183 N.E. 220 | Ill. | 1932
The defendant in error, Jack J. Cobine, an employee of the Stocker Plumbing and Heating Company, was injured on June 18, 1929, while engaged in laying a sewer drain. His employer voluntarily paid him compensation at $14 a week for four weeks. Dr. Barton, his attending physician, discharged him as recovered about the 15th day of August. An application for adjustment of claim under the Workmen's Compensation act was filed by Cobine on September 14, 1929. It was stipulated before the arbitrator that at the time of the injury the parties were operating under the provisions of the act; that Cobine sustained accidental injuries which arose out of and in the course of his employment; that his earnings during the year preceding the injury were $1456 and his average weekly wage was $28; that the sum of $56 had been paid on account of the injury, and that the questions in dispute are the nature and extent of the disability and compensation due, if any, and "the question of medical." The arbitrator awarded *386 compensation in the sum of $14 per week for a period of 267-6/7 weeks and thereafter a pension of $25 a month during Cobine's lifetime. On review the Industrial Commission held that Cobine sustained accidental injuries which arose out of and in the course of his employment but that he did not, as a result of the accidental injury, sustain any disability for which compensation is payable. The cause was taken to the circuit court by certiorari and the decision of the Industrial Commission was confirmed. This court denied a petition for a writ of error at the December term, 1930. On February 11, 1931, Cobine filed an application under paragraph (h) of section 19 of the Compensation act, alleging that his disability had recurred and increased subsequent to his injury. At the hearing his employer moved to dismiss the petition on the ground that Cobine's condition had been judicially determined not to be the result of the injury sustained by him in June, 1929, that such determination is res judicata, and that there was nothing for the commission to review.
On the original hearing before the arbitrator the medical testimony showed that Cobine was suffering from abdominal distention and pain. On the last hearing before the commission he offered testimony tending to show that he had done no physical labor and had been paid no money since the hearing on his original petition, and that shortly before September 3, 1930, he suffered from vomiting, loss of appetite and gas in the abdomen. Dr. J.P. Hale diagnosed the condition as due to an obstruction in the bowels and advised Cobine to undergo an operation. He was taken to the hospital on a stretcher on September 1, 1930, in an emaciated condition. His abdomen was semi-rigid and tender throughout, with maximum tenderness in the lower portion. Dr. Duff Allen, who performed the operation, testified that the caecum and ascending colon were bound with adhesions which were very tough and had to be divided by sharp dissection. The adhesions about the ascending *387 colon were unusually strong and it was necessary to cut across them with scissors. Such adhesions would produce pain and interfere with peristalsis of the abdomen. Both Dr. Allen and Dr. Hale attributed the adhesions around the ascending colon to the injury Cobine had received. The employer objected to this testimony, and, having elected to stand by its motion to dismiss the petition, introduced no evidence. The commission held that it was without jurisdiction to entertain the petition and allowed the motion to dismiss. A writ ofcertiorari was sued out of the circuit court of Madison county, and that court set aside the decision of the commission and awarded Cobine compensation in a lump sum of $3750. A writ of error is prosecuted to review that judgment.
Upon a hearing under the provisions of paragraph (h) of section 19 the only permitted inquiry is whether or not the disability has subsequently recurred, increased, diminished or ended. It was the duty of the Industrial Commission to consider the evidence on the original hearing and any additional evidence which had been offered upon the question of whether or not the condition existing at the time of the original hearing had changed. (Belleville Brick Co. v. Industrial Com.
The commission's finding in the original proceeding that Cobine did not sustain any disability for which compensation was then payable was referable to the condition existing at the time of the hearing. It was admitted he had received injuries which arose out of and in the course of his employment and had been paid $56 on a basis of $14 per week. A somewhat similar situation arose in Donk Bros. Coal Co. v. Industrial Com.
The circuit court was right in holding that the Industrial Commission had jurisdiction to entertain Cobine's petition under paragraph (h) of section 19, but it was in error in making a lump sum award. The statute contains no provision authorizing the circuit court to make an award in a lump sum. That can be done only by the commission upon a petition of the employer, employee or beneficiary, and it must be shown that it is to the best interests of the parties that compensation should be so paid. The amount to be paid is determined by a mathematical formula set forth in section 9 of the Compensation act. The circuit court should have remanded the cause to the commission, with directions to conduct a hearing on the petition in accordance with the provisions of the statute.
The judgment of the circuit court is therefore reversed and the cause is remanded to the circuit court, with directions to remand it to the Industrial Commission for further hearing and proceedings in conformity with the views herein expressed.
Reversed and remanded, with directions. *390