Pocahontas Mining Co. v. Indus. Comm'n

Decision Date22 February 1922
Docket NumberNo. 14332.,14332.
Citation301 Ill. 462,134 N.E. 160
PartiesPOCAHONTAS MINING CO. v. INDUSTRIAL COMMISSION et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to Circuit Court, St. Clair County; George A. Crow, Judge.

Proceeding under the Workmen's Compensation Act by John Delaurenti, employee, to recover compensation for personal injuries, opposed by the Pocahontas Mining Company, employer. An award of compensation by the Industrial Commission was affirmed by the circuit court, and the employer brings error.

Reversed and remanded, with directions.

Court of Appeals of New York. per cent. of the use of his arms when the incompetent testimony as to the percentage of loss of use was eliminated.R. W. Ropiequet and W. C. Ropiequet, both of St. Louis, Mo., for plaintiff in error.

A. W. Kerr, of Chicago, and J. A. Londrigan, for defendant in error.

George B. Gillespie, of Springfield, and L. V. Hill, of Hillsboro, amici curiae.

DUNCAN, J.

On application for adjustment of his claim for injury in the mine of plaintiff in error, which he received on October 5, 1918, while employed as a shot firer, John Delaurenti, was on April 19, 1919, awarded, by the arbitrator $15 per week for 22 weeks for temporary total incapacity, amounting to $330, all of which was then due, and was paid by plaintiff in error. The arbitrator further found that he had sustained a permanent loss of 25per cent. of the use of each of his arms and a permanent loss of 25 per cent. of the sight of each eye, and allowed him a further sum for such loss of his arms and his sight of $15 per week for 150 weeks, and also found that the sum of $75 was then due for such loss of sight and use of his arms, and that the remainder thereof should be paid in weekly installments, beginning with April 26, 1919. On a review the Industrial Commission confirmed the award October 2, 1919, merely finding that in the opinion of the Commission the findings and award of the arbitrator were correct. The Commission declined to consider the petition of plaintiff in error to suspend the payment of such compensation for failure of defendant in error to accept medical treatment tendered him for his injuries, on the ground that under its rulings compensation must be paid up to the filing of such petition, which was not done. The record of the proceedings of the Commission was quashed in certiorari proceedings before the circuit court of Bond county, and the cause was remanded for further evidence. Further evidence was heard, and the Commission again declined to consider the petition to suspend the compensation of defendant in error, and declined to require him to be examined by the medical director of the Commission, or by any physician selected by it, at the expense of plaintiff in error, and allow the report of such physician to be incorporated in the record as evidence. On July 2, 1920, the Commission made the same findings and in the same words as in its previous findings, and confirmed the award of the arbitrator. On June 23, 1921, the award of the Commission was approved and confirmed by the circuit court of St. Clair county, and a writ of error was allowed by this court.

The evidence in the record bearing on the question of injury to the defendant in error's arms and eyes is in substance the following: He was thrown to the ground in said mine by an explosion, commonly called a ‘windy’ or ‘blown-out’ shot. He sustained burns all over his body. He testified that he lived in Pocahontas, and was 34 years old, and when injured was working as a shot firer. Both of his arms were good arms before the injury. He could handle lumps of coal weighing 100 or 125 pounds, and shovel coal as well as any man. He could handle and put up top pieces and heavy timbers five feet long and a foot square when he worked as a timberman. The fire from the explosion left scars on his elbows. His head was swelled considerably from the burns and injuries. The back of his right hand was cracked by the burns, and there was no change in the scar for four months. As a shot firer he had no lifting to do, and his arms would not bother him in shot firing. His eyes were injured also. He never wore glasses before he was hurt, but wears them now because be cannot see where he is going. He can see pretty near, but not, half as far as he could before he was burned and hurt. He does not know people 20 feet away without his glasses. He sees better with them. Before he was hurt he had good eyes, but never had them tested before he was injured. He returned to the mine as timberman for two days, and also worked as a jackman, putting cars on the track with a jack when they got off, and worked there until he was discharged for reasons not connected with his injuries. Over the objections of plaintiff in error he was allowed to testify that he had lost 40 per cent. of the use of each arm and of his sight in both eyes. After the cause was remanded for further evidence he testified that he was not running coal because his arm hurts him. He cannot see without glasses, and they would get dusty in the mine. Before he was injured he could see to write. Now his eyes are not as strong as before, and he cannot see to read or to sign his name without glasses. He cannot see any better than when he appeared at the first hearing. If he takes a hammer and strikes hard with it his arm tingles and hurts him, and he is not strong in his arms, but says his arms are not stiff in any way. He has full use of the joints of his arms and at the elbows and at his shoulders and in his fingers. He runs a soft drink parlor, and lifts cases of near beer with 36 bottles in them, but denies that he lifted half barrels of beer and cakes of ice weighing near 250 pounds.

