text:
    (No. 4328
    C. Ray Orwig, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1950.

    Huber, Reidy and Katz, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   ScHUMAN, C. J.

Claimant, C. Ray Orwigy aged 31, was married, and had two children under 18- years of age dependent on him for support on September 15, 1949. On said date claimant was employed by the Division of Highways of the State of Illinois as an equipment operator, and earned $225.00 per month. He was first employed on July 25, 1949, and up to the date of his injury on September 15, 1949 had earned $388.31.

On September 15, 1949 claimant received a crushing injury to his right index finger, resulting in the amputation of the proximal third of the middle phalanx of said finger.

, It was stipulated that the departmental report would' constitute the record in this case.

No jurisdictional questions are raised, and it is admitted that claimant’s earnings, by using the proper guide, would allow maximum compensation, as men engaged in comparable employment would receive $2,700.00 for the year preceding the injury. All medical expenses have been paid by the State. The only question remaining is the amount of specific loss.

The Court concludes that claimant, having sustained the loss of the third phalanx and a substantial part of the second phalanx of the right index finger, is entitled to an award for the loss of the right index finger.

An award is, therefore, entered for the loss of the right index finger of the claimant for 40 weeks at $24.00 a week, or a total award of $960.00. All of said award 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.”


source: Caselaw Access Project

author: Sohuman, C. J.

license: Public Domain

text:
    (Nos. 4173-4174-4175—Consolidated
    Oscar Lamore, No. 4173, Barbara Ellen Smith, Helen Catherine Smith, minor heirs at law of Edmond P. Smith, deceased, by Margaret F. Keigher, their next friend and guardian, No. 4174, Otto Brandt and Ella Brandt, husband and wife, as joint tenants, and John Hilgendorf, No. 4175, Claimants, vs. State of Illiois, Respondent.

      Opinion filed September 19, 1950.

      Petition of claimant for rehearing in Case No. 4173, Oscar Lamore, denied November 14, 1950.

    John H. Beckers and Harry S. Streeter, Attorneys for Claimants.
    Ivan A. Elliott, Attorney General; William J. Colohan, and C. Arthur Nebel, Assistant Attorneys General, for Respondent.
   Sohuman, C. J.

The above entitled cases are all claims for damages caused by the pollution of a stream known as “Rock Creek” by the Manteno State Hospital. All grew out of the same state of facts, and, therefore, upon stipulation of the parties have been consolidated for the purpose of the hearing and consideration thereof.

It was stipulated that Oscar Lamore, claimant, is the owner, and is in possession of the real estate described in paragraph 1 of the complaint in Case No. 4173.

It was stipulated that Barbara Ellen Smith and Helen Catherine Smith are the owners of the land described in paragraph 1 of the complaint in Case No. 4174, ánd Francis W. Smith is the tenant..

It was also stipulated that Otto Brandt and Ella Brandt, husband and wife, as joint tenants, are the owners of the real estate described in paragraph 1 of the complaint in Case No. 4175, and that John Hilgendorf is the tenant on said premises.

It was further stipulated that the State of Illinois operates and maintains a hospital for the care of mental patients at Manteno, Illinois, known as the Manteno State Hospital, located in Sections 23 and 26, Township 32 North, Range 12 East of the Third Principal Meridian in Kankakee County, Illinois; and that the west boundary of the property of the State of Illinois is a highway, which is also the eastern boundary of the property of the claimant, Oscar Lamore.

It was further stipulated that the population of said institution during the month of December for the following named years was as follows:

1946; 6,542 inmates and 976 employees for a total of 7,518; for the year 1947, 6,973 inmates and 975 employees for a total of 7,948; and in the year 1948, 7,319 inmates and 1,099 employees for a total of 8,418.

It was further stipulated that “Rock Creek” runs in a southwesterly direction along the northwest corner of the lands of the State of Illinois in Section 23, and proceeds southwest through the lands of claimant, La-more, and thence through the lands of the Smith heirs and Brandt; and that “Rock Creek” is a natural water course which empties into the Kankakee River 8 or 9 miles farther southwest.

The State maintained a sewage treatment and disposal plant on Section 23, and all the effluent from the hospital, except from certain farm buildings, is gathered into and treated in the plant, and is emptied into the creek near the northwest corner of Section 23, a distance of approximately two hundred (200) feet east of the Lamore land. There is no question from the testimony that from the discharge of the sewage into said, creek it became contaminated and polluted, and that the claimants suffered damages by reason thereof.

The testimony, without contradiction, was that if the sewage plant had been properly handled that this condition would not have existed.

A similar factual situation was determined by this Court in the ease of McComb v. State of Illinois, 11, C.C.R. 580, and the Court feels that the decision in that case was correct, and that any question with reference to the legal rights of the claimants to recover has been determined by this Court, whether on the theory of negligence, or on the theory of taking property without just compensation. For this reason we do not feel it necessary to discuss the legal questions raised by the respondent, and conclude that the State is liable and as stated by the Court in said decision and we quote on page 591:

“The cases cited would seem to be conclusive of the right of the several claimants to recover, under the provisions of the Constitution, such damages as they have sustained, limited, however, to the allegations of their several complaints, the testimony in the record, and the law governing the proper measure of damages in cases of this kind.”

It is, therefore, only necessary for this Court to consider the proper measure of damages.

Claim No. 4173, Oscar Lamore. This claimant was the owner of the property in question, and claimed that he had 35 acres of ground affected by the overflowing of the creek. The Court feels that the only reasonable conclusion that can be drawn from the evidence on this particular claim is that during the years 1947 and 1948 claimant had to take his live stock out of pasture for 3 months during the years mentioned. That, as a result of such pollution, his cattle had to be dry fed, and that he lost some milk production. That the claimant would be entitled to 90 days for dry feed at the rate of 25 cents per day for each head of cattle or a total of $270 for each of the years 1947 and 1948 or a total of $540.00. For a loss of milk 36 cans at 64 pounds to the can for each of the years 1947 and 1948 or a total of 72 cans equivalent to 4,608 pounds at $5.00 per 100 pounds or the sum of $230.00, making a total damage award to said claimant, Oscar Lamore, of $770.00.

Barbara Ellen Smith, Helen Catherine Smith, minor heirs at law of Edmond P. Smith, by Margaret F. Keigher, their next friend and guardian, and Francis W. Smith, Claim No. 4174. The only conclusion that the Court can reach on this claim, taking into consideration the facts on the other claims, which the Court is bound to consider, is that the said owners of said ground are entitled to damages for loss of use of said ground for pasture land. The Court concludes that the damages for such loss of use is in the amount of $648.00 for the two years 1947 and 1948.

Otto Brandt and Ella Brandt, and John Hilgendorf, Claim No. 4175. The only testimony with reference to any damages sustained by the owners, Otto Brandt and Ella Brandt, was that they lost $12.00 per year per acre on 29 acres of pasture. The Court feels that from the other factual situations and evidence that this is a fair measure of damages for the owners, Otto Brandt and Ella Brandt, and a claim is allowed in the amount of $696.00 to the said Otto Brandt and Ella Brandt. As to the tenant, Hilgendorf, the Court feels that the evidence definitely shows that he suffered damages in purchasing extra feed for his 30 head of cattle for the two year period in the amount of $1,350.00. He sustained loss in milk production of 1 can a day for 90 days in each of the 2 years, making a total damage of $580.00, figured at $5.00 per 100 pounds. However, he was allowed $12.00 an acre per year on the 29 acres of pasture by his landlords, Otto Brandt and Ella Brandt, making a total of $696.00 for the two year period which would have to be deducted from his total award, leaving a net claim to be paid of $1,234.00 to the claimant, John Hilgendorf, by the Court.

An award is, therefore, entered in favor of the several claimants as follows:

Claim No. 4173, Oscar Lamore, $770.00.

Claim No. 4174, Margaret F. Keigher, guardian of Barbara Ellen Smith and Helen Catherine Smith, minor heirs of Edmond P. Smith, deceased, $648.00. As to this claim a certified copy of Letters of Guardianship should be furnished before the claim is paid.

Claim No. 4175, Otto Brandt and Ella Brandt, $696.00. John Hilgendorf, tenant, $1,234.00.


author: SCHUMAN, C. J.

text:
    (No. 4213
    William F. Nommensen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1950.
    Roy A. Ptacin, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William: H. Sumpter, Assistant Attorney General, for Respondent.
   SCHUMAN, C. J.

Claimant, William F. Nommensen, was employed by the Department of Public Welfare of the State of Illinois at the Chicago State Hospital, which takes care of mentally ill patients.

Claimant was first -employed on March 15, 1943, and on March 6, 1949, while in the course of his employment, was attacked by a patient, struck over the head with a milk bottle, and sustained multiple lacerations to the scalp and head.

He was treated by Dr, Cisman of the Hospital, and later was seen by Dr. Albert C. Field.

Dr. Albert C. Field testified that he examined the claimant on May 14, 1949, and found that he had on the left frontal region of his head a scar 2%" long, which was discolored and tender on palpation; above the-left eye, and partially obscured by some of the scattered hairs of the eyebrow, there was a scar about a half inch above the eyebrow, and another scar about three quarters of an inch; and that in his opinion the scars were permanent, and that the scar 2%" -was apparent about 10 feet away, but that the scar above the eyebrow was not apparent at such distance.

Claimant’s earnings for the year immediately preceding his injuries were $2,100.00. He was married, but had no children, and ‘ his compensation rate would be computed at the rate of $19.50 per week.

