text:
    (No. 3815
    Marie Gielow, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1945.

    J. W. Horwitz and A. B. Litow, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Dameoh

delivered the opinion of the court:

This complaint was filed October 29, 1943, for benefits under the Workmen’s Compensation Act.

The complaint alleges that Marie Grielow was employed by the respondent at the Elgin State Hospital as an attendant and on the 9th day of December, 1942, she was injured by reason of an accident arising out of and in the course of her employment by the State of Illinois; that the respondent paid her for her services, as such attendant, the sum of $52.00 per month plus room and board; that on the last-mentioned date, she was attacked by an insane patient who knocked her to the floor in said institution, causing her to fall, injuring her right elbow, which has caused her to suffer the loss of use of her right arm.

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

The evidence in this case was taken on March 19, 1945. At the time of the taking of the evidence, a stipulation was entered into by and between the parties hereto; that the claimant and respondent were operating under the Workmen’s Compensation Act and that the relationship of employer and employee was existing between the claimant and respondent at the time of the injury; that said injury arose out of and in the course of her employment, and that notice of said injury was served upon the employer and claim for compensation was made within the time stipulated by the Act; that the annual wage of claimant was $642.60 plus room and board; that the age of the claimant at the time of the accident was 46 years, and that she had no children under the age of 16 years dependent upon her; that medical care and hospitalization was furnished; that no compensation was paid to claimant while she was in the hospital; that the questions to be decided by this Court are, first, the nature and extent of the injury, if any, and the claim for medical and temporary total compensation due, if any.

The claimant testified that the last treatment she received by the respondent was in May, 1943, because she did not have the money to go back and forth to the Research Hospital for treatment, and at that time, her arm felt very stiff; that she could not work it the way she wanted to and the loss of functional use in the arm was a great handicap to her in many ways; that she could not make a real fist and that she could not do many things that she had been in the habit of doing prior to the injury; that her knuckles were stiff and she was unable to bend her arm in some directions; that her fingers were stiff and she had a numbness over her knuckles. Prior to the injury, the arm was in perfect condition; that now the only work she is able to perform is dish washing; that she found employment on the 8th day of June, 1943, and until the last-mentioned date, she was unemployed due to the condition of her right arm.

Dr. S. I. Weiner was called to testify on behalf of the claimant. He testified he was graduated from the University of Illinois College of Medicine, having graduated in 1924; that he examined claimant on the 29th day of January, 1945, and found objectively that claimant’s right arm revealed about 15 degrees lacking in extension of the elbow, 45 degrees lacking in supination of the elbow. At the wrist, there were 30 degrees lacking in dorsal flexion, and 30 degrees in palmer flexion. At the hand, the knuckles were 20 degrees lacking in flexion at each of the knuckle joints of the forefingers. A fist could not be made; that the examination further revealed a disturbance of sensation known as a hypoalgesia. This disturbance was confined to the base of the ulnar and medial nerve of the hand. Measurements of the right arm were taken, resulting in the following: There was an atrophy, or shrinkage, in the right arm so that circumference around the biceps, the muscle, was 12" in comparison with 12%" on the left side. He testified that on a right-handed person, the circumference of the biceps should be larger by variable amounts, ranging from one-half to a quarter of an inch. The measurement of the right forearm was 10%" in comparison with 10%" in the left forearm. In this instance also, in a right-handed individual, the circumference in the right forearm should be from one-half to a quarter of an inch larger than the left. In this instance, it was smaller. At the middle joints of the fingers, there was a deformity in flexion of 15 degrees so that the fingers could not be straightened. He further testified that he then took x-rays of the right elbow, including one-half the arm and forearm. The lateral view showed fracture of the anterior part of the ulna extending into the joint of the elbow. This fracture line is about 2" in length and shows an outward displacement of the articular part of the distal fragment. Union has not been complete. In the center of the fracture where the opposing surfaces of the fracture are, there is a destruction of bone for a distance of about 1" in length and about %" in width. There is a marked narrowing of the elbow joint on the ulna side to about one-third the width that it is found on the radial side. There is also a periostial traumatic roughening of the superior margin of the olocranon process of the ulna. From the neck of the radius near the elbow, there is a sharp-pointed, bony spur, which shows that there has been some trauma to the head of the radius. At the joint between the ulna and the radius at the elbow, there is a separa- , tion, distortion and a roughening.

Dr. Alan E. Lieberman was called on behalf of the respondent. He testified that he was a graduate of the University of Chicago and Eush Medical College; that he saw the claimant the day following the injury; that it was his opinion that she had suffered an extremely complex fracture of the right arm and one that warranted expert opinion and treatment; that he immediately made arrangements to have her taken to the Illinois Research Hospital where she could be treated and attended by orthopedic, surgeons; that she was hospitalized in the Illinois Research Hospital; that her arm and elbow were encased in a huge body cast. She was later returned to the Elgin State Hospital, where she completed her convalescence. He testified, after making an examination the day his testimony was given, that she now has a chronic residual defect in muscle and joint- function, especially involving the wrist and fingers of the right hand; that the disability is a rather severe one and will probably seriously limit her ability to do very much with her right hand; that she would not be able to do the things that require fine movements of the right hand, and because of her condition, she would not be able to pass a physical examination to be re-employed as an attendant.

From a careful consideration of the entire record and a personal observation of the claimant by the Court, we make the following findings:

That the earnings of the claimant* or her predecessor, during the year preceding the accident was $918.00 per annum, and that her average weekly wage was $17.65, making her compensation rate $9.70; that the claimant at the time of the injury was. 46 years of age, unmarried, and had no children under 16 years of age dependent upon her for support; that all necessary first aid, medical, and surgical services were provided, or offered, by the respondent; that claimant was temporarily totally disabled from the'.date of her injury as aforesaid until June 3, 1943, to-wit, for a period of 25 weeks; that she also suffered the permanent loss of 75% of the use of her right arm.

We further find that claimant is entitled to have and receive from the respondent the sum of $9.70 per week for 25 weeks for temporary total disability in accordance with provisions of Section 8, Paragraph (b) of the Workmen’s Compensation Act, amounting to the sum of $242.50 and the further sum of $9.70 per week for a period of 168% weeks, amounting to the sum of $1,636.88, for the permanent loss of 75% of the use of the right arm in accordance with the provisions of Paragraph (e) of Section 8, of the Act.

An award is therefore entered in favor of claimant in the sum of $1,879.38. From this amount, there must be deducted the sum of $76.21 heretofore paid to claimant by respondent for non-productive work from December 9, 1942, to January 14, 1943, leaving a balance due claimant of $1,803.17, payable to claimant at $9.70 per week. Of this amount, the sum of $1,222.20 accrued to May 10, 1945, and is payable in a lump sum forthwith. The remainder of said award amounting to $580.97, to be paid to claimant in weekly installments of $9.70 for 59 weeks and one week at $8.67.

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


source: Caselaw Access Project

author: Eckert, J.

license: Public Domain

text:
    (No. 3829
    James A. Butterworth, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1945.

    Ungaro & Sherwood and J. Arthur Kealey, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

The claimant, James A. Butterworth, is a captain in the Air Corps of the Illinois Reserve Militia. Pursuant to orders of the Adjutant General, Captain Butterworth was on active duty with headquarters at Jacksonville, Illinois, from May 23, 1943, to June 3,1943. During this period he owned and operated a Waco model airplane, and on May 26,1943, pursuant to orders, took off in this plane from an airport at DuQuoin, Illinois, and proceeded to his base at Jacksonville, Illinois.

During this flight, a landing was made to investigate flood conditions, which claimant alleges was in accordance with the instructions of his superior officers. When claimant next attempted to take off, the plane smashed into a ditch and was severely damaged. Subsequently, claimant sold the wreckage for $400.00, and he now seeks an award for the difference between $3,000.00, the alleged value of the plane, and the amount of $400.00, or $2,600.00, or, in the alternative, the sum of $1,746.00, which was the lowest estimate which claimant received for the repair of the plane.

Claimant’s-complaint, however, fails to state a cause of action. Before claimant can obtain an award against the State, he must show that he comes within the provisions of some law establishing the State’s responsibility. The State does not insure the property of an employee used by such employee in his employment. The possibility of such loss or damage is a risk incident to the employment. Caslyn vs. State, 9 C. C. R. 107; Hupp vs. State, 10 C. C. R. 360. Claimant’s status, in substance, is that of an employee of the State, and the court is not aware of any provision of law by which he can recover for such loss as is alleged in his complaint.

Claim dismissed.


text:
    (No. 3891
    John Thomas Martin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1945.

    Vernon G-. Btjtz, for claimant.
    George F. Barrett, Attorney General; C. Arthur Rebel, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant, John Thomas Martin, employed by the respondent as a carpenter at Kankakee State Hospital at Kankakee, Illinois, was injured in the course of his employment on March 29, 1944. At the time of the accident, claimant was operating a joiner in the carpenter shop at the hospital, and while so employed, his left hand slipped into a power driven saw. As a result of the accident, the major portion of his first, middle, and ring fingers of the left hand were amputated.

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

Claimant was temporarily totally incapacitated from March 29, 1944, to June 12, 1944, a period of 10-4/7 weeks. During the year immediately preceding the date of the injury, claimant earned a total of $2,971.00, so that his compensation rate is the maximum of $15.00 per week. Since the injury occurred subsequent to July 1, 1943, this maximum is increased 17%%, making a total compensation rate of $17.63. Claimant is thus entitled to temporary total compeiisation for 10-4/7 weeks in the amount of $186.37. While claimant was incapacitated, however, he was paid by the respondent the total sum of $103.26, so that there is due to claimant, on account of temporary total disability, a balance of $83.11.

