text:
    (No. 3788
    J. Roy Browning, as Trustee for the Estates of the Burton Coal Company, the Seymour Coal Company and the Freeman Coal Mining Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1946.

    Jacob B. Courshon, for claimant.
    George F. Barrett, Attorney General, for respondent; William L. Morgan and William C. Wines, Assistant Attorneys General, of counsel.
   Damron, J.

J. Boy Browning, as trustee for the estates of the Burton Coal Company, the Seymour Coal Company and the Freeman Coal Mining Company, files this claim, seeking an award of $7,000.00.

The facts are not in dispute.

In the month of December, 193.5, a contract was en-, tered into by and between the above named Seymour Coal Company and Freeman Coal Company, of Chicago, Illinois, and the Industrial Commission of the State of Illinois, in order to qualify these companies as self-insurers under the provisions of the Workmen’s Compensation Act of the State of Illinois, said agreement, marked Exhibit B, being in words, and figures as follows:

THIS AGREEMENT WITNESSETH:
That the undersigned, the Seymour Coal Company and Freeman Coal Mining Company of Chicago, Illinois, has on the date hereof, deposited with the undersigned, Industrial Commission of State of Illinois, the following:
Seymour Coal Company......................................$2,000.00
Freeman Coal Mining Company.............................. 2,000.00
$4,000.00
The said mining companies are'each to pay to the said Industrial Commission the sum of $375.00 each month to be held -by said Commission until the aggregate amount reaches the sum of $5,000 for each of said mines when a new escrow agreement is to be executed making some banking institution the escrowee under an agreement similar to this said agreement. (said monthly payments to be made on the first Monday of each month commencing January, 1936.)
It is. agreed by and between the parties hereto that the said moneys shall be held by the said Industrial Commission as a guarantee for the payment of any judgments entered against the said Seymour Coal Company and Freeman Coal Mining Company for the payment of any sums found by process of law to be due to the employees of the said Seymour Coal Company and Freeman Coal Mining Company under a law of the State of Illinois; known as the Workmen’s Compensation Law, approved June 28, 1913, and in force July 1, 1913, and that the said moneys shall be held until released and surrendered to the said Seymour Coal Company and Freeman Coal Mining Company in accordance with the further terms of this Agreement.
It is further agreed between the parties that the said moneys shall be surrendered to the said Seymour Coal Company and Freeman Coal Mining Company upon the presentation to the undersigned, the Industrial Commission, of a certificate or statement signed by the Industrial Commission of Illinois, and the said Seymour Coal Company and Freeman. Coal Mining Company that no payments are due and unpaid from the said Seymour Coal Company and Freeman Coal Mining Company to its employees or others under the Compensation Law.
It is further understood and agreed by and between the parties that the interest from these moneys shall be surrendered to the Seymour Coal Company and the Freeman Coal Mining Company as it becomes due. ’
Signed and Sealed at Chicago, Illinois, this...........day of December, A. D. 1935.
ILLINOIS INDUSTRIAL COMMISSION,
By (L. J. O’Connell)
Chief Security Examiner
SEYMOUR COAL COMPANY,
By (Feed A. Burton)
Partner
FREEMAN COAL MINING COMPANY, ■
By (Fred A. Burton) President
Pursuant to said agreement, the Burton Coal Company, for and on behalf of the Seymour Coal Company and the Freeman Coal Mining Company, deposited with the Industrial Commission, the following amounts of money:
December 2, 1935............................................$2,000.00
December 2, 1935.............................................2,000.00
January 2, 1935............................................. 750.00
February 1, 1936............................................ 750.00
April 6, 1936............................................".... 750.00
May 11, 1936........."........................................ 750.00
Total .................'.................................$7,000.00

The above, deposits were made by check, payable to the Industrial Commission of the State of Illinois, and ivere deposited to the credit of the Industrial Commission, by one L. J. O ’Connell, its chief security examiner, in the Centennial Illinois National Bank and Trust Company of Chicago.

Thereafter, there Avas issued a certificate or notice of approval, by the Industrial Commission, certifying that the abo\Te named coal companies were self-insurers, under Section 26 of the Workmen’s Compensation Act, and had complied with all of the terms and provisions set up in said act. • -

On November 7, 1938, in the District Court of the United States for the Northern District of Illinois, Eastern Division, in consolidated causes No. 69296, entitled “In the Matter of the Burton Coal Company, a corporation, debtor, Seymour Coal Company, a corporation, debtor, Freeman Coal Mining Company, a corporation,, debtor,” the above claimant, J. Roy Browning, was appointed trustee and the exclusive possession and control of all of the above named property, assets and business of s.aid companies, wherever located, were entrusted- to the said J. Roy Browning, as such trustee, the order of said appointment being attached to the complaint and marked Exhibit A, and made a part thereof.

On or about April 22, 1939, pursuant to the Statute of the'State of Illinois, the said Seymour Coal Company and Freeman Coal Company elected to insure their entire liability to pay any judgments entered against-them, or either of them, for the payment of any sums found due to the employees or their dependents under the Illinois Workmen’s Compensation Act, by purchasing policies of insurance with the Bituminous Casualty Company of Rock Island, Illinois, which said policies of insurance undertook to cover all of the employees • and the entire compensation liability of both coal companies and from that date until the filing of this complaint, said policies of insurance have been in full force and effect. The complaint states, and it is not denied by the respondent, that from the time of the deposit of money with the Industrial Commission, as aforesaid, until the issuance of the policies of insurance with the said Bituminous Casualty Company, many awards or judgments were made and entered against said Seymour Coal Company and Freeman Coal Company, in favor of sundry of their employees, and each and every of such awards or judgments were duly or promptly paid, so that at no time were any of the funds heretofore deposited with the Industrial Commission ever resorted to; the complaint further states that there does not now exist any judgments against said companies, or either of them, entered in compliance with the provisions of said Workmen’s Compensation Act, that remain unpaid, or in-default, and it is further alleged, in said complaint, and is not denied by the respondent, that there has not been and is not now, any further need, necessity or requirement by law, or otherwise, that the monies deposited under and pursuant to the contract, above set forth, be held by said Industrial Commission, and that the trustee of and for ' the estate of said companies, is entitled to the return of said funds, together with all interest due thereon, as provided in said written contract.

Attached to said complaint, and made a part thereof, is a written demand, marked Exhibit C, dated February 15, 1943, addressed to Alfred J. Borah, Chairman of the Industrial Commission of the State of Illinois, 205 West Wacker Drive, Chicago, Illinois, making formal demand on the Industrial Commission for the return of the sum of $7,000.00, heretofore deposited with the Industrial Commission, as aforesaid, under the terms of the written contract entered into, as aforesaid. This exhibit shows that the claimant had made, prior thereto, repeated demands upon the Industrial Commission for the return of the money deposited with it, as aforesaid, but that said Industrial Commission failed and refused to return said money or any part thereof.

The question to be decided in this case is whether or not the State of Illinois is liable to the claimant for "the return of the sum of $7,000.00, heretofore deposited with said Commission, as above set forth.

The respondent urges many reasons why the claim should be denied. It concedes- that the funds heretofore deposited by the claimant are not on hand and states that the funds have been dissipated without the consent of the claimant. It concedes also that the companies deposits of the funds, in question, were, in all respects, lawful, proper,, and in accordance with law, and that no measure of diligence on claimant’s part could have- prevented the loss which was sustained.

The respondent admits that the chief security examiner, Lawrence J. O’Connell, embezzled these funds deposited by this claimant with the Industrial Commission of Illinois.

The deposit of money represented by this claim was_ an involuntary transaction and was required by the law of the State of Illinois, before the claimant could do business in this State. (Ill. Rev. Stat. 1941, Chap. 48, par. 172-26.)

The respondent questions the authority of the Industrial Commission to enter into this contract. It has been held that the Industrial Commission is authorized by law to enter into a contract such as we find here. (Pinkerton’s Nat. Detective Agency vs. Fidelity & Deposit Co., 138 Fed. 2d. 469.)

In that case the Court said: “Having held that the Commission had the authority (to receive and hold the '.bonds in trust),.we think there is little" room to doubt but that O ’Connell was acting in his official capacity. The record discloses in numerous ways that he was held out to the public as agent and representative of the commission. ’ ’

It appears to the court that the contract entered into by the State, through its Industrial Commission, is one to be upheld by this court. This was a contract which the Industrial Commission had a legal right to make and that the State is bound thereby. The Industrial Commission breached this contract. Under this contract, the employers (claimant herein) had a right to believe that its deposit would be returned upon full compliance upon its part. The contract provided for the return of the deposit if the coal companies ceased doing business or substituted an insurance policy therefor. The claimant elected to furnish a policy. The policy was accepted by the Commission. No judgments or awards were outstanding against the deposit at the time demand was made for the refund.

We think it would be against public policy and we can not believe the legislature intended that an employer, when complying with Sec. 26 of the Act, deposited money or securities at his peril. If a party including the state, desires to limit his liability thereunder in the event of contingencies, he must make provision therefor in said contract.

