Floyd Cook v. State of Illinois

‘ This complaint was filed on the 29th day of March 1943. The record consists of said complaint, departmental report, transcript of evidence, stipulation, rule to show cause; abstract of evidence, and claimant’s statement, brief, and argument.

The stipulation filed herein shows that claimant at the time of his injury was being paid $225.00 per month without maintenance; that the State of Illinois, in the [*11] operation of the Elgin State Hospital, is under the Workmen’s Compensation Act, in thai the employment is hazardous; that the questions presented to this Court are whether or not the claimant was injured in the course of and arising out o’f his employment, and whether or not proper notice was given under,the Workmen’s Compensation Act.

The evidence discloses that at the time of the filing of this complaint, the claimant was 46 years of age, was an employee of the Departmen$ of Public Welfare, working at Elgin State Hospital as a stationary engineer; that he entered the employ of the respondent in October 1920 as an attendant and was gradually promoted from that date to the 6th day of October 1942 to the last mentioned position.

The evidence discloses that on the last mentioned date, he was lifting a 50 lb. sack of lime in the engine room of the Elgin State Hospital for the purpose of putting the lime in a water softener; in order to place this material in the water softener, he was required to lift said sack above his head; the sack became loosened from his grip, struck him causing him to fall to the floor, the bag again fell back against him striking him in the stomach at the left side above the hip bone; that he suffered severe pain in his left side in the region of the groin. He went to Dr. Raymond G. Scott, Geneva, Illinois, for examination on October 6, 1942; that Dr. Scott after an examination of the claimant, diagnosed his conditio; as a left inguinal hernia and recommended that an operation be performed upon the claimant in order to repair said hernia. Dr. Scott furnished claimant with a truss to be worn by him until the operation was performed. The’record further discloses that on the same date, the claimant reported his.injury to Benjamin D. [*12] ’ 12 Burdick, the master mechanic at said institution, who was the immediate superior of the claimant.

The evidence further discloses that Burdick sent claimant to the general hospital on the grounds of the Elgin State Hospital where. he was examined .by Dr.

Groner, who also informed claimant that he had suffered a hernia and that it could not be (cured without an operation. Claimant testified that prior to the accident he had never had trouble before in the region of the stomach or the groins.

On November 24, 1944 the following stipulation was entered into by and between the attorneys of record: “It is hereby stipulated and agreed by and between the above claimant by Charles G. Seidel, his attorney, and the above respondent by George F. Barrett, its attorney, as follows: 1. That the fair and’reasonable cost of an operation to correct a left inguinal hernia is Three Hundred Dollars ($300.00) and that the average temporary total disability due to such treatment is foui ( 4 ) weeks.” \ Upon consideration of this record, we make the following findings: That the claimant and respondent were on the 4th day of October 1942, operating under the provisions of the Workmen’s Compensation Act ; that on th,e date last above mentioned, said claimant sustained accidental injuries which did arise out of and in the course of the employment and that notice was given said respondent within two days thereafter and claim for compensation on account thereof was made on said respondent within the time required under Section 8, par. (d-1) of the Act.

That the earnings of the claimant during the year next preceding t h e k jury were $2,700.00 and that the average weekly wage was $51.92; that claimant at the time of the injury was 46 years of age and had no dependent children.

[*13] The Court finds that said claimant sustained a left inguinal hernia as a result of said accidental injury and that under the stipulation in this case, the respondent shall provide said claimant with the necessary medical, surgical, and hospital serviies -to the amount of $300.00 to cure,or relieve from the effects of the injury as provided in paragraph (d-1) of Section 8 of said Act as amended. The Court further finds that it is provided in said stipulation that the respondent shall pay to the ‘claimant a sum representing four weeks as temporary . recovery period after said total compensation during the operation., An award is therefore entered in favor of claimant, Floyd Cook, in the sum of Three Hundred ($300.00) Dollars for surgical and hospital expenses and the sum of Sixty-Six ($66.00) Dollars for four weeks temporary total compensation at $16.50 per week making a total of - Three HundredmSixty-Six ($366.00) Dollars.

The claimant having elected to select his own surgeon to perform this necessary operation, the payment of the above award in a lump sum to this claimant by the respondent shall extinguish and bar all claims for compensation for any disability suffered by claimant hereafter as a result of said injury.

(No. 3848 and No. 3849-Consolidated Claimants awarded $2,129.12.)

CARL P. JESSE and JAMES R. CARPENTER, Claimants, vs. STATE OF ILLINOIS, Respondent.

Opinion Pled Beptember 12, 1946.

P ENCE B. ORR, of Joliet, Illinois, for claimant.