Claimant is also entitled to an award for the total loss of the first, middle and ring fingers of his left hand. Under the provision of the Workmen’s Compensation Act, for such loss, he is entitled to 50% of his average weekly wage for a period of 40, 35, and 25 weeks respectively, or a total period of 100 weeks. At the compensation rate of $17.63 per week, the total amount due claimant for permanent loss of the three fingers is $1,763.00.

Award is therefore made to claimant in the amount of $83.11 for the balance of temporary total disability, and in the amount of $1,763.00 for permanent loss of the use of the first, middle, and ring fingers of his left hand, or a total award of $1,846.11. Of this amount $911.72 has accrued and is payable forthwith. The balance of $934.39 is payable in weekly payments of $17.63 each, for a period of 53 weeks.


author: Chief Justice Dambón

text:
    (No. 3900
    Mae Muir, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1945.

    Leonard W. Stearns, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Dambón

delivered the opinion of the court :

The claimant, Mae Muir, is the widow of William James Muir. She has filed this claim for an award under the Workmen’s Compensation Act, for the death of her husband. The claim was filed on January 25, 1945, and the record was completed by claimant and respondent on April 11, 1945.

The record shows that deceased was employed by the Division of Highways from July 11, 1941, to March 31, 1944, as a laborer.

On December 6, 1942, Mr. Muir was shoveling cinders on to an ice-coated pavement from a moving truck, belonging to the Division.' The truck stopped for Mr. Muir to throw cinders on an intersection. Without warning, the driver started the truck, throwing Mr. Muir to the pavement, bruising his back, hip, and legs.

On December 10, 1942, Mr. Muir reported to the Division of Highways that he was experiencing pain and requested treatment for his injuries. He was sent to Dr. H. B. Thomas, Professor and Head of the Department of Orthopedics, University of Illinois, College of Medicine, for examination and such treatment as the doctor should recommend. He was discharged by the doctor on January 8, 1943, and on January 9, 1943, Dr. Thomas submitted the following report to the Division of Highways :

“Patient’s story of accident: Fell out of truck December 6, 1942, when driver started suddenly. Doesn’t know how he landed. Small of back and hips sore. Nature of injury: Posture fair. Tends to a dorsum rotundum. Motions of spine good. Backward and to left bending cause pain in left flank. Tender over left superior spine. Ecchymosis in left gluteal region. Reflexes all right. Blood pressure 200/70. Nothing apparent or palpable scalp. Complains of area over left posterior boss. Treatment: Heat and massage.”

Mr. Muir returned to-Ms employment with the Division of Highways on April 21, 1943, and worked regularly thereafter until March 31, 1944.

On the last-mentioned date, Mr. Muir was shoveling and broadcasting cinders from the rear of a Division truck and as they approached Stony Island Avenue and 95th Street from the West, and wMle being driven slowly through the intersection, scattering the cinders, Mr. Muir fell, violently, from the rear end of the truck box. He was taken by OMcago police ambulance to the South Chicago Community hospital, where he was pronounced dead by the resident physician:

Because of the suddenness of Mr. Muir’s death, an autopsy was performed by Dr. Julian Dawson, a coroner’s physician, in CMcago. The following is a copy of Dr. Dawson’s findings at thei autopsy:

“PATHOLOGICAL REPORT
A. L. Brodie, Coroner of Cook County — March 31, 1944.
Autopsy Revealed:
(1) No evidences of Internal Injury.
(2) Aortic (Valvular) Insufficiency of the Heart.
(3) Aortic Aneurysm (Sacculation of the Aorta). (Massive.)
(4) Coronary Trombosis and Occlusion.
(5) Generalized Arterio-Schlerosis.
(6) “Hour Glass” Stomach.
In my opinion the death of William J. Muir was due to the organic heart disease complicated by Coronary Occlusion and Aortic Aneurysm (Natural Causes).”
(Signed) Julian Dawson, M. D.

On the hearing, the widow testified that when her husband was first employed by the State, he was in good health, but that since December 6,1942, after he fell from the truck, he constantly complained that he was feeling bad; that his breathing was difficult and left arm ached. That he did not complain of such symptoms prior to the accident, and he informed her that he was going to try to get lighter work; that he could not stand that work any more; that it required quite an effort to lift the shovel and throw the ashes on the highway as he had been doing and the work was too heavy for him.

Edward Gfebert was called as a witness on behalf of the respondent. He testified that he was the driver of the truck from which Mr. Muir fell on March 1,1944, and that he had been acquainted with the deceased for about 20 years; that the deceased’s health had been bad ever since he knew him. The following questions were propounded and answered:

Q. What was the trouble with him?
A. Heart.
Q. Had he complained to you about that?
A. Oh, yes. Sure. I have been up to visit him time and time again when he couldn’t work.
Q. Because of his heart?
A. Heart? Yes.

Dr. Lewis B. Limarzi, a graduate of the University of Illinois, was called as a witness. He testified that on December 16,1942, he examined the deceased at his office. He testified that the patient complained that he had fallen from a truck on which he was shoveling cinders; that he had thereby suffered certain injuries.

His blood pressure was 170/60; his pulse was 88; he did not, at that time, complain about a cardiac condition; the heart was enlarged to the left, and there was a precordial pulsation in the supraclavicular region. He had a systolic murmur over the aortic area, the liver and spleen were not palpable. The physician’s impression, at that time, was that Muir had an aortie lesion with hypertension. The doctor suggested an x-ray be made of the chest, electrocardiagram, and blood chemistry, and he made a notation on his record that the patient should do light work. He testified that he saw him again on January 7, 1943, his blood pressure was then 170/70 and pulse was regular. The doctor again insisted that the patient have an electrocardiagram and an x-ray of his chest made. He testified that he suggested these two tests because of his belief that the patient had an unhealthy or unnatural heart condition. He further testified that, in a patient such as Mr. Muir, having high blood pressure and a poor heart, he usually begins to decompensate, that is, he gets short of breath, his liver enlarges, his ankle swells, and he becomes bedridden; that was the reason the amount of work on the heart must be decreased. A question was propounded to Dr. Limarzi, which incorporated the findings of the coroner’s report dated March 31, 1944, and his testimony regarding his examination of deceased. He answered that death was due because the patient performed overly hard physical labor in spite of his condition, as he had observed on the dates-of his two examinations. He testified that exertion, with aortic aneurysm, such as he had observed on his examinations would cause lesion aortic, Avhich produced his death. He further testified that he was sure that the effect of rather severe manual labor was a direct contributing cause of this patient’s death; that he was not in a condition to do heavy work; that it definitely shortened his life.

It has been held on numerous occasions that when a person has a pre-existing disease and that disease is aggravated or, accelerated in the course of his employment by accidental means and death results therefrom, the death results from the injuries caused by the accident and is compensable. Finkler vs. State, 11 C. C. R. 55.

In the ease of Cameron, Joyce, & Co. vs. Ind. Com. 324, Ill. 497, it was held that where an employee of a road construction company dies of valvular heart trouble within five months after his left arm and foot had been crushed, under the wheels of a heavy road grader, a finding that the injury contributed to the employee’s death is warranted where the evidence shows that, although the employee had a chronic heart trouble, he had always been able to work up to the time of his injury, although he made satisfactory recovery from the local injuries to his arm and foot. Valier Coal Co. vs. Ind. Com., 339 Ill. 458.

The Supreme Court has recently handed down a decision of Marsh vs. Ind. Com., 386 Ill. p. 11, in which it was said:

“It is well settled that the Workmen’s Compensation Act is not limited in its application to healthy employees. Where one sustains an accidental injury which aggravates a diseased condition or where, in the performance of his duties and as a result thereof, he is suddenly disabled, an accidental injury is sustained even though the result would not have obtained had the employee been in normal health.”

C. & A. Ry. Co. vs. Ind. Com., 310 Ill. 502; Hahan vs. Ind. Com., 337 Ill. 39; Simpson Co. vs. Ind. Com., 337 Ill. 454.

In Mueller Const. Co. vs. Ind. Com., 283 Ill. 148, the Court said:

“An injury may be said to arise out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment.”

Vincennes Bridge Co. vs. Ind. Com., 351 Ill. 444; Mazursky vs. Ind. Com., 364 Ill. 445; Scholl vs. Ind. Com., 366 Ill.

We conclude, therefore, that a careful consideration of this record justifies an award to claimant. We therefore make the following finding:

That the deceased and the respondent were on the 30th day of March, 1944, operating under the provisions of the Workmen’s Compensation Act; that on the date last mentioned above said deceased sustained accidental injuries from which he died on the same date which did arise out of and in the course of his employment; that notice of said accident was given 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 the earnings of the deceased during the year next preceding the injury were $1,232.00 and that the average weekly wage was $23.69.

That deceased at time of injury was 68 years of age and had no children under 16 years of age, dependent upon him for support.

That the claimant is entitled to an award in the sum of $4,700.00 to be paid as follows: $13.92 per week for a period of 337 weeks with one final installment of $8.96, as provided in Paragraphs (a) and (1) of Section 7 and Paragraph (m) of Section 8 of said Act, as amended, for the reason that the injuries sustained caused the death of William James Muir, who left him surviving Mae Muir, the widow, whom he was under legal obligations to support under the provisions of the Workmen’s Compensation Act. That nothing has been paid on account of said injury and death.