There are no jurisdictional questions involved, and it is stipulated that both of the parties operated under the terms and provisions of the Workmen’s Compensation Act.

Claimant seeks an award of $1,500.00 for serious and permanent disfigurement to his head and face.

It has been held by this Court in numerous decisions, particularly in the case of Jesse, Et Al vs. State of Illinois, 16 C.C.R. page 13, as follows:

“A compensable disfigurement must not only be permanent and serious, but must be such a disfigurement as affects a person's employment. Where a person is able to procure employment similar to that in which he was engaged at the time of injury, which caused a.disfigurement, with no reduction of earnings, an award is not justified.” (Tyler vs. State of Illinois, 12 C.C.R. 101.)

There was no testimony in this case by either the claimant, nor any physician, that the disfigurements the claimant sustained would in any way effect a reduction of his earnings, or would make him less apt to be able to procure employment similar to that in which he was engaged at the time of the injury. On the contrary the evidence shows that the claimant has continued in his employment with no reduction in his earning capacity.

However, the evidence does show that the claimant sustained some permanent disfigurement to his face, and, therefore, the Court feels that an award of one-third of the total amount that could be awarded for disfigurement would be justified.

William J. Cleary & Co. have submitted a statement-for reporting services in the amount of $38.20, which the Court finds to be reasonable, and therefore entitled to said payment.

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

For permanent and serious disfigurement to the head and face an amount of $433.33, all of which has accrued and is payable forthwith.

An award is also entered in favor of William J. Cleary & Co. for stenographic services in the amount of $38.20.

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. 4256
    Roland Kennedy and Dorothy E. Kennedy, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1950.

    Hollebich and Hubley, Attorneys for Claimants.
    Ivan A. Elliott, Attorney General; William H. Sumpteb, Assistant Attorney General, for Respondent.
   Lansden, J.

Commissioner Wise, who heard the testimony in this case has filed a report herein, which reads as follows:

“Roland Kennedy and Dorothy E. Kennedy, husband and wife, filed their complaint herein on January 3, 1950, to recover damages sustained by them in an accident on August 15, 1949. They seek to recover for damages to their truck; loss of use of truck from August 15, 1949, to October 30, 1949; loss of cargo of peaches, less salvage; and for personal injuries to the wife, including medical services.

‘ ‘ On August 15,1949, the claimant, Boland Kennedy, an experienced driver, was the owner of a 1948 Model 1 % ton Ford truck. His brakes and lights were in perfect condition. The previous day, he purchased a truck load of 100 to 105 bushels of peaches in Jefferson County, Illinois, and left Mt. Vernon, Illinois, at approximately 4:00 P.M. on said day, and later left Salem, Illinois, about 6:00 P.M. Claimants were traveling north on their way to Bochelle, Illinois to sell the peaches, ard to work in a canning plant. At approximately 3:30 A.M. on the morning of August 15, 1949, they reached a point just north of the City of Oglesby, Illinois, when the accident in question occurred. The highway, on which they were traveling, is known as Illinois State Boad No. 2, or U. S. Boute 51. Generally speaking, U. S. 51 is a north-south route, and at the point of collision connects the cities of Oglesby and LaSalle in LaSalle County. The highway north from Oglesby traverses a series of curves down grade before reaching the Illinois Biver. The hill down, and the curve around which claimant was traveling at the time of the collision is approximately one-half mile north of the City of Oglesby. There were several signs in place at the time of the collision, to-wit, a 24x24 inch reflectorized sign with a ‘curve’ symbol on it, and a critical speed sign marked ‘40 M.P.H. ’ These signs were on a single post, 735 feet south of the top of the hill, and 922 feet south of the beginning of the curve. Another sign was in place just north of the beginning of the curve warning of the junctions of Routes U. S. 51 and State 71 near the bottom of the hill. The concrete pavement approaching the curve is 18 feet wide, but the curve is 21 feet wide, and is bordered on the inside by a 21 inch gutter, and on the outside by an earth shoulder. Guard rails border the outside of the curve.

“Roland Kennedy testified that he was driving north at the point in question at a speed, of 30 to 35 m.p.h.; that he met a car coming from the opposite direction, and the driver of this car was near the center line of the highway, and driving at a high rate of speed. When the cars were 8 or 10 feet apart, claimant’s right front wheel dropped off the pavement, and in attempting to get back on the highway he struck the edge of the pavement and also a hole in the shoulder. In striking the shoulder he lost control of the truck, and crashed into the guard rail with the resulting damages.

“There was considerable testimony as to the condition of the shoulder and the highway at the point in question, and several photographs were admitted into evidence. Kennedy denied that there were any warning signs in place south of the scene of the accident. Kennedy further testified that he had approximately 6,000 pounds on his truck; that the load was top heavy, and he was afraid to apply his brakes just prior to the accident because of the condition of his load. The evidence further reveals that the truck traveled approximately 75 feet after leaving the highway to the first point of impact with the railing at the beginning of the curve, and that approximately 100 feet of guard rail was broken down.

“It is my opinion that the shoulder of the road at the point in question was not in good repair; that there was a drop off from the pavement to the shoulder, and that the shoulder was rough; However, it is my opinion that the accident in question was caused by the negligence of Kennedy in failing to observe and heed the warning signs at the top of the hill, and not having his truck under control. It is also my opinion that he was driving too fast on the highway at that point, that* his load was top heavy, and that his negligence was solely responsible for the accident.

“It is my recommendation that his claim be denied in full. It is also recommended that the claim of Dorothy E. Kennedy be denied, because there is no evidence show-, ing that the State of Illinois was responsible for her loss, and that the negligence of her husband was the proximate cause of her injury.”

We do hereby adopt the report of Commissioner Wise as an opinion herein, and approve his recommendations.

Awards to claimants denied.


author: Lansden, J. .

text:
    (No. 4298
    Sarah Bell Kersten, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1950.

    Roy A. Ptacin, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J. .

Claimant, Sarah Bell Kersten, seeks to recover from respondent under the Workmen’s Compensation Act for injuries sustained to her right hand as a result of an accident that arose out of and in the course of her employment as a housekeeper at the Chicago State Hospital, operated by the Department of Public Welfare.

On February 4, 1950, claimant, in charge of a cleaning. detail, was brushed by one of the patients, who was carrying a ladder, lost her balance, and fell down three or four stairs, sustaining a Colies fracture of her right wrist.

No jurisdictional questions are involved, and respondent furnished all medical and hospital treatment required to cure or relieve claimant of the effects of her injuries.

The proof shows that claimant has a permanent but partial loss of the use of her right hand, and the only question involved herein is the extent of such partial loss.

Claimant’s right wrist is somewhat atrophied. The silver-fork characteristic of a Colies fracture still remains, there having been an imperfect reduction of such fracture. All movements in the wrist joint are restricted. Extension is limited about one-third and flexion one-half. Eversion is one-half normal, and inversion one-quarter. Claimant cannot make a fist or oppose her thumb to the base of her little finger. Her grip is markedly lessened. Comminution of the fracture of the radius extends into the joint space. A fracture of the ulna has resulted in a deformity of the styloid process. The carpal bones evidence traumatic arthritis.

From the foregoing we conclude that claimant has sustained á 50 per cent loss of use of her right hand. Smith v. State, 16 C.C.R. 52.

Claimant on the date of her accident was 65 years of age, unmarried, with no children. In the year prior to her accident her earnings amounted to $2,244.00. Her rate of compensation is, therefore, $22.50 per week.

Claimant was totally and temporarily disabled from February 4, 1950, up to and including March 12, 1950. She was entitled to compensation for such period of 5 1/7 weeks in the amount of $115.71, but she was paid $242.63, or an overpayment of $126.92."

William J. Cleary & Co., Court Reporters, Chicago, Illinois, was employed to take and transcribe the testimony at the hearing before Commissioner Tearney. Charges in the amount of $43.98 were incurred, which are customary. An award is, therefore, entered in favor of William J. Cleary & Co. for $43.98.

An award is entered in favor of claimant, Sarah Bell Kersten, under Section 8 (e) (12) of the Workmen’s Compensation Act, for a 50 per cent loss of use of her right hand, or 85 weeks at $22.50, or the sum of $1,912.50, from which must be deducted the overpayment of $126.92, leaving a net award of $1,785.58, payable as follows:

$ 906.43, less overpayment of $126.92, or the sum of $779.51, which has accrued and is payable, forthwith;
$1,006.07, which is payable in weekly installments of $22.50 per week, commencing on November 21, 1950, for a period of 44 weeks, plus one final payment of $16.07.

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


author: ScHUMAN, C. J.

text:
    (No. 4302
    The Texas Company, a Delaware Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1950.

    Paul F. Schlicher, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   ScHUMAN, C. J.

Claimant, The Texas Company, a corporation, on various dates during periods from April 10, 1947 to June 30, 1947, and from November 4, 1948 to June 30,

1949 furnished gasoline, kerosene, liquid fuels, oils'and lubricants, pursuant to purchase orders from the Department of Finance, Division of Purchases and Supplies for the State of Illinois, to the Department of Public Works and Buildings, Department of Conservation, Department of Public Works and Buildings, and Department of Public Safety in the amount of $103.01.

A stipulation was entered into by the parties showing $7.74 was barred by limitation, and a balance of $95.27 is justly due and owing claimant.

Claimant’s schedule covering purchases made prior to July 1, 1947 were not received in time to be paid in regular course from the 64th Biennium Appropriations. Purchases between July 1, 1947 and June 30, 1949, for similar reasons, could not be paid from the 65th Biennium Appropriations, respective appropriations lapsing on September 30, 1947, and September 30, 1949.