GEORGE F. BARRETT, Attorney General; WILLIAM L. MORGAN and C. A RTHUR NEBEL,Assistants Attorney Gen1I eral, for respondent. -2 [*14] WORKMEN’S C ~ M P E N S A T I O Nam-where award naay be made under for temporary total and permanent partial loss of visaon or for the permanent and complete loss of its me . Where employees of State sustain accidental injuries, arising out of and in the course of their employment, resulting in the partial loss of vision or the loss of sight of an eye, or for the permanent and complete loss of its use, awards for compensation for such injuries may be made in accordance with the provisions of the Act, upon compliance with the terms thereof and proper proof of claim.

Sam- no provision therein for compensatzon for partaal loss of hearzng. The Workmen’s Compensation Act does not provide for compensation for partial loss of hearing. Claimant failed to establish a causal connectien between alleged loss of hearing and the injury in question.

SAME-disfigurenaent-whelt not compensable under. To justify an award for disfigurement, same must not only be permanent and serious, but must be such a disfigurement as affects a person’s employment, and where such person is able to procure employment similtr to that in which he was engaged at time of injury causing disfigurement, with no reduction of earnings as a consequence thereof, no award can be made for same. Tyler vs. State of ZZZanois, 1 2 C. C . R. 101.

ECKERT, C. J. e On ‘June 12, 1945, at a special term of this court, an opinion was rendered in the consolidated case of Marie McAsey, Administratrix of the Estate of Edward J .

McAsey, deceased, Carl F. Jesse, and James R. Carpenter, Claimants, vs. State of Illinois, Respondent, Nos. 3847, 3848, and 3849. An award was made to Marie McAsey, as Administratrix of the Estate of Edward J. McAsey, deceased, but the claims of Carl F. Jesse and James R. Carpenter were continued for consideration of further evidence as to the extent of the disabilities of the respective claimants. The facts are fully set forth in the former opinion.

Since the entry of that decision, further hearing was had on the Jesse and Carpenter claims, and further evidence was presented to establish the extent of their respective injuries. The court is now of the opinion that . Carl F. Jesse, as a result of his injury, sustained a 16% [*15] loss of vision in both eyes, and is entitled to an award for such loss. He has failed, kiowever, to establish a causal connection between an alleged loss of hearing in his left ear and the injury in question, and has failed to - prove a serious and permanent disfigurement to his face. .

A compensable disfigurement must not only be permanent and serious, but must be such a disfigurement as affects a person’s employment. Where a person is able to procure employment similar to that in which he was engaged at the time of the injury which caused the disfigurement, with no reduction of earnings, an award is . not justifie>d. (Tyler vs. State of Illinois, 1 2 C. C. R. 101.) Claimant Jesse’s present employment is the same as his employment at the time of the injury, at an increased salary. Furthermore, the photographs offered in evidence indicate no disfigurement that would affect . his employment. No award can be made for loss of’hearing or for disfigurement.

The court is also now of the opinion that James R. Carpenter, as a result of his injuiy, suffered a 28% loss of vision in both eyes, and is entitled to an award for such loss. His injury also necessitated the extraction of his upper teeth, and the insertion of a plate, at a total cost of $260.00, for which an ,award may properly be made. , Claimant Jesse’s earnings for the year immediately preceding his injuries were $1,908.00, or an average weekly wage of $36.69. He had three children under sixteen years of age dependent upon him for support. His compensation rate is, therefore, $18.00 per week. The injury having occurred after July lst, 1939, this must be increased lo%, making a total compensation rate of $19.80. For the loss of sight of an eye, or for the perma-neiit and complete loss of its use, claimant would be [*16] ~ entitled to 50% of his average weekly wage for 120 weeks. Since he has suffered a 16% loss of use of both eyes, he is entitled to an award of $19.80 per week for a -. period of 38.4 weeks, or the sum of $780.32.

Claimant Carpenter’s earnings for the year immediately preceding his injuries were $2,328.00, or an average weekly wage of $44.77. He had no children under sixteen years of age dependent upon him for support. His compensation rate is, therefore, $15.00 per week. The injury having occurred after July lst, 1939, this must be increased lo%, making a total c6mpensation rate of $16.50.

For the loss of sight of an eye, or for the permanent and . complete loss of its use, claimant would be entitled to 50% of his average weekly wage for 120 weeks. Since he has suffered a 28% loss of use of both eyes, he is entitled to an award of $16.50 per week for a period of 67.2 weeks, or the sum of $1,108.80. To this must be added the neces- . sary dental charges in the amount of $260.00, making a total of $1,368.80.

Julia Z. Hertz, Court reporter, of Joliet, Illinois, is entitled to payment of $25.00 for reporting the testimony at the hearing on December 28, 1945.

An award is therefore entered in favor of claimant, Carl F. Jesse in the amount of $760.32 payable forthwith, and an award is entered in favor of claimant, James R. Carpenter -in the amount of $1,368.80 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 ”.

[*17] (No. 3880-Claim denied.)

MARIE PETERSON, Claimant, vs. STATE OF ILLINOIS, Respondent.

Opinion Pled September 12, 1946. , JOSEPH 'W. K OUCKY, of Chicago, for claimant.

