Johnp. Quigley v. State of Illinois

J O H N P. QUIGLEY, Claimant, us. STATE OF ILLINOIS, Respondent.

Opinion filed September 18, 1947.

WALLACE THOMPSON, for claimant.

GEORGE F. BAHHETT, Attorney .Geiieral, arid C. ARTHUR NEBEL,Assistant Attorney General for respondelit.

MILITARY AN D N AVA L CODE OF THE STATE oF’ILtINoIs-whatever right i o an nwnrd exzsts in favor of a claimant is by virtue of the proviszons of the Milttar?/ and iWru,al Code of Illinozs, No hard and fast rule exists for determining what amount should be allowed. In certain of these cases this court has seen fit to take as a guide, but not as a fixed rule, the provisions of the Illinois Workmen’s Compensation Act, in determining what payment would be reasonable for the loss sustaineci.

Ha77 vs. State 12 C. C. R. 464 ( 4 6 7 ) .

DAMRON, J. Claimant seeks ail award based on Article 16, See tion 11, of the Military and Naval Code of the State of’ Illinois. (Chap. 129, Ill. Rev. Stat. 1945.)

The record, as constituted, shows that the claimaiit John P. Quigley, was a private in the Illinois National t Guard July 2, 1937, being a member of Battery “ A ” Field Artillery and on said date was a member of a gull crew engaged in moving a 155 mm. Howitzer in the armory at Galesburg, Illinois. The record discloses that the Battery was moviiig equipment under orders, preparator)- to going to field training and while claimant was assisting in moving the field piece, the tread of the rub-. ber-tired d e e l caught the buckle of the claimant’s boot, , pulling his right foot under the) tire.

Section 10 of the Code provides that any officer or I enlisted man who may be wounded or disabled in any way while on duty and lawfully performing the same, so as to prevent his working at his profession, trade or other occupation from which he gains.his living, shall be [*28] entitled to be treated by an officer of the medical department detailed by the surgeon general and to draw onehalf his active service pay for not to exceed thirty days of such disability, on the certificate of the attending medical officer. If still disabled at the end of thirty days, he shall be entitled to draw pay at the same rate for such period as a board of three medical officers duly convened by order of the commander-in-chief may determine' to be right and just, but not to exceed six months unless approved by the State Court of Claims.

Under the provisions of this section, claimant was hospitalized and received medical, treatment. His injured right foot was placed in a cast for 7 weeks, after which he received hydrotherapy treatments at the Illinois Research Hospital. in Chicago ; all medical and hospital expenses incurred in connection with the injury were paid by the respondent.

On July 5, 1937, a Regimental Board of two medical officers m d one service officer, there not being three medical officers available at that time, eonveiied and made findings as follows: That the cause of injury to claimant was from a 155 mm. Howitzer wheel rolling upon the outside of the right foot; that the injury was incurred in line of duty; that the proper length of treatment would be indefinite; and that he would be left at home station with axrangements for further treatment by Dr. William H. Maley of Galesburg, Illinois.

On August 9, 1937, the same Regimental Board reconvened and made further findings and recommended that Private Quigley be sent to a hospital for hydrotherapy treatments and that he be paid fifteen days pay at $2.00 per day.

Thereafter, claimant made claim for additional service pay which was denied by the Adjutant General.

[*29] The above and foregoing proceeclings were authorized under Section 10 of the Military and Naval Code.

On August 26, 1940, claimant filed his claim in this court seeking to recover qn award in the sum of $5,000.00 for permanent and partial loss of use of his right foot under Section 11 of Article 16 of the Military and Naval Code.

Evidence in support of the claim was taken Febru, ary 28, 1947‘.

DI.. William H. Maley mas called on behalf of claimant and testified that he was a graduate of Rush Medical School, Chicago, Illinois ; that he attended the claimant on or about July 2, 1937 at the Armory in Galesburg.

The claimant was then taken to St. Mary’s Hospital.

X-rays were taken of the injured foot aid it was placed in a cast. He testified that the juiiction of the bones of claimant’s right foot mas badly crushed although there was no definite fracture, that the injury mas permanent and that in his opinion this claimant had suffered a twenty per cent permanent loss of use of his right foot in consequence of said accident. I Commissioner Jenkins before whom the testimony was taken saw the claimant manipulate his right foot, at saicl hearing, agrees with the estimate of Dr. Maley that claimant has suffered a twenty per cent permanent loss of use of his right foot. We therefore follow this estimate.

In Ball YS. State, 12 C. C. R:464, 011 page 46T, me said, “whatever right to an award exists in faror of claimant is by virtue of the aforesaid provisions of the Military and Naval Code ,of Illinois. No hard and fast rule exists for determining what amount should be a - lowed. 111 certain of these cases this court has seen fit to take as a guide, but not as a fixed rule, the prorisions [*30] of the Illinois Workmen’s Compelisation Act, ill cletermining what payment would be reasonable for the loss sustained. ’) Section 8, Paragraph ( e ) of the Workmen’s Compensation Act, as amended, July 1, 1937, pbovided for the loss of a foot or the permanent and complete loss of its use, 50% of the average weekly wage during 135 weeks.

Again guided by the rule in compensation cases, the claimant’s compensation rate, based on the fact that he G was the father of two children under 16 years of age dependent upon him for support on the date of the accident, will be $12.00 per week. Claimant therefore ~vonlcl be entitled to an award under the above rule, representing 20% of 135 weeks or 27 weeks at $12.00 amountiiig to the s u m of $324.00.

An award is therefore hereby entered in favor of claimant, John P. Quigley, in the sum of three hunclrecl twenty-four ($324.00) dollars.