The said claimant is now entitled to have and receive from the respondent the sum of $807.36, being the amount of compensation that has accrued to the 11th day of May, 1945. The remainder of said award to be paid to said claimant by said respondent" in weekly payments, commencing one week from the date last above mentioned. This award is subject to the further orders of this Court.

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


author: Fisher, J.

text:
    (No. 3439
    Glenn Ewan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

    Share, B. Bass and Greenberg & Sachs, for claimant.
    George F. Barrett, Attorney General; Glenn F. Trevor and William L. Morgan, Assistant Attorneys General, for respondent.
   Fisher, J.

It is agreed by stipulation herein that claimant, Glenn Ewan, was, on September 4, 1939, employed hy respondent as an attendant at the Manteno State Hospital, Manteno, Illinois; that on said date he became ill with typhoid fever; that he was-hospitalized at the State Hospital; and that he returned to his former employment on November 16, 1939.

Claimant continued to work in the same capacity until May 1, 1940, about which date he resigned and returned to his home in Eldorado, Illinois.

Claimant seeks an award under the provisions of the Workmen’s Compensation Act for temporary disability, for permanent partial impairment of hearing and vision, and medical costs and expenses incurred.

During the time of claimant’s illness a typhoid epidemic existed at the Manteno State Hospital, and we have heretofore held that an employee of the Institution who became ill from typhoid fever under such circumstances was entitled to the benefits of the Workmen’s Compensation Act.

The record in this case consists of the Claim, Stipulation, Medical Report at the time of the injury, Medical Report of an examination made January 13, 1945, Transcript of Evidence, and Statement, Brief and Argument by Claimant and Respondent.

The record shows that claimant was furnished hospital and medical care in the institution during his illness; that he was paid his full salary during the period of his illness; and that he sought no medical care of respondent after he returned to work on November 16, 1939. He gave no notice to respondent that further medical care was required. He selected his own doctors without notice to respondent, and, under Section 8 (a) of the Workmen’s Compensation Act, he does so at his own expense.

Claimant alleges that he was unemployed for about a year after May 1, 1940, but there is nothing in the record to indicate that he was physically unable to work or that his disability was connected with, or the result of, his illness from typhoid fever. He testified that during this time he was treated for 1 ‘aches and pains” and “for deficient thyroid gland.”

Dr. Alfred H. Hermann of 30 North Michigan Avenue, Chicago, Illinois, testified that- he examined claimant on or about December 31, 1944, and found the vision impaired in the right eye and the hearing impaired about 1Q% in the left ear. Dr. Hermann, when asked if there was a causal connection between claimant’s condition as found then and the typhoid fever that claimant had contracted, answered “there could be.” Again asked if, in his opinion, there would be, he answered “there might or could be.” The burden is upon the claimant to show that his partial disability was caused by his illness from typhoid fever. This he has not done. From the entire record, we are unable to find any basis for an award in this claim.

Award is denied.


text:
    (No. 3578
    Ronald J. Vadeboncoeur, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

    Shapiro & Lahridsen, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Dambón

delivered the opinion of the court:

This complaint was filed on January 16,1941, for an alleged injury suffered by claimant during the course of his employment for the State.

The record consists of the complaint, stipulation, testimony, report of the managing officer of Manteno State Hospital, report of Dr. L. L. Bell, St. Anne, Illinois, waiver of brief and argument on behalf of claimant and respondent.

The record discloses that on the 25th day of July, 1940, the claimant was an attendant at the Manteno State Hospital and had been for some time prior thereto. He was being paid a salary of $871.20 per year plus room and board. It is stipulated that at the time of the alleged illness, the claimant was the father of two dependent children under the age of sixteen years.

This record further discloses that claimant’s duties at the Manteno State Hospital required him to use lysol for sterilizing instruments in the hospital, and on the 25th day of July, 1940, the skin of his body began to “break out.” Claimant reported his condition to Dr. Chrysler, of the institution, who referred him to Dr. Steinberg, a member of the staff. Claimant testified that the last-named doctor prescribed a calomine lotion to be applied .to his body and that the lotion failed to give him relief. He then employed Dr. L. L. Bell, St. Anne, Illinois, who treated him for dermatitis until October 10, 1940.

Dr. Bell discharged the claimant on said date, from further treatment, and the claimant reported back to the institution on the 14th day of October, 1940, for work.

The claimant presents two exhibits, showing expenditures made by him in his effort to be relieved from this skin infection: To Dr. L, L. Bell $10.00; for medicines $9.47.

The report of the managing officer at Manteno State Hospital states that the institution’s record fails to disclose any injury that this claimant may have sustained during the course of his employment, and there is no record of any form of treatment given to this claimant at the hospital by any of the staff physicians.

The record discloses that claimant returned to work on October 14, 1940, and presented a certificate from Dr. L. L. Bell, in which he states that the claimant had been discharged by him from further treatment for a dermatitis which he believed may have been the result of handling lysol solution.

An accidental injury, within the meaning of the Workmen’s Compensation Act, is one which occurs in the course of the employment unexpectedly and withoút the affirmative act or design of the employee. The word “accident” is not to be technically construed. It may comprehend any event which is unforeseen and not expected by the person to whom it happens. The act of sterilizing with lysol by claimant was expected and was in itself not an accident. The infection was not expected and is traceable to the act of using lysol and is compensable.

After a full consideration of this record, the court finds that the claimant and respondent were, on the 25th day of July, 1940, operating under the provisions of the Workmen’s Compensation Act; that on the date last above mentioned said claimant sustained accidental injuries which did arise out of and in the course of the-employment; that notice of said accident was given 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 the earnings of claimant next preceding the injury were $1,159.20, and that the average weekly wage was $22.29. That the claimant at the time of the injury had two children under sixteen years of age.

Under Section 8, paragraph (a) of the Act, claimant is entitled to have such medical care as is reasonably required to relieve him of the effects of his injury. It appears from the record that the services claimed were necessary and that the charges therefor were reasonable and just. The record further discloses he was not able to work for a period of eleven weeks after said injury.

An award is therefore made in favor of the claimant in the sum of $161.70 for temporary total compensation from the 25th day of July, 1940, until October 10, 1940, at $14.70 per week and for the sum of $19.47 for doctor bill and medicines expended by claimant during that period in order to relieve his condition of ill-being, making a total award in the sum of $181.17, all of which has accrued and is payable in a lump sum.

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


author: Chief Justice Damron

text:
    (No. 3678
    James V. Shepley, D. B. A. Shepley Motor Express, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

    Hutchinson and Barnes, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent..
   Chief Justice Damron

delivered the opinion of the court :

The complaint in this case alleges that the claimant is the owner of the Shepley Motor Express, a trucking and hauling business, located at 2 North Des Plaines Street, Joliet, Illinois, and has been engaged in said business for the past 10 years or more.

That during this time the Shepley Motor Express has done trucking for the State of Illinois, respondent herein, from the State Penitentiary at Joliet and State-ville, hauling to various other state departments and agencies as set out in items in the-bill of particulars attached, to the complaint.

The complaint further alleges that between September 4, 1937, and December 9, 1941, the claimant, at the request of various agencies of the respondent hauled merchandise which was manufactured in the two above named institutions to the various consignees, whose names and addresses are contained in the said bill of particulars. It further alleges that each consignee had been billed for the services rendered by the claimant, and that said accounts were not paid for the reason that the appropriations from which the accounts could have been paid had lapsed at the time the demand was made by the claimant upon the various consignees.

This record consists of the complaint which was filed on the 12th day of January, 1942, bill of particulars attached thereto, testimony in support of said claims, waiver of brief, and arguments on behalf of claimant and respondent.

The evidence filed in this case supports the allegations of the complaint that the services rendered to the respondent by the claimant from September 4, 1937, to the 8th day of December, 1941, amounted to the sum of $388.90. The evidence further discloses that part of this account has been paid by some of the agencies of the respondent, and that there is now due and owing to claimant the sum of $350.67.

The invoices and bill of particulars show that fair and reasonable charges were made by the claimant for the services rendered to the various agencies of the respondent.

This court has heretofore held that where one renders services to the state on the order of one authorized to contract for same, and submits a bill therefor in correct amount within a reasonable time, and due to no fault or negligence of claimant, same is not approved and vouchered for payment before lapse of appropriation from which it is payable, an award for the reasonable value for the services rendered may be made; The Catholic Bishop of Chicago, et al, vs. State, 12 C. C. R. 340; Rock Island Sand & Gravel Company vs. State, 8 C. C. R. 165; Oak Park Hospital Inc. vs. State, 11 C. C. R. 219.

This case comes within the rule above set forth. An award is therefore entered in favor of the claimant, James B. Shepley d.b.a., Shepley Motor Express, in the sum of $350.67.


text:
    (No. 3816
    Ben Gold, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

    White & White, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

At the March term, 1945, this court had under consideration a complaint filed in the above entitled cause, seeking an award under the Workmen’s Compensation Act, for permanent partial loss of use of claimant’s right leg, due to an injury sustained by him in the course of his employment for respondent, at the Illinois Industrial Home for the Blind, 1800 Marshall Boulevard, Chicago, Illinois. He also sought an award for approximately $600.00 which he claimed to have paid for hospitalization and medical services on account of said injury.

After a full consideration of the record, we found that we were unable to determine the amount of the award, if any due to claimant. No bill of particulars was filed as required by Rule 6 (a) of this court. We held that the proof offered was insufficient for determination of any award, retained jurisdiction, and ordered that the claimant be given thirty days in which to offer additional proof in support of his claim.