At the time this claim was filed in this Court there was pending in the District Court of the United States, for the Northern District of Illinois, Eastern Division, a cause of action, entitled Montgomery Ward & Co., Incorporated, Plaintiff, vs. Fidelity and Deposit Company of Maryland, a corporation, Defendant — Fidelity and Deposit Company of Maryland, a corporation, Cross-complainant, vs. Montgomery Ward & Co., Incorporated, et al., Cross-Defendants, Civil Action No. 43C 1105. This claimant was made party Cross-Defendant to the Cross-complainant, in the nature of a bill of interpleader, which was filed, in said cause by the Fidelity and Deposit Co. of Maryland, Defendant and Cross-complainant, and summons was issued upon this Claimant as such Cross-defendant therein, and this Claimant was required by ' order of Court to file his answer therein. In said answer this Claimant as Cross-defendant made claim against said Fidelity and Deposit Co. of Maryland as surety for Lawrence J. O’Connell, an employee and chief security examiner of the Industrial Commission of the State of Illinois, basing said claim upon the alleged embezzlement by said Lawrence J. O’Connell, of funds amounting to the sum of $7,000.00 heretofore deposited with the Industrial Commission. The respondent, through its Attorney General in its brief filed November 21, 1945, contended that inasmuch as the cause of action above referred to was still pending in the United States District Court, that the claimant had not exhausted his legal remedies before filing his claim in this Court and called 'this Court’s attention to our invariable rule that access may not be had to the Court of Claims until the claimant has exhausted all other means of relief.

On October 18, 1946, a statement was filed by this ° claimant in this1 Court in reference to the cause of action heretofore pending in the District Court of the- United States, for the Northern District of Illinois, Eastern Division, Civil Action No. 43C 1105, showing that upon the petition of this claimant as Cross-defendant in said cause in said District Court, a summary hearing was had upon the claim of this claimant against the Fidelity & Deposit Co. of Maryland, resulting in an order entered in said cause on October 11, 1946, denying the right of recovery on the part of this claimant as Cross-defendant, and dismissing this claimant as Cross-defendant from said proceedings with prejudice.

A certified copy of said decree being filed in the Court of Claims, marked -exhibit “B” and made a part of this record.

After careful consideration of the record in this case, we are convinced this claim should be allowed and the deposit, heretofore made to the Industrial Commission, be refunded to the claimant.

An award is therefore entered in the sum of $7,000.00 in favor of J. Boy Browning, as trustee of the Estates of the Burton Coal Company, the Seymour Coal Company and the Freeman Coal Mining Company.


source: Caselaw Access Project

author: Eckert, C. J.

license: Public Domain

text:
    (No. 3870
    Joe Brannon, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1946.

    Ray E. Wesner, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, C. J.

On November 18, 1943 claimant, Joe Brannon, was an employee of the respondent in the Department of Public Works and • Buildings. While’working with a group of employees, on State Bond Issue Boute Number 1 in Lawrence County, Illinois, moving an air compressor, the rear wheel of the compressor rolled onto his right foot, fracturing the bones forming the arch of the foot. He was. taken immediately - to Dr. Tom Kirk-wood, at Lawrenceville, Illinois, for first aid, and was then transferred to the Palestine Clinic.

Dr. Kirkwood reported to the respondent that claimant had suffered a fracture or fracture dislocation at the joint between the tarsal bones and the first and second metatarsals of the right foot.- Dr. J. A. Ikemire, in charge of the Palestine Clinic, after examination of claimant’s foot, reported to the respondent as follows:

Fracture in the proximal % of the second metatarsus. Fracture in the distal % of the third and fourth metatarsus. Slight fragmentation of the lateral portion of the proximal head of the fifth metatarsus all on the right foot. Arranged foot in as near normal relations as possible and applied a loose fitting circular plaster cast to be changed as soon ' as swelling disappears. Permanent disability — a rather painful foot for sometime, but a useful foot.

Claimant remained under the care of Dr. Ikemire until March 7, 1944 when the doctor reported to respondent that claimant “should begin light work now”. At that time Dr. Ikemire still was of the opinion that there would bé no- permanent disability. A month later, however, he reported to the respondent that the permanent disability “should not be much, if any.”

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

Claimant was first employed by the respondent on October 3, 1943, and at -the time of his injury was earning $1.00 per hour. Bight hours constituted a normal working day, and employees of the respondent engaged in the same capacity and at the'same, rate as claimant were employed less than 200 days a year. At the time of the accident claimant had no children under sixteen years of age dependent upon him for support. Claimant’s compensation rate is therefore $17.63 per week.

Claimant was temporarily totally disabled from November 18, 1943 to March 7, 1944 and was paid compensation at the rate of $17.63 per week during that entire period, or the total sum of $277.05. Temporary compensation was terminated when claimant’s physician reported that claimant was ready to return to work. Claim for further compensation for temporary disability must, therefore, be denied.

No claim is made for medical, hospital, or surgical services since all such services were paid for by the respondent. Claim, however, is made for total loss of use of claimant’s right foot.

Claimant testified that his foot continues to trouble • him; that if he uses it for any length of time the instep becomes very sore and he experiences sharp pains; that he is unable to use his foot steadily, and is unable to do the work which he did prior to the injury.

Dr. Marjory Ikemire, called as a witness on behalf of claimant, testified that she had examined claimant’s right foot and found considerable permanent impairment of its use in any gainful occupation. She stated that the circulation of the right leg and foot showed definite impairment; that there was evidence of faulty weight bearing; that claimant’s right foot, and half way up his right leg to the knee, remain purple most of the time. Dr. Ikemire also testified that the X-rays, which were admitted in evidence, showed the tarsal bones in an abnormal position, and'also showed signs of osteo-porasis ' of the bones.

From the record, and from personal observation of

the claimant, the court is of the opinion that claimant has suffered a 50% permanent loss of use of his right foot. He is, therefore, entitled to the sum of $17.63 per week, for a period of 67% weeks, or the total sum of $1,190.02, all of which is accrued and is payable forthwith.

An award is therefore entered in favor of the claimant for the total sum of $1,190.02.

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. 3912
    Cecil E. Stallard, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1946.

    Donovan D. McCarty, for claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, C. J.

On May 9th, 1942 the respondent, through its Department of Public Safety, issued a 1936 Indian motorcycle to the claimant, Cecil E. Stallard, State Highway Maintenance Policeman, to be used by him in the performance of his duties. The motorcycle was equipped with narrow tires, was hard riding, causing a constant jarring, and claimant soon began to suffer pains in his back. On August 3, 1942 he consulted Dr. Sheldon A. Jackson, of Olney, Illinois. A physical examination by Dr. Jackson at that time was negative, but the doctor prescribed diathermic massage, strapped claimant’s back, prescribed a belt, and prescribed sodium salicylates and anadyne for pain. It was Dr. Jackson’s opinion that the pain was caused by riding the motorcycle.

Claimant continued these treatments under the care of Dr. Jackson until February 20, 1943, although Dr. Jackson testified that he advised an operation for the removal of an intervertebral disc in December of 1942. Claimant paid Dr. Jackson for his services the total sum of $88.50.

At the time claimant first consulted Dr. Jackson, he took the motorcycle to the State Highway Garage at Effingham, Illinois, and there learned that it had a broken spring in the seat. No other motorcycle was available for claimant’s use, and no parts were available for repair, so claimant continued to ride the motorcycle regularly for a month longer.

The pain continued, and in the early part of 1943 claimant reported his illness to his superior officers. In June, 1942, he consulted Mr. Harry Yde, then Chief of the Illinois State Police, at Springfield. As a result of that conference, claimant was examined by Dr. J. Albert Key, at Barnes Hospital, in St. Louis, Missouri, in the summer or early fall of 1942. Dr. Key advised claimant that he had a ruptured intervertebral disc, which necessitated an operation, and which was probably caused by riding a motorcycle.

- Claimant reported the findings of Dr. Key to his superior officers, but received no instructions, other than the advice of Capt. Trautsch, who told claimant that he should go ahead and have the operation, pay for it himself, and later present the bill to the department. Capt. Trautsch also advised him that his pay would continue during the period of his surgery and convalescence. Claimant testified, “That was the general advice that I had in Springfield that day from Mr. Guy and Mr. • Trautsch,” and placed the conversation during the latter part of 1943.

Claimant, however, continued to work, and continued to ride the motorcycle. The pain in his back did not lessen. Sometime during 1944, he consulted an attorney, who advised him to have the operation performed. This was done, at Barnes Hospital, in St. Louis, on February 23, 1945, and two intervertebral discs were removed. He was discharged from the hospital on March 15, 1945. The total cost of the operation, including hospital room, X-ray, laboratory, anesthesia, and drugs, amounted' to $265.75, which claimant paid. He now seeks reimbursement from the respondent for this payment and the payment to Dr. Jackson, in the total sum of $354.25.

Aside from the fact that it is questionable whether claimant has suffered an injury which is compensable under the Workmen’s Compensation Act, his claim can not be allowed because it was not filed in apt time. The claim was filed May 1st, 1945, three years after claimant first rode, the motorcycle in question, and almost two years after claimant was first advised of the necessity of an operation. Section 24 of the Workmen’s Compensation Act provides that no proceedings for compensation under the act shall be maintained unless application for compensation is filed within one year after the date of the accident. Section 10 of the Court of Claims Act, allowing claims against the State to be filed within five years after accrual, - is inapplicable. Scott vs. State, 13 C. C. R. 163. Furthermore, the claim can not be allowed on the basis of equity and good conscience. Crabtree vs. State, 7 C. C. R. 207.

