Oscar Phelps v. State of Illinois

This claim was filed December 8, 1944, and the record of the case completed on November 19, 1945. The claim is for benefits under the Workmen’s Compensation Act because of injuries received by the claimant while engaged in his duties as an employee of respondent.

Claimant alleges that on the 23rd day of January, 1944 he was employed by respondent in the Department of Public Welfare as an attendant at the Dixon State Hospital, Dixon, Illinois ; that his duties required him to supervise and care for dmgerous feeble-minded and epileptic patients.

That, on January 23, 1944 while attending a patient, one James Martin, claimant was suddenly and viciously attacked by the said James Martin and other patients who beat the claimant about the head and body, knocking him to the floor, rendering him unconscious and inflicting numerous and serious injuries from which claimant has not recovered and which have left him permanently and totally disabled. Claimant seeks an award under the Workmen’s Compensation Act for total permanent disability and a pension for life.

The record consists of the Complaint, Department Report, Transcript of Evidence, Abstracts of Evidence, and Waiver of Brief by both claimant and respondent. - At the time of the injury claimant was married and had no children under sixteen years of age dependent upon him for support.

[*68] Claim was filed in apt time. Claimant and respondent were operating under the provisions of the Workmen’s Compensation Act, and claimant is entitled to the benefits of the said Act. The facts are not in dispute, and the only question to be determined here is the extent of the injuries sustained by the elaimant.

From the evidence, it appears that Mr. Phelps was taken to the Illinois Research Hospital at Chicago, Illinois, for examination and treatment, but the result of this examination and treatment is not disclosed by the evidence except by the testimony of his daughter, Mrs.

Maxine Hobbs, which testimony is entirely incompetent.

Dr. Stephen P. Ward, a physician and surgeon at Metropolis, Illinois, testified that he was the family physician of the claimant siiice 1934, and that prior to the injuries complained of claimant was a normally healthy man. Dr. Ward testified that on July 6, 1944 he examined the claimant and made a complete physical examination; that he found the claimant to be very emotional; that claimanti did not respond promptly to questions, and would cry upon the slightest questioning; that he diagnosed‘the claimant as a very emotional man with symptoms of residual organized occipital clot from brain concussion, with symptoms of right cervic pressure injury. Dr. Ward further testified that it was his conclusion that the claimant was totally and permanently incapacitated.

Dr. Ward testified that he again examined the claimant on September 12,1944 at his office in Metropolis, and that at this time he found no improvement.

On July 6, 1944 Dr. Ward made a written report of his examination of the claimant, which is, in part, as follows : “This is to certify that I ham examined OlsCar Phelps of Golconda, [*69] Illinois, and in my opinion I believe that he is totally and permanently disabled for the following reasons: Persistent occiput headache, vertigo, nervousness and emotional instability.

I believe that he has residual organized blood clot in the right occipital area, pressure on the right cervical nerves, causing neuralgic symptoms over their distribution. This is probably due to injury by external violence which occurred January 23rd, 1944. I believe this man will make little or no improvement for at least six months, at which time he should be rechecked for confirmation of complete and total disability.”

Dr. Ward again examined the claimant on September 8, 1944, and on September 12, 1944 reported as follows : “This is to certify that on September 8th, 1944, I reexamined Oscar Phelps and found no improvement in his physical disability and believe him to be totally and permanently disabled.

This disability is due to external violence received January 23rd, 1944 and are persistent headache, vertigo, nervous and emotional instability, which I believe to be a residual blood clot in the right occipital area. There still remains a neuralgic symptom over the right cervical area, distribution of it without a doubt was caused by external violence causing fracturing pressure on the anterior roots.

Brieffy, this man is totally and permanently disabled from the result of his injury.”

There is much testimony by Mr. Phelps, and by his wife, Ressa Phelps, all being to the effect that the claimant is totally disabled.

The record shows that claimant was paid $501.53 for unproductive time, which must be deducted from any award entered herein.

From all the evidence herein, we ‘must conclude that the claimant is totally and permanently disabled as a result of the injuries sustained while engaged in his duties as an employee of respondent, and is, therefore, entitled to the benefits of the Workmen’s Compensation Act. At the time of the injury claimant’s salary was $110.00 per month, and employees engaged in similar capacities received a salary of $110.00 per month, or $1320.00 per [*70] 70 .

year. Claimant’s compensation rate is $14.91 per week.

Claimant is, therefore, entitled to an award under the Workmen’s Compensation Act, Section 8 (b) and (1) in the sum of Forty-Seven Hundred Dollars ($4700.00), less overpayment of Five Hundred One and 531100 Dollars ($501.53)’ or a total of Forty-one Hundred Ninety-eight and 47/100 Dollars ($4198.47) ; and thereafter, .a pension for life under Section 8 ( f ) equal to 8 per centum of the amount due under Section 8 (b) and (1).