On the 13th day of April, 1945, additional testimony was taken in support of said claim. Dr. Robert Elliot, Loyola University, with offices at 3559 North Ashland Avenue, Chicago, was called to testify on behalf of claimant. His qualification as an industrial surgeon was admitted by the respondent. He testified that he examined the claimant on the 10th day of October, 1944, for the purpose of testifying in the case as an expert witness. He testified that objectively he found the right ankle was swollen; claimant had a limping gate, there was some loss of functional use of the ankle joint, and the objective findings were permanent. The claimant was called to testify in his behalf, and in response to a question he answered that his right limb was weaker than before the injury, he had a decided limp when he walked, and that he suffered constant pain, especially during the change of weather.

During the course of the hearing, six exhibits were introduced and admitted in evidence by agreement, representing expenditures made by claimant in his effort to be relieved from the effects of the injury sustained as aforesaid and are as follows: Dr. Charles M. Jacobs $200.00; St. Anthony Hospital $6.70; Mt. Sinai Hospital $312.02; Dr. Urbanek $5.00; Mt. Sinai Hospital $3.75; Mt. Sinai Hospital $5.00; Total $532.47.

It is stipulated that the injury sustained by the claimant on the 18th day of January, 1943, arose out of and in the course of his employment with the respondent; that the claimant notified the respondent of the accident within 30 days and claim for compensation was made within six months as required by the Act; that the annual wage of the claimant for the year preceding the date of the accident was $1,200; that medical treatment on account of said accident was partially furnished by the respondent and the claimant was paid all temporary disability compensation and had no children under the age of sixteen years dependent upon him for support.

The record discloses that the respondent furnished only partial medical and hospital services. Under Section 8 (a) of the Workmen’s Compensation Act, claimant is entitled to have such care as is reasonably required to relieve him of the effects of the injury. It appears from the record that the services claimed were necessary and that the charges therefor were reasonable and just.

Claimant’s annual wage being $1,200.00, his weekly wage is $23.07 and his compensation rate is $12.69.

From a consideration of the additional testimony, we make the following award:

The sum of $532.47 representing expenditures by claimant for necessary hospitalization, medicines, etc. The evidence in this case justifies a ten per cent award for the permanent partial loss of use of claimant’s right leg, amounting to the sum of $241.11, making a total award of $773.58, all of which has accrued and is payable in a lump sum.

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. 3823
    Standard Oil Company (Indiana), Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

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

delivered the opinion of the court:

The claimant is a foreign corporation duly authorized to engage in business in the State of Illinois. An award in the amount of $18.11 is sought for goods sold and delivered to the respondent by the claimant.

The record consists of the complaint, the report of the Division of Highways and the waiver of statement, brief and argument by both claimant and respondent.

The record discloses that the claimant through its agents furnished the respondent with the following items: On April 12, 1943, 16 gallons gasoline priced at $2.98, on May 27, 1943, 20 gallons gasoline priced at $3.50, on May 22, 1943, 15 gallons gasoline priced at $2.62, on May 27, 1943, 35 gallons of Perfection Oil priced at $4.39, on May 17, 1943, 10 gallons gasoline and one quart of Polarine Oil priced at $2.00, and on May 13, 1943, 15 gallons gasoline priced at $2.62. The total charge for the above items is $18.11.

The report of the Division of Highways acknowledged receipt of the supplies, that they were used in the equipment designated in the exhibits, that the quantities were correct and that the amounts charged were as previously agreed between the Division and the claimant’s dealers. The report further shows that the item of 16 gallons of gasoline delivered on April 12, 1943, for which the charge of $2.98 was made was paid by the Division of Police on June 15, 1943. The payment of this item has been acknowledged by the claimant which leaves the amount of $15.13 unpaid.

It further appears from the record that an appropriation existed from which the above items were payable, but that payment was not made because the appropriation lapsed before the bills were approved and vouchered. It has been repeatedly held by this court that an award may be made for supplies furnished the State when an unexpended appropriation therefor has lapsed preventing payment, and when the bills have been presented within a reasonable time.

An award is, therefore, made to the claimant in the amount of $15.13.


text:
    (Nos. 3847, 3848 and 3849 Consolidated
    Marie McAsey, Administratrix of the Estate of Edward J. McAsey, Deceased, Carl F. Jesse and James R. Carpenter, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

    Pence B. Orr, for claimant.
    George F. Barrett, Attorney General; William: L. Morgan and C. Arthur Nebel, Assistant Attorneys General, for respondent.
   Fisher, J.

Edward J. McAsey, Carl F. Jesse and James R. Carpenter were injured in the course and within the scope of their employment as Guards at the Illinois State Penitentiary, Joliet Branch, on May 4, 1943. Claims were separately' filed on May 1, 1944, and, for the purpose of hearing and determination were, by stipulation, consolidated.

Claimant, Edward J. McAsey, died intestate on December 26, 1944, and, by order of this Court, Marie McAsey, Administratrix of the Estate of Edward J. McAsey, Deceased, was substituted as claimant.

On the morning of May 4, 1943, two prisoners attempted an escape from the Joliet Penitentiary (Old Prison) and, in the attempt, viciously assaulted Edward J. McAsey, Carl F. Jesse and James R. Carpenter, all of whom, in preventing the escape, were severely injured. The facts are not denied and no question arises as to the jurisdiction of the Court of Claims. Respondent agrees that “the only question to he considered by the Court is the extent and the permanency, if any, of the injury to the claimants.”

Claimants and respondent were operating under the provisions of the Workmen’s Compensation Act, and the claimants are entitled to the benefits provided by this Act.

The record of these claims consists of the following:

Copy of Complaint in each case.
Stipulation to Consolidate.
Departmental Report.
Original Transcript of Evidence.
Abstract of Evidence.
Exhibit No. 1 in Case No. 3847.
X-ray Exhibits Nos. 1, 2 and 3 in Case No. 3849.
Statement, Brief and Argument of Claimants.
Suggestion of death of Claimant, Edward J. McAsey, in Case No. 3847.
Copy of Death Certificate and Letters of Administration.
Statement, Brief and Argument of Respondent.
Reply Brief of Claimants.
Amendment to Complaint in Case No. 3847.
Waiver of Respondent’s Answer to Claimants Reply Brief.
Answer of Respondent to Claimants Amended Complaint in Case No. 3847.

At the time of the injury, Edward J. McAsey did not appear to be seriously injured. He was not hospitalized. He had been struck, knocked down and kicked about the body by one of the prisoners. A short time later he complained of pains in his back; a lump developed, in his right side; and he lost considerable weight. He called Dr. Charles J. Carlin of Joliet, Illinois, in July, 1943, who, after an examination, recommended surgery. Mr. McAsey was taken to Hines Veterans Hospital, where his right kidney was removed and found to be cancerous. He died on December 26, 1944, from “metastatic carcinoma of right kidney. ’ ’ He was in good health prior to the injury on May 4, 1943. Dr. Carlin testified that if the injury that Mr. McAsey had received did not actually cause the condition from which he died it did aggravate the condition and hasten his death. Also, on cross examination, Dr. Carlin testified “in my opinion the injury which Mr. McAsey received during the riot may have been the cause of the cancer, or, if not the cause, it is my opinion that the injury aggravated his condition and did shorten his life for a number of years.” Such an injury falls within the provisions of the Workmen’s Compensation Act, and is compensable. Finkler vs. State, 11 C. C. R. 55; Marsh, vs. Industrial Commission, 386 Ill. 11.

There is much evidence as to the injury of Mr. Mc-Asey, the cause and effect, and from all the evidence we conclude and find that Mr. McAsey came to his death as a result of injuries sustained during the course and within the scope of his employment. At the time of his death he left his wife, him surviving, and two children under the age of 16 years, dependent upon him for support. The deceased, to relieve from his injury, during his lifetime advanced $26.00 for medical services, for which sum his estate is entitled to be reimbursed. The average weekly wage of decedent during his lifetime was $38.37 per week.

An award, in accordance with the provisions of the Workmen’s Compensation Act, will be entered in favor of Marie McAsey, for herself and for the benefit of her two children.

Claimant, Carl F. Jesse, is married and has three children under 16 years of age dependent upon him for support at the time of the injury. He seeks an award for serious and permanent disfigurement to his head and face and for permanent disability. He was hospitalized at the time of the injury and all hospital and medical expenses were paid by respondent. He suffered no loss in salary and now earns as much and more than he did during the injury. Under the Workmen’s Compensation Act, no award can be made to him for temporary or permanent disability. There is no doubt that Mr. Jesse was severely beaten about the face and head. His injuries, however, to be compensable, must fall within Some provision- of the Workmen’s Compensation Act. There is testimony that his vision has become impaired as a result of the injury, but the evidence is insufficient upon which to base an award. The degree of impairment to his vision is not shown. The burden is upon the claimant to make proper proof of his claim, and in the absence of proof showing the degree that his vision has been impaired, we cannot grant an award. There is also much testimony as to the disfigurement to his face; the ¿asal bone and frontal bone on the right side of his face were fractured, as well as the septum, which was severely shattered inside. It was testified that “his nose was spread all over his face. ’ ’ Disfigurement is a matter of 'appearance, and deformity as it appears after medical •attention and treatment, must be described in some detail in order that just and fair compensation might be determined. There is evidence that his nose is deformed, but we are unable to determine the extent of this deformity. On the evidence before us, we cannot grant an award for disfigurement. However, we retain jurisdiction of this claim for such further evidence and consideration as may be proper.