By the repeated decisions of this Court, it has been held that where the facts are undisputed that the State has received supplies ordered by it in accordance with due authority, and has used the same, and that the bill therefor was not paid before the lapse of the appropriation out of which it could have been paid, an award for the amount may be made. (Shell Petroleum Co. v. State, 7 C.C.R., 224; Shonkwiler v. State, 11 C.C.R., 602, and other cases.)

An award is therefore entered in favor of the claimant, and allowed in the amount of $95.27.


author: SOHUMAN, C. J.

text:
    (No. 4310
    Harvey L. House, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1950.

    Boy A. Ptacin, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Bespondent.
   SOHUMAN, C. J.

Claimant, Harvey L. House, was employed by the Department of Public Welfare at the Chicago State Hospital, Chicago, Hlinois. On the 15th day of April, 1950 he suffered an injury to his right hand by reason of his hand being caught between a table and bench, caused by the patients shoving a table against the bench. There are no jurisdictional questions involved, and it was stipulated and agreed that the injury which the claimant received was in the course of his employment; and, that immediate notice was given, and claim was filed at the proper time. The claimant’s earnings for the year preceding his injury were $1,775.50. The claimant was 38 years of age, and had no children.

Claimant was treated by Dr. Cisman. X-Bays were taken, but were not. introduced in evidence. Claimant was also seen by Dr. Albert C. Field, who was the only doctor to testify in the case. Dr. Albert C. Field said that he had examined the claimant on May 24, 1950, and took an X-Ray of his right hand. The X-Ray showed a comminuted fracture of the fifth metacarpal, proximal third, with considerable deformity; that the fragments were not healed, and that the fracture extended into the wrist joint. Dr. Field further stated that the significance of such fracture caused irregularity in the articulating surface, causing an arthritic condition; that the ring finger of the right hand had a limitation in the extension ■ of 30 degrees in the metacarpal and distal phalanges; that the little fipger of the right hand had a limitation of extension of 30 degrees, and that, in his opinion, the condition was permanent. The doctor testified that the man, in his opinion, had a 25 per cent total disability of the right hand. This testimony was not objected to, and, as far as the record is concerned, stands conclusive.

William J. Cleary & Co. filed a claim for stenographic services in the amount of $41.05. The Court finds that this claim is reasonable.

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

Twenty-five per cent permanent specific loss of the right hand in the sum of $956.25, payable in weekly installments of $22.50; commencing on April 22, 1950. Thirty weeks of said compensation has accrued to November 11, 1950 in the amount of $675.00, and is payable forthwith, the balance of $281.25 is payable at the rate of $22.50 per week, commencing November 18, 1950 for a period of 12 weeks with one final payment of $11.25.

An award is also entered in favor of William J. Cleary & Co. for stenographic services in the amount of'$41.05, which is payable forthwith.

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


text:
    (No. 4312
    Hazel D. Switzer, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1950.

    Joseph J. Babb, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Abthub Nebel, Assistant Attorney General, for Respondent.
   SCHUMAN, C. J.

Claimant, Hazel D. Switzer, is the widow of Harry D. Switzer, deceased, who was formerly employed by the Department of Conservation, Division of Forestry, of the State of Illinois. Claimant, his widow, seeks an award for the death of her husband under the provisions of the Workmen’s Compensation Act.

At the time of the death of Harry D. Switzer, he was survived by Hazel D. Switzer, his widow, and two children, Harry, 14 years of age, and Susan, aged 4; and said widow and children were totally dependent upon him for their support. His earnings during the year preceding his death were $3,374.12. There is no dispute that both of the parties were operating under the terms and provisions of the Workmen’s Compensation Act, and no jurisdictional questions are involved.

The decedent, Harry D. Switzer, on May 19, 1950, while in the course of his employment, went with Mr. H. C. Frayer, from Elkin, West Virginia,- who was employed by the United States Government in the Forest Service, for the purpose of taking a group of foreign foresters to a certain place on a small island in the Mississippi River west of Ware, Union County, Illinois. The foreign foresters were members of the “Poplar Mission,” and included Mr. Rene Rol of.Nacy, France, Mr. Ola Borset of Solo, Norway, Dr. G. Houtzagers, of Arnhem, Holland, Mr. Spig Wijkstrom of Jonkoping, Sweden, Dr. Wolfgang Wettstein of Vienna, Austria, Mr. Albert Herbignat of Brussels, Belgium, and Mr. Glenn H. Deitschman of the Central States Forest Experiment Station, Carbondale, Illinois. Mr. Frayer under the guidance of Mr. Switzer was engaged in inspecting a stand of cottonwood on a small island in the Mississippi River west of Ware, Union County, Illinois. The island is separated from the Illinois shore by a narrow waterway approximately 100 yards in width. During the summer months in periods of little rainfall, the elevation of the water at this point is low and passable by a roadway, but on the date, May 19, 1950, it was necessary to use a boat. The roadway was covered with approximately 4 or 5 feet of water. Midway between the Illinois shore and the island is a low bridge completely covered by water at this time. The bottom of the channel beneath the bridge is probably 6 to 8 feet below the elevation of the bridge.

Members of the party were ferried to the island three at a time in a flat bottom skiff with Mr. Switzer acting as ferryman. When the party had completed its inspection, and after the boat had been bailed out, three of the visiting foresters — Mr. Rol from France, Dr. Houtzagers from Holland, and Mr. Herbignat from Belgium— embarked in the boat with Mr. Switzer, who sat in the stern of the boat, and used a single paddle. When the boat reached a point about midway of the crossing at 10 or 12 feet north of the bridge location, the- boat seemed to fill rapidly with water, and sank without capsizing. Mr. Switzer, together with the visiting foresters, wore heavy clothing, and had boots on. Apparently Mr. Switzer sank immediately. Mr. Eol, Dr. Houtzagers and Mr. Herbignat were rescued. The boat was in very poor condition. It had numerous open seams in the bottom, and was water-logged. Attempts were made by the parties to locate the body of Mr. Switzer, but their attempts were futile, and he was later recovered by means of a grappling hook.

The coroner’s inquest was held on May 20, 1950, and the jury found that Harry D. Switzer came to his death by drowning. The evidence showed that the accident occurred about 4 P.M., and that the body of Harry D. Switzer was recovered at about 6 P.M. the same evening. There was apparently no definite testimony as to just what happened to Harry D. Switzer, and some of the witnesses thought that he might have had a heart attack. However, there is no medical testimony in the record that supports this theory. The claimant, Hazel D. Switzer, testified that her husband, Harry D. Switzer, the decedent, was a man of very good health, and had not been treated prior to his death.

Eollin Moore was employed to take and transcribe the evidence before Commissioner Summers. He submitted a statement in the amount of $26.82, which charges • are fair, reasonable and' customary. •

On the basis of the record, an award is entered in favor of Hazel D. Switzer, widow of Harry D. Switzer, the decedent, in the amount of $7,500.00, to be paid to her as follows:

$ 600.00, which has accrued and is payable forthwith;
$6,900.00, which is payable in weekly installments of $24.00 per week, beginning on the 18th day of November, 1950, for a period of 287 weeks, with an additional final payment of $12.00.

All future payments being subject to the terms and 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.

An award is entered in favor of Eollin Moore for stenographic services in the amount of $26.82, which is payable forthwith.

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


text:
    (No. 2762
    Paul H. Boyers, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1950.

    Clarence B. Davis and P. H. Ward, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Eespondent.
   SCHUMAN, C. J.

Claimant, Cecile B. Hoover, executrix of the estate of Paul H. Boyers, has filed a claim for medical and hospital expenses expended by the decedent, Paul H. Boyers, in his lifetime, which were claimed necessary to relieve decedent of injuries sustained, and for which an award had been previously made by this Court.

A hearing was previously had a short time before decedent’s death, but no conclusion reached because of the death of the said Paul H. Boyers..

The decedent had incurred medical and hospital expenses reasonably required to cure or relieve him from the effects of his injury.

This Court had rendered an award in Boyers v. State, 9 C.C.R. 530, and reserved jurisdiction for such further orders as might subsequently be made. An additional award was granted on May 14, 1941 (Boyers v. State, 12 C.C.R. 377, and in Boyers v. State, 14 C.C.R. 1) for additional expenses.

Paul H. Boyers died testate on July 23, 1949, and claimant has presented her claim for the following expenses:

Dr. Robert Nelson, Clinton, Iowa (Surgery — Dec. 1946)-------$ 200.00
Dr. Charles Waggoner (Assistant to Dr. Nelson, Clinton, Iowa)--- 10.00
Jane Lamb Hospital, Clinton, Iowa----------------- 90.65
Public Hospital of the City of Sterling--------------------- 1,509.05
Dr. Ralph Redmond, Sterling, 111------------------------------- 710.00
Melvins Funeral Home__________________________________ 710.00
Oak Knolls Memorial Park_____________________________________ 25.00
Cecile Hoover, for meals furnished Paul H. Boyers during illness----- 1,918.00
$5,172.70

The evidence shows that the claims of Dr. Ralph Redmond in the amount of $710.00, and the claim of Public Hospital of the City of Sterling in the amount of $1,509.05 were clearly necessary to relieve the decedent from the effects of his injury. Claimant is, therefore, entitled to an award in the amount of $2,219.05.

■ An award is, therefore, made in favor of claimant for the benefit of the persons named in the amount of $2,219.05.


author: S CHUMAN, C. J. Schuman, C. J.

text:
    (No. 4023
    L. Balkin Builder, Inc., an Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 18, 1950.