Considering the facts most favorably to the claimant, to comply with the act, this claim should have been filed , within one year after the results of the examination of Dr. Key were made known to him.

The claim is, therefore, denied.


author: Damron, J.

text:
    (No. 3951
    Catherine Buckley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1946.

    Granger & Beckers, Attorneys, for claimant.
    George F. Barrett, Attorney General and William L. Morgan, Assistant Attorney General, of counsel, for respondent.
   Damron, J.

On the 17th day of August 1944, claimant was injured during the course of her employment at Kankakee State Hospital. The injury was caused by claimant falling on the porch of the institution while attempting to subdue a patient.

Her complaint alleges that she suffered a compound fracture of the left femur, injured her pelvic bone and hip joint which she claims has resulted in complete loss of use of her left leg.

Under this complaint claimant seeks an award for permanent and total loss of use of her left leg and for temporary compensation during the period of her- disability as provided in Section 8, Paragraph (e) of the Act.

All jurisdictional, requirements having been stipulated, the only question for this Court to decide is the nature and extent of claimant’s injury. The testimony in this case was taken on the 9th day of July 1946 at which time claimant testified that she constantly suffered pain in her left limb and that at times it was so severe that, it prevented her from sleeping at night. After her recovery she reported to the institution for work but claims that employment was refused'her due to her physical condition caused by the injury.

To support her complaint Doctor John J. Fahey, staff physician of the Illinois Research Hospital, Chicago, Illinois was called as a witness on her behalf. His evidence shows the iclaimant was admitted to the Research Hospital on the 18th day of August 1944, and that he started attending her on August 24, 1944. He testified that she had a fracture of the neck of the left femur; that an open reduction was made at the site of the fracture ; that the neck and head of the bone was exposed and that a Smith-Peterson nail was used for a fixation and the wound was then closed. After she was released from the Research Hospital he testified that he saw her in February 1946, examined her and found she had recovered and was able to return to her work. He testified he again examined her on May 4, 1946 and at that time she did not complain to Mm of having any pain in her left leg and that it showed no evidence of swelling of the left limb.

Doctor Abraham Simon, Assistant Superinténdent, of the Kankakee State Hospital was called to testify on behalf of the respondent. He testified that he examined claimant the day after the injury and found she had fractured the neck of the left femur with some displacement; that he had her admitted to the Illinois Research Hospital, CMcago, Illinois for operative procedure; that X-rays were made of the injured limb at the site of the fracture, the last film being taken on December 31, 1945. That tMs film disclosed no particular atrophy of the bone and there was no indication of bone disturbance. When examined in reference to the subjective symptoms testified to by claimant in reference to pain in her left leg he stated that in his opinion if claimant had recurrence of pains it would be due to natural causes and not to the fracture.

The departmental report, dated May 30, 1946 which is a part of tMs record shows that claimant sustained a simple fracture of the neck of the left femur. That there were no injuries to the pelvic bone or the hip joint. It contains a portion of a letter received under date of September 7, 1945 from the Department of Orthopedics, University of Illinois, stating that -claimant’s X-rays show complete union and that she was able to return to work at the time she was released.

Liability under the Workmen’s Compensation Act cannot rest upon imagination, speculation or conjecture or upon a choice between two views equally compatible with the evidence, but such liability must arise out of the facts established by a preponderance of the evidence. Inland Rubber Company vs. Ind. Com., 309 Ill. 43; Cry der vs. State, 12 C. C. R. 291; Cross vs. State, 13 C. C. R. 174.

The testimony of this claimant in reference to her alleged condition of ill being is not supported by the medical testimony and awards for injuries under the Compensation Act cannot be made on subjective symptoms.

The burden of proof is on the claimant to show by competent evidence that she has suffered permanent or partial disability and this she has failed to do.

An award for permant partial disability is therefore denied. Likewise her claim for temporary total disability must be denied for the reason the respondent paid her full salary during the time of her disability which far exceeded her compensation rate.

Award denied.

Isabelle Marcotte, court reporter of the County Court of Kankakee, Illinois was employed to take and transcribe the evidence in this cause and has made a charge therefor in the sum of $20.00. We find that this charge is fair, reasonable and customary in the county where it was made and find the reporter is entitled to be reimbursed.

An award is therefore entered in the sum of- $20.00 payable to Isabelle Marcotte, Court Reporter, County Court, Kankakee, Illinois.

The court further finds that A. M. Rothbart, court reporting services was. employed to take and transcribe certain evidence in this cause and that said court reporting services has made a charge for $25.50 for such' services.

The Court finds that the amount of $25.50 is fair, reasonable and customary charges for services rendered and that this amount should be allowed.

An award is therefore entered in the sum of $25.50 payable to A. M. Rothbart, court reporting services, Chicago, Illinois.

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. 3968
    Standard Oil Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, November 12, 1946.

    H. E. Schroeder, Attorney, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, of counsel, for respondent.
   Damron, J.

The above claimant is a corporation authorized to do business in this State.

During the period from and including May 16, 1945 to and including June 30, 1945 claimant sold and delivered to the Division of Highways, Bureau of Maintenance, District 7, at its instance and request certain oil products in the amount of $25.20; during the period from and including March 22, 1945 to and including June 24, 1945 claimant sold and delivered to the Conservation Department, General Office Division, District 16, at its instance and request certain oil products in the sum of $5.40; on March 9, 1945 claimant sold and delivered to the Department of Public Works and Buildings, Division of Highways, Bureau of Maintenance, District 9, at its instance and request certain oil products in the sum of 50c; on March 12, 1945 claimant sold and delivered to the Department of Public Works and Buildings, Division of Waterways, Bureau of Maintenance, District of Lock-port, at its instance and request certain oil products in the sum of $4.85; on May 19, 1945 claimant sold and delivered to the Department of Mines and Minerals, General Office Division, at its instance and request certain oil products in the sum of 90c, being a total of $36.85 all of which is more particularly described in claimant’s bill of particulars attached to this icomplaint and made a part thereof.

The report of the Division of Highways dated July 1, 1946 shows that the dates of purchase, ticket numbers, points of purchase, the names of the State employees by whom the purchases were made and the volumes and costs of materials were checked by said Division and found to be correct. It further shows that appropriations for the purchase of said oil products had been- duly made by the 63rd General Assembly from which these purchases would have been paid in regular (course had the inyoices been presented to the various Departments before the appropriation lapsed.

An award is hereby entered in favor of the claimant, Standard Oil Company of Indiana, in the sum of $36.85.


text:
    (No. 3970
    Wade Hampton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1946.

    A. L. Yantis, for claimant.
    George F. Barrett; Attorney General; C. Arthur Nebel, Assistant Attorney General, of counsel, for respondent.
   Damron, J.

On August 22, 1945 claimant, Wade Hampton, received an accidental injury while engaged in his employment for the Division of Highways at or near Shelbyville, Illinois. He was employed by the Division on August 18, 1945 as a common laborer at a wage rate of 70c per hour. On August 22, 1945, he was one of a group employed in shoveling gravel from a railroad car at the Big Four Railroad unloading track in Shelbyville. About 4:55 P. M. this claimant, while climbing down the ladder built on the side of the railroad car, missed a step of the ladder, he started to fall, but held on to the ladder rungs with his hand. His weight and the force of the fall loosened his grip causing him to fall to the ground with great force, dislocating; Ms left shoulder and injuring his left arm.

Claimant was given first aid medical treatment at the Hulick CliMc, Shelbyville, Illinois and allowed to return to Ms home on the date of the accident. The nature of his injury was found to be dislocation of the left shoulder with the edema surrounding the tissues.

Doctor McHarry of the CliMc estimated the date of the disability to be. about one month or longer in healing.

On December 11, 1945, a representative of the Division of Highways icalled upon the claimant and finding that claimant’s shoulder movements were limited made the necessary arrangements for claimant to receive such treatments as would be prescribed by Doctor J. Albert Key, Professor of Clinical Orthopedics, Washington Umversity, St. LoMs, Missouri. On December 17, 1945, claimant was examined by Doctor Key who made arrangements for claimant to enter the Barnes Hospital on January 17, 1946 for a maMpulation of the shoulder under anesthesia to break up adhesions wMch had formed following the injury. Upon being informed, the claimant declined to submit to tMs operation inasmuch as he had been advised that the operation, or maMpulation under anesthesia would be very painful and that the net result thereafter would be problematical and could aggravate the condition of his left shoulder and arm.

Upion the hearing before the Commissioner, Doctor E. M. Montgomery, a witness for claimant, testified that in December 1945 he made a physical examination of the claimant and found limited motion in his left shoulder with atrophy-of the deltoid muscle. Thát the patient had fair motion of the left arm, left to right, but was unable to raise the arm. That there was considerable weakness in the hand and forearm, due in the doctor’s opinion, to an injury of the nerve under the deltoid muscle. Sometime thereafter, Doctor Montgomery again examined the claimant, and at that time found that the deltoid muscle of the left shoulder had become smaller and more atrophied; that he advised claimant to continue the diathermy treatments which he had been receiving and to continue manipulation of the injured shoulder.