For the reason stated, the claim of Carl F. Jesse must be denied.

Claimant, James R. Carpenter, is married and had one child under the age of 16 years at the time of his ■injury. He seeks an award for injuries to his head and ■face, for partial loss of vision and; for disfigurement. ■Claimant was struck about the head and face with a hammer by one of the prisoners, fracturing claimant’s jaw and inflicting other serious and painful injuries to Ms head and face. He was paid Ms salary during his temporary disability, and thereafter returned to his former position at the same salary. There is no claim for temporary or permanent disability. Dr. Howard N. Flexer testified for claimant as follows:

“* * * James R Carpenter sustained a compound fracture of the left cheek hone, the fracture being both of the depressed type and linear. The linear fracture extended from the second molar tooth on the left side, upper, up to and into the left lower side of external orbital fossa wall. The depressed fracture was just below the' orbit on the left side, in the anterior surface of the malar bone. His injuries caused him hemorrhage into the posterior orbit, causing double vision for about one month, and then single vision only after eye strain for another month. He had too, severe subconjunctival hemorrhage of left eye from the force of the blow * * *”

From the evidence, it appears that James R. Carpenter sustained no injuries that are compensable under the Workmen’s Compensation Act, except possible impairment of his vision and such dental charges as may be necessary to relieve Mm from the effects of his injury. He testified that he paid some dental charges of approximately $45.00, and Dr. Eugene J. Drenning testified that some teeth must be pulled and replacements made that will cost about $200.00. In order to recover medical and dental charges, claimant must show the exact amount of the costs or charges, and the same must be shown to be reasonable. It is not sufficient to approximate the amount of such costs or charges that are necessary to relieve from the effects of an injury. There is evidence that claimant’s vision has become impaired, but the degree of impairment is not shown. Hnder the evidence, no award can be made to claimant, James R. Carpenter. It is evident, however, that he has sustained some compensable damages, the exact amount of wMch we cannot determine from the evidence, and jurisdiction of this claim is, therefore, retained for such further consideration as additional evidence may require.

The claim of Carl F. J esse is denied.

The claim of James R. Carpenter is denied.

Under the Workmen’s Compensation Act, Section 7, paragraphs H3-K-G, claimant, Marie McAsey, is entitled for herself and on behalf of her minor children, to have and receive from respondent .the sum of $5,280.00, plus advancements of $26.00 for medical expenses, making a total of $5,306.00.

An award is therefore entered in favor of claimant, Marie McAsey, in the sum of $5,306.00, payable as follows :

$448.40, which is accrued up to June 12, 1945, and is payable forthwith;

$4,857.60, payable in weekly payments of $17.60 each, beginning June 19, 1945.

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. 3855
    Harry J. Flanders, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

    John W. Fribley, for claimant.
    George F. Barrett, Attorney General; C. Arthur Rebel, Assistant Attorney General, for respondent.
   Fisher, J.

Claimant asks for an award in the sum of $1,350.00, being his salary as a Judge of the City Court of the City of Eldorado, Illinois, for the months of July, August, September, October, November and December of 1941 and January, February and March of 1942, at $150.00 per month.

The material facts in this case, as alleged in the complaint, are admitted by stipulation.

The record consists of the Complaint, Answer, Stipulation, and Statement, Brief and Argument by claimant and respondent.

Claimant is a duly elected Judge of the City Court of the City of Eldorado, Illinois, having been elected to that office in 1933 for a term of six years, and re-elected on October 3, 1939, for a term of six years, and is now, and has been since his first election the duly elected, qualified and acting Judge of the said City Court of the City of Eldorado, Illinois.

The compensation or salary of a Judge of a duly established City Court is fixed by Section 23 of “An Act In Belation to Courts of Becord in Cities,” as amended, and fixes the salaries of Judges of City Courts having a population of at least 5,000 and not less than 8,000 at the sum of $1,800.00 per annum, payable from the Treasury of the State of Illinois. • In cities having less than 5,000 inhabitants and not less than 3,000 inhabitants, the compensation or salary is fixed at $800.00, payable out of the City Treasury.

The 62nd General Assembly of the State of Illinois made an appropriation for the payment of salaries of Judges of City Courts of the State of Illinois during the biennium period from July 1, 1941, to June 30,1943, and ’ authorized and directed the Auditor of Public Accounts to draw warrants- on the State Treasurer for amounts due Judges of City Courts as salaries for their respective offices.

The question that presents itself for determination here is—

Was the State Auditor justified in using the latest available census to reclassify arid determine the class in the graduated scale into which each City Judge fell after such Judge had been elected, or was he required to use a census before each Judge was elected?

Section 23 of “An Act In Relation to Courts of Record in Cities” (Ch. 37 Illinois Revised Statutes), provides that in cities having a population of over 5,000 inhabitants and not less than 8,000 the salary shall be $1,800.00 per year, and in cities having a population in excess of 8,000 and not exceeding 15,000 the sum of $2,250.00 per year, and in cities having a population of more thán 15,000 a graduated scale of compensation based upon the population of the city. It is the application of this section that must be determined here. It seems to have been the practice of the Auditor of Public Accounts to reclassify Judges of City Courts according to the latest available census. Respondent contends that the Auditor of Public Accounts is required to do this in order to comply with said Section 23.

Claimant contends that the salary, or rate of compensation for a Judge of a City Court, is determined at the time of his election and is not subject, during his term of office, to revision according to population changes. This Section (23), mates nó reference to the taking of a census, but merely provides the salary of a Judge having been elected to office and bases the salary on the population of such city. However, Section 21 of the same Act, provides for the establishment of City Courts in cities having at least 3,000 inhabitants whenever the City or Common Council shall adopt an ordinance and such ordinance be subsequently approved by the voters of such city. It further provides, that such Court may be established consisting of one or more Judges, not exceeding five, and not exceeding one for each 50,000 inhabitants. It further provides that “the number of inhabitants shall be determined by reference to the Federal census, or a census taken by the city authorities.”

The exact question presented here for determination does not appear to have been passed upon by the Courts of this State.

•The respondent presents a forceful and exhaustive brief and argument, contending that said Section 23 requires the Auditor of Public Accounts to adjust the salaries of Judges of City Courts in accordance with the last available census, and reasons that under Section 21 the Auditor could use the Federal census to the exclusion of any other census in determining the population of a city and the resulting salary of a Judge of the City Court. In the present case it is admitted that a Federal census was taken in 1930, prior to the election of claimant herein, and again in 1940, both of which showed the population of Eldorado City to be less than 5,000, and that a census was taken by the City authorities in 1933, and again in 1942, both of which showed the population to be in excess of 5,000 inhabitants. As the Statute referred to related to a “ Federal.census, or a census taken by the City authorities,” it could be as logically reasoned that the Auditor of Public Accounts could take the census taken by City authorities to the exclusion of a Federal census. During all the time that claimant held the office of Judge of the City Court of Eldorado City the population was in excess of 5,000, as disclosed by a census taken by the City authorities; a census was taken in 1933, and again in 1942, both of which showed the population to be in excess of 5,000.

A Federal census was taken in 1930, and again in 1940, showing the population to be less than 5,000 inhabitants. It does not appear reasonable to us that the Legislature ever intended that the State Auditor of Public Accounts should have the discretion of determining what the salary or compensation of a Judge of a City Court should be. In a borderline case, a census taken by the Federal authorities and a census taken by the City authorities could, very reasonably, vary to the extent that by using one or the other it would increase or' decrease the salary of a Judge who had been elected prior to. the taking of such census. To protect himself, the Auditor, it appears, has used the latest census in determining salaries to be paid. This practice can, and has in this case, resulted in confusion. In this particular ease, at the time claimant was elected there was in existence the result of a Federal census showing a population of less than 5,000, and a later census taken by the City authorities showing a population in excess of 5,000 inhabitants. His salary at the time of his election was, thereupon, properly fixed at $150.00 per month, the salary for such office in cities having a population in excess of 5,000 and less than 8,000. Shortly after his reelection, a Federal census was taken, showing the population to be 4,987, and the payment of his salary was, thereupon, discontinued by the State Auditor. Less than two years thereafter, a census was taken by the City authorities, showing the population to be 5,190, and his salary was, thereupon, re-established, and the Auditor of Public Accounts thereafter issued warrants in the regular manner.

We think this confusion would be eliminated by construing the said Sections 21 and 23 of the Statute as: Section 21 providing for the establishment of City Courts and election of such number of Judges as authorized by this section in accordance with the population as disclosed by the latest census that has been taken. Upon such election, the salary of the Judge or Judges is, thereupon, established in accordance with Section 23 of the Statute, and such salary should be continued during the term for which such Judge or Judges had been elected. This construction is supported by Section 21, which provides that a City can discontinue and disestablish such Court in the same manner by which it is established, but such Court once having been established a discontinuance or disestablishment shall not take effect until at the expiration of the term of office of the Judge of said Court. If it was intended that the compensation or salary of a Judge would fluctuate according to the population disclosed by a census taken from time to time during the term of office of a Judge, then the provisions against discontinuing the Court, effective during the term of a Judge elected thereto, would be meaningless, as a decrease in population would eliminate the salary of the incumbent Judge, and the office, to all intents and purposes, would thereby be eliminated. It surely was not the intention when a provision was made limiting the effective date of discontinuing a Court, that the salary should be eliminated and the Judge continue to serve without compensation. It does not seem reasonable to believe that the Legislature ever intended to, or would, specifically prohibit the discontinuance of a Court during the term of a Judge elected thereto and, at the same time, direct the payment of the salary of such Judge to be discontinued during his term of office. It would rather seem to have been the purpose that a Court be created in accordance with said Section 21, and, upon such creation, a salary be paid to the Judge or Judges in accordance with the provisions of Section 23 of the Statute, and thereafter continue during the- term of office for which such Judge or Judges have been elected.