      Supplemental Opinion filed December 15, 1950.

    Brown, Fox and Blumberg, Attorneys for Claimant:
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   S CHUMAN, C. J.

Claim is brought by L. Balkin Builder, Inc., an Illinois corporation, against the State of Illinois, which arises out of a contract dated November 26, 1943 for making repairs on the substructure and superstructure of the bridge' over the Illinois River at Peru, LaSalle County, Illinois.

One of the first questions to coiisider is whether or not the “Standard Specifications for Road and Bridge Construction”, adopted July 1, 1942 by the Department of Public Works and Buildings, Division of Highways, is a part of the contract in its entirety. The Departmental Report filed in this Court on February 23,-1949 on page 6 sets forth the following:

“The Standard Specifications for Road and Bridge Construction, adopted July 1, 1942, as supplemented and amended, are to be used only when referred to in this contract as set forth in Paragraph 5.0 of the Specifications, and at no other time. Extra work is specifically provided for in the contract between claimant and respondent under Paragraph XV of the Memorandum of Agreement. Therefore, the provisions of the Standard Specifications, as alleged by claimant, do not apply, and claimant is not entitled to any further payment under this count of the complaint.”

There is no express provision in the contract in question making said “Standard Specifications” a part of said contract. The only thing that appears in the record is the testimony of J. A. Todson, Chief of Operations for the Division of Waterways, who stated that general specifications are included in all contracts, and that he referred to “Standard Specifications” adopted July 1, 1942.

Respondent cites Henkel Construction Company v. State of Illinois, 10 C.C.R. 538. On page 542 of that opinion the Court specifically held that the pertinent parts of the “General Specifications” pertaining to acceptance of last payment by the contractor were made a part of the contract.

Respondent also cites Madison Construction Company v. State of Illinois, 11 C.C.R. 64, but in that case the “Standard Specifications” were specifically made a part of the contract.

Respondent also cites L. B. Strandberg & Son Co. v. State of Illinois, 13 C.C.R. 49. This case was on a motion to dismiss, and an affidavit filed in support of the motion showed the release provisions of the “Standard Specifications” were a part of the contract.

Respondent cites Richardson v. State of Illinois, 14 C.C.R. 3. In that case the “Standard Specifications” were specifically made a part of the contract.

Respondent cites case of Worden-Allen Company v. State of Illinois, 16 C.C.R. 138. That case was disposed of on a motion to dismiss, and the contract contained a specific provision that “the acceptance by the contractor of the last payment shall operate as and shall be a release to the Department ...”

Respondent cites the case of Hartmann-Clark Bros. Company v. State of Illinois, 17 C.C.R. 99. In that case the contract specifically provided “that the work be done according to the ‘Standard Specifications’ ”.

In looking at the contract we can find no such provision ás contended for by the respondent. On the contrary, according to the Departmental Report, the ‘ ‘ Standard Specifications” were only to be used when referred to in the contract.

In the ease at bar no defenses were raised as to payment. Even though they were not raised, if the contract had the applicable provisions of the “Standard Specifications’ ’ as to release set forth, such provisions would be binding on the claimant. The Court concludes that the claim of a release is not meritorious.

In disposing of the above questions, it then becomes necessary to determine whether or not claimant is entitled to the relief prayed.

Under Count I of the complaint, the Court concludes as to paragraph 6 that claimant should be allowed 44 F.B.M. of new lumber, which figured at the rate specified of $373.00 per thousand would amount to $16.41.

Under paragraph 7 the Court concludes claimant is entitled to 157 F.B.M. for salvaged lumber, which figured at the rate specified of $293.00 per thousand would amount to $46.00.

Under paragraph 8 the evidence shows that 341.25 cubic yards of concrete were purchased by claimant for the particular job.. Claimant’s Exhibit 6 shows 5 cubic yards wasted. This deducted from 341.25 cubic yards leaves 336.25 cubic yards. Claimant was paid for 330.8 cubic yards leaving 5.45 cubic yards for which payment should be made. This figured at $56.50 per cubic yard would amount to $307.92.

The claims under paragraphs 9 and 10 are dénied.

Under Count II the evidence shows the work performed was not in the original plans, and that new plans were, submitted. Therefore, claimant is entitled to the sums claimed in paragraph 2(a), 2(b), and 2(c) in the amount of $214.80.

The installation of fender timbers were not shown on the plans, and claimant should be allowed the amount claimed under paragraph 2(d) in the amount of $568.13.

Paragraph 2(e) is denied, as the State allowed one-half of this amount on a questionable item.

There is no competent evidence as to value under Count III, and this amount is denied. The question as to the definition of the word “disposal” is not decided.

Count IV claims additional amounts for extending foundation down 4' below the contract line. Claimant’s Exhibit 18 shows the installation of the concrete jacket was to extend to the bed of the stream, and specifically provided that the contractor was to verify all measurements in the field, and this was borne out by claimant’s own evidence. Claimant contends “Standard Specifications” applies, although the contract does not so specify. Claimant alleged in its complaint that respondent requested the concrete jacket be extended four feet below the contract line. This is not borne out by the evidence. If claimant desires to be bound by the “Standard Specifications”, then its entire claim would have to be disallowed under the decisions previously stated. Claimant in its brief states that “Standard Specifications” only applied in specific instances. To this both sides agree. Under paragraph 3 of the contract the contractor agreed that it would satisfy itself as to all conditions affecting the work. For the reasons assigned, the claim in Count IV is disallowed.

There is no dispute as to Count V, only respondent states that the prevailing rates for labor attached to the contract were minimum. Under paragraph 19 of page 4(b) on information to bidders, the Court is of the opinion that prevailing rates in the area were to be paid, and claimant is entitled to the additional amount claimed of $825.19.

The Court concludes claimant is entitled to recover the sum of $1,978.45.

An award is entered in favor of claimant in the amount of $1,978.45.

Supplemental Opinion

Schuman, C. J.

The Court on rehearing has considered the intent and purpose of the statute “Wages on Public Works”, and concludes that said statute was to remedy the evil of paying wages under the prevailing rate in the locality where the work was to be done, and does not affect the contractual provisions between the State and claimant in this case.

In fact the statute provides a declaration of policy that the State in letting public contracts shall require the payment of prevailing wage rates in the community where work is to be done, and the State shall not be a party to sub-standard wage cutting.

In the contract it is provided that, if rates determined by the Department are superseded after the award of the contract, adjustments are to be made.

Evidence was submitted showing that the prevailing rate was different in the locality where the work was performed. The items as to insurance • will be deducted from the amount paid, which was $81.78, and the opinion modified to reduce the amount of $825.19 to $743.41.

Opinion is modified to show an award in the sum of $1,896.67.

An award is entered in favor of claimant in the amount of $1,896.67.


text:
    (No. 4152
    Robert B. Radford, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1950.

    Robert H. Allison and Herbert N. Tragethon, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   SCHUMAN, C. J.

Claimant, Robert B. Radford, 62 years of age, was employed on June 17, 1948 by the Department of Public Welfare, State of Illinois, at Peoria State Hospital, and was working the shift from 3:00 P.M. to 11:00 P.M. in Ward Z-3, called the receiving ward. Claimant was married, but there is no proof of any children under 16 years of age.

No jurisdictional questions are raised, and injuries of claimant were sustained in the course of his employment.

Claimant’s earnings for the year preceding his injury were $1,997.00.

At about 7:45 P,M. on June 17, 1948 an altercation ensued between claimant and a patient by the name of Lester Moomaw. Claimant received very painful injuries, consisting of fractured ribs, and a later diagnosis confirmed a diaphragmatic hernia for which he underwent surgery. After the operation claimant suffered weakness and numbness of both feet and lower extremities, and complained of pain in left shoulder. Claimant has a persistent foot drop of his left foot, and it is necessary for him to wear a brace to correct this. Dr. Lloyd Finley Teter’s report admitted, without objection, that claimant had 25 to 50% total and permanent loss of the use of his left leg. It is apparent that the condition of claimant’s leg resulted from his injuries, and the treatment therefor.

All hospital and medical expenses have been paid by respondent. Claimant expended the sum of $195.60 for expenses to and from various doctors and hospitals authorized by respondent, for this claimant should be reimbursed.

On the basis of this record the Court concludes claimant has sustained a 35% permanent specific loss of use of the left leg. Claimant was temporarily permanently disabled for 47 6/7 weeks for which he is entitled to compensation at the rate of $19.50 per week, or $933.21. During his temporary disability claimant was paid by the department the sum of $878.67. This deducted from $933.21 leaves a balance due of $54.54.

Stenographic services at the hearing were furnished and reported by Johnson Fleming, for which he has submitted a statement in the amount of $65.70, which the Court finds to be reasonable.

On the basis of the record the Court makes the following award:

For temporary total disability to claimant balance due $54.54, which.has accrued and is payable forthwith.

For 35% specific loss of use of left leg of claimant, 66% weeks at $19.50 per week for a total of $1,296.75, all of which has accrued and is payable forthwith.

The sum of $195.60 to claimant for money necessarily expended by him to receive treatment for his said injuries.

The sum of $65.70 for stenographic services, payable to Johnson Fleming.

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: Lastsden, J.

text:
    (No. 4208
    Robert L. Middleton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1950.

    Roy A. Ptacin, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sitmpteb, Assistant Attorney General, for Respondent..
   Lastsden, J.

Claimant, Robert L. Middleton, seeks to recover from respondent under the Workmen’s Compensation Act for a partial loss of use of his left hand as a result of an accident that arose out of and in the course of his employment as an attendant at the Chicago State Hospital, operated by the' Department of Public Welfare.

