Denoes v. State of Illinois

This complaint was filed on the 19th day of February, 1942 by claimant seeking an award under the provisions of the Workmen's Compensation Act.

It alleges that claimant was employed by the respondent in the Division of Highways in the capacity of laborer. That on the 23rd day of July, 1941 in the course of his employment for the respondent in repairing the road surface of Grand Avenue, a public road approximately one mile west of Wolf Road, Cook County, the crow bar which claimant was using slipped and the upper [*2] portion of the handle hit the claimant a hard blow on the right nipple of the right part of his chest.

It further alleges that on the date of the accident he notified his employer by reporting the injury at once to William E. Johnson, his foreman, and subsequently on November 11, 1941 he made a written report of his accident and the injury to the State ‘of Illinois by mailing a notice thereof to the Division of Highways.

It alleges that claimant has been unable to work since the 26th day of November, 1941 and has suffered severe and permanent damage and disability as a result of his said injury. That as a direct.result of said injury he has incurred medical, surgical and hospital expenses in the sum of $138.00, none of which have been paid by claimant or respondent.

It avers he is suffering with cancer of the breast and that it is necessary: for him to take x-ray treatments of the malignant tissue approximately three days in each week and asks an award for permanent and complete disability in accordance with the Workmen’s Compensation Act.

The respondent files a motion to dismiss the complaint setting up two reasons therefor: (1) No claim for compensation was made within six months after the date of the accident as required by the terms and provisions of Section 24 of the Workmen’s Compensation Act. (2) The claimant’s complaint does not show a demand for compensation within six months after the accident.

The record consists of the complaint, original transcript of evidence, abstract of evidence, claimant’s statement, brief and argument, report of the Division of Highways, motion of respondent to dismiss, statement, [*3] brief and argument in support of said motion and suggestions of claimant in reply to respondent’s motion to dismiss.

The report of the Division of Highways is prima facie evidence under rule 21, if a copy thereof shall have been first duly mailed or delivered by the Attorney General to the claimant or his attorney of record.

This report, a copy of which was delivered to the attorney of record for claimant on the day of the hearing, July 28, 1942, in the office of the Attorney General, 208 South LaSalle Street, Chicago, states that “on or about November 3, 1941, Kendrick Harger, district engineer, Chicago, relceived a bill from Oak Park hospital, dated October 30, 1941, covering services rendered the claimant. This bill was in the amount of $47.15 and indicated that the claimant had been confined in the hospital from October 24 to 26, 1941 inclusive, and that he had been served in the operating room and had been administered an anesthetic. This was the first notice that the Division had concerning an injury to the claimant.”

The evidence of the claimant shows that on the date of said injury he notified his foreman, one William E. Johnson, that he had been struck a blow on the chest that day, but he did not ask for hospitalization or medication.

He testified he did not think it was serious. Johnson was not called as a witness.

Referring again to the departmental report, it contains a report of Dr. Louis River, of Oak Park, who operated on claimant. On November 18 at the request of the Division of Highways he‘supplied it with the following report in reference to his treatment and examination of said claimant : “Patient’s story of accident-claims he struck region of right nipple with crow bar which slipped while working. Patient came on his own responsibility. No evidence of injury noticed when I first examined [*4] him, October 21, 1941. There was a 3 cm. in diameter free hard nodule above and medial to the right nipple. Presumptive diagnosis was carcinoma of the breast. Treatment-simple right mastectomy, October 25, 1941. Uneventful recovery, primary union of the wound.

Section shows grade 3 adenocarcinoma. At present receiving deep x-ray therapy from Dr. Jenkinson at the Ravenswood Hospital. Ability to return to work-November 3, 1941. Patient was discharged October 31, 1941. I have no reason to believe this lesion to be the result of occupational trauma.”

This report as well as the evidence of the claimant shows that claimant was paid full wages from the date of the alleged injury to the 19th day of November, 1941 when he ceased to be an employee of the Division. These wages amounted to the sum of $280.20. William E. Johnson, the foreman of the gang in which the claimant was employed on the date of the alleged injury, turned in the time for this claimant, which enabled claimant to receive full wages and failed to make any report to the Division of any claim for injury on July 23, 1941, or subsequent thereto.

The report further states “no officer of the Division or of the State of Illinois received a demand from the claimant or his personal representative for compensation until the filing of the complaint in this case.”

Section 24 of the Workmen’s Compensation Act is jurisdictional. It provides “no proceedings for compensation under this Act shall be maintained unless notice of the accident has been given to the employer as soon as practicable, but not later than thirty days after the accident * ;Ik * . Notice of the accident shall give the approximate date and place of the accident, if known, and may be given orally or in writing ; provided, no proceeding for compensation under this Act shall be maintained -unless claim for compensation has been made within six months after the accident, provided, that in any case, unless application for compensation is filed with the [*5] Industrial Commission (Court of Claims) within one year after the date of the accident, where no compensation has been paid, or within one year after the date of the last payment of compensation, where any has been paid, the right to file such application shall be barred.”

