Florczak v. Indus. Comm'n

• Decision Date: 17 November 1942
• Docket Number: No. 26693.,26693.
• Citation: 381 Ill. 120,44 N.E.2d 836
• Parties: FLORCZAK v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

381 Ill. 120

44 N.E.2d 836

FLORCZAK

v.INDUSTRIAL COMMISSION et al.

No. 26693.

Supreme Court of Illinois.

Nov. 17, 1942.

Error to Circuit Court, Franklin County; Blaine Huffman, Judge.

Proceedings under the Workmen's Compensation Law by John Florczak, employee, opposed by Old Ben Coal Corporation, employer. To review a judgment of the Circuit Court affirming decision of the Industrial Commission denying application for additional compensation and for an allowance for medical care, John Florczak brings error.

Affirmed in part and reversed in part and remanded with directions.M. J. Hanagan, of West Frankfort, for plaintiff in error.

Angerstein & Angerstein, of Chicago, and Williams & Harrison, of Benton (Thomas C. Angerstein, of Chicago, and Carter H. Harrison, of Benton, of counsel), for defendant in error.

MURPHY, Justice.

On January 21, 1931, plaintiff in error, John Florczak, received an accidental injury which arose out of and in the course of his employment with the Old Ben Coal Corporation. While engaged at his employment in loading coal on a conveyor, he was struck on the left leg by a cardox shell, thereby fracturing the femur at about the juncture of the lower with the middle third. He sustained no other injuries that are of any moment on the questions raised.

Plaintiff was given hospital care extending over a period of months and received medical care from Dr. Modert and the employer's physician and surgeon, Dr. MacGregor. Soon after he was taken to the hospital the first time, a serious infection developed in the left leg at the site of the fracture. A discharging sinus followed which would not respond to treatment. Some of the medical witnesses called by plaintiff stated they examined him in April, 1938, and that there was discharge from the sinus on the lateral and anterior side of the left leg, that there was osteomyelitis or inflammatory disease of the femur and that there was systemic infection. A medical witness called by the employer at a hearing before the commission testified he examined plaintiff October 9, 1940, and that he found a small discharging sinus

Immediately following the injury, but without proceedings before the Industrial Commission, the employer began making weekly compensation payments to plaintiff and continued until December 1, 1935. The payments aggregated $3810, which was paid to cover 64 weeks of temporary disability, and a further period of 190 weeks for the loss of the use of the leg. These items of compensation thus paid equalled the amount plaintiff would receive for temporary disability under paragraph (b) of section 8, and the loss of the use of a leg under subparagraph 15 of paragraph (e) of section 8 of the Workmen's Compensation Act. Ill.Rev.Stat. 1941, chap. 48, par. 145.

On the 19th of December, 1935, plaintiff filed application with the Industrial Commission for adjustment of compensation and in it alleged he received an accidental injury to the left leg January 21, 1931. There was no specific allegation in the application that the accidental injury to the left leg and the infectious conditions that followed caused a systemic infection impairing the heart and kidneys and creating an arthritic condition of the back. No reference was made as to the amount of compensation previously paid but under the heading of additional compensation he claimed additional amounts for medical care and attendance and as compensation claimed for 64 weeks at $15 per week for temporary total disability; $15 per week for 416 weeks partial disability and $15 per week for complete and permanent disability, including a pension for life as provided under paragraph (f) of section 8 of the act.

On the 15th of January, 1937, which was before any evidence was taken, plaintiff served a written notice on the employer in which it was stated he needed further medical, surgical and hospital care and surgical treatment to relieve the osteomyelitis or inflammatory disease of the femur and systemic infection and alleged it was caused or brought about by the accidental injury occurring January 21, 1931. The notice contained the further statement that the demand for medical and surgical care was made under paragraph (a), section 8, and unless the employer provided such care within five days, plaintiff would procure same of his own choice but at employer's cost. In plaintiff's brief it is stated that no claim is made for medical, surgical or hospital care accruing on or prior to the date of the giving of said notice.

On the hearings before the arbitrator and commission plaintiff introduced evidence on the theory he was entitled to an additional allowance for hospital care and medical services, notwithstanding he had received first aid under paragraph (a) and full compensation under paragraph (b) and subparagraph 15 of paragraph (e) of section 8 for the injury to the leg and the loss of its use. He also sought compensation under paragraph (f) of section 8 to cover the disability following impairment of the heart, liver, kidneys and the arthritic conditions in the back, all of which he claimed were caused by the infectious conditions at the site of the injury to the leg. The employer's position was that plaintiff was not in need of further hospitalization and medical care, that his disablement was confined to the loss of the use of his leg for which he had received full compensation; and even though he needed further hospital and medical care and had suffered ailments to heart and other organs causing disability aside from the disability from loss of the use of the leg, it was contended the specific loss provision of paragraph (e) of section 8 provided full compensation and he was not entitled to more under paragraph (f) of section 8. It was also contended that soon after the accident an offerwas made by the employer to plaintiff to amputate his left leg which offer he refused and, therefore, any medical or hospital care he may now need or any disability he is now suffering due to the impairment of the heart and other parts of the body, are attributable to his refusal to accept the operation.

On the hearing before the arbitrator, plaintiff testified to the injury, the manner of its occurrence, his hospitalization and his present physical condition. He stated that at times he suffered pains in his back and was troubled with shortness of breath. Drs. Modert, Test and Field were called as witnesses by plaintiff. Dr. Modert had treated him during the several years of his affliction and Drs. Test and Field with Dr. Modert had conducted a physical examination of plaintiff a few days prior to the hearing which was in May, 1938. The substance of their evidence was that plaintiff had osteomyelitis of the bone, some systemic infection, that the sinus infection had developed an arthritus of the back, an enlargement of the glands in the left groin and that he had myocarditis. Some of them testified that he was in need of further hospitalization and surgical care. They were all of the opinion that he was totally incapacitated and that his condition was permanent.

The employer introduced the testimony of its physician and surgeon, Dr. MacGregor, who testified that a few months subsequent to the accident he offered plaintiff an operation and recommended that he have his left leg amputated. In rebuttal plaintiff testified he did not remember of Dr. MacGregor tendering an operation for the amputation of his leg.

The arbitrator found that all necessary first aid, surgical and hospital services had been provided by the employer, that plaintiff was entitled to $15 per week for a period of 64 weeks temporary disability, to the further sum of $15 for a period of 190 weeks for loss of use of the leg, all of which the arbitrator found had been paid and for which the employer was entitled to credit.

On review before the commission further testimony was taken. Plaintiff gave a more detailed description of the pain in his chest and back. The testimony of Dr. Modert was in reference to blood counts and certain analysis of the urine. The evidence of Dr. Moore, called by the employer, was in reference to physical examinations he made of plaintiff in February and April of 1938, and February and May of 1939, and of certain blood counts and urinanalysis made about the same time. He stated there were no abnormal findings, that there was no systemic infection that was involving any organs or parts of the body. In his opinion plaintiff was not suffering any disability other than that which arose from the loss of the use of his leg.

The circuit court of Franklin county on review remanded the cause to the commission with directions to hear such other and further evidence as would be necessary to determine the rights of the parties and by its decision: ‘(1) Determine whether or not the Respondent tendered an operation for the amputation of his leg and the Petitioner declined to undergo a reasonable and safe operation for the amputation of his left leg, and if so whether his subsequent disability to work at a gainful occupation ought or ought not to be attributed to his voluntary...