Ceisel v. Indus. Comm'n

• Decision Date: 24 September 1948
• Docket Number: No. 30482.,30482.
• Citation: 81 N.E.2d 506,400 Ill. 574
• Parties: CEISEL v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

400 Ill. 574

81 N.E.2d 506

CEISEL

v.INDUSTRIAL COMMISSION et al.

No. 30482.

Supreme Court of Illinois.

Sept. 24, 1948.

Error to Superior Court, Cook County; John A. Sbarbaro, Judge.

Proceeding under the Workmen's Compensation Act, Ill.Rev.Stat.1943, c. 48, s 138 et seq., by John Drexler, employee, opposed by Stephen Ceisel, employer, and another. The Superior Court on certiorari confirmed a decision of the Industrial Commission sustaining the arbitrator's award of compensation, and the employer brings error.

Judgment reversed and award set aside.

Angerstein & Angerstein, of Chicago (Armand Chiappori, Bernard F. Martin and Thomas K. Gifford, all of Chicago, of counsel), for plaintiff in error.

Robert J. Weiss, of Chicago (George C. Rabens, of Chicago, of counsel), for defendant in error.

THOMPSON, Justice.

John Drexler filed with the Industrial Commission an application for adjustment of claim against Stephen Ceisel alleging that he sustained an accidental injury on January 18, 1945, arising out of and in the course of his employment by Ceisel as a foreman of bricklayers. It is alleged in his application that he spent the entire day inspecting outside work and that his foot was frozen, developing into trench foot. The arbitrator awarded compensation in accordance with section 8 of the Workmen's Compensation Act. Ill.Rev.Stat.1943, c. 48, s 145. The Industrial Commission without additional evidence sustained the award, which was confirmed by the superior court of Cook County on certiorari. The petition being granted for writ of error, the cause is now before us for decision.

The parties stipulated that on January 18, 1945, the relationship of employee and employer existed between them and that they were both operating under and subject to the Workmen's Compensation Act. There was no conflict in the evidence. Only two witnesses testified, Drexler and a doctor called in his behalf. No evidence was offered by the employer.

The record discloses that defendant in error, Drexler, was, and had been for 12 or 13 years prior to the date of the alleged injury, in the employment of Ceisel, a mason contractor. He was 48 years of age and had never had any trouble with his feet. On January 18, 1945, he was supervising for his employer some masonry work, being done for the Admiral Radio Corporation in Chicago, and had about 28 men, bricklayers, masons, laborers and helpers working under him. The work consisted of some alterations in the first floor of the radio corporation's building and the addition of a second or top floor. The materials for the work were on the outside of the building and had to be carried inside for use by the bricklayers and masons. They were taken to the second floor by an outside hoist. The men were required to use an outside stairway and were not allowed to enter that part of the building which was in use by the radio corporation. Drexler did no carrying and no bricklaying or masonry work, but his duties were to lay out and manage the work and supervise the men. He did not have to be in any one spot any particular length of time, and his duties in supervising the men took him both outside and inside the building.

On the second floor where the men were working there were lighted salamanders, throwing out heat. Defendant in error testified he did not know how many times he stopped at the salamanders to warm and did not know how many of the eight hours he worked on January 18 were spent on the outside and how many on the inside, but that he had the opportunity and was not prohibited from warming as many times and as much as he desired. He was wearing warm woolen socks, regular work shoes and overshoes, long woolen underwear, trousers, and overalls on top of the trousers, and also had on a sheepskin jacket and a regular jacket on top of that.

He reported for work on the day in question at 7:30 o'clock in the morning and worked until 4:30 in the afternoon, which was the regular quitting time. On that day the temperature, during the period of time from 7:30 o'clock A.M. to 4:30 o'clock P.M. ranged from 26 to 36 degrees Fahrenheit at the Chicago Municipal Airport. The United States Government records of the Weather Bureau, which were introduced in evidence, showed that while at 7:30 A.M. and 8:30 A.M., the temperature stood at 26 degrees, by 9:30 A.m. it had risen to 28 degrees; by 10:30 A.M. to 30 degrees; by 12:30 P.M. to 31 degrees; by 1:30 P.M. to 36 degrees, where it remained unitl 3:30 P.M.; and that at quitting time, 4:30 P.M., it was 34 degrees.