It has been repeatedly held by this court that the giving of notice within thirty days and the making of claim for compensation and filing application therefor within the times fixed by Section 24 of the Workmen’s Compensation, Act is a condition I precedent, without! which, the Court of Claims is without jurisdiction to . proceed with the hearings. Crabtree vs. State, 7 C. C. R. 207.

Under the record we must consider the filing of the complaint the first demand made by claimant for compensation. This complaint was filed on February 19, 1942, more than six months subsequent to the date of the alleged injury.

The provisions of Section 24 of the Compensation Act not having been complied with, the motion of the Attorney General to dismiss is therefore sustained for lack of jurisdiction to hear said complaint.

Case dismissed.

(No. 3686-Claimamt awarded $4,224.00.)

EDITH DENGES, WIDOW OF CHARLES R. DENGES, Claimant, vs.

STATE OF ILLINOIS, Respondent.

Supplemental opinion filad November 19, 1945.

WORKMEN’S COMPENSATION A C T - W ~ ~ W a dependent widow of a claimant who diad as a result of ac&ental injuries which arose out of and in the came of his e m p l w e n it is entitled to an award. Where a claimant suffered an injury to his chest in the course of his employment which developed into cancer and resulted in his death, and claim for compensation was made within the time prescribed by Section 24 of said Act, an award may be made to his dependent widow as provided in Section 7, par. (A-K) of the Workmen’s Compensation Act.

[*6] .6 DAMRON, J. On February 19, 1942, claimant, Charles R. Denges, filed his complaint, in this court, seeking an award under the provisions of the Workmen’s Compensation Act.

The Attorney General filed a motion to dimiss the complaint, for the reason that the complaint failed to show a demand for compensation was made on respondent within six months after the accident, as required under Section 24 of the Compensation Act.

At the March term, 1944, of this court, we delivered an opinion sustaining the motion of the Attorney General, and complaint was dismissed for lack of jurisdiction.

On April 12, 1944, the claimant filed a motion for rehearing in said cause, and on May 9,1944, re-hearing was granted.

On the 26th day of December, 1944, the Department of Public Works and Buildings (Division of Highways), filed an additional report, in this court, which shows that claimant did comply with the provisions of Section 24 of the Act, in that he had reported to one William E. Johnson, his foreman, on the day he was injured, and under Rule 21 of this court, this report is accepted as prima facie evidence.

On February 28, 1945, the Trust Company of Chi, cago, as administrator, filed a suggestion of death, showing that claimant, Charles Denges, had departed this life on the 7th day of May, 1944, and on the 20th day of March, 1945, the said administrator filed a motion to be substituted as claimant in the above entitled proceedings.

On October 26th, 1945, an amended and supplemental claim was filed by Edith Denges, as widow of Charles R. Denges, deceased, which is now under consideration by this court. Said amended complaint sets up all the mate[*7]rial allegations of the complaint, heretofore filed by Charles R. Denges, deceased, and, in addition thereto, shows that the said Charles R. Denges died'on May 7, 1944, of carcinoma of the breast and pleural carcinoma metastases, which directly and proximately resulted from the injury received by him in the course of his employment for the respondent on the 23rd day of July, 1941.

This complaint further shows, and the allegations are corroborated by the report of the Division of Highways, as aforesaid, that claimant left surviving him his widow, Edith Denges, now the claimant, as the sole and only dependent.

All of the facts having heretofore been set out in our former opinion, we will not resort to a repetition, but briefly state that Charles R. Denges was in the employ of the respondent, in the Division of Highways, in the capacity of a laborer, receiving a wage of 60c per hour, for an eight hour day, being employed each week five and onehalf days.

On the 23rd day of July, 1941, while in the act of prying loose a broken piece of concrete on the road surface of Grand Avenue, a state highway approximately one mile west of Wolf Road, in Cook County, Illinois, the crow bar slipped, and the upper portion of the handle hit the claimant a hard blow on the right nipple of his chest; he was treated for said injury at the Oak Park Hospital, Oak Park, Illinois, by Dr. Louis River, but continued work until the 19th day of October, 1941, receiving his full wages during that time. On that day he ceased to be an employee of the Division.

The evidence discloses that cancer of the breast developed from this injury; that he received numerous x-ray treatments in order to relieve himself of this con[*8]dition, which failed to so relieve him. Claimant died, as a result of his injuries, on May 7, 1944, as aforesaid.