When questioned regarding the beneficial results, if any, of the proposed forced manipulation of the shoulder joint under anesthesia, he testified that considering the condition of the shoulder, as he found it in December 1945, and the fact that claimant was 71 years of age, such an operation was inadvisable. That such an operation, as proposed, might prove to be more injurious than beneficial. That more stiffening of the shoulder joint and greater loss of motion could develop as a result of more adhesions. This medical witness testified that claimant could raise his left arm only one-fourth of the distance that he normally should, as a result of the injuries, and that this condition was permanent.

On cross-examination he testified that there was some ankylosis present in claimant’s left shoulder joint caused by the adhesions from the periosteum. That the X-ray films introduced in the evidence as claimant’s exhibits 1 and 2, showed no arthritic deposits present.

In Florczak vs. Indus. Com., 381 Ill. 120, the Court having before it a question concerning the refusal of an injured employee to submit to a major operation tendered to him by the employer and the effect the refusal would have upon his compensation payments, said “A majority of the Courts of review in other jurisdictions have adopted the rule that where the operation tendered is of a major character and attended with a serious risk to the member, ah injured employee’s refusal to submit thereto is not unreasonable, and compensation should not be denied on that account. This rule is supported by the better reasoning and is in accord with what this Court • has declared the purpose of the Workmen’s Compensation Act to be and the remedies the legislature intended to cover.”

There is no medical evidence in this record which convinces us that the refused operation would have been beneficial to claimant or would have restored the functional loss of use of claimant’s left arm.

From a consideration of this record, the Court finds that the claimant and respondent were on the 22nd day of August 1945, operating under the provisions of the Workmen’s Compensation Act; that on the last mentioned date claimant received accidental injuries which arose out of and in the course of the employment; that notice of said accident was given to said respondent and claim for compensation on account thereof was made on said respondent within the time required under- the provisions of said Act; that earnings of employees in the same classification of this claimant for the year next preceding the injury were $1,120.00, and that the average weekly wage was $21.53. That the claimant at the time of the injury had no children under 16 years of age. That necessary first aid, medical and hospital services were provided by the respondent herein.

The, record discloses that this claimant was unable to perform work from the date of the injury, August 22, 1945, to the 2nd day of May 1946, totaling 36 weeks, for which he is entitled to be paid at his compensation rate of $12.92. This amounts to the sum of $465.12. The record further discloses that the respondent, through the' Division of Highways, paid to this claimant the sum of $169.82 as temporary total disability which must be deducted from the above amount leaving a balance due claimant for temporary total disability the sum of $295.30, payable in a lump sum forthwith. •

Claimant is entitled to have and receive from the respondent the sum of $12.92 per week for a period of 112% weeks, or the sum of $1,453.50, as provided in Section 8, Paragraph e of said Act, as amended, for the reason that the injury sustained caused a 50% permanent loss of use of the left arm of the claimant.

Of this amount the sum of $358.07 has accrued and is payable in a' lump sum forthwith. The remainder amounting to the sum of $1,095.43 is payable to claimant at a weekly compensation rate of $12.92 beginning November 19,1946, with one final payment of $10.15.

An award is hereby entered in favor of claimant, Wade Hampton, in the sum of $1,748.80, payable as above indicated.

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. 3972
    Northwest Ignition & Radiator Service, a Partnership, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1946.

    Emil M. Caliendo, of Chicago, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, C. J.

The claimant, the Northwest Ignition & Eadiator Service, is a partnership (composed of George Klett, Oscar Schumacher, Phil Glaser, and Emil M. Caliendo. It is engaged in automobile and truck repair service. From September 19, 1941 to June 5, 1943, the claimant supplied materials and rendered services to the respondent authorized by purchase orders issued by the Division of Purchases and Supplies of the Department of Finance, the orders being numbered D-34016, D-619179, D-73456, and dated July 1st, 1941, July 1st, 1942, and January 1st, 1943, respectively. Claimant has not been paid for these materials and services, the total charge for which amounts to $661.73.

George Klett, testifying on behalf of (claimant, stated that Mr. Caliendo was the partner in charge of collections ; that the partnership rendered its last services in June, 1943; that the claim was not filed until July 12, 1946; that the failure to file the claim sooner was due to the absence of Mr. Caliendo, who was in service in the United States Navy for a period of five years; that under the partnership agreement no suit could be filed except - upon agreement of all partners; that Mr. Caliendo’s Naval service made it impossible to obtain his consent to the filing of this • claim. Immediately upon the discharge of Mr. Caliendo, the claim was filed. The respondent offered no testimony other than the department report.

From the record, it appears that claimant furnished properly and duly authorized materials and services to the respondent, for which it has not received payment; when the charges were incurred there remained a sufficient unexpended balance in the appropriations from which payment could have been made. Claimant’s failure to subfait its invoices to the respondent within the usual tim'e was the result of the naval service of one of the partners. Under the provisions of Section 525, Title 50, United States Code, the period of military service of Mr. Caliendo can not be included in '.computing the period limited by law for the filing of this claim. Section 22 of the act creating the Court of Claims, which bars claims not filed within two years, is, therefore, not a bar to recovery, and claimant is entitled to an award. Illinois Bell Telephone Company vs. State of Illinois, 14 C. C. R. 48.

•An award is, therefore, made in favor of the claimant in the amount of $661.73.


text:
    (No. 3975
    Merna Mae Archer, Widow of Marvin C. Archer, Deceased, and Judith Mae Archer, a Minor, by and Through Her Mother and Next Friend, Merna Mae Archer, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1946.

    Nobel G. Johnson, for claimants.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, of counsel, for respondent.
   Damron, J.

Marvin C. Archer was formerly employed by the Department of Public Safety, as a State Highway Policeman. About 6:45 A. M. on the morning of June 18, 1946 while in the company of another State Highway Policeman at Paxton, Illinois, he was shot by a person seated in an automobile, which had been halted by him and his fellow officer in order to question the driver for identification. Death occurred almost instantly. Archer left surviving him his widow, Merna Mae Archer, and his daughter, Judith Mae Archer, a minor, three years of age, the claimants herein. They seek an award for $5,340.00 as provided under Section 7 (a) of .the Workmen’s Compensation Act, for the death of Mr. Archer.

The record in this case consists of the complaint, copy of the coroner’s jury verdict, waiver of brief, statement and argument on behalf of both the claimant and respondent through- their respective attorneys, report of the Department of Public Safety and a stipulation that said report shall constitute the record in the case.

The report substantiates the allegations in the complaint and further states that Mr. Archer was 31 years of age at the time of his death, resided in Paxton, Illinois, was first employed by the respondent in the Department of Public Safety, Division of State Police on December 17, 1941; that bn November 28, 1943 he obtained a leave of absence in order to join the military forces of the United States and after being honorably discharged reentered the employment with the Division of State Police on February 1, 1946 and at the time of re-entry of employment he received a salary of $213.00 a month. It likewise shows that Highway Policemen having the same classification as Mr. Archer received an annual salary of $2,556.00 during the year next preceding June 18,1946.

On this record we make the following findings:

That at the time of the accident employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State and notice of the accident and claim for compensation were made within the time required by Section 24 of the Act; that the accident arose out of and in the course of decedent’s employment.

The claimant is entitled to an award under the Workmen’s Compensation Act in the amount of $5,340.00 as provided in Paragraph (A, H & K) of Section 7 of said Act.

An award is therefore made in favor of the claimants, Mema Mae Archer, widow, and Judith Mae Archer, minor child, of deceased in the sum of $5,340.00.

Of this amount the sum of $378.00 accrued on November 12,1946 and is payable forthwith. The remainder amounting to the sum of $4,962.00 is payable in weekly installments of $18.00 per week beginning November 19, 1946 for a period of 275 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 cause is specifically reserved for the entry of such orders as may from time to time be necessary.

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


text:
    (No. 3979
    Carl S. Johnson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1946.

    Carl S. Johnson, pro se.
    George F. Barrett, Attorney General, for respondent.
   Damron, J.

During the period January 5, 1944 to January 29, 1944 inclusive, the Division of Highways and the Department of Conservation purchased and received gasoline and lubricating oil of the value of $47.22 from the claimant, Carl S. Johnson, who on those dates was operating Johnson’s Pure Oil Filling Station at Broadway and Benton Streets in Aurora, Illinois as per the bill of particulars filed herein and made a part of this record.

The Department of Public Works and Buildings, Division of Highways has filed a report herein dated August 16, 1946 which shows the purchases were made and goods delivered as to date, sales number, department and amount as alleged in the complaint and also shows that the invoices (sales tickets) were not presented for payment by the claimant before the appropriations and funds from which these invoices were payable had lapsed.

The complaint alleges that this claimant was inducted into the United States Military Service on January 31, 1944 and was not discharged therefrom until February 8, 1946 and for that reason he was unable to present the vouchers before the appropriation lapsed.