The City Court of Eldorado City having been duly established in accordance with the provisions of Section 21 of the Statute above referred to, and the salary fixed in accordance with Section 23 at the time of his election, it is our opinion that he was entitled to receive this salary during his term of office. He is, therefore, entitled to payment of his salary which has been withheld.

An award is therefore entered in favor of claimant, Harry J. Flanders, in the sum of Thirteen Hundred Fifty Dollars ($1,350.00).


author: Eckebt, J.

text:
    (No. 3864
    George Elliott, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

    C. A. Williams, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckebt, J.

On July 21, 1943, the claimant, George Elliott, an employee of the Department of Public Works and Buildings, Division of Highways, of the State of Illinois, while loading trucks with rocks and broken concrete pavement suffered a severe pain in his left side and back. He finished his day’s work and reported for work the following morning. He then complained of pain and nausea, and was sent to Dr. B. B. Boyd, at Casey, for examination and treatment. Dr. Boyd taped his abdomen and suggested that he continue with light work and report for further observation. Dr. Boyd subsequently advised the Division that claimant had sustained an injury to internal muscles of upper left quadrant.

Claimant’s pain continued and on July 24th he was placed under the care of Dr. C. C. Holman of the Effing-ham Clinic at Effingham, Illinois. Dr. Holman reported to the Division that claimant had sustained considerable kidney damage and was passing blood; that there was soreness in his back and abdomen, and prescribed rest, medication and ice packs. He indicated that the claimant would be able to return to work in about a month’s time.

On August 5, 1943, claimant was discharged by Dr. Holman with the recommendation that he rest at home for a week and then return to Dr. Boyd for further examination. The urinary findings had completely disappeared, and Dr. Holman reported that claimant was on his way to complete recovery. He stated that no permanent disability was anticipated.

On August 24,1943, Dr. Boyd reported that claimant was still very sore in the abdomen and when on his feet complained of nausea and pain on his left side. He further stated that on examination he found the left inguinal ring very sensitive and bulging on coughing. Dr. Boyd’s diagnosis at that time was left inguinal hernia.

On August 31, 1943, the claimant was taken to Dr. J. Albert Key, Professor of Orthopedics, Washington University School of Medicine, at St. Louis, Missouri, for examination and treatment: He was also examined in St. Louis by Dr. Nathan A. Womack, Assistant Professor of Clinical Surgery at the Washington University School of Medicine. Dr. Key reported that the claimant was a heavy man who localized his pain in the left upper lumbar region and in the left groin; that there was moderate tenderness to deep pressure over the muscles to the left of the lumbar spine opposite the 1st, 2nd, and 3rd lumbar vertebrae; that there was tenderness of the left inguinal ring, and that an impulse was transmitted, but that there was no definite hernia. He found that the same condition existed in the right inguinal ring, except that it was not tender. Dr. Key felt the symptoms would subside gradually, but if they persisted, suggested that he see the claimant in about six weeks’ time. Dr. Womak also reported to the Division that he found a strain of abdominal muscle for which he prescribed further rest.

Claimant, however, continued to complain of his discomfort, and was again "sent to St. Louis on September 23,1943, for further examination. Dr. Key then reported that he found no evidence of an abdominal wall hernia or inguinal hernia- He advised claimant to return to light work, and to obtain an abdominal support, stating that no other treatment was necessary.

Claimant, however, alleges in his complaint that he has suffered a hernia of the abdominal wall; that the hernia is of recent origin; that it was accompanied by pain; that it was immediately preceded by trauma arising out of and in the course of his employment with respondent, and that the hernia did not exist prior to the injury. He alleges that he has been totally and permanently disabled since the injury; that he will remain totally and permanently disabled for the remainder of his life, and seeks an award of $15,000.00.

At the time of the alleged injury, claimant was married, but had no children under sixteen years of age dependent upon him for support. He had been employed by the Division of Highways since June 22, 1943, as a truck driver at a wage of 80c an hour. Employees engaged in the same capacity as claimant worked for the Division less than 200 days a year, and eight hours constituted a normal working day. At the time of the alleged injury, employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the Act. Compensation for temporary total disability was paid claimant for the period from July 24, 1943, to September 23, 1943, inclusive, at the rate of $17.63 per week, or a total of $156.15. The Division also paid the following accounts in connection with claimant’s injury:

Dr. Ryne B. Boyd, Casey.................................... $10.00
The Effingham Clinic, Effingham............................. 26.00
Dr. J. Albert Key, St. Louis, Mo.............................. 20.00
Dr. Nathan A. Womack, St. Louis, Mo.......................... 10.00
St. Anthony’s Hospital, Effingham............................ 41.20
Drs. Rhodes & Massie, Toledo................................ 6.75
George Elliott, Greenup...................................... 10.58
Total
$124.53

From the record it appears that the claimant sustained an injury arising out of and in the course of his employment. The medical testimony as to claimant’s resulting disability, however, is in sharp conflict. The claimant testified to a continuing condition of soreness, and increased pain upon activity. Dr. W. R. Rhodes, of Toledo, Illinois, testifying in behalf of claimant, stated that in May, 1943, claimant was in good physical condition. Dr. Rhodes examined claimant after he returned from treatment in St. Louis. At that time he stated that he found an open ring in the left side, and that the muscles were pulled apart; that there was a bulging on the left side, and that the muscle tone was poor. Dr. Rhodes also stated that he had examined claimant a second time prior to the hearing on October 31,1944, and that he felt there was a destruction of muscle tissue. On cross-examination, the doctor stated that he had not diagnosed claimant’s difficulty as an inguinal hernia on either side, but had diagnosed the condition as an enlargement of the rings, a giving away of the muscles; in other words, an incomplete hernia. He stated that claimant could work if the work did not require lifting or undue strain, or standing; that claimant could drive an automobile, but he did not recommend his driving a truck.

Dr. R. B. Boyd of Casey, Illinois, also testified on behalf of claimant, and stated that at the time of his original examination immediately following the injury, he found pain in the upper right quadrant of claimant’s abdomen; that he diagnosed the condition as an hernia, a break through the abdominal wall high up; that he still believes that claimant does not have an inguinal hernia. Dr. Boyd also stated that claimant could not do heavy manual labor, but that with proper support he could Avork if the work did not require heavy lifting.

The medical proof on behalf of the respondent is contained in the reports to the Division of Highways, Avhich are a part of the record in the case. From these reports it appears that claimant has not suffered an hernia of any type, and has been able to work, since September 23, 1943.

It is the duty of this court to Aveigh and consider the evidence in the record and if it is found that the evidence fails to support the averments in the complaint, the court must deny the claim. Liability under the Compensation Act can not rest upon imagination, speculation, or conjecture, or on a choice between two views equally compatible Avith the evidence, but must be based upon facts established by a preponderance of the eAddence. Berry vs. Industrial Commission, 335 Ill. 374. Awards for compensation can not be based upon possibilities or probabilities, but must be based upon evidence the preponderance of which shows that claimant has incurred a disability arising out of and in the course of his employment. Standard Oil Company vs. Industrial Commission, 322 Ill. 524; Weimer vs. State, 12 C. C. R. 244.

From the evidence there can be no doubt that claimant sustained an injury arising out of and in the course of his employment. The exact nature of this injury, however, is not clearly established, and it is extremely doubtful that any disability now exists as a result of the injury.

Dr. Rhodes diagnosed claimant’s condition as an incomplete inguinal hernia. Dr. Boyd stated positively that claimant had no inguinal hernia, but diagnosed claimant’s disability as a break high up in the abdominal wall. Dr. Holman found no hernia, and anticipated no permanent disability. Dr. Key found no definite hernia on his first examination, and stated definitely on his second examination that he found no évidence of either an abdominal wall hernia, or an inguinal hernia. Furthermore, although claimant may be partially incapacitated, under Section 8(d) of the Workmen’s Compensation Act, proof of partial incapacity must include the difference between the average amount claimant earned before the accident and the average amount he is able to earn in some suitable employment after the accident. Evans vs. State,13 C. C. R. 65; Doyle vs. State, 13 C. C. R. 179. From the record, the claimant is able to work. How much his earning power may have decreased since the accident is not shown.

For the reasons stated, award is denied.


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    (No. 3868
    Henry Hayward, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

    Oliver- A. Clark, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This complaint was filed on July 22, 1944, seeking compensation -benefits for an injury received by the claimant on the 22nd day of March, 1944.

The record consists of the complaint, departmental report, transcript of evidence, and waiver of brief, statement and argument on behalf of claimant and respondent. The complaint alleges that Henry Hayward resides in Chicago, and was employed by the respondent in the Division of Highways as a laborer, working on the repair, maintenance, and construction of highways in the State of Illinois; that while so employed, he earned the sum of $6.00 per day and worked six days a week; that on the 22nd day of March, 1944, his left hand slipped in to a mixing machine while he was mixing blacktop, injuring his third, index, and little fingers.

The complaint further alleges that the accident was reported immediately to his superior, and that he has been incapacitated for work by reason of said injury since the date thereof; that all medical care and attention was provided by the respondent and that he received nothing for temporary total compensation.