After -a full consideration of this record, the court makes the following findings : That claimant and respondent were, on the 23rd day of July, 1941, operating under the provisions of the Workmen’s Compensation Act; that on the date last above mentioned, said claimant sustained accidental injuries which arose out of and in the course of his employment, from which he died; 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 by the provisions of Section 24 of said Act; that the earnings of said claimant, at the time of his injury, were 60c per hour for an eight hour day, five and one-half days per week.

The evidence discloses that employees of the respondent, doing similar work of claimant’s intestate, worked for respondent less than 200 days per year.

His weekly wage, therefore, would be $18.46, making his compensation rate amount to the sum of $10.15, as provided in Section 8, paragraph (L) of the Workmen’s Compensation Act (Rev. Stat. 1941).

An award is, therefore, hereby entered in favor of the claimant, Edith Denges, as the dependent widow of Charles R. Denges, deceased, in the sum of $4224.00, as provided in Section 7, par. (A-R) of the Workmen’s Compensation Act, as amended.

There has now accrued up to November 13, 1945 the sum of $2153.25, being 212 l/7 weeks, at $10.15, which is payable in a lump sum forthwith; the remainder, $2,- 070.75, to be paid to her weekly, at the rate of $10.15, with a balance of $0.15.

Such future payments being subject to the terms of [*9] the Workmen’s Compensation Act of Illinois, jnrisdiction of this cause is hereby retained for the purpose of making such further orders as may from time to time be necessary herein.

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,” and is payable, upon approval, from the appropriation from the Road Fund in the manner provided in such act.

This record discloses that claimant incurred medical and hospital bills, including x-ray treatments, which were not authorized by the respondent. Claim for these medical expenses, therefore, cannot be allowed.

(No.3686-Petition for lump sum settlement-denied.)

EDITH DENGES, WIDOW OF CHARLES R. DENGES, Claimant, us. . STATE OF ILLINOIS, Respondent.

Opiltion f l k d March 19, 1946.

EMERSON C. WHITNEY and J. D. TEITELBAUM, for claimant.

GEORGE F. BARRETT, Attorney General; WILLIAM L. MORGAN, Assistant Attorney General, for respondent.

WOBKMEN’PI COMPENSATION A c when petition for lump sum payment will be denied. Where deceased employee leaves him surviving only his widow and no child or children wkom he was under legal obligation to support at the time of his injury, it would not be for the best interests of employer to allow a lump sum settlement. The widow’s right to receive compensation would be extinguished by her death or remarriage. The award is uncertain and contingent in its duration and amount. Illinois Zinc Compccn21 vs. Industrial C ~ r m i s s i o l t , 366 Illinois 480.

J. DAMRON, This cause again comes before the Court pursuant to a petition for a lump sum settlement in accordance with [*10] the provisions of Section Nine (9) of the Workmen’s Compensation Act.

On November 13, 1945, this Court entered an award in favor of the claimant, Edith Denges, as widow of Charles R. Denges, for $4224.00 as provided in Section 7a of the Act, as amended. At the time of the rendition of the award, there was then due the claimant the sum of $2153.25 which was paid to the claimant by the respondent in a lump sum.

The above named petitioner was the only dependent left surviving the said deceased employee, there was no child or children left surviving whom he was under legal obligation to support at the time of his injury which resulted in his death.

At the time of the! filing of this petition for a lump sum, there was yet due claimant, under the provisions of said award, the sum of $1979.40 to be paid to her at the rate of $10.15 per week. This petitioner states in her petition that she now has an opportunity -to go into the retail clothing business in which she is experienced and in which she believes that she can make a satisfactory livelihood. She says she has no other source of income and is, at the present time, unemployed.

The question as to whether the provisions of the Workmen’s Compensation Act, relative to lump sum payments, apply to cases in which the facts are similar to the facts in the present case, was considered in Illilzois Zilzc Compmy vs. Ilzdzlstrid Commission, 366 Illinois 480. In that case, as in this, the deceased employee left him surviving his widow and no child or children whom he was under legal obligation to snpport at the time of his injury. It was pointed out in that opinion that under the provisions of Section 7a and Section 21 of the Workmen’s Compensation Act, the right to receive compen[*11]sation would be extinguished by the remarriage or death of the widow; that althogh it might be for the best interest of the widow, it clearly could not be for the best interests of the employer to allow a lump sum. The Court further said: “It is our opinion that Section 9 is not applicable to an award such as this, which is uncertain and contingent in its duration and amount. To hold otherwise would be to deprive the employer of due process of law and the equal protection of the law and would render the entire section unconstitutional. A commutation of the last 102 weeks of compensation in this case would be as absurd from a legal standpoint, as if the Governor should attempt to commute the last one-half or one-third of a life sentence.”

Under the law, as laid down by our Supreme Court in the Illinois Zinc Company vs. Industrial Commission, supra, we have no authority to order a lump sum payment under the facts in this case, and claimant’s petition therefore must be denied.