On April 10, 1949, claimant was working with some patients unloading large cans of food from trucks. The food containers were slid along the floor, and a patient, in sliding one of such cans, caught, and wedged claimant’s left hand between two such cans.

The full extent of claimant’s injuries was not at first diagnosed by X-Rays. However, some weeks later it was. discovered that claimant had sustained a fracture at the proximal end of the first metacarpal of his left hand. This fracture extended into the metacarpal articulation. The fragment was displaced medially. This injury was very painful, the pain being centered over the thenar eminence. Claimant cannot bring his left thumb and little finger in contact. There is a grating at the articulation involved when the thumb is moved. Flexion is limited at that point, and loss of grip is evident. Claimant can no longer perform simple functions like buttoning his coat or shirt with his left hand. There is definite indication of traumatic arthritis. All these findings are considered to be permanent.

Dr. Albert C. Field testified for claimant. Dr. Louis Cisman testified for respondent. Commissioner Tearney has reported his observations of claimant’s left hand at the hearing. All three agree exactly on the extent of claimant’s partial loss of use of such hand.

This phalanx of unanimity leaves this Court no choice but to follow such uncontradicted testimony and opinions, and we hold that claimant has sustained a 30 per cent loss of use of his left hand. Our conclusion is also buttressed in part by the case of Smith v. State, 18 C.C.R. 164, which involved a similar injury to an employee at the Chicago State Hospital, and, in which the same counsel appeared, and the same doctors testified.

No jurisdictional questions are involved, and except for $8.50 paid for by claimant, respondent has furnished all medical services.

Claimant lost no time from his job, so there is no question concerning temporary total disability.

On the date of his accident, claimant was 41 years of age, married, with one child, Vernell Middleton, aged 15, dependent upon him for support.

Claimant had not been employed for one year prior to his accident, but employees in the same category earned an annual wage of $1,650.00. Claimant’s rate of compensation is, therefore, $19.50 per week.

William J. Cleary & Co., Court Reporters, Chicago, Illinois, was employed to take and transcribe the testimony before Commissioner Teamey. A statement in the amount of $42.00 has been rendered for such services, which is reasonable and customary. An award is, therefore, entered in favor of such firm in the amount of $42.00.

An award is entered in favor of claimant, Robert L. Middleton, under Section -8 (a) (e) (12) of the Workmen’s Compensation Act for medical expenses, incurred, and paid for by him, in the amount of $8.50, and, in addition, for a 30 per cent loss of use of his left hand, being 51 weeks at $19.50 per week, or the sum of $994.50, making a total award of $1,003.00, all of which has accrued and is payable forthwith.

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


text:
    (No. 4214
    Darwin Eyre, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1950.

    David E. Oram, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   SCHUMAN, C. J.

Claimant, Darwin Eyre, was employed by the State of Illinois, Division of Highways, as a highway section man commencing on April 3, 1941. On July 10, 1949 claimant received an injury to his back, while performing the duties assigned to him, and unloading bagged cement from a railroad freight car from the Illinois Central Railroad siding at Buckley, Illinois.

At the time of his injury on July 10, 1947, claimant was married, and had three children under the age of 16 years dependent upon him for support, and his earnings for the year preceding the injury were $2,214.12.

No jurisdictional questions were 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.

Claimant’s work history showed that he had sustained minor injuries to his back, while performing work for respondent on April 3, 1945, July 20, 1946, and October 28,1946. On July 10,1947, while carrying the cement, as stated, and, after he had carried about 25 or 30 bags of cement, he felt a sharp pain in his back, and discontinued carrying cement, and continued his supervising duties.

Because of continued pain in his back, the claimant called on his family physician, Dr. A.- B. Zunkel, at Buckley, Illinois on July 12, 1947. Dr. Zunkel made a diagnosis of ureteropyelitis, and suggested to claimant that he may have displaced some of his internal organs.

On, July 24, 1947 claimant reported his condition to the Division of Highways, and asked for treatment. The Division obtained a report from Dr. Zunkel on August 14, 1947, and because of the report, a question arose as to whether or not the claimant had suffered a compensable injury. As a result the Division sent the claimant to Dr. H. B. Thomas in Chicago, an orthopedic surgeon. Dr. Thomas informed the Division that claimant had a spina bifida occulta, and that the accident had exaggerated it, and suggested that he havé an operation and fusion be created. Claimant was examined by Dr. T. P. Grauer, a specialist in urology. An operation was performed on claimant on September 9, 1947 and from the doctor’s report the following is taken:

“The loose fifth lamina was removed and the 5th sacral and 4th and 5th interspaces examined, but no evidences of protrusion. Since there were no spinous processes on any of the sacral vertebrae, the lower end of the grafts had to be laid upon grooves which were cut .into the sacral wall. This was joined with the fourth and third lumbar vertebrae.”

After the operation, claimant was released from the hospital on September 22, 1947, and returned home. On December 23, 1947, claimant was again examined by Dr. Thomas, X-Bayed, and was dismissed to return to work on light duty on January 1, 1948. On February 20, 1948, claimant was again examined, and the X-Bay taken on December 23, 1947 indicated that there was evidence of bone graft involving the spinous processes of the 4th and 5th lumbar and the first sacral segments; that alignment and position were good, callus was present, and that the prognosis was good. On April 21, 1948, the claimant was examined by Dr. Thomas, and again on May 25, 1948. At that time Dr. Thomas thought he had a 15 per cent disability of the low back. On November 4, 1948, claimant was again examined by Dr. Thomas and X-Rayed. As a result of said examination Dr. Thomas sent a report to the Department on November 15, 1948, and stated in the report that he found everything perfectly "normal. Dr. Thomas again examined claimant on January 11, 1949, and stated that he would have a maximum disability of about 20 per cent. He again examined him on February 8, 1949, and said that he would dismiss him with a 10 per cent temporary disability." On February 14, 1949, Dr. Thomas wrote a final report indicating that the claimant’s complaints were mental, and that claimant would improve after he was dismissed.

Claimant returned to light work on January 1, 1948, and at the time of his discharge on February 20, 1949 he was performing his regular duties.

Claimant was totally "disabled from August 21 to August 28, 1947, and from September 9 to December 31, 1947. He was paid full salary for the period of August 21 to August 28, 1947, and September 9, to September 28, 1947; and, compensation at the rate of $23.40 per week for a period of September 29 to December 31, 1947, the total payments being in the amount of $475.76.

The present claim is for further medical expenses, compensation for additional temporary total disability, as well as compensation ^or total and permanent disability. The evidence in this case revealed that the claimant made a complete and satisfactory recovery, returned to his regular occupation, and worked steadily until his dis charge' from the Department on February 20, 1949. The evidence further shows that after he left the Division of Highways he earned $4,000.00 in the year following, and the only testimony in the record to the contrary, was that he had not earned any money in the year 1950. There is no testimony in the record as to inability to work, or differences in earning power, but on the contrary it was apparent that he had earned more in subsequent employment than he did while • working for the State. The only testimony in the record of his inability to work was that he could not do manual labor with a shovel. In addition to lack of testimony with reference to a compensable injury at the time of the filing of the claim, there was no testimony in the record that would serve for a total permanent disability, or for permanent, partial disability. For this reason an award will have to be denied.

Beverly J. Decker, 509% South Fourth Street, Watseka, Illinois has submitted a statement in the amount of $49.00 for stenographic services, which is found to be reasonable, and an award is entered in the amount of $49.00 to Beverly J. Decker.

Award denied.


text:
    (No. 4250
    George Dykhuizen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1950.

    Bull, Yost and Ludens, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   SCHUMAN, C. J.

Claimant, George Dykhuizen, was employed by the Division of Highways, State of Illinois, on January 1, 1924. On July 1, 1947 claimant was a maintenance equipment operator, was married, and had one child under 16 years of age. His earnings in the year preceding his injury totaled $2,043.51.

On July 1, 1947, Mr. Dykhuizen was one of a group of men assigned to move a crane trailer to a point on Whiteside County State Aid Road 14, approximately 10 miles west of Morrison. The trailer was attached to a truck. Having arrived at the desired location at approximately 10:00 A.M., Mr. Dykhuizen and his helper proceeded to disengage the trailer from the truck. The assistant, Mr. Jason Bennett, of Morrison, held the trailer tongue, and supported the truck endgate as Mr. Dykhuizen unhooked the trailer. While in this position, the truck moved forward, causing Mr. Bennett to lose his balance and let loose of the endgate, which struck Mr. Dykhuizen on the head as it fell. Mr. Dykhuizen was rendered unconscious by the blow. Mr. Bennett called an ambulance, and Dr. Ward B. Manchester, of Morrison, who sent Mr. Dykhuizen to the Morrison Hospital.

Medical testimony of Dr: Manchester diagnosed a fracture of the 4th thoracic vertebra. Because of lack of improvement, he was sent to Dr. H. B. Thomas, orthopedic surgeon, in Chicago, Illinois. On January 7, 1948 Dr. Thomas made his first examination, and had claimant hospitalized at St. Luke’s. The result of Dr. Thomas’ examination disclosed muscle spasm of all neck muscles. Claimant was also examined by Dr. Robert G. McMillan, neurologist, who reported “Neurological examination does not confirm any definite diagnosis.” Dr. Wesley A. Gustafson examined claimant, and his impression was that claimant had a mild cervical disc syndrome. Dr. Thomas again saw claimant on March 24, 1948.

