Franklin County Mining Co. v. Indus. Comm'n

• Decision Date: 28 October 1926
• Docket Number: No. 16891.,16891.
• Citation: 322 Ill. 555,153 N.E. 608
• Parties: FRANKLIN COUNTY MINING CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

322 Ill. 555

153 N.E. 608

FRANKLIN COUNTY MINING CO.

v.INDUSTRIAL COMMISSION et al.

No. 16891.

Supreme Court of Illinois.

Oct. 28, 1926.

Error to Circuit Court, Franklin County; John C. Eagleton, Judge.

Proceeding under the Workmen's Compensation Act by Tony Chestnut, employee, opposed by the Franklin County Mining Company, employer. The circuit court confirmed an additional award of the Industrial Commission, and the employer brings error.

Reversed and additional award set aside.

William W. Hart, of Benton (Samuel A. Harper, of Chicago, of counsel), for plaintiff in error.

A. W. Kerr, of Chicago, and A. C. Lewis, of Benton, for defendant in error.

DE YOUNG, J.

Tony Chestnut filed an application for compensation with the Industrial Commission on July 28, 1922, in which he charged that on June 2, 1921, while employed by the Franklin County Mining Company, he suffered an injury to his leg. The parties stipulated that on June 2, 1921, they were operating under the provisions of the Workmen's Compensation Act; that on that day Tony Chestnut was employed by the Franklin County Mining Company, and received an injury which arose out of and in the course of his employment; that notice of the accident was given, and demand for compensation made, within the time required by the act; that the earnings of the applicant for the year preceding the injury were $1,248, and that his average weekly wage was $24; that he was a single man; that first aid, medical, surgical, and hospital services had been furnished by the employer; and that it had paid the applicant $574 in compensation. On September 8, 1922, the arbitrator awarded him $12 per week for 66 weeks, the period of temporary total incapacity for work, and the further sum of $12 per week for 43 3/4 weeks, in accordance with paragraph (e) of section 8 of the act as amended, because cause the injuries sustained caused 25 per cent. permanent loss of the use of the left leg. Neither party sought a review of the arbitrator's award. Subsequently, on September 25, 1923, Chestnut filed with the Industrial Commission his petition for a review of the arbitrator's award, alleging that since it was made his disability had recurred and increased. A hearing was held on that petition, and on May 7, 1924, the commission by its decision found that the petitioner's disability had recurred and increased since the arbitrator's award, and that as a result he had sustained the permanent loss of the use of 50 per cent. of the left leg. Additional compensation at the rate of $12 per week for 87 1/2 weeks was awarded. On review by writ of certiorari the circuit court of Franklin county confirmed the commission's decision. The company's petition for a writ of error from this court was allowed, and the record is here for review.

The original hearing before the arbitrator occurred on September 8, 1922. Chestnut testified that while he was loading coal for the Franklin County Mining Company on June 2, 1921, a bar on a machine struck his left leg about four inches below the knee, and broke both bones; that he had been treated by two physicians for five months and eight days following the injury; that his leg pained him constantly; that he could not walk over two or three blocks, or stand on his leg for ten minutes, or run; that his leg was crooked and weak, and became progressively worse; that he had not worked since the accident; and that he was unable to work. A physician called by the claimant testified that the tibia had a compound fracture; that an exostosis had been thrown out, which caused the leg to be weak; that nature might obsorb some, but not much, of the callus; that the motion in the ankle and knee joints seemed to be good but that the leg was crooked, and that in his opinion there was permanent disability.

Two physicians were called by the plaintiff in error on the hearing before the arbitrator. One testified that X-ray pictures which he had taken on the day of the accident disclosed a compound, comminuted fracture of the left tibia in the upper third and a transverse fracture of the fibula in the same region. He made another X-ray examination on September 2, 1922, which showed that the union was solid, and that the absorption of callus had just begun. In his opinion there was a good functional recovery. The other physician, who had treated the claimant immediately after he was injured, and occasionally thereafter, found the same fractures. His last examination, made on June 2, 1923, two years after the accident, disclosed a good, firm, bony union, and, while there was some lateral deformity in the leg at the junction of the two fragments, the claimant was, in the physician's opinion, able to work at that time.

The hearing on the petition for review alleging the recurrence and increase of the claimant's disability was held by the commission on April 15, 1924. Chestnut testified that the pain in his leg extended from the ankle to the hip; that he was compelled to rest after walking two or three blocks; that he could not run or lift anything because it hurt him; and that his leg was growing worse. He admitted on cross-examination that at the time of the arbitrator's hearing he could neither run nor lift, and that he had not tried to do any work since that time.

Dr. O. L. Walter testified that on September 20, 1923, he made a physical and X-ray examination of the claimant's left leg; that the examination disclosed a healed fracture, with considerable angulation and deformity about the junction of the upper with the middle third, and a shortening of the leg by half an inch or more, owing to the overlapping deformity of the broken bone ends; that the deformity and shortening affected the functional use of the leg and caused a limp and a tilting of the pelvis to compensate for the shortening; that in time the titlting of the pelvis would cause a bending of the spine, and have a decided effect upon it; that the deformity and angulation caused a strain upon the knee and ankle joints, and that as the claimant's age advanced his leg would become more impaired, functionally. Dr. Walter made another examination on April 15, 1924, which, he said showed the claimant's leg to be in about the same condition as it was when h...