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Shell Oil Co. v. Industrial Com.

OPINION FILED MARCH 17, 1954

SHELL OIL COMPANY, PLAINTIFF IN ERROR,

v.

THE INDUSTRIAL COMMISSION ET AL. — (CLETUS C. BECK, DEFENDANT IN ERROR.)



WRIT OF ERROR to the Circuit Court of Madison County; the Hon. QUINTEN SPIVEY, Judge, presiding.

MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 19, 1954.

Cletus C. Beck filed his application for adjustment of claim for an accidental injury suffered by him at his employers' plant in Wood River on April 11, 1950. According to the application, the respondent, hereinafter called claimant, at the time of the accident, while dismantling pipe, slipped and fell to the floor, injuring the lower part of his back and left leg. An arbitrator heard the case and found that an accidental injury arising out of and in the course of employment had occurred, that surgical and hospital services were not provided, and awarded the respondent the sum of $779 for medical, hospital and surgical services, that total temporary disability had been suffered and awarded compensation for a period of 67 5/7 weeks from the date of injury, and that the sum of $853.60 had been paid by the petitioner to claimant, and that the petitioner was entitled to credit for such payment. There was no finding that permanent disability had been suffered as a result of the accident for which compensation was payable. The Industrial Commission confirmed the award of the arbitrator. The circuit court of Madison County confirmed the award of the Industrial Commission and in addition thereto found that as a result of the accidental injury the claimant had suffered a fracture of the body of the fourth and fifth lumbar vertebrae, resulting in a loss of function of the back under the provision of paragraph (d) of section 8 of the Workmen's Compensation Act, (Ill. Rev. Stat. 1949, chap. 48, par. 145,) and claimant is entitled to receive from petitioner the sum of $24 per week for a period of 60 weeks.

The petitioner contends (1) that the circuit court erred in holding that Beck suffered an accidental injury resulting in a fracture of the body of the fourth and fifth lumbar vertebrae for the reason that the provision of paragraph (d) of section 8 of the Workmen's Compensation Act only applies where the vertebrae are fractured by the accident and has no application where the accident causes no fracture of the vertebrae, hence the circuit court erred in holding that the employee suffered an accidental injury resulting in a fracture of the fourth and fifth lumbar vertebrae, because a deliberate cutting away or invasion by a surgeon of a part of an uninjured vertebrae to perform an operation does not constitute a fracture within the meaning of said paragraph (d) of section 8 of the Workmen's Compensation Act; (2) that there is no evidence in the record to show that claimant has any loss of function of the back as a result of the operation as required by the Workmen's Compensation Act; (3) that the evidence does not disclose the extent of loss of function of the back and the award cannot be sustained; (4) that the evidence fails to disclose that claimant was temporarily totally disabled for a period of 67 5/7 weeks; and (5) that there is no competent medical testimony showing that claimant's disability was caused by any accident arising out of and in the course of claimant's employment by petitioner.

From the time of passage of the Workmen's Compensation Act in 1913 and up until 1945, paragraph (d) of section 8 of the statute was and still remains the paragraph under which permanent partial disability is receivable. However, until 1945, in order to recover thereunder there must have been proof of a loss of earning capacity, apparently commonly referred to as "wage differential." The legislature in 1945 amended the statute by adding thereto the following proviso which, as amended in 1949, reads as follows: "Provided, however, if no compensation is awarded under the foregoing provisions of this paragraph, and when an accidental injury has been sustained which results in a fracture or fractures of the body or bodies of one or more vertebrae resulting in a loss of function of the back, compensation may be allowed for a period not to exceed sixty (60) weeks in addition to compensation for temporary total disability, such compensation to be in lieu of all other compensation specified hereinbefore by this paragraph."

The purpose of this statute apparently was to take care of a situation where even though the injured person might suffer no "wage differential" by reason of the fracture, he could still have a recovery of compensation as a result of a fracture. It is this provision of the statute that the circuit court of Madison County held applicable to the facts in this case, and under which it, contrary to action of the arbitrator and Industrial Commission, awarded the claimant compensation in the amount of $24 for a period of 60 weeks.

The facts in reference to the fracture in question are not disputed. No fracture of the fourth and fifth lumbar vertebrae occurred at the time of the alleged accidental injury, but only when Dr. Fritsch, assisted by Dr. Kelley of the Shell Company, performed an operation on the claimant in order to relieve a condition caused by ruptured intervertebral disc or herniated disc, which, according to a diagnosis made by Dr. Fritsch, was a condition from which the respondent was suffering. In performing this operation, Dr. Fritsch and Dr. Kelley, in order to remove the ruptured intervertebral disc, found it necessary to break off a piece of bone of about three fourths of an inch of the fourth vertebra of the respondent, and a bony ridge, about the size of a half dollar was broken off the fifth vertebra in the course of the operation. It is these fractures for which the circuit court of Madison County held the claimant was entitled to recover. This action on the part of the court is one of the assignment of errors alleged to have been committed by said court.