The complaint further alleges that as a result of said accident, he sustained the loss of the third finger by amputation, and has lost the use of his left hand, which he believes will result in the permanent loss of use of the hand. He seeks an award, under the Workmen’s Compensation Act, for temporary total compensation and for specific injuries in the sum of $3,000.00.

The evidence of this claimant was taken on the 7th day of April, 1945. At that time, a stipulation was entered into by and between the claimant and respondent that at the time of the alleged injury the claimant and respondent were operating under the Workmen’s Compensation Act; that said claimant sustained an accidental injury, which arose out of and in the course of the employment ; that notice was served upon the employer and that claim for compensation was made within the times provided by said Act; that the annual' wages of the employee were $1,626.75; that the age of the claimant at the time of the accident was 62 years, and there were no children under sixteen years of age dependent upon .him for support; that medical care was partially furnished, hospitalization was furnished; that compensation was paid during the temporary disability; that the questions to be decided here are: 1. The nature and extent of the injury, if any; and 2. Claim for medical; and temporary total compensation due, if any.

The evidence discloses that immediately after the claimant sustained the injury, he was taken to the St' Luke’s hospital, where Dr. James C. McLallen rendered first aid. He was then placed in the care of Dr. H. B. Thomas, Orthopedic Surgeon. He testified that he was discharged by Dr. Thomas about the first day of April, 1945. In response to a question propounded to claimant regarding the condition of his hand at the present time, he testified that his hand hurts when it is straightened out and when he makes a fist, that it is a continuous pain. He was unable to grip anything small, that when he attempted to lift large objects, he could only hold it for a certain period of time, and then his hand gave away. Upon cross-examination, he testified that he could bend his middle finger to the first joint, and that he could not use his left hand as he had previously.

The evidence taken in this case is not satisfactory to the Court. It is not illuminating enough. There is, however, a report of the Division of Highways filed herein, which under Rule 21 is prima facie evidence of the facts set forth therein. This report substantiates in part the allegations in the complaint and the testimony of the claimant. It shows that while claimant was on a platform at the side of a mixing, machine, directing its operation, his foot slipped and he fell forward, thrusting his left hand into the drum of the mixer. The fingers of his left hand were caught between the agitator blades and the inside surface of the drum of the mixer, badly lacerating the middle and ring fingers. This report contains copies of three reports filed with the Division of Highways by Dr. H. B. Thomas, Professor Emeritus of Orthopedics, University of Illinois, College of Medicine, and are set out herewith in full:

“March 21, 1944, Mr. Norman Beggs sent Mr. Henry Hayward to St. Luke’s Hospital where he was examined. On March 21, Mr. Hayward’s left hand was caught in a tarring machine, as a result of which he severed the distal phalanx of the ring finger. This end phalanx hung by the two volar branches of the nerves of this finger and part of the tendon sheath of the flexor tendon. Both flexor and extensor tendons were severed, as were all the other tissues. The patient wanted very much that this finger be saved but the stump had no circulation whatever, so repairing the finger was out of the question. Enough bone was taken off of the 2nd phalanx so that it could be covered with viable skin. There was also a longitudinal laceration on the volar surface of this finger, extending almost to the first finger joint. The middle finger contained a longitudinal cut on the dorsal surface and extended through the tendon to the bone. This extensor tendon was quite macerated but was continuous. He is still in the hospital.”
April 13, 1944, Dr. Thomas reported to the Division: “Mr. Henry Hayward was again seen this morning (4-13-44). All of his wounds are healed. The stump is slightly swollen but he is progressing satisfactorily and should be ready for light work.”
May 12, 1944, Dr. Thomas made his final report to the Division which is as follows: “The distal phalanx of the ring finger is free and hanging by a couple of shreds of tissue. The middle finger presents a shredded cut over dorsal surface in middle phalanx. The ring finger was amputated in middle of 2nd phalanx. The wound of middle finger was debrided and sutured. This extensor tendon was quite shredded. When seen on May 3, he still complained of pain. The stump of the ring finger has a range of 15°. The distal inter-phalangeal joint of the middle finger moves but a few degrees.”

The report further discloses that compensation for temporary total disability was paid claimant for the period March 29, 1944, to April 13, 1944, inclusive, at the rate of $18.38 per week, totalling $42.01. The report further states that compensation was terminated April 13, 1944, the day Dr. Thomas reported “as progressing satisfactorily and should be ready for light work” and that the Division paid the following creditors in connection with the injury suffered by claimant:

Dr. H. B. Thomas, Chicago.................................-.. $116.00
St. Luke’s Hospital, Chicago................................. 60.00

Dr. T. G. Henderson was called on behalf of respondent who testified he examined claimant on or about October 20, 1944, and found that claimant had an injury to his left hand, consisting of an amputated ring finger at the middle of the second phalynx, and that the middle finger was ankylosed and had a range of. about fifty per cent. He was unable to grip small articles. Upon examination of the claimant, he found that the industrial use of claimant’s left hand had been reduced to about fifty per cent, and that in his opinion the claimant could only do light work, which would not require the- exercise of forcing the hand.

This record establishes that the claimant and respondent were, on March 29, 1944, operating under the " provisions of the Workmen’s Compensation Act; that on the day last above-mentioned, said claimant sustained 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 therefor was filed within the time required under the provisions of said Act.

That the earnings of the claimant during the year next preceding the injury were $1,626.75 (One Thousand Six Hundred Twenty-six Dollars and Seventy-five Cents) and that the average weekly wage was $31.28 and his compensation rate was $17.63.

That the necessary first aid, medical, surgical and hospital services have been provided by the respondent herein.

That the respondent paid to the claimant the sum of $42.01 temporary total compensation for the period March 29, 1944, to April 13, 1944, inclusive, upon which day he was released by Dr. Thomas for work.

The Court finds that claimant suffered the loss by amputation of the ring finger of his left hand and fifty per cent loss of use of the middle finger of his left hand.

The Court further finds that claimant is entitled to have and receive from the respondent the sum of $17.63 for a period of twenty-five weeks, amounting to the sum of $440.75, for the loss of the third finger of his left hand and the further sum of $17.63 for a period of 17% weeks for the reason that the injury sustained to the second finger of claimant’s left hand amounted to a fifty per cent permanent loss of use of said finger, all of which has accrued and is payable in a lump sum.

An award is therefore hereby entered in favor of the claimant and against the respondent as follows:

The sum of $440.75 specific award for the loss by amputation of the third finger of claimant’s left hand and the further sum of $308.53 for fifty per cent of the permanent loss of use of the second finger of claimant’s left hand, making a total award in the sum of $749.28 from which must be deducted the sum of $6.75 overpayment by the Division of Highways, leaving the sum of $742.53 all of which has accrued and is payable forthwith.

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


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    (No. 3869
    Arch Kennedy and Mable Kennedy, et al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

    J. L. Sullivan and Dillavou & Jones, for claimants.
    George F. Barrett, Attorney General; 0. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, J.

Claimants, Arch. Kennedy and Hable Kennedy, are the father and mother of Hubert M. Kennedy, deceased, a former employee of the Department of Public Works and Buildings of the State of Illinois. The claimant, Arch Kennedy, is also administrator of the Estate of Hubert M. Kennedy; and Kathryn Kennedy, Roy Kennedy, Anita Fay Kennedy, Max Kennedy, and Ray Allen Kennedy are brothers and sisters of the deceased, and are all under sixteen years of age. On July 6, 1944, while deceased was assisting his foreman in the removal of a large limb of a tree overhanging U. S. Highway No. 36, the limb was dislodged from the fence upon which it fell, and the large end of the limb struck the decedent on the right side of the head, pinning him to the ground. Dr. E. C. Conn of Chrisman, Illinois, was immediately called to the scene of the accident, but Kennedy died before the doctor’s arrival. The claimants seek an award under the provisions of the Workmen’s Compensation Act in the amount of $3,384.00.

At the time of the accident which resulted in the death of Hubert M. Kennedy, employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident was filed and claim for compensation made within the time provided by the Act. The accident arose out of and in the course of decedent’s employment.

Decedent was first employed by the respondent on March 10, 1944, as a laborer at a wage of sixty cents per hour and continued at that wage rate and in that classification until the date of his death. Employees engaged in the same capacity as decedent worked an average of 227 days a year, and eight hours constituted a normal working day. Under Section 10(e) of the Workmen’s Compensation Act, compensation must be computed on the basis of an annual wage of $1,089.60, making decedent’s average weekly wage $20.95, and his compensation rate $10.47. The death having occurred as a result of an injury sustained after July 1, 1943, this rate must be increased 17%%, or $1.83, making a compensation rate of $12.30. The decedent was unmarried and was twenty-four years of age at the time of his death.

This claim is based upon the alleged dependency of the parents and minor brothers and sisters of the decedent. Arch Kennedy, the father, is employed as a section man on the New York Central Railroad, Cairo Division. A brother of the decedent, Grene Kennedy, seventeen years of age, is employed by the State of Illinois, Division of Highways. It is alleged that the father and the decedent contributed equally to the support of the mother and the brothers and sisters of the decedent under sixteen years of age.

Section 7(c) of the Workmen’s Compensation Act provides as follows:

“If no amount is payable under paragraph (a) or (b) of this section, and the employee leaves any parent or parents, child or children, who at the time of the injury were partially dependent upon the earnings of the employee, then such proportion of a sum equal to four times the average annual earnings of the employee as such dependency bears to total dependency, but not less in any event than $1,000.00, and not more in any event than $3,750.00. * * *”

Dependency under the Workmen’s Compensation Act is a-question of fact. Crane Co. vs. Industrial Commission, 378 Ill. 190. The test of partial dependency is whether the contributions from the deceased were relied on by the claimants to aid and maintain them in their position in life and whether they were to a substantial degree depending upon the support of the deceased at the time of his death. Ritzman vs. Industrial Commission, 353 Ill. 34.

