Ruth Cassity v. State of Illinois

This claim was filed on August 3, 1942. Claimant alleges that on or about the 4th day of August 1941 she was employed as an attendant at the Manteno State Hospital; that on the 4th day of August, 1941, while in the course of her employment and the performance of her duties, she was kicked in the stomach by an insane patient, and, as a result of said kick, is now totally disabled.

The record consists of the Complaint, Departmental Report, Rule to Show Cause, Claimant’s Motion for an Extension, Stipulation with Claimant’s Exhibits A, B, C and D, Transcript of Claimant’s Evidence, Claimant’s Statement, Brief and Argument, Respondent’s Statement, Brief and Argument, and Reply Brief of Claimant.

Claimant testified that she was injured on the 4th day of August, 1941, and that she remained at the State Hospital at Manteno for one month “or a day or two over”; that she then took sick leave and went to Danville, Illinois. She further testified that about the second or third day after she arrived at Dmville, Illinois, she was taken to the Lake View Hospital, and called Dr. Dickerson. Dr. Dickerson reports that he was first called on September 22, 1941 to treat Mrs. Cassity at the Lake View Hospital in Danville, Illinois. The report of the Manteno State Hospital, filed herein, states that she failed to report for duty and was reported “as a quitshort resignation,’’ and further that she was discharged from the hospital on August 19, 1941. She was paid her full salary for the month of August 1941. The report of the Manteno State Hospital further shows that on August 2, 1941, while working in the hospital, claimant was [*13] kicked in tha center of the chest by a disturbed patient.

She was immediately seen by the hospital physician, who, after examining her, stated there were no visible signs of injury. She was not hospitalized, and resumed her usual duties. Later, 014 August 18, 1941, she entered the hospital complaining of nausea and vomiting. She volunteered that she had had similar attacks of this nature, the previous one being about six weeks before, and she stated at that time the cause of her then illness was the witnessing of a colored patient in an epileptic seizure. The report further shows “the physical examination at this time revealed that she had extensive gynecological and gastric surgery.” The same report, signed by Edward Ross, M. D., Managing Officer, Manteno State Hospital, concluded “It is our candid opinion that no deleterious effects resulted from her, injury on August 2, 1941. Our records do not indicate that any demands on this hospital have been made for further compensation or medical attention.”

Exhibit B, attached to the Stipulation herein, is a letter from D. L. Dickerson, M. D. of Danville, Illinois, who stated that on September 22, 1941 he was called to the Lake View Hospital at Danville to attend Mrs. Cassity. He found her in distress and said “the injury which the patient believed responsible for her distress was trauma high in her epigastrium that resulted in periodic attacks of pain, similar to but never as severe as the attack at that time. Examination of the abdomen revealed a dome-like contour with moderate distension.

The skin was marked by several former surgical incisions. Rebound tenderness was unusually present, es- - pecially in the upper abdomen. * * The left foot and ankle were encased in a plaster cast due to an injury not associated with the injury in question.” Dr. Dickerson -2 [*14] concludes “It is my opinion that the cause of Mrs. Cassity’s distress or condition was produced by deep trauma to the abdomen, associated with previous abdominal surgery, which resulted in partial intestinal obstruction. She has been unable to work from the time of the injury and will be for some time.”

Exhibit D, filed herein, is a letter signed by W. L. Couch, Assistant Superintendent of Charities, Department, of Public Welfare, to Frank R. Eagleton, attorney for claimant. This letter is as follows : “I have a letter from Dr. Major H. Worthington, superintendent of the Research and Educational Hospitals, in which he discusses among other things the facts in the case of Ruth Cassity. I am not enclosing a copy of his letter only because he has written me in a rather personal way. I will quote one paragraph of Dr. Worthington’s letter. “Keep these two points in mind-a kick in the chest or over the sternum means an injury to the bony thorax enclosing the lungs and heart-the epigastrium refers to the soft parts of the lower abdomen over the stomach and intestines.” In another section of the letter, Dr. Worthington states“If the original injury was a kick in the chest, the symptoms now complained of would have no bearing on the original injury.”