In support of its contentions petitioner urges that inasmuch as the legislature in including the questioned language was amending an act dealing solely with accidental injuries, it is to be assumed that they were dealing with accidental fractures. Furthermore, petitioner contends that the word "fracture" is used in its ordinary sense as an accidental breaking of bone as opposed to a surgical cutting away of a part of the bone. It is interesting to note, however, that the language of this section while referring specifically to "accidental injuries" does not specify that the fracture or fractures be themselves accidental. The section states only, "when an accidental injury has been sustained which results in a fracture or fractures of the body or bodies of one or more vertebrae resulting in a loss of function of the back, * * *." It has been held in this State that the employer is liable under the Workmen's Compensation Act for all injuries and disabilities directly traceable to the accidental injury without any independent intervening cause to break the chain of causation. (Lincoln Park Coal and Brick Co. v. Industrial Com. 317 Ill. 302, and cases cited therein.) In those cases where this rule has been announced the facts have indicated that but for the accidental injury the ensuing injuries or disabilities would never have resulted. The record here indicates clearly that the operation performed on Cletus C. Beck was necessary to relieve a condition resulting from his accidental injury. Consequently, but for the accidental injury it would have been unnecessary to remove part of the two vertebrae.

The Workmen's Compensation Act is a humane law of remedial nature, and wherever construction is permissible its language is to be liberally construed to effect the purpose of the act. (City of West Frankfort v. Industrial Com. 406 Ill. 452; Lambert v. Industrial Com. 411 Ill. 593.) The purpose of the act is that the burdens of caring for the casualties of industry should be borne by industry and not by the individuals whose misfortunes arise out of the industry, nor by the public. Every injury sustained in the course of the employee's employment, which causes a loss to the employee, should be compensable. (Petrazelli v. Propper, 409 Ill. 365; Lambert v. Industrial Com. 411 Ill. 593.) A fracture is the act of breaking, or state of being broken; rupture, as of material, by a break through the entire thickness; breach, or that which is produced by breaking; a crack, or cleft. (Webster's New International Dictionary, 2nd Edition.) Nothing in the definition of "fracture" requires that it be accidentally caused. It can be intentional. Moreover, while it is ordinarily thought of as a breaking, a liberal construction would include a surgical cutting or cleavage. Since we must apply a liberal construction to effectuate the purposes of the act, it is axiomatic that a surgical removal of part of a vertebra, when necessitated by an accidental injury, would constitute such a fracture as would be compensable under the terms of this act, providing all other requirements are met.

The petitioner urges that before a compensation for permanent disability can be allowed under this section, it is required that the proof show a loss of function of the back by reason of the fractured vertebrae, and this record contains no evidence of such a loss.

Dr. Kilian Fritsch, who examined and treated Beck, and who performed the operation upon the claimant's spine, testified that subsequent to the injury he examined claimant on June 23, 1950, in September, 1950, and in November and December of 1950. At these times there was good motion of Beck's back, but he developed some limitation of motion in the lumbar spine in February, 1951. On the basis of several related symptoms he made a definite positive finding of a ruptured disc and operated on March 10, 1951, to correct the situation. As a result of the operation claimant no longer complains of terrible pain in his back and leg, but there is stiffness in the lumbo sacral area. Subsequent to the operation, the doctor examined claimant on July 11, 1951, and for the first time made a positive finding of limited motion of the spine. The doctor testified that prior to the operation it was his impression that pain was causing all of the trouble experienced by the claimant.

Dr. Joseph Mira, called by the petitioner, treated claimant as a result of this injury. He testified that he examined claimant several times, the last time being on February 8, 1951. He found there to be good motion of the lumbosacral spine, and the patient was able to get his hands within 8 inches of the floor.

The record shows that at the time of the hearing before the arbitrator claimant was able to bend and to lower the tips of his fingers only to within 24 inches of the floor. Cletus Beck testified that his back was very tight, that he could bend some, that he had tried mowing the lawn and sweeping, but he gets tired and must sit and rest. Walking up steps bothers him. This testimony by the claimant is competent, since an applicant for workmen's compensation can testify as to his physical condition and whether his injuries cause pain in attempting ...


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