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.

Rock Island Sand & Gravel Co. vs. State, 8 C. C. R. 165; Oak Park Hospital vs. State, 11 C. C. R. 219; Your-tee-Roberts Sand Co. vs. State, 14 C. C. R. 124.

This case comes within the rule above set forth.

An award is therefore entered in favor of claimant for the sum of $47.22.


text:
    (No. 3982
    Meriam Evans, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1946.

    Ralph W. Choisser, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, C. J.

On June 17, 1946 the claimant, Meriam Evans, was driving her automobile in a southerly direction on U. S. Route No. 45 in White County, Illinois; she was driving about twenty-five miles per hour; Gordie Mills, an employee of the respondent, was operating a tractor mower on the highway, cutting weeds alpng the shoulders. This route is maintained by the respondent through the Division of Highways. As claimant approached a relatively deep cut out section of the pavement, her car was overtaken by the motorized mower; the mower was so negligently and carelessly driven and operated that it overturned on the embankment, and fell upon her automobile, causing property damage in the amount of $83.75.

The record consists of the complaint, a departmental report which substantially corroborates the complaint, a stipulation that the departmental report constitute the record, and waiver of statement, brief and argument by both claimant and respondent.

The record shows a duty on the part of the defendant, and a failure to perform that duty, and a resulting injury. The law attaches to such failure of duty the charge of negligence. (Miller vs. Kresge Co., 306 Ill. 104.)

An award is therefore entered in favor of the claimant in the amount of $83.75.


text:
    (No. 3776
    George Irey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1947.
    W. K. Kidwell and John W. Fribley, for claimant.
    George F. Barrett, Attorney General and C. Arthur Nebel, Assistant Attorney General, of counsel, for respondent.
   Damron, J.

This claim comes up for consideration under the second amended complaint filed in this Court on December 21, 1943.

The record discloses that this claimant was first employed by the respondent in the Division of Highways on April 20, 1942 as a common laborer at a wage of 55c per hour and continued in that classification and at that rate throughout the period of his employment. This claimant, and other similarly employed, worked for the Division less than 200 days a year. Eight hours constituted a normal working day.

On August 5, 1942 at 2 o’clock P. M., the claimant was one of the maintenance crew engaged in placing concrete patches on a state highway in the village of Areola, Douglas County. He was assigned the duty of putting cement in the loading skip of a concrete mixer. The skip dropped from a raised position, and claimant alleges that cement dust was blown into his eyes by reason of its falling. He reported the accident to his immediate superior on the same day, but continued to work until August 13. On August 14th, claimant went to Doctor Albert Tower Summers of Mattoon, Illinois, who treated claimant’s left eye until October 15th. He was then sent by the respondent to Doctor E. E. Findley, Professor of Ophthalmology, University of Illinois, College of Medicine, Chicago, Illinois.

This claimant was paid compensation from August 14th to October 17th inclusive at a rate of $9.15 a week or a total of $84.96. Compensation was then terminated on the last mentioned date for the reason Doctor Findley had reported: “I feel that this condition in the left eye was not due to the injury but to some systemic condition which caused a violent inflamation.”

The respondent paid the following accounts for services rendered to the claimant: Doctor Albert Tower Summers, Mattoon, $52.50; Doctor E. E. Findley, Chicago, $10.00; Y. M. C. A. Hotel, Chicago, 69c, and Illinois Central Railroad Company, $6.85, making a total of $70.04.

The Division of Highways filed a report on March 15, 1943 which shows that on August 18, 1942 Doctor Albert Tower Summers reported to the Division as follows :

“Nature of injury — cement dust in the eye as stated above. When first seen August 14, there was severe inflammation of the entire globe, hemorrhage has occurred in the anterior chamber. The vision of eye has been lost in my opinion. Light perception only.”

The claimant thereafter continued to be treated by Doctor Summers who again on September 3, 1942 reported to the Division as follows:

“Nature of injury — hemorrhage into the anterior chamber. Very severe eye inflammation. Eye is clearing up slowly and looks very encouraging as of September 1, 1942.”

And on October 15, 1942 Doctor Summers again reported to the Division as follows:

“Eye examination and treatment August 13, 1942. Entire globe of eye very much inflamed. Blood in the anterior chamber. Pupil contracted. Lens very cloudy. Could not see fundus. Eye ball very sensitive to pressure and to light. All as a result of cement dust in the eye some days before.”

On October 16, 1942 Doctor Findley sent the following report to the Division:

“Mr. George Irey gives a history of an injury to the rigb,t eye in 1925. Pupil is small and completely bound down to the capsule of the lens. No light perception. Evidently the sight was destroyed by severe inflammation of iris and ciliary body.
No treatment would improve condition.
History of cement dust in the left eye on August 5, 1942, and examination shows the remains of a serious inflammation of the same tissues as in the right eye.
Vision: 110/200. The pupil is rigid and numerous deposits of iris pigment are found on the lens capsule. The details of the fundus are blurred by the cloudiness of the lens. I feel that this condition in the left eye was not due to injury but to some systemic condition which caused the violent inflammation. I would suggest a thorough systemic examination in his case."

Evidence was taken in Matte on on September 27, 1945 and filed in this Court on November 13,1945. Claimant testified that in November 1925 he was employed by the United States Engineers on Lock and Dam project No. 53 on the Ohio River near Cairo, Illinois and while working as a laborer unloading coal, a piece of coal struck his right eye; that he returned to his home at Mattoon where he was treated for this injury by Doctor C. B. Voight, an eye specialist; that the United States Government paid to him medical, hospital and surgical services and compensation, the exact amount of which he did not know but that payment for partial loss of use of the right eye was paid to him in approximately the sum of $600.00; that in November 1941, while he was at work for the VanCamp Stokeley Company of Indianapolis, Indiana, manufacturers of canned food, vinegar brine was splashed in his right eye, and that the Liberty Mutual Insurance Company, the workmen’s compensation insurer of his employer under the Indiana Compensation Act, paid the sum of $561.00 to him plus the necessary first aid and medical services. Claimant further testified that the accidents to his right eye in November, 1925, and November, 1941 resulted in the total and complete loss of vision in his right eye, and that by reason of the accident to his left eye on August 5, 1942 while employed by the respondent, he has suffered total industrial blindness and is now permanently incapable of working.

He therefore seeks an award for complete and total disability under Section 8 Paragraph (f) of the Workmen’s Compensation Act.'

Claimant called Doctor Florentine Barker Jones, an eye, ear, nose and throat specialist who testified he first examined the claimant on January 14, 1943 and again on' June 8, 1945; he found his left eye heavily scarred on the corner, fixed-cloudy pupil, adhesions of iris, and ho practical vision and no accommodation of the pupil. He testified he also examined the right eye and found claimant had no practical vision in that eye and that he was suffering from industrial blindness. He also testified that the loss of visual acuity was not due to any systemic condition.

On cross examination he testified that an operation on the left eye would not restore the vision unless the fundus was normal. This he could not ascertain because it was impossible to get back through the rays of the eye on account of the fixed pupil. He further testified that an operation was attempted-on the right eye in 1944 by key-hole optical iridectomy which was unsuccessful excepting possibly a little more light perception and projection were obtained.

Upon consideration of this record we find; that on the 5th day of August 1942, the said George Irey and the respondent were operating under the provisions of the Workmen’s Compensation Act of this State; that on said date he sustained accidental injuries which arose out of and in the course of his employment; that notice of the accident was given to said respondent, and claim for compensation on account thereof was made within the time required by the provisions of Section 24 of said Act; that the annual earnings of the claimant during the year next preceding the accident was $880.00, and his average weekly wage was $16.92.

That claimant, having lost the complete vision of his left eye, is entitled to have and receive from said respondent the sum of $9.31 per week for a period of 120 weeks, as provided in Section 8, Paragraph (e-16) of the Workmen’s Compensation Act, as amended, amounting to the sum of $1,117.20.

That respondent in addition thereto shall pay into the Special Fund, provided for in Paragraph (e), Section 7 of said Act, the sum of $100.00 as provided for in Sub-Paragraph 20, Paragraph (e) of Section 8 of said Act, as amended.

The Court further finds that said claimant previously suffered a complete and permanent loss of vision in his right eye in an accident which occurred in November of 1941 while employed by the Van Camp Stokeley Company, and by reason of the provisions contained in Sub-Paragraph 18, Paragraph (e) of Section 8 of said Act is now permanently disabled by reason of being industrially blind, and is entitled to compensation as provided in Paragraph (f) of Section 8 of said Act, and also pension for life after said payments are fully made;

Therefore, said claimant is entitled to have and to receive from the Special Fund as aforesaid the sum of $9.31 per week for a period of 295 weeks, and one final payment of $8.35, which said payments shall begin after said respondent has paid to said claimant the total sum of $1,117.20, that being the amount of money claimant is entitled to receive from said respondent. Claimant is further entitled to receive from the Special Fund a pension during life annually in the sum of $464.64, payable in twelve equal monthly installments of $38.72, as provided in Paragraph (f) of Section 8 of said Act as amended, for the reason that the disablement sustained resulted in said claimant becoming totally and completely incapacitated for work.