In view of the fact that the matter was referred to Dr. Worthington in an effort to assist us in getting at the facts, I have, of course, sent a copy of this letter to Mr. Nebel in the Attorney General’s Office, as he, too, should have this information.”

No other reference to an examinativn by a Dr. Worthington appears in the record of this case, and no medical testimony has been presented.

Claimant’s testimony is vague and indefinite. She testifies that a month after the injury she left the hospital at Manteno for Danville, and that the second or third day after she arrived at Danville she became suddenly ill and was taken to the Lake View Hospital at Danville, and Dr. Dickerson was called to treat her ; that he treated her for six months or more; that thereafter Dr. Dickerson became ill and entered a sanitarium. In [*15] answer to a question of whether she had been able to work since the injury she answered, “I have not worked at any time since then.” She testified that she had had three or four abdominal operations before the injury . complained of.

There is no competent proof of the nature of claimant’s injury-the cause or duration thereof. No objective condition or symptom appears. The claim is based entirely upon the subjective complaint of the claimant.

The entire record is insufficient to meet the requirements of Section 8 ( 1 3 ) of the Workmen’s Compensation Act.

Also, as pointed out in the brief filed herein by the Attorney General : Liability under the Workmen’s Compensation Act cannot rest on imagination, speculation, or conjecture, nor on a choice between two views equally compatible with the evidence, but such liability must arise out of the facts established by 4 preponderance of the evidence.

Springfield Dist. Coal Co. v. Ind. Corn., 303 111. 528.

Libby, McNeill & Libby v. I d . Corn., 320 111. 293.

Rittler v. Ind. Corn., 351 Ill. 338.

Roemfield v. Znd. Corn., 374 Ill. 176.

Mandell v. State, 12 C. C . R. 49.

Pesauanto v. State, 12 C. C. R. 474.

Alexander v. State, 13 C. C. R. 5.

Brachenbush v. State, 13 C. C. R. 20.

Nichola v. State, 13 C. C. R. 80.

Pearnum v. Etato, 13 C . C . R. 84.

Respondent, by the Attorney General, contends that to base an award upon such a record as is now before the Court would be at best speculatory. The evidence could very well support the view that the present condition of claimant existed for some time prior to the injury complained of; that the statements of claimant are vague and indefinite in regard to the type and extent of disability which she allegedly suffers, and that to make an award based upon such a set of facts would require considerable speculation or conjecture, which is contrary to the previ[*16]ous holdings of this Court and the Supreme Court of Illinois.

Claimant in this case is represented by very able counsel, entirely familiar with the requirements under the Workmen’s Compensation Act, and it can be safely assumed that had there been evidence to sustain the contentions of claimant, such evidence would have been fully presented.

We must agree with the contention of the Attorney General that to base an award on the record of this case would be merely speculation and conjecture.

For the reasons stated, an award is denied.

(No. 3 8 7 1 4 l a i m a n t awarded $1,026.68.)

HERMAN DREZNER, CIaimant, vs. STATE OF ILLINOIS, Respondent.

Opinion filed June l a , 1945.

Petition of claimant for rehearing denied September 11, 1945.

PAUL W. BRUST, for claimant.

GEORGEF. BARRETT, Attorney General; WILLIAM L..

MORGAN, Assistant Attorney General, for respondent.

CIVIL s~uvrc~+hen discharge illegal-award may be made. Where a civil service employee is illegally discharged and subsequently r e stored to his position by a court of competent jurisdiction, he is entitled to the salary provided for said position for the period of the illegal discharge where he is ready, able and willing to perform the duties of such position and tendered his services to his employer.

SAME-payment for services limited to actual vacancy. Payment of the salary or compensation of public ,office or employment to a de f m to incumbent during the time that he performed its duties prior to the reinstatement of the de jure officer or employee is a defense to an action by the de jure officer seeking payment of the same salary or compensation.

ECKERT, J. Claimant, Herman Drezner, was certified on May 1, 1939, by the Illinois Civil Service Commission to the [*17] Illinois Liquor Control Commisson, and was thereupon employed by the Illinois Liquor Control Commission as a special agent. On November 25, 1941, written charges were filed with the Illinois Civil Service Commission alleging that claimant had solicited funds for the Democratic Party during the months of October and November, 1940. A Trial Board, a,ppointed by the Commission, subsequently conducted an investigation of the charges, and claimant was suspended from his position for a period of thirty days from December 17, 1941, to January 16, 1942.

