanent loss of' use of Ms left great foe he is entitled to $18.00 a week' for a period of 21 weeks, or the total sum of $378.00.

The record discloses that Mary L. Houser has submitted a statement of $6.80 for taking and transcribing' the testimony before Commissioner Summers. This-charge is fair and reasonable.

An award is, therefore, made in favor of the claimant, Carl Palmer, in the amount of $378.00, wMch has-accrued and is payable forthwith.

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

An award is also entered in favor of Mary L. Houser in the amount of $6.80 for taking and transcribing the-testimony before Commissioner Summers, payable forthwith.