•The Court finds that the above sum of $1,117.20 awarded to claimant for the loss of his left eye has accrued and is payable forthwith from the Road Fund. The Court further finds that of the sum of $2,754.80 to be paid to claimant out of the Special Fund as aforesaid that the amount of $1,042.72 has accrued to January 16, 1947, and is payable forthwith in a lump sum.

Awards are entered accordingly.

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. 3854
    Iva Belle Benner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1947.

    A. C. Lewis, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, of counsel, for respondent.
   Damron, J.

On February 25, 1942 the above named claimant through her attorney filed an application for benefits under the Workmen’s Compensation Act.

The complaint alleged that on or about the 2nd day of January 1941, claimant was injured by reason of an accident arising out of and in the course of her employment at the Chicago State Hospital, 6500 Irving Park Road, Chicago, Illinois.

On November 10, 1943 after due notice had been served on the .attorney for the claimant, the above claim was dismissed for want of prosecution and on January 12, 1944 a motion of claimant to vacate the above order dismissing said case was denied for lack of proper showing on the part of said claimant.

On December 2, 1943 claimant filed a petition for reinstatement of said cause heretofore dismissed for want of prosecution. On December 8, 1943, respondent filed its answer thereto and on January 12, 1944 claimant’s motion to reinstate said cause was denied by this Court.

On May 25,' 1944 claimant, through her attorney, filed a new claim alleging the same facts as contained in the original complaint. This claim was filed under the Limitation Act, Chapter 83, Paragraph 24a, Illinois Revised Statutes. The Attorney General filed a motion on behalf of respondent to dismiss this complaint alleging that the statute of limitation relied upon by said claimant (Section 83, Paragraph 24a) does not apply to cases under the Workmen’s Compensation Act.

Section 8 of an Act to create the Court of Claims, and to prescribe the powers and duties, approved July 17, 1945, provides:

The Court shall have jurisdiction to hear and deter- , mine the following matters:

D. All claims against the State for personal injuries or death arising out of and in the course of the employment of any State employee and all claims against the Board of Trustees of the University of Illinois for personal injuries or death suffered in the course of, and arising out of the employment by The Board of Trustees. of the University of Illinois of any employee of the University, the determination' of which shall be in accordance with the substantive provisions of the Workmen’s Compensation Act or the Workmen’s Occupational Diseases Act, as the case may be.

It is to be noted' that this Court under this section of the law, creating this Court, is directed to determine questions arising under the Workmen’s Compensation Act by applying the substantive provisions of the Act. •

Section 24 of the Act prescribes the limit of time in which an action may be brought to fix liability for accidental injuries and, in so far as applicable to the present inquiry, provides as follows:

“Provided, that in any case unless application for compensation is filed with the Industrial Commission, within one year after the date of the accident, where no compensation has been paid, or within one year after the date of the last payment of compensation, where any has been paid, the right to file such applications shall be barred.” The filing of a claim for compensation under the Workmen’s Compensation Act is jurisdictional and a condition precedent to the right to maintain a proceeding under the act. Black vs. Industrial Commission, 393 Ill. 187.

This complaint shows on its face that it was filed in this Court more than three years after claimant’s alleged injury, therefore, this Court is without jurisdiction to hear and determine the issue raised by this complaint.

For the reasons assigned the motion of the Attorney General to dismiss is hereby allowed.

Complaint dismissed.


text:
    (No. 3936
    James Edward Garvin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1947.

    James E. Londrigan, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, of counsel, for respondent.
   Damron, J.

This is a claim under the Workmen’s Compensation Act for injury alleged to have been sustained by the above claimant during the course of his employment for the respondent on the 20th day of April 1945.

The record discloses that this claimant, a man of 82-years of age, had been an employee of the Secretary of State for a number of years prior to said accident. He was a watchman at the south door of the basement in the Capitol Building at Springfield, and as far as the record is concerned he had no other duties in any other part of said Capitol Building.

On the last mentioned date claimant testified that he left the place of his employment in the basement and was showing one Charles Heelen the location of his superior officer’s office on the fourth floor of the Capitol Building and while returning to his post he slipped and fell backward at or near the concession stand which is located on said floor.

The record in this case consists of the complaint, the original and supplemental departmental reports of the Secretary of State, the transcript of evidence and the statement, brief and argument for claimant and respondent.

Claimant testified that as a result of said injuries sustained at the place and time aforesaid he received a concussion of the brain, multiple contusions about the body, particularly the pelvis, and was unable to stand or walk. He testified he had pains throughout his limbs for a period of 12 weeks and that since said accidental injury he is unable to resume his employment and that as a result of needed medical attention has incurred bills as follows: St. Johns Hospital, Springfield, Illinois, $891.35; Doctor John J. Donovan, Springfield, Illinois, $350.00.

Doctor Donovan was called as a witness on behalf of claimant and testified that claimant has improved since the date of the accident but because of age and probably from the shock of the accident, claimant will not be able to work. Upon cross-examination he was asked regarding the condition of the claimant other than to bruises and contusions and answered that claimant could not coordinate mentally or physically and explained that this was the result of the concussion. He then testified that claimant had entirely recovered from the concussion and further that all of the bruises and contusions sustained by claimant had healed, but that the claimant- still suffered pain. However he testified that the diagnosis of pain was based wholly on subjective symptoms and could not be sustained objectively. On redirect-examination 6 this physician testified that in a man of claimant’s age it could not be determined whether or not he had recovered from the shock of the injury.

The medical testimony in this case is unsatisfactory and from it this Court is unable to determine whether or not claimant suffered any permanent effect as a result of the accident. If claimant had succeeded in proving by competent evidence that he had suffered permanent disability from the injuries sustained as aforesaid it yet would be required of him to show by a preponderance of the evidence that his duties as watchman of the south door of the Capitol Building required him to be on the fourth floor of said building at the time he was alleged to have'been injured. This he has failed to do.

The Workmen’s Compensation Act requires that an accidental injury, to be compensable must arise out of and in the course of the employment. These phrases are used conjunctively in the statute. Illinois Country Club Inc. vs. Ind. Com., 378 Ill. 484; Farley vs. Ind. Com., 378 Ill. 334; Great American Indemnity vs. Ind. Com., 367 Ill. 241; Borgson vs. Ind. Com., 368 Ill. 188; both elements must be present at the time of the injury in order to justify compensation. Illinois Country Club Inc. vs. Ind. Com. supra; Mazursky vs. Ind. Com., 364 Ill. 445.

It has been often said by this Court that liability under the Workmen’s Compensation Act cannot rest upon imagination, speculation or conjecture, or upon a choice of two views equally compatible with the evidence. Mandell vs. State, 12 C. C. R. 49; Lyman vs. State, 14 C. C. R. 173; Elliot vs. State, 14 C. C. R. 222.

There must be a causal connection between the conditions existing on the employers premises and the injury to the employee, and the accident must have had its origin in some risk connected with or incidental to the employment. Cummings vs. Ind. Com., 389 Ill. 356.

It appears from the evidence that this employee’s trip to the fourth floor of the Capitol Building was purely personal and therefore it cannot be said that the injury to claimant flowed as a rational consequence from any risk peculiar or incidental to his employment, City of Chicago vs. Ind. Com., 292 Ill. 406, and, therefore, it is not compensable. His claim for compensation must be denied.

Likewise since this claimant has failed to prove his right to compensation as above indicated, his claim for medical and hospitalization must be denied.

Award Denied.

An invoice-voucher has been filed in this case showing that Harry L. Livingstone, a court reporter, Springfield, Illinois was employed to take and transcribe the testimony in this case.

The Court finds that the charges are fair, reasonable and customary for the amount of work performed, by said reporter.

An award is therefore entered in favor of Harry L. Livingstone, 1008 Bidgely Building, Springfield, Illinois, in the sum of $46.00.


text:
    (No. 3953
    Lucy Penninger, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1947.

    R. Wallace Karraker, for claimant.
    George F. Barrett, Attorney General and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, C. J.

On December 28,1944, the claimant, Lucy Penninger, an attendant at the Anna State Hospital, slipped and fell on an icy pavement, sustaining a fracture of the left femur. She was hospitalized at the institution from the date of the injury until April 15,1945, when she returned to her home. Subsequently she received treatment at the West Frankfort U. M. W. of A. Medical and Belief Association, at West Frankfort, Illinois, and there submitted to an operation. All hospital and medical services were paid by the respondent except the charges incurred at the West Frankfort Hospital in the amount of $295.00.

At the time of the accident claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this state, and notice of the accident and claim for compensation were made within the time provided by the act.

At the time of the injury claimant’s annual earnings were $1,500.00 per year. She was paid by respondent, on account of temporary total disability, the total sum of $500.00. She alleges- that she has become totally and permanently disabled as a result of this injury. The respondent, however contends that the claimant is not totally and permanently disabled, that her injury is limited to the left leg, and that claimant has sustained a specific loss only.

Claimant, testifying on her own behalf, stated that since the injury she -has been unable to do anything except dry dishes, peel potatoes, or “a few things sitting down;” that her feet become very tired when she stands; and that she can not walk without a crutch. She also stated that she was seventy-eight years old on the 27th day of May, 1946.