GEORGE 3'. BARRETT, Attorney General, and WILLIAM L. MORGAN, for respondent.

WORKMEN'SCOMPENSATION AcT-.claim for partial permanent liubility u . d e r paragraph ( D ) Section 8 thereof-proof necessary to sustuin. Where claimant could return to work but failed to do so, there is no basis for determination of the difference between the average amount which an employee earned before the accident, and 'the average amount the employee is earning or is able to earn-in some suitable employment or business after the accident, as provided in Section 8 ( D ) of the Workmen's Compensation Act, hence no award can be made for partial disability.

SAME-burden of proof in claims under-is on claimant. Where ' claimant has failed to sustain the burden of proof imposed upon her by the Workmen's Compensation Act-the claim will be denied.

ECKERT, C. J. Claimant, Marie Peterson, filed her complaint on October 3rd, 1944 alleging that on August 23, 1944, while in the employ of the respondent at the Chicago State Hospital, and while in the discharge of her duties attending a patient, she slipped and fell, sustaining injury to her coccyx and back. The complaint contains the necessary allegations as to notice, and prays 'for aa award for total temporary disability, for loss of uSe of both legs, and for complete and permanent disability.

Claimant, testifying on her own behalf, stated that whcle attempting to assist a'patient in an epileptic seizure, she fell to the floor, injuring her coccyx; that she was then taken to Dr. Cohen, a member of the hospital staff, and was hospitalized for two weeks. Upon her release from the hospital, she returned to her home, and ~ received no further medical treatment. When asked [*18] whether she had returned to work, she stated she had not because “I am not doing as good as I. could be, I was for a while. I feel pretty good and for the last two weeks I seem to have more pain again.’’ She stated that her pain was at the bottom of her spine ; that sometimes it is more severe while walking or working; that “it kind of bothers my baek here, and I have that for the last week and a half.”

Dr. Albert C. Field, called as a witness for claimant, testified that he examined claimant on December 28, 1944 and found some rigidity in the gluteal region which increased on palpations over the coccygeal region; that the tip of the coccyx is turned over ; that an X-ray which he took showed a fracture of the lower end of the coccyx.

He further stated that these palpations slioived pains which invblved involuntary muscle spasms, indicating an inflammatory condition in the region of the coccyx. Dr.

Field then indicated that claimant should be re-examined, having in mind an operation to remove the coccyx.

Dr. Benjamin Cohen, testifying on behalf of respondent, stated that he examined claimant immediately after the atmident, arid ordered an X-ray, which showed a fracture of the fifth sacral segment, with ;light anterior displacement of the distal fragment. He stated that claimant was in the hospital from August 23rd until September 11th when she was discharged with the recommendation that if she continued to have difficulty in the region of the coccyx, she could be sent to the Illinois Research Hospital for further examination, and possible surgery. He testified that claimant never asked for such examination, but that ten days prior to the hearing she asked him whether or not she needed surgery. He examined her at that time, told her she should return to work, but advised her not to do any heavy lifting. The hearing [*19] was then continued to permit examination of claimant at the Illinois Research Hospital.

At the second hearing, which was held approximately five months after the first, claimant testified that she had been to the Illinois Research Hospital, was examined, and was told that an operation on her back was not advisable.

She also testified that’her back still ached, and her legs “still give me trouble”. No further testimony was taken.

It is clear from the record that claimant sustained an injury to her back arising out of and in the course of her employment. From the medical testimony it also , appears that claimant’s alleged discomfort could be relieved by a. comparatively simple operation. Claimant, although testifying that she was advised against such an operation, produced no medical testimony to indicate whether the operation would not in fact relieve the discomfort, or whether her condition was such that the operation was unnecessary.

Claimant seeks an award for total permanent disability. It is clear from the record, however, that she is not totally disabled; it is undisputed that she could and should return to her former employment, except that she should not attempt heavy liftirig. No award can therefore be .made for complete disability.

Nor can an award for partial incapacity be Fade.

Section 8 (d) of the Workmen’s Compensation Act of this State provides that compensatiog for partial incapacity shall be determined by the difference between the average amount which an employee earned before the accident, and the average amount which the employee is earning or is able to earn in some suitable employment or business after the accident. The record in this case shows only that claimant could return to her work at the Chicago State HospitaJ. The court can not guess whether , [*20] or not her salary would ’be more or less than that earned prior to the injury.

The record contains no evidence whatever of any - injury to, or the loss of use of either of her legs. That allegation of the complaint is wholly unsupported. The claimant has failed to sustain the burden of proof imposed upon her by the Workmen’s Compensation Act.

An award is, therefore, denied.

A. M. Rothbart, Court Rpporting Service, has filed a claim for taking and transcribing the testimony in this case. The charges in the amount of $28.00 are fair, reasonable, and customary. An award is, therefore, entered in favor of A. M. Rothbart Court Reporting Service, in the amount of $28.00.