Dr. Robert G. McMillan, psychiatrist, examined, claimant on January 10, 1948, and reported no unusual findings.

Dr. Thomas examined claimant again on May 18, 1948 and on May 26, 1948 and reported:

“There is a slight depression posterior upper skull mentioned in one of our former letters as an injured area; otherwise the examination is negative. There is a numb feeling felt frequently, particularly when fatigued, in the left outer thigh. He hasn’t had any physic for about two weeks. I am recommending dismissal at this time, allowing him to continue with the work he is doing to save himself, until the effects of the concussion as illustrated in the head dizziness and leg numbness disappears.”

On June 16, 1948, Dr. W. A. Gustafson, Assistant Professor of Neurological Surgery, Illinois University, examined claimant, and reported:

“Neurological examination revealed pain upon compression' of the head, pain paravertebrally upon percussion, and pain on rotation of the head. No other abnormality was found. Lumbar puncture was done, and this revealed clear, colorless fluid, total protein of 38 millimeters per cent, and a normal colloidal gold curve.
It was j my impression that he was suffering from a mild cervical disc syndrome and my recommendations were cervical traction to be followed by cervical collar. He was treated symptomatically at St. Luke’s Hospital and later discharged.”

Dr. Thomas on December 2,1948 wrote the following report:

“I spent a good deal of time with Mr. George Dykhuizen on November 23.
“He had a very bad concussion about July 1, 1947. He has done wonderfully in recovering. All his symptoms, which are principally headache, dizziness, and pain down the left thigh, are due to his concussion, and are exaggerated. Evidently he overworks. I believe he will continue to improve, provided he is able to work cautiously and not exert himself to the point where he knows he is irritating the brain condition, which continues to exist, even one and one-half years after the trauma; and the best medicine-for him is what he can do for himself.
“My suggestion for him is to work, but when he begins to feel the least bit tired he should go home and rest.”

and, again on February 8, 1949, Dr. Thomas submitted the following report:

“I examined Mr. George Dykhuizen this morning. Findings are absent. He complains of pain in head and nervousness at intervals; I think he is truthful. He states he is better than a year ago.
“I believe he will improve as time goes on. He is doing light work. I am dismissing him with 15 per cent temporary disability. In miy opinion there will be no permanent disability."

Because of his injury of July 1, 1947, Mr. Dykhuizen was totally disabled July 2 to 21, 1947, and December 20, 1947 to March 14, 1948, all dates inclusive. He was paid full salary in lieu of compensation July 2 to 15, 1947 in the amount of $84.46; December 20, 1947 to January 7, 1948 in the amount of $74.62; and compensation at the .rate of $19.50 a week from July 16 to July 21, 1947, inclusive, in the amount of $16.71; and January 8 to March 14, 1948, inclusive, in the amount of $186.65, or- a total of $203.36. The periods of total temporary disability equaled 15 1/7 weeks, and combined payments for total temporary disability equaled $362,44.

In addition to the payments for lost time mentioned in the preceding paragraph, Mr. Dykhuizen was paid full salary for the days he was unable to work because of. trips to Chicago for treatment after March 14, 1948. These trips occurred on the following dates: March 24,

1948, May 18, 1948, May 26, 1948, November 23, 1948 and February 8, 1949. Payments for lost time resulting from these trips totaled $33.24.

All medical bills and hospital bills were paid by respondent including claimant’s expenses to Chicago.

No jurisdictional questions are presented.

Claimant alleges a permanent partial disability, and claims a loss of earning capacity. In order for claimant to sustain a claim for permanent partial disability it is essential to prove an actual disability, and in the event of such disability he must show the differential between what he earned before the accident, and what he is earning or able to earn in some suitable employment after the accident.

Dr. Thomas in his final report stated that in his opinion there will be no permanent disability.

Dr. Manchester thought his condition was largely one of a neurotic, and estimated the claimant had at least a 25 per cent disability. Dr. Manchester thought claimant sustained a fracture of the fourth thoracic vertebra.

The Court concludes from the evidence that no case of a permanent partial disability has been sustained. However, from the evidence, and the testimony as to the fracture of the vertebra, the claimant has sustained a loss of function in the back, and under Section 8 (d) of the Act is entitled to compensation for 30 weeks.

Stenographic services were rendered by William J. Cleary & Co. in the amount of $84.40, which the Court finds to be reasonable.

An award is entered in favor of claimant for loss of function of back for 30 weeks at the rate of $19.50, or a total of $585.00, less overpayment of $67.15 for nonproductive time, or a net award of $517.85, all of which has accrued and is payable forthwith.

An award is entered in favor of William J. Cleary & Co. for stenographic services in the amount of $84.40, which is payable forthwith.

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


text:
    (No. 4268
    Elmwood Cemetery Company, an Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1950.

    Bippus, Rose, Burt and Pierce, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney. General, for Respondent.
   ScHUMAN, C. J.

The claimant filed its claim for the installation of 44 government markers placed in Elmwood Cemetery at the graves of the parties mentioned in the complaint.

The Military and Naval Department in its report filed June 10,1950 in this Court showed that two markers had been paid, and ten would be allowable from its current biennium, since installation dates were since July 1, 1949.

A stipulation was filed that claimant is entitled to the sum of $320.00 for 32 markers listed in said stipulation.

Where the markers have been received as ordered in accordance with due authority, and used, and the bill was not paid because of the lapse of the appropriation out of which it could have been paid, an award for the amount may be made.

An award is, therefore, entered in favor of the claimant in the amount of $320.00.


author: Delaney, J.

text:
    (No. 4270
    Mae Akin, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1950.

    Wayne P. Williams, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Rebel, Assistant Attorney General, for Respondent.
   Delaney, J.

The claimant, Mae Akin, widow of Russell Akin, filed her complaint on February 11, 1950, seeking an award under the Workmen’s Compensation Act for the death of her husband on July 21, 1949, as a result of injuries sustained on July 18, 1949 in an automobile accident, arising out of and in the course of decedent’s employment by the respondent. At the time of his death, Russell Akin was employed by the Department of Revenue of the State of Illinois as an investigator.

At the time the accident occurred, Mr. Akin was on his way to Springfield. Mr. Don Irving, an employee of the Secretary of State, was driving the automobile at the time the accident occurred, approximately five miles east of Jacksonville, Illinois. Mr. Irving was driving a 1949 Ford automobile, which was owned by the State of Illinois at the time of the accident. Mr. Akin and Mr. Irving had made an arrangement between themselves to go to Springfield. Mr. Akin’s work required him to travel. He normally used his own ear, and was allowed mileage by the State of Illinois for the use of his car in his employment.

The record consists of the complaint, departmental report, transcript of evidence, statement, brief and argument of claimant, and statement, brief and argument of respondent.

The record shows that Mr. Akin intended to visit the office of Charles V. Morris, the Supervisor of Investigation of the Department of Revenue, while in Springfield. The claimant, however, does not deny the rule of the department in which the deceased worked, which precluded the deceased from traveling to Springfield as a part of his employment in the department. The rule is set forth as a part of the Departmental Report, which has been made a part of the record. The provision is as follows:

(D) Contacting the Springfield Office
“When you find it necessary to make a trip to the Springfield Office, you must first submit your request in writing to the office, explaining your reason for coming in, and, upon receipt of this letter, we will notify you whether or not the trip may be made. It is necessary that you adhere to this policy if you expect to be reimbursed for your trip to Springfield. Attach a copy of such requests to your monthly expense account.
You are not to contact the Springfield Office by telephone except in unusual instances where a letter will not accomplish the end desired. Take up everything possible with the field supervisor.”

The Claimant makes no proof that the deceased complied with this rule, nor does she deny that the rule existed. The claimant contends that certain evidence was improperly excluded. However, we do not feel that this would change the opinion of the Court.

It is a well established rule that an employee, who receives injuries while performing acts prohibited by the rule of the employer, is not entitled to compensation.

Dietzen v. Ind. Bd., 279 Ill. 11;
Nelson Construction Co. v. Ind. Com., 286 Ill. 632;
Lumaghi Coal Co. v. Ind. Com., 318 Ill. 153;
Steel Corporation v. Ind. Com., 385 Ill. 504;
Paluchowski v. State, 9 C.C.R. 492.

One who is employed to work in a certain field of endeavor, who departs from that work without authority, and is injured in such work, is not entitled to an award under the provisions of the Workmen’s Compensation Act. The death of decedent did not arise out of and in the course of his employment.

Award is denied, and the complaint dismissed.

Henry P. Keefe, reporter, has rendered a statement for $27.20 for the reporting and transcribing of the notes.

An award is, therefore, entered in favor of Henry P. Keefe for reporting and transcribing the testimony in this case in the amount of $27.20.


author: S CHUMAN, C. J.

text:
    (No. 4292
    Myrl Leonard, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1950.

    Gillespie, Burke and Gillespie, Attorneys for Claimant.

      Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   S CHUMAN, C. J.

Claimant, Myrl Leonard, was employed by the State of Illinois, Department of Public Welfare, as Chief Nurse in the East Moline Hospital, and was so employed for approximately 39 years. On July 22, 1949 she sustained an injury, and at that , time she was 60 years of ag.e, had no dependent children, and was earning $402.00 per month. Her earnings for the year immediately preceding the injury were $4,119.74.

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

On July 22, 1949 the claimant, while in the course of her duties as Chief Nurse, and in making a routine inspection of Shafner Cottage, was injured as a result of falling into an excavation in the basement of said cottage ; and, as a result of the fall, sustained a comminuted fracture of the right tibia and fibula approximately three inches below the knee. She was hospitalized immediately, and was attended by Dr. Graham of Moline, Illinois. Her leg was in traction for 33 days, and she was hospitalized until December 18, 1949, a period of approximately 5 months. There is no evidence in the record that she has yet returned to work.