On January 14, 1942, the Illinois Civil Service Commission, approving the findings of its trial board, ordered that claimant be removed from his certified posi. tion as of January 31, 1942.

On May 21, 1942, claimant instituted proceedings in the Circuit Court of Cook County to secure his reinstatement and reassignment to duty as a special agent with the Illinois Liquor Control Commission. On January 12,1943, the court entered a judgment order quashing the record of the discharge of claimant, which judgment was not appealed from, and is in full force and effect. Pursuant to this judgment, on January 21, 1943, claimant was reinstated and reassigned to duty as special agent with the Illinois Liquor Control Commission in the classified service of the State of Illinois, and since that time has performed the duties of the position and received the salary attached thereto.

Claimant now alleges that from December 17, 1941, to January 21,1943, he was illegally prevented from performing the duties of his position as special agent, and was illegally deprived of the salary accruing to that posi, tion; that during all of said time he was ready, able and willing to perform the dutes of the position, and was ille[*18]gally prevented from doing so; that the salary of the position of such special agent was $2400 per year, payable in monthly payments of $200 each; that for the month of December, 1941, claimant was paid for seventeen days only in the sum of $103.22 ; that under Section 12 of the State Civil Service Act, his suspension in excess of thirty days was prohibited; that he remained under suspension and was denied the right to perform the duties and receive the salary as such special agent from December 17, 1941, to January 21, 1943; and that there is due and owing to him for salary for said period the sum of $2626.68.

The claimant also alleges that the Illinois General Assembly, at its regular 1941 session, made an appropriation for the ordinary and contingent expenses of the Illinois Liquor Control Commission, which appropriation included $300,800.00 for salaries and wages of employees of the Commission; that the appropriation was in part as follows : 36 special agents at $2400.00 each, $86,400.00 per annum; and that there were sufficient funds on hand when the ‘appropriation lapsed to pay claimant the amount of salary alleged to be due him for the period in question.

From the record, it appears that claimant was a duly qualified civil servilce employee of the State of Illinois; that he was properly suspended for a period of thirty days ; that at the expiration of said period of thirty days he was illegally discharged and wrongfully prevented from performing the duties of his position; and that he was subsequently reinstated by order of a court of competent jurisdiction. He has been diligent in the protection of his own rights, and at all times for which he seeks payment of salary, he was ready, willing, and able to perform the duties of his position, tendered the performance thereof, and such tender was refused. A civil service [*19] employee, illegally discharged and subsequently restored to his position by judgment of a court of competent jurisdiction is entitled to the salary provided for said position for the period of the illegal discharge where he is ready, able, and willing to perform the duties of such position and tendered his services to his employer. w;Zsom vs. State, 12 C. C. R. 413.

It also appears from the record, however, that during seven months of the period in question, there were thirtysix special agents employed by the Commission. The appropriation for the biennium was for salaries and wages of thirty-six special agents, at not to exceed an annual rate of $2400.00 each. Claimant’s contention that if thirty-six agents had in fact been employed and paid, the payroll would have exhausted the appropriation for the period in question, can not be sustained. The appropriation was‘for a salary “not to exceed” the specified rate contained in ’the appropriation bill. The Illinois Liquor Control Commission could not at any time have employed more than the specified thirty-six special agents. During seven months of the period of claimant’s absence from his employment, his position was filled by a de facto employee. Payment of the s d a r y or compensation of a public officeor employment to a de facto incumbent during the time that he performed its duties prior to the reinstatement of the de jure officer or employee is a defense to an action by the de jure officer seeking payment of the same salary or compensation. Laird vs.

State, 13 C. C. R. 78.

The Court, therefore, finds that claimant is not entitled to the payment of salary for the period of thirty days during which he was rightfully suspended, and is not entitled to the payment of salary for the period of seven months during which time his position was filled by [*20] a de facto employee. Claimant, however, is entitled to award for payment of his salary during the remaining period of his illegal discharge in the amount of $1026.68.

Award is therefore entered in favor of the claimant in-the sum of $1026.68.