Hubert M. Kennedy, at. the time of his death, was unmarried, and was living with his mother and father and minor brothers and sisters. Claimant, Arch Kennedy, his father, testified that the deceased helped to provide for the family by buying food and clothing and coal, and helped pay the rent for a period of eight years, and that while he worked for respondent, he contributed about half his salary to the support of the family. Arch Kennedy did not testify as to his own earnings.

The testimony of decedent’s father was corroborated by various other witnesses: Clint Bridewell testified that the decedent bought groceries for the family at least two or three times a week, spending each time from $2.50 to $5.00; Reginald Van Dyke, manager of a grocery store, testified that Arch Kennedy, his son Hubert, and his son Gene, collectively purchased about $20.00 worth of groceries from him each Saturday night; Marshal Hill, a. store keeper, testified that the decedent bought groceries from him for the Kennedy family once or twice each week. Mabel Kennedy, mother of the deceased, testified that her son contributed to the support of the family; that he bought groceries, dresses, stockings, and play suits for the children, as well as coal; that he helped pay the rent and half of the feed for the hogs which the family raised; that prior to the death of Hubert, Gene contributed little to the support of the family. She stated that she did not know what her husband’s earnings were, nor the earnings of her son, Gene.

From the evidence, it clearly appears that the decedent contributed to the support of his parents and his brothers and sisters under sixteen years of age. The claimants contend that they were partially dependent upon the earnings of the decedent to the extent of 50% of their support. This proportion, however, is not established by the evidence. Neither the amount actually spent or contributed by the deceased are shown, nor does it appear from the record what amounts were earned and contributed to the family support by the father and the brother, Gene. Three members of the claimants’ family were contributing to its support, but the amount contributed by any one of them is not shown, and there is no evidence of the earnings of any of them except the earnings of the deceased. It is incumbent upon the claimants to establish the degree of partial dependency. They have shown that partial dependency did exist, but they have failed to establish a claim to more than the miuimnm award provided in the Act.

The court, therefore, finds that the parents of Hubert M. Kennedy were partially dependent upon him for support; that the minimum award should be made to the parents of Hubert M. Kennedy under Section 7(c) of the Workmen’s Compensation Act; that no award can be made under Section 7 (d) to their minor children.

Award is entered in favor of the claimants, Arch Kennedy and Mable Kennedy in the amount of $1,000.00, ■the minimum provided under Section 7(c) of the Workmen’s Compensation Act, which amount must be increased 17%% under the provisions of paragraph (L) of Section 7, making an aggregate award of $1,175.00, to be paid to Arch Kennedy and Mable Kennedy, as follows:

$599.18 which has accrued and is payable forthwith.

The balance of $575.82 is payable in weekly installments of $12.30 each, beginning June 12, 1945, for a period of 46 weeks with an additional final" payment of $10.02.

An award as to all other claimants is specifically denied.

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

This award is subject to the approval of the Governor.


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    (No. 3874
    Mary Recknor, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

    T. M. Anderson, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebed, Assistant Attorney General, for respondent.
   Fisher, J.

Claimant, Mary Recknor, is the surviving wife of Clark L. Recknor, who, on March 11, 1942, was employed by the State of Illinois, Division of Highways. He was classified as a laborer, at a wage rate of $.60 per hour. He continued to work in this capacity until the 8th day of July, 1944, at which time he was a member of a highway maintenance crew assigned to pick up broken tree limbs, brush and other debris that had been blown by a storm onto the highways during the preceding night. The crew drove in a Division Highway truck from Earl-ville on U. S. Route 34 to its juncture with the spur leading to the Village of Leland, LaSalle County. At this point the crew began loading the truck with debris. They proceeded North to the Village of Leland and then turned around and drove South. In these operations Mr. Recknor remained in the body of the truck to distribute the materials passed up to him by other workmen. The truck was driven approximately one and one-half miles south of Leland, where the debris was to be deposited preliminary to disposition by fire. Hpon arriving at this point it was learned that Mr. Recknor was not on or near the truck. He was later found lying on the shoulder of the highway a short distance to the North. He was apparently unconscious, and a doctor was called immediately. Dr. O. H. Fischer of Earlville arrived in about forty-five minutes and pronounced Mr. Recknor dead.

Mr. Kenneth Schroeder, who was driving a truck for the Hannah Oil Company, reported as follows:

“On the morning of July 8, 1944, I was traveling north on IT. S. Route 34, in a Hannah Oil Co. truck south of Leland. A yellow Division of Highways truck traveling south approached my truck. When the highway truck was about 300 feet away I saw some branches with leaves on them raise up above the truck body. Immediately after this I saw a large tree branch raise up above the truck body. I then saw a man raise up and grab at the side of the truck. The large tree branch raised out of the truck and fell onto the shoulder. The man fell over the side of the truck after the large branch went out. I stopped my truck on the slab opposite the body and got out. The body was on the shoulder with the feet four or five inches from the slab and about square with the pavement. The man was on his right side. I removed some branches that were on top of him. He was bleeding quite a bit from the nose and ears. I held his wrist to feel his* pulse. It lasted two or three minutes, then I could not feel it. I flagged a south bound car with two men in it. They stopped and one of the men ran into a nearby house and called a doctor and ambulance.”

Dr. O. H. Fischer, reported to the Division of Highways, as follows:

“Patient fell off a moving truck, apparently landing on his head, which resulted in a basal skull fracture, evidenced by copious bleeding from the ears and nose. I was called to see the patient on the highway. He had expired shortly before I arrived at the scene of the accident.”

The record consists of the Complaint, Departmental Report, Stipulation, Claimant’s Abstract, Brief and Argument, and Waiver of Brief and Argument by Respondent.

The material- facts of this case are admitted by stipulation.

Decedent left his wife him surviving, and no children under the age of 16 years. His salary for the year prior to his death amounted to $1,336.80.

We conclude that Clark L. Recknor and respondent were operating under the provisions of the Workmen’s Compensation Act; that the said Clark L. Recknor died as a result of injuries sustained during the course of and within the scope of his employment; and that the surviving wife of decedent is entitled to the benefits of the Workmen’s Compensation Act.

Under Section 7, paragraphs (a) and (1) of said Act, claimant as surviving wife and beneficiary of the decedent, is entitled 'to have and receive from respondent the sum of Four Thousand Seven Hundred Dollars ($4,700.00), payable at the rate of $15.09 per week.

An award is therefore entered in favor of claimant, Mary Recknor, in the sum of Four Thousand Seven Hundred Dollars ($4,700.00), payable as follows:

$724.32, which is accrued up to June 9, 1945 and is ■payable forthwith;

$3,975.68, payable in weekly installments of $15.09 beginning June 16, 1945.

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


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    (No. 3878
    Esther M. Carver, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

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

Claimant, Esther M. Carver, is the widow of Addis Bertrand Carver, a former adult parole agent of the Department of Public Safety of the State of Illinois. On March 13, 1944, while en route from Canton, Illinois, to Springfield, Illinois, by order of his superior, claimant’s husband sustained serious injuries when the car in which he was riding struck an automobile approaching from the opposite direction. Immediately following the collision, Carver was taken to St. Clara’s Hospital, Lincoln, Illinois, by ambulance, and three physicians and surgeons were called. His injuries were diagnosed as “fractured skull, compound fractures of the right leg, contusions, and abrasions.” He did not regain consciousness and died five days later. Claimant, as widow of the deceased employee, seeks an award under the Workmen’s Compensation" Act in the amount of $4,-700.00, and expenditures on account of medical and hospital services in the amount of $331.00.

At the time of the accident, which resulted in the death of Addis Bertrand Carver, employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State. 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 had been employed by the respondent continuously for more than one year prior to his death, and his annual earnings were $2,341.81. Under Section 10(a) of the Workmen’s Compensation Act, compensation must be computed on the basis of this annual wage, making decedent’s average weekly wage $45.03, and his compensation rate the maximum of $15.00 per week. At the time of his death, decedent had no children under sixteen years of age dependent upon him for support.

Claimant is, therefore, 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, 1943, this amount must be increased 17%%, or $700.00, and the weekly rate must be increased 17%%, or $2.63, making a compensation rate of $17.63 per week.

Claimant is also entitled to be reimbursed for moneys expended on account of hospital and medical services as follows:

M. C. Hutehcraft, Lincoln, Illinois, ambulance service.......'... $ 5.00
Dr. Anthony Drummy, Lincoln, Illinois........ .■.............. 125.00
Dr. Bobert Boyd Perry, Lincoln, Illinois...................... 25.00
Dr. E. P. Coleman, Canton, Illinois........................... 50.00
St. Clara’s Hospital, Lincoln, Illinois......................... 126.00
Total ...................................................$331.00

Award is, therefore, made in favor of the claimant, Esther M. Carver, in the amount of $5,031.00, to be paid to her as follows:

$331.00, reimbursement for hospital and medical services which is payable forthwith.

$1,148.47 which has accrued and is payable forthwith.

The balance of $3,551.53 payable in weekly installments of $17.63 each, beginning June 12, 1945, for a period of 201 weeks, with an additional final payment of $7.90.

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

This award is subject to the approval of the Grovernor.