An award is therefore entered in favor of claimant, Oscar Phelps, in the sum of $4198.47, payable as follows : $1535.73, which; is accrued and payable forthwith; $2662.71, payable in weekly installments of $14.91, beginning with the week of January 13, 1946; and thereafter a pension for life in the sum of $376.00 annually, payable in monthly installments of $31.33.

This award is subject to the approval of the Governor as provided in Section 3 of ‘fan Act concerning the payment of compensation awards to State employees. ” (No. 3 9 0 5 4 l a i m a n t awarded $4,700.00.)

THELMA M. EDWARDS, Claimant, us. STATE OF ILLINOIS, . \ Respondent.

Opinion filed January 9, 1946.

MARK C. KELLER, for claimant.

GEORGE F. BARRETT, Attorney General ; C. ARTHUR NEBEL,Assistant Attorney General, for respondent.

WORKMEN’S COMPENSATION ACMttendant Cnt DiXW Stmte Hospital withim provisions of - when award may be wmle to dependant widow of deceased employee-when petition for partial lump sum payment must be denied. Where it appears that an attendant at Dixon State Hospital, while in the course of his employment, was attacked and choked.to death, an award may be made to his dependent widcow under Section 7 (a) of the Workmen’s Compensation Act.

[*71] Where there is a surviving widow and no child or children, there is no authority under the Workmen’s Compensation Act for the commutation of the, award, or any thereof, to an equivalent lump sum.

J. ECEERT, .

Claimant, Thelma Edwards is the widow of Elmer J Edwards, deceased, who was formerly employed by the Department cf Public Welfare as an attendant at the Dixon State Hospital. ‘On November 28, 1944, while performing his duties as such attendant, on the night shift at Cottage A-3, he was attacked, choked, and strangled to death by one Michael Peluso, a post-encephalitis patient committed to the hospital by the Juvenile Court of Cook County, Illinois. Claimant, as widow of the deceased employer, seeks an award for thg death of her husband under the provisions of the Workmen’s Compensation Act.

At the time of the accident which resulted in the death of Elmer J. Edwards, the employer and employee were operating under the provisions of the Workmen’s Compensation Act of this state, and notice of the accident and claim for compensation were made within the time provided by the act. The accident arose out of and in the course of decedent’s employment.

Decedent had been employed by the respondent continuously for more than one year prior to his death, at a salary of $1,440 per annum. 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 $27.70 and his compensation rate $13.85 per week. The death having occurred subsequent to July lst, 1943, this must be increased 171/2%,making the compensation rate $16.27 per week. The decedent had no children under sixteen years [*72] of age dependent upon him for support at the time of his death.

Claimant is therefore entitled to an award under Section 7 (a) of the Workmen’s Compensation Act in the amount of $4,000.00, which must be increased 171/% under Section 7 (l), making a total award of $4700.00.

Claimant has also filed a verified petition seeking a partial lump sum payment. .She states that Elmer J. Edwards left no real or personal estate of any kind or description; that she has incurred, and is personally liable for the payment of Coroner’s fees, arising out of a Coroner’s inquest on the body of Elmer J. Edwards, in the amount of $17.50, for the payment of funeral expenses in the amount of $491.30, for the purchase of a burial lot in the amount of $45.70, and for the payment of costs of administration in the estate of Elmer J. Edwards in the amount of approximately $150.00, or a total of $704.50. Ckaimant states that she owns no real or personal property; that she has no income from any source whatever except wages of $100.00 per month ; and that she is the sole support of a thirteen year old son by a former marriage. She requests a lump sum payment of $1800.00, leaving the balance of the award to be paid in regular weekly payments.

The award in this case is not for a definite sum of money payable at all events over a definite period of years and months, but is contingent in its nature. It is, in legal effect, an award that if the claimant should live so long, and should remain unmarried she should have and receive the specified payments at the specified intervals, not exceeding, in all, the sum of $4700.00. Where there is a surviving widow and no child or children, there is no authority under the Workmen’s Compensation Act for the commutation ’of the award, or any there[*73]of, to an equivalent lump sum. Illirzois Zinc Co. vs. Irzd.

Corn., 366 Ill. 480 ; Dwncarz vs. State, 11C. C, R. 392. The petition seeking a partial lump sum payment must be denied.

Award is therefore made in favor of the Claimant, Thelma M. Edwards, in the amount of $4’700.00, to be paid to her as follows: $ 943.66, accrued, is payable forthwith; 3756.34, is payable in weekly installments ofl $16.27 per week, beginning January 8th, 1946, for a period of 230 weeks, with an addition final payment of $14.24.

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 as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees. ”