Dr. William A. Baker, testifying on behalf of claimant, stated that he' is a member of the Medical Staff of the Anna State Hospital; that he saw claimant immediately after the accident, and upon examination found about a two inch shortening of the left leg, eversion of the left foot, and considerable pain in the left hip. X-rays showed a complete 'transverse fracture through the surgical neck of the left femur with proximal fragments downward and backward and distal fragments upward and forward. He stated that an attempt was made to, set the bones and insert a Smith-Peterson pin. The operation, however, was not successful, and the pin had to be removed. Dr. Baker also testified that claimant does not have a strong callus formation, but a fibrous union, and that since the bones are not end to end there will never be a strong callus formation. He stated that the condition-is permanent, and that in his opinion “it is very nearly a total disability in that she cannot put much weight on her leg without the use of a crutch or cane.”

Dr. C. D. Nobles, called as a witness for claimant, substantiated the statements made by Dr. Baker.

Claimant was temporarily totally incapacitated from December 28,1944 to June 28,1945 or a period of twenty-six weeks. Claimant’s annual earnings being $1,500.00, her average weekly wage was $28.85, so that her compensation rate is $14.43. The injury having occurred subsequent to July 1; 1943, this must be increased 17%%, making the total compensation rate $16.96. Claimant was therefore entitled, on account of temporary total disability, to the total sum of $440.96. Since claimant received the sum of $500.00 for non-productive time, there has been an over-payment of $59.04, which must be deducted from any award in this case.

The court is of the opinion that claimant has sustained a 90% permanent loss of use of her left leg. The court is also of the opinion that claimant is not totally and permanently disabled within the meaning of the Workmen’s Compensation Act. There is nothing in the record to show that claimant has sustained any injury other than that to the left hip and leg, and there is ' nothing to show that she suffers from any disability other than the partial loss of use of her left leg, and her advanced age.

Claimant, is, therefore, entitled to an award of $16.96 for a period of 171 weeks, or the aggregate sum of $2,900.16. From this must be deducted the overpayment of $59.04, leaving a balance of $2,841.12. She is also entitled to be reimbursed in the sum of $295.00 expended on account of necessary medical, surgical, and hospital services.

The testimony on hearing before Commissioner Jenkins was transcribed by Ruth A. Coffman, who has submitted' a statement of $11.50 for her services. This charge is reasonable and proper.

An award is, therefore, entered as follows:

To Ruth A. Coffman, on account of stenographic services, $11.50, payable forthwith.
To Lucy Penninger, on account of money expended for medical, surgical, and hospital services, $295.00, payable forthwith.
To Lucy Penninger for 90% loss of use of her left leg, $2,841.12 payable as follows:
$1,373.76, which has accrued, is payable forthwith.
$1,467.36 is payable in weekly installments of $16.96 per week, beginning January 16, 1947, for a period of 86 weeks, with a final payment of $8.80.

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. 3954
    Earl Britt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1947.

    J. Kelly Smith, for claimant.
    George F. Barrett, Attorney General and Hon. C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, C. J.

In his complaint filed in this case on March 20, 1946 the claimant, Earl Britt, alleges that on September 19, 1941 he was employed by the Department of Public Works and Buildings of the State of Illinois, in the Division of Highways, as a member of a construction crew engaged in the building of Illinois State Highway No. 37, approximately two miles north of Mound City, Illinois. He further alleges that while grading a built up embankment along the highway, he lost control of the road grading machine. Because of the defective condition of its brakes, the machine went down the embankment and hurled the claimant against a steel dash, fracturing his left knee cap. Following the injury, he received, on account of temporary total disability, covering the period from September 19, 1941 to April 4, 1942, the aggregate sum of $464.36. He alleges the injury to be permanent, with the result that he has lost 50% of the use of his left leg.

Respondent has filed a motion to dismiss the claim on the ground that it was not filed .within one year after the date of the accident, or within one year after the last payment of compensation, in accordance with the provisions of Section 24 of the Illinois Workmen’s Compensation Act. That section of the Act provides that the right to file application for compensation shall be barred unless such application is filed within one year after the date of the accident, where no compensation has been paid, or within one year after the date of the last payment of compensation where any has been paid. It has been repeatedly held by the Supreme Court of this State, that compliance with this section is a condition precedent to the right to maintain proceedings under the Compensation Act. City of Rochelle vs. Industrial Commission, 332 Ill. 386; Inland Rubber Co. vs. Industrial Commission, 309 Ill. 43. The decisions of this court are in like effect. Scott vs. State, 13 C. C. R. 163. Furthermore, in claims by State employees for compensation for accidental injuries, arising out of, and in the course of their employment, Section 24 of the Workmen’s Compensation Act is controlling as to the time within which such claims must be filed. Scott vs. State, 12 C. C. R. 36.

The accident in this ¡case having occurred on September 19, 1941, and the last payment of compensation having been made on April 4, 1942, it is obvious that the filing of the complaint on March 20 ,1946 is not in compliance with Section 24 of the Workmen’s Compensation Act. The court is, therefore, without jurisdiction to make an award.

The motion of the respondent is granted. Case dismissed.


text:
    (No. 3955
    Rachel M. Ross, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1947.

    C. G. Colburn, for claimant.
    George F. Barrett, Attorney General; and C. Arthur Nebel, Assistant Attorney General, of counsel, for respondent.
   Damron, J.

This complaint, filed on April 5,1946 alleges that the claimant is a resident of Cass County aiid is the owner of-certain described real estate consisting of an improved farm with buildings thereon in said county.

The complaint alleges that for many years prior to September 1921, a public highway was in existence along the north side of claimant’s farm. That this public highway was first maintained as a township road; later as a State-Aid road in Cass County; and then on the 21st day of September 1921, a dedication deed was executed by claimant and her husband, now deceased, for some additional right of way along claimant’s premises; that said dedication deed was executed for the purpose of assisting in bringing about the construction of a State Bond Issue Boute 125 to be paved with concrete.

The complaint further alleges that at the time said dedication deed was executed, there was a large cattle barn, approximately 120 ft. in length, on the premises of the claimant, which was situated and adjoining the highway mentioned in said dedication deed; pursuant to such deed of dedication, the State of Illinois in 1923 and 1924, improved said highway along and bordering the premises of the claimant and that the construction of said highway was done in a careful and workmanlike manner so that no damage was caused to the earth which supported the large cattle barn above referred to. Thereafter in 1941, the respondent again improved said State Bond Issue Boute 125 along the premises of the claimant. In making these improvements, its agents, employees, and servants removed additional earth and dirt from the lateral dirt supporting said barn of claimant. The com-, plaint alleges that this excavation was done in a careless and negligent manner and that in direct consequence of the negligence of the respondent and as a result of the negligence and improper excavation as aforesaid, a large quantity of the soil supporting claimant’s building gave way and fell into respondent’s excavation; that during the Spring of 1942, the soil, in its weakened condition, caused by the said negligent excavation, was unable to further support the barn of the claimant, causing the foundation to give way; it alleges the walls were broken and destroyed and the premises were rendered dangerous and unfit for use and that the claimant was compelled to abandon the use of her barn until the same could be repaired several months later.

The complaint further alleges that on August 23, 1944,. claimant constructed a concrete foundation wall under said cattle barn incurring a cost of $631.21 for which she seeks an award.

The respondent through its Attorney General, files its motion to dismiss the complaint for two reasons:

1. That the cause of action stated.in the complaint is based upon alleged damages to an integral part of a parcel of land which was conveyed to the respondent for highway purposes. That said deed, dated July 18, 1940, was based on a good and valuable consideration and was executed prior to the date of the alleged damages.
2. That this cause of action is barred by the statute of limitations.

The complaint shows on its face that the alleged damages to claimant’s barn happened in the Spring of 1942. The complaint was filed with the Clerk of this Court on April 5, 1946.

Section 22 of the Court of Claims Law (Ill. Rev. Stat. 1945, Chap. 37, Par. 439.22) prescribes the limit of time in which a claim may be filed in this Court. A claim such as the one before us must be filed within two years after it first accrues.

The complaint shows on its face that more than four years had elapsed from the date of the alleged damages to the filing of the complaint. Therefore, under the law,, this Court is without jurisdiction to hear and determine this claim for the reason the statute of limitations had run against it.

Claimant’s counsel argues that since the repairs were not made to the barn until August 23,1944, that this tolled the statute.

We cannot agree -with this statement as being, the law.

Having concluded that we are without jurisdiction to hear and determine this claim, it becomes unnecessary to discuss other points raised by the respective counsel.

The motion of the Attorney General is allowed. Complaint dismissed.


text:
    (No. 3965
    Iva Berthold, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1947.

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

Iva Berthold, for more than eleven years has been employed at the Lincoln State School and Colony, an institution conducted and maintained by the respondent through the Department of Public Welfare, near Lincoln, Illinois.

For the past seven years she was a worker in the laundry of the institution and assisted, supervised, and at times operated machinery used in the laundry.