During the period of claimant’s disability, she received one month’s salary of $402.00, and five months at 60 per cent of $402.00, making the total payments in the amount of $1,608.00.

The evidence in this case shows that the claimant suffered a rather severe injury to her right leg as a result of the fall. The medical testimony, and the examination made at the hearing on August 1, 1950 indicated a permanent partial disability of her leg.

Under the Compensation Act she would be entitled to 64 weeks for temporary total disability at $22.50 per week, making a total award of temporary total disability of $1,440.00. She has already received $1,608.00, so there is an overpayment of $168.00.

From the evidence in the record, the Court concludes that the claimant is entitled to 50 per cent loss of the use of the right leg, which would make an award of 95 weeks at $22.50 per week, or $2,137.50.

The proceedings were reported by Hugo Antonacci, 503 Ill. National Bank Bldg., Springfield, Illinois. He has submitted a statement in the amount of $49.30 for stenographic services, which the Court finds to be reasonable.

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

For the permanent partial specific loss of use of the right leg, claimant is entitled to an award of $2,137.50 for 50 per cent loss of use of the right leg, or a period of 95 weeks at $22.50 per week. From this should be deducted the overpayment of $168.00 making a net award of $1,969.50, of which $34.50 has accrued, leaving a balance of $1,935.00 payable in weekly installments of $22.50 per week, commencing on December 23, 1950 for a period of 86 weeks..

An award is entered" in favor of Hugo Antonacci for the report of the proceedings in the amount of $49.30, which is payable forthwith.

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


text:
    (No. 4311
    Beulah Spencer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1950.

    McCarthy and McCarthy, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   ScHUMAN, C. J.

Claimant, Beulah Spencer, was employed by the State of Illinois, Department of Public Welfare, at the Elgin State hospital as a cook on July 4, 1949, and was earning $171.00 per month. She was married, but had no dependent children. Her earnings during the year immediately preceding her injury on July 4, 1949 were $1,830.00.

No jurisdictional questions are 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 her employment.

On July 4, 1949, claimant was engaged in her duties as a cook, and, because of the weather, she was using a fan. In attempting to place the fan. on a cabinet, she stepped up on a chair, which slipped and caused her to fall, resulting in an injury to her right foot and ankle. She was given immediate attention at the hospital, where she remained until October 28, 1949, when she returned to her home under the doctor’s care, and returned to work on February 1, .1950. Since February 1, 1950 she has worked continuously, although she complained of pain and disability to the right foot.

The evidence showed that claimant paid the following additional expenses as the result of her injury, to-wit:

McBridge Pharmacy for ankle braces_____________________________________$ 3.75
West Health System for treatments______________________________________________ 102.00
Kinney Shoe Store for pair of shoes on recommendation of the Doctor 8.11
Making a total of____________________________________________$113.86

By stipulation of the attorneys for the claimant and the respondent it was shown that claimant received a total of $588.17 for non-productive time. Claimant’s period of temporary total disability from the date of July 4, 1949 to February 1, 1950 was a period of 30 1/7 weeks at $22.50 per week. She should have received $678.21, leaving a balance of $90.04 to be paid on temporary total disability.

The evidence discloses, together with the examination by the Commissioner, that the claimant has some permanent disability of the right foot. The conclusion drawn from said testimony is that claimant has suffered a 10 per cent permanent partial specific loss of the use of the right foot, which would be 13% weeks at $22.50 per week, or a total of $303.75.

The evidence was transcribed by D. V. Sheffner, Geneva, Illinois, and the statement is in the amount of $28.00, which the Court finds to be reasonable.

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

For temporary total disability for a period of 30 1/7 weeks at' $22.50 per week, or $678.21 less $588.17 leaving a balance of $90.04; for doctor and medical expenses expended by claimant $113.86; for 10 per cent permanent partial specific loss of the use of the right foot 13% weeks, at $22.50 per week, or a total of $303.75; for a total award of $507.65, all of which is due and accrued, and is payable forthwith.

An award is also entered in favor of D. V. Sheffner for stenographic services in the amount of $28.00.

The 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. 4327
    Roselawn Memorial Park, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1950.

    Roselawn Memorial Park, Claimant, pro se.
    Ivan A. Elliott, Attorney General; C. Arthur Rebel, Assistant Attorney General, for Respondent.
   Delaney, J.

On August 15, 1950, claimant, Roselawn Memorial Park, a corporation, filed its complaint alleging that it erected headstones or Government Markers at the respective veterans graves, and presented a statement attached thereto and made a part of said complaint, and make this claim in the amount of $60.00 against the State of Illinois, the respondent herein.

This claim was denied due to Statutory Limitations, the markers having been placed prior to July 1, 1949, when funds, for the 65th biennium lapsed.

The record consists of the complaint, motion of the Attorney General for an extension of time to November 1, 1950 in which to plead, in which' it is stated that the motion is made for the purpose of allowing the Adjutant General sufficient time to investigate and report upon the facts alleged in the complaint, and the report filed by the Adjutant General.

We find from the record that claimant has erected the headstones or Government Markers on the veterans graves as set forth, submitted its invoices to the respondent within a reasonable time, and has not received payment. When the markers were erected, there remained a sufficient balance in the appropriation from which payment could have been made. Claimant is, therefore, entitled to an award.

An award is, therefore, entered in favor of the claimant, Eoselawn Memorial Park, in the sum of Sixty Dollars ($60.00).


text:
    (No. 4227
    Auto Electric Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1951.

    Craig and Craig, Attorneys for Claimant.
    . Ivan A. Elliott, Attorney General; C. Arthur Nebbl, Assistant Attorney General, for Respondent.
   SCHUMAN, C. J.

This case was heard upon the Motion to Dismiss of respondent, and upon oral argument and written briefs submitted by the parties. From the Bill of Particulars filed by respondent, the last item upon which the claim was based was sold and delivered on November 14, 1946. The claimant had previously filed a claim for materials furnished the respondent at the request of the Division of Highways, which appears in 17 C.C.B. 202, and which was for a period from April 14, 1947 to June 23, 1947. This claim, as allowed by the Court, was for materials furnished practically a year after the materials were furnished, as claimed in the present case. It is the opinion of the Court that the materials furnished were under specific appropriations, arid the fact that the Auto Electric Company continued to furnish materials under the different appropriations would not make it a separate account.

The Court is limited in its jurisdiction, in considering claims, to those that are filed within two years after they first accrue. Inasmuch as this claim was specifically based for materials furnished from September 18, 1946 to November 14, 1946, the claim would have accrued commencing November 14, 1946. The claim was not filed until September 22, 1949, and, therefore, the claim was barred by the two year limitation established in the Court of Claims Law.

For this reason the claim will be denied.


text:
    (No. 4272
    Charles A. Smalley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1951.

    McConnell, Kennedy and McConnell, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Charles A. Smalley, seeks to recover from respondent under the Workmen’s Compensation Act for an injury, which resulted from an accident that arose out of and in the course of his employment as a highway section man in the Division of Highways of the Department of Public Works and Buildings.

On August 17, 1949, claimant was one of a group assigned to prepare black-top mix at the Division of Highways storage lot in Chillicothe, Illinois. This was done by mixing weighed amounts of crushed rock in a mechanical mixer. Claimant, who was weighing a wheelbarrowful of crushed rock on scales to which was attached a steel angle iron extending down each side of the scale, squatted down to read the balance arm of the scale. As he raised tip, his left knee caught under the angle iron, and was severely wrenched.

Claimant continued to work until August 22, 1949, when the injury to his knee, which was painful, prevented him from straightening his knee. He reported to his superiors, and was sent to a specialist in orthopedics, who advised an operation on the knee.

Claimant continued to work until September 6, 1949, when he was admitted to the hospital, and the following day a torn .semilunar cartilage was removed from his knee. He remained in the hospital for twelve days, and then returned to his home with a cast on his leg. He returned to work even while the cast was on his leg, and was totally and temporarily disabled for only a period of two weeks.

No jurisdictional questions have been raised, and the record shows compliance with all jurisdictional prerequisites on the part of claimant.

At the time of the hearing claimant’s knee was still painful, and somewhat weak. There was some limitation of motion both in extension and flexion. His knee disclosed some crepitus and minor irritation in the joint, but there was no change in the bone pathology of the knee.

Claimant’s physician and respondent’s doctor both agree that there is some partial loss of use of claimant’s left leg, and from the evidence, and the examination made by Commissioner Wise, we conclude that claimant has sustained a 15 per cent loss of use of his left leg.

On the date of his accident, claimant was 46 years of age, married, but had no children. Although he had worked for respondent less than a year, his salary had never been less than $203.00 per month, and under Section 10 of the Workmen’s Compensation Act his earnings would have been sufficient to entitle claimant to the maximum rate of compensation, or $22.50 per week.

As stated above, claimant was totally and permanently disabled for a period of two weeks. He was paid his full salary during such time, or the sum of $104.54, when he should have been paid only $45.00. He was thus overpaid the sum of $59.54.

Respondent has furnished and paid for all medical and hospital bills, required to cure or relieve claimant from the effects of his injury, except Ace bandages required to be purchased by claimant costing $7.50.

Mary I. Reynolds, Peoria, Illinois, was employed to take and transcribe the testimony at the hearing before Commissioner Wise. Her charges amounting to $53.50 are reasonable and customary, and an award is entered in her favor for such amount.