Defendant in error noticed nothing unusual about himself on that day until just before quitting time when he felt a pain in his foot. He worked all day Friday and Saturday, January 19 and 20, and on both days, while his foot gave him no trouble in the morning, the toes started aching in the afternoon. On Monday morning, the 22nd, he came to work as usual at 7:30. The pain started about 9 o'clock, but he continued working until 10, when it became so severe that he had to leave the job and go to a doctor. He called up his employer from the doctor's office and told him that he had got sick and that the doctor reported he had frozen toes. This doctor, Dr. Kaiserman, treated him until April 13, 1945. On that date he was examined by Dr. Hans W. Staple, who treated him until July 13, 1945, when the first and fourth toes on his right foot were amputated by Dr. de Takats. Defendant in error has never returned to work since leaving the job on January 22, 1945.

Dr. Staple testified that he first saw and examined defendant in error on April 13, 1945; that he noticed there had been a little blister on the first toe of his left foot, which had opened and showed the signs of a beginning necrosis, that his fourth toe showed signs of a rather progressed necrosis and the fifth toe was red and showed the signs of a beginning necrosis; that he first considered it only a frostbite, but as the case progressed he diagnosed it as Buerger's disease; that Buerger's disease is a slow disintegration of the small vessels of the ends of the extremities; that he was sure defendant in error was afflicted with this disease on January 18, 1945, and, in his opinion, had been so afflicted for a number of years; that extreme cold is one of the principal precipitating causes for necrosis in persons who are afflicted with Buerger's disease and that if a person with Buerger's disease has his extremities exposed to extreme cold, the necrosis can easily set in. He further testified that he treated defendant in error from April 13, 1945, until the following July, and that his condition at first improved, but later, when the necrosis did not heal and his pain again increased he advised him to see Dr. de Takats; that on July 13, 1945, Dr. de Takats amputated defendant in error's first and fourth toes. Dr. Staple also testified that the progress of Buerger's disease depends on the individual, it may get worse or it may stop, it is different in every case; that if there is difficulty it usually is intermittent limping and ulcerations; that if a person does not have this limp from the disease, he may get ulcers or may just get a pallor or a redness of the toes; that anything is possible as a consequence of an occlusion of the providing vessels in the foot.

The question in this case for determination is whether under the law it has been shown that defendant in error suffered an accidental injury arising out of and in the course of his employment.

To entitle a workman to an award of compensation his injuries must result from an accident both arising out of and in the course of his employment. The two elements must coexist. Scholl v. Industrial Comm., 366 Ill. 588, 10 N.E.2d 360, 112 A.L.R. 1254. Neither, alone, is enough. They must be concurrent and simultaneous. The one without the other will not sustain an award. Math Igler's Casino, Inc. v. Industrial Comm., 394 Ill. 330, 68 N.E.2d 773. It is not easy, nor is it necessary to the determination of the present case, to give a comprehensive definition of the words ‘arising out of and in the course of the employment’ which accurately includes all cases embraced within the act and with precision excludes those outside its terms. An injury is received in the course of the employment when it comes while the workman is doing the duty which he is employed to perform. The words ‘in the course of the employment’ relate to the time, place and circumstances under which the accident takes place. Illinois Country Club, Inc. v. Industrial Comm., 387 Ill. 484, 56 N.E.2d 786;Scott v. Industrial Comm., 374 Ill. 225, 29 N.E.2d 93. An accident arises in the course of the employment when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in soing something incidental thereto. Great Atlantic & Pacific Tea Co. v. Industrial Comm., 347 Ill. 596, 180 N.E. 460, 83 A.L.R. 1208.

The term ‘arising out of the employment’ as used in the act points to the origin or cause of the accident. Klug v. Industrial Comm., 381 Ill. 608, 46 N.E.2d 38. It presupposes a causal connection between the employment and the accidental injury. This court has in a number of cases announced the rule to be that an injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident to the work and as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment. But the rule excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workman would have been equally exposed apart from...