On December 19, 1945 this claimant was operating a steam presser which was controlled and operated by compressed air. Due to a faulty air line the heavy top board of the presser fell upon her hands and forearms, there being no foot release on the presser she was compelled to remain in that position while live steam flowed through the top portion of the presser upon her hands and arms until she was released by a patient.

Her injuries were treated in the hospital of the institution, where it was found that she was suffering from third degree burns on the dorsal surface of both hands, forearms' and fingers. She remained there receiving treatment from the date of the injury until January 10, 1946. She was first attended by Doctor- Slakus. Later it was found necessary to perform skin grafting operations. The first operation was performed by Doctor E. C. Gaffney at Lincoln, Illinois. The second operation was performed at the St. Luke Hospital, Chicago, Illinois by Doctor Paul Greeley, a plastic surgeon.

On April 9, 1946, Doctor Greeley made, the-following report:

“This patient has bilateral dorsal burn scar contractures on the extensor surfaces of each hand. The 'contracting scars extend down over the fingers and up over the forearm.”

On August 8, 1946 Doctor Greeley again reported as follows:

“Mrs. Berthold has been discharged from St. Luke Hospital. Her grafts have grown completely and her progress to date is satisfactory. There is some tendency to develop some fibrosis beneath the grafts which make for a little wrinkling of the new surface covering. I have advised her to use her hands as much as possible, to soak them in warm water and massage them, following which they should smooth out quite well during the next two or three months.”

At the September 1946 term of this Court the claimant appeared before its members for personal observation. We found she had a healed scar approximately six inches long and about two inches wide on the extensor surface of her right hand which commenced at her fingers and extended into the forearm above the wrist. The skin grafting left a scar of a dark brownish color, wrinkled surface and was not pliable. The left hand had a healed scar about nine inches long and about two and one-half inches wide on the extensor surface from the forearm down and involved the first, second, and third fingers. The scars were ugly, the texture of the new grafted skin was leatherlike, considerably wrinkled and she was unable to close her left hand to any extent. These injuries are permanent.

The stipulation entered into between the claimant and the respondent shows that respondent paid all medical and hospital bills for the claimant except the bill of Doctor E. C. Gaffney, First National Bank Building, Lincoln, Illinois, in the sum of $150.00.

The record discloses that claimant was totally dis- • abled, as a result of her injuries, from December 19, 1945 until June 5, 1946. During this period she was recovering from skin grafting operations performed by Doctor E. C. Gaffney. On the last mentioned date she returned to the institution and was reemploved until July 15, 1946. On that date she was sent to Chicago, Illinois and placed under the care of Doctor Paul Greeley who performed another skin grafting operation which totally disabled her from performing work until October 1, 1946. Claimant therefore was temporarily totally disabled for 34 weeks and 3 days. i

The departmental report filed in this cause shows that the annual salary of this claimant for one year next preceding the injury was $1,582.49. Therefore her average weekly wage was $30.43.

On this record we find, that the claimant and respondent were on the 19th day of December 1945 operating under the provisions of the Workmen’s Compensation Act; that on the date last above mentioned said claimant sustained accidental injuries which arose out of and in the course of her employment; that notice of said accident was given respondent and.claim for compensation on account thereof was made on the respondent within the time required under the provisions of said Act.

The Court further finds that the claimant was incapacitated for 34 weeks and 3 days for which she is entitled to temporary total compensation, at $18.00 per week, amounting to the sum of $619.71 from which must be deducted the sum of $563.63 heretofore paid by respondent to claimant during her disability as salary in lieu of temporary compensation leaving a balance due claimant for temporary total disability the sum of $56.08.

On the basis of the above findings an award is entered as- follows:

1. The sum of $18.00 per week for a period of 135 weeks, as provided in Section 8 Paragraph (e) of said Act as amended, for the reason the injury sustained caused a 60% permanent loss of use of the left arm of claimant, amounting to the sum of $2,430.00.

2. , The sum of $18.00 per week for a period of 127% weeks as provided in Section 8 Paragraph (e) of said Act as amended, for the reason the injury sustained caused a 75% permanent loss of use of the right hand of th'e claimant, amounting to the sum of $2,295.00, making a total award for specific injuries received by claimant in the sum of $4,725.00.

3. The sum of $56.08 representing the balance due claimant for temporary total compensation.

4. The sum of $150.00 for the use of Doctor E. C. Gaffney, Lincoln, Illinois.

5. Of these awards amounting to the sum of $4,931.08 the following amounts are payable forthwith:

$150.00 for the use of Doctor E. C. Gaffney.
$ 56.08 due as balance on temporary total compensation.
$270.00 accrued on specific injuries to January 14, 1947.

The balance of the award amounting to $4,455.00 is payable to claimant at $18.00 per week for 247 weeks, commencing January 21, 1947, with one final payment of $9.00.

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


text:
    (No. 3969
    William F. Thornton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1947.

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

The claimant alleges that while on duty as an attendant at the Elgin State Hospital, he was struck in the mouth by an inmate, breaking the upper dental plate of the claimant. Thereafter, the claimant had. a new plate made at a cost of $75.00. He now files this claim for an award in the above amount to reimburse him for this expenditure contending that inasmuch as this dental plate was broken in the course of his employment for the respondent, and due to the fact that it had been the custom of the Department of Public Welfare, for several years past, to reimburse employees in, welfare institutions for the amount of costs for the replacement of glasses; that from this practice he believes the Department of Public Welfare should assume the responsibility of his broken dental plate.

The respondent files its motion to dismiss for the reason that a cause of action is not stated in the complaint and that it being a claim for damages to personal property, caused by a third party, the claim is not compensable under the Workmen’s Compensation Act and therefore respondent insists that this claim should be dismissed.

Damages for injury to personal property cannot be recovered under the provisions of the Workmen’s Compensation Act. In Mowery vs. State, 11 C. C. R. 18 was a claim filed to recover from the respondent for glasses which were broken during the course of his employment for respondent. In dismissing this claim on motion of the Attorney General, the Court said,

“There is no law in this State making respondent liable tor damage to the personal property of an employee, where such damage is caused by the wrongful act of a third person, and consequently the motion of the Attorney General to strike must be sustained.”

The motion to dismiss this complaint is therefore granted.

Complaint dismissed.


text:
    (No. 3971
    Anna M. Rategan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1947.

    Bennett & Colbach, (Mr. John W. Bennett, of counsel), for claimant.
    George F. Barrett, Attorney General; Wm. L. Morgan, Assistant Attorney General, for respondent.
   Eckert, C. J.

Claimant, Anna M. Bategan, is the widow of William F. Bategan, deceased, formerly employed by the Department of Bevenue as a Field Auditor Supervisor. The deceased made audits at times and places designated by the Department, and had direct supervision of a large field staff. With the approval of the Department, he used his own automobile for transportation.

On March 12, 1946, by pre-arrangement, Matthew A. Berg, a member of the Field Staff, met the deceased at the Bategan home a little before 8 o’clock in the morning. The men were scheduled for work together on a special assignment. When the decedent went to the garage to get his automobile, the engine would not start. He attempted to push the car from the garage, and was found by Mr. Berg, leaning against the car and breathing very rapidly. With Berg’s assistap.ee, he rested in the car for five or ten minutes, and then suggested, although he was not well, that they should proceed with their assignment.

Berg then pushed the Rategan car, with Rategan driving, to a local garage, and the two men started for work in the Berg car. Rategan was still breathing heavily, and when they reached Douglas Park, Berg insisted Rategan lie on a bench and rest. After a half hour rest, Berg took Rategan home despite Rategan’s protest.

Dr. John J. Gearin, called as a witness on behalf of claimant, testified that when called to the Rategan home, he found the deceased desperately ill. His breathing was very rapid; his pulse was rapid and irregular; and he was having considerable pain over the region of the heart. It was the doctor’s conclusion that the deceased was suffering from a severe acute heart attack. Dr. Gearin stated:

“I came to the conclusion this attack was brought on by attempting to move his car, superinduced by exertion, attempting to move the car from his garage by himself, marked undue exertion, which is a very common thing.”

Dr. Gearin ordered the patient hospitalized immediately, and placed in an oxygen tent. Rategan, however, died on March 24, 1946..

The court finds that the death of William F. Rategan was due to an accidental injury. (Carson-Payson Co. vs. Industrial Comm., 340 Ill. 632.) At the time of the injury the employer and employee were operating under the provisions of the Workmen’s Compensation Act of this state, and notice of the accident, and claim for compensation were made within the time provided by the act. The accident arose out of and in the course of decedent’s employment. Decedent’s earnings during the year immediately preceding his death were $3,960.00.

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

The testimony on hearing before Commissioner East was transcribed by A. M. Bothbart & Associates, who have submitted a statement of $32.70 for their services. This charge is reasonable and proper.

■ An award is therefore made in favor of the Claimant, Anna M. Bategan, in the amount of $4,800.00, to be paid to her as follows:

$ 756.00, which has accrued and is payable forthwith.
4,044.00, which is payable in weekly installments of $18.00 per week, beginning January 13, 1947, for a period of 224 weeks with an additional final payment of $12.00.

An award is also made in favor of A. M. Bothbart & Associates for stenographic services in the amount of $32.70, which is payable forthwith.

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

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