An award is entered in favor of claimant, Charles A. Smalley, under Section 8 (e) of the Workmen’s Compensation Act for a 15 per cent loss of use of his left leg, or 28% weeks at the rate of $22.50 per week, or the sum of $641.25, from which should be deducted the overpayment above referred to in the sum of $59.54, making a net award of $581.71, all of which has accrued and is payable forthwith.

An award is also entered in favor of claimant in the sum of $7.50 for Ace bandages under Section 8 (a) of the Workmen’s. Compensation Act.

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


text:
    (No. 4295
    Louis Lee Smith, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1951.

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

The claimant, Louis Lee Smith, an employee certified to the Department of Public Welfare by the Illinois Civil Service Commission, was assigned to the State Hospital at Anna, Illinois, as an attendant. On October 20, 1948, he was suspended for a period of 30 days until November 20, 1948 on alleged charges of being abusive to a patient by the name of Milo Garavaglia. Later on November 20, 1948, he was discharged. Claimant requested a hearing before the Civil Service Commission, and on July 25, 1949 he was discharged from his posi-. tion in the Department of Welfare on the order of the Commission. On August 8, 1949, claimant filed his petition for review of the decision of the Civil Service Commission under the provisions of the Administrative Review Act of the State of Illinois in the Circuit Court of Union County, Illinois. On January 14, 1950, the Circuit Court of Union County declared the decision of the Civil Service Commission void, due to the fact that the Civil Service Commission had lost jurisdiction of the cause as a hearing was not granted within sixty days after a request was made as required. Claimant was reinstated to his former position on March 20, 1950 at the same salary he received at the time of suspension, $175.00 per month. The Department of Public Welfare, however, paid claimant regular salary from January 14, 1950, the date of the order of the Circuit Court of Union County.

From the record, the only deduction that can be made is that claimant had been diligent in the protection of his 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.

The record consists of the complaint, departmental report, transcript of evidence, claimant’s brief, statement, brief and argument of respondent, and reply brief of claimant.

Where a civil service employee is illegally discharged and subsequently restored to his position by a Court of competent jurisdiction, he is entitled to the salary as provided for said position for the period of the illegal discharge where he is ready, able and willing to perform the duties of such position, and tendered his services to his employer.

Clay Wilson vs. State of Illinois, 12 C.C.R. 413;
Herman Drezner vs. State of Illinois, 15 C.C.R. 16;
Roy S. Vancil vs. State of Illinois, Court of Claims No. 4224.

The Court, therefore, finds that claimant is entitled to the payment of his salary from November 20, 1948 to January 14, 1950, a period of 13 months and 24 days at the rate of $175.00 a month, or a total of $2,414.92. Under the previous decisions of this Court, claimant is not entitled to his salary during the period he was suspended from October 20, 1948 to November 20, 1948.

An award is, therefore, entered in favor of the claimant, Louis Lee Smith, in the sum of $2,414.92.


text:
    (No. 4325
    Byron E. Jones, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1951.

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

Claimant, Byron E. Jones, filed his complaint for compensation under the Workmen’s Compensation Act for an injury to the third finger of his right hand sustained while employed by respondent in the Department of Public Welfare at the Lincoln State School and Colony in Lincoln, Illinois.

On April 18, 1950, claimant was a pastry cook in the institution bakery; and, while cleaning a brush on the electric -flour sifter, someone, accidentally pressed the button which starts the machine. The force of the moving-brush pushed his right hand against the metal edge of the clean out opening.

A medical examination was made by Dr. William W. Fox and the following was found:

1. Flexion contracture 45° at distal interphalangeal joint right ring finger with inability either to extend or flex distal phalanx. Full motion present at proximal interphalangeal joint and at metacarpophalangeal joint.
2. Scars (2) 1 inch long on lateral surface and one lYz inches long extending from lateral surface of right ring finger .at distal interphalangeal joint to and around finger to lateral surface on palmar aspect of finger.

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

There is no question of jurisdiction raised in the record, and we find from the evidence that claimant was injured out of and during the course of his employment.

At the time of the injury, claimant was married, and had five children under eighteen years of age dependent upon him for support. He earned a total of $1,-633.00 for the year immediately preceding his injury. His compensation rate, therefore, would be $20.00 per week. However, as the injury was incurred after July 1, 1949, this must be increased 50 per cent, making his compensation rate $30.00 per week.

From the record and the examination of the commissioner, claimant has suffered the entire loss of use of the distal phalanx of the third finger on his right hand.

We are of the opinion claimant is entitled to an award for. 33% per cent loss of use of the third finger of the right hand. Under Section 8, Paragraph (e-4) and Paragraph (j) as increased by Paragraph (n), this would be 8Vs weeks at $30.00 per week or $250.00. The claimant was temporarily totally disabled for a period of eight days,- or one and one-seventh weeks. Respondent paid him full salary which amounted to $44.62. The sum of $10.33 must be deducted from the award for non-productive time.

An award is, therefore, made in favor of the claimant, Byron E. Jones, in the sum of $250.00, less the sum of $10.33 paid for non-productive time, or the sum of $239.67, all of which has accrued and is payable forthwith.

Mary Kelly, Court Reporter, was employed to take and transcribe the ■ testimony, for which she made a charge of $16:45. We find that this charge is fair, reasonable and customary.

An award is, therefore, entered in favor of Mary Kelly in the sum of $16.45.

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. 4331
    Ernest Asphalt Sales Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1951.
    McLaughlin Law Offices, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, Ernest Asphalt Sales Company, a corporation, had two similar contracts with the Department of Public Works and Buildings, Division of Highways, to furnish given quantities of asphalt filler materials. The price set out in the first contract a year earlier was less than the price set out in the second contract. In submitting its billing under the second contract, claimant’s personnel inadvertently used the price set out in the first contract. The claimant now seeks to be reimbursed for this clerical error.

A stipulation was entered into by the parties that the report of the Division of Highways, dated October 18, 1950, signed by Earl McK. Guy, Engineer of Claims, which has been filed in this cause under Rule 16 of the Court of Claims, shall constitute the record in this case. It is solely a stipulation of facts.

The Division of Highways issued a requisition for the purchase of 4,100 tons of crack filler asphalt (PAF-2), and 525 tons of joint filler asphalt (PAF-3) for delivery at specified points. Pursuant to this requisition, the Department of Finance issued a purchase order, dated November 14, 1947. The parties agreed on a price of $38.40 per ton on both types of asphalt. This contract was completed. On a later date the Division of Highways issued another requisition for the purchase of 2,500 tons of crack filler asphalt (PAF-2) to be delivered, at specified points. Pursuant to this second requisition, the Department of Finance issued another purchase order dated December 29, 1948. The parties agreed on a price of $41.00 per ton for 2,500 tons of (PAF-2) crack filler.

Under this second purchase order, the claimant furnished 2,609.95 tons of (PAF-2) asphalt crack filler instead of 2,500 tons as set out in the requisition and purchase order. The excess of 109.95 tons was shipped at the suggestion of the Division of Highways. The billing by claimant for the 2,609.95 tons was on the basis of $38.40 a ton plus freight. Claimant was paid $102,150.33. A billing for the same quantity at the rate of $41.00 per ton is $107,007.95. The difference between the foregoing two amounts is $4,857.62.

The appropriations, from which the amount due under the second contract was payable, lapsed as' of September 30, 1949. Claimant furnished corrected in- ’ voices, but not prior to September 30, 1949, and they could not be paid in the regular course of business. Ftinds were available in the then existing appropriations for payment of the invoices had they been presented within the prescribed time.

Claimant furnished properly and duly authorized materials to the respondent, for which it has not received adequate payment, even though the nonpayment was caused by the clerical error of the claimant’s personnel. This Court has repeatedly held that where materials or supplies have been properly furnished to the State, and a bill therefor has been submitted within a reasonable time, but the same was not approved and vouchered for payment before the lapse of the appropriation from which it is payable, an award for the reasonable value of the supplies will be made, where, at the time the expenses were incurred, there were sufficient funds remaining unexpended in the appropriation to pay for the same. Carl S. Johnson v. State, 16 C.C.R. 96; Rock Island Sand and Gravel Co. v. State, 8 C.C.R. 165; Oak Park Hospital v. State, 11 C.C.R. 219; Yourtee-Roberts Sand Co. v. State, 14 C.C.R. 124.

The Court feels that the claimant comes within the findings in the above cited causes.

An award is, therefore, entered in favor of claimant for the sum of $4,857.62.


text:
    (No. 3975
    Merna Mae Archer, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 9, 1951.

    Nobel G. Johnson, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Merna Mae Archer, widow, and Judith Mae Archer, minor child of Marvin C. Archer, were granted an award in Case No. 3975, 16 C.C.R. 93.

Merna Mae Archer remarried on September 30, 1950, and her name is now Merna Mae Sauer. The minor child of the parties is still living, and the balance of said award is due and owing her.

The award heretofore entered in this cause on November 14, 1946 is hereby modified to the effect that the unpaid balance of $1,308.00 is payable as follows to Merna Mae Sauer, mother, next friend and natural guardian of Judith Mae Sauer, formerly Judith Mae Archer, minor:

The sum of $306.00 to February 6, 1951, which is due and payable forthwith;

The balance of $1,002.00 is payable to Merna Mae Sauer, mother, next friend and natural guardian of Judith Mae Sauer, formerly Judith Mae Archer, minor, in weekly installments of $18.00 each, commencing on February 13, 1951 for a period of 55 weeks with one final payment of $12.00.