The testimony of three physicians was to the effect that all the burns on defendant in error were first degree burns except as to the arms, which were second degree burns. There was no swelling or discoloration of the eyelids. They moved normally up and down. There was a superficial scar on the outside of one lid, and the inner lining was moderately chronically inflamed. The conjunctiva of the eyeball (the mucous membrane lining of the eyelid and covering the anterior part of the eyeball) in the lower half of the right eye showed numerous minute, dust-like particles. The eyeballs have normal positions, and move normally in every direction. The cornea of the right eye showed, on examination with a microscope, a small, round, faint, grayish opacity in the area of the pupil, and was an old opacity, probably due to a foreign body located there at one time. The cornea of the left eye showed no signs of disease or injury. The anterior chambers of both eyes were clear and normal. The irises of both eyes were normal in color and structure. The pupils were equal, and normally round. The lens and vitreum were normal. The optic nerve and retina were intact. His eyes showed far-sightedness. The sight of both is equal, six-eighths, and with correcting lenses he had normal vision. He can see at 20 feet what the normal can at 24 feet, caused by far-sightedness, which is not caused by burns or injuries, but by faulty development. The burns all healed with new skin grown, and there are only a few superficial scars on each elbow. The muscles move and act freely. There are no adhesions of the skin to the muscles, and no nerves involved underneath the skin or scars. The skin is freely movable over the tissues and over the muscles below, except in one little spot over one elbow. There is nothing wrong with his eyes due to any burn or injury he received in the explosion. His arms are all healed, and the injury to them was only temporary, and not permanent in any degree.

The blood test of defendant in error showed 3 plus positive, which means a specific or syphilitic condition, specific. Defendant in error made no denial of having such a condition, and, in fact, did not reply to this testimony in any manner. Dr. F. J. Dietz, of St. Louis, Mo., a physician and surgeon, recommended the salvarsan treatment or salvarsan injection for this syphilitic condition, and testified that he was satisfied that it would remedy specifically the trouble that defendant complained of in his eyes and arms, and also testified that there was no danger involved in giving the treatment by an experienced operator. He also stated there might be some danger of giving salvarsan in the hands of an inexperienced operator, as well as to a subject who is not properly prepared. Salvarsan is an arsenic solution held in suspension, or a solution of arsenic and benzol, which is neutralized by adding a solution of water and sodium hydrate and acid. He testified that there are instances where apparent loss of sight of an eye was cleared up by the administration of salvarsan solution, by checking an atrophy of the optic nerve, which adds strength to the eye, but that it will not relieve or restore sight to an eye that is lost. On the hearing plaintiff in error made a distinct offer to defendant in error of the salvarsan treatment by Dr. Dietz, all expenses of hospital treatment to be paid for by plaintiff in error, and without charge of any kind to defendant in error, which offer was refused by defendant in error, as heretofore stated.

Four residents of Pocahontas-Emery A. Rea and Guy Rea, doing a delivery, garage, and draying business, Wiley Paine, village marshal, and Arthur Clark, a coal miner-testified, in substance, to seeing defendant in error handling large cakes of ice weighing from 250 to 300 pounds and half barrels of near beer weighing about 200 pounds by unloading, unassisted, the beer and ice from the rear end of a dray. His manner of doing this was by pulling them out of the dray and easing them to the ground, a distance of 3 or 4 feet, and letting them drop most of the way so as not to be injured thereby. One of these witnesses testified positively that he saw defendant in error lift one of the half barrels of beer and put it into an ice...

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