WRIT OF ERROR to the Superior Court of Cook County; the Hon.
DANIEL A. COVELLI, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 29, 1962.
On December 3, 1958, William Fountain filed with the Industrial Commission an application for adjustment of claim against Republic Steel Corporation, alleging that on March 26, 1958, he was injured by reason of an accident arising out of and in the course of his employment in that he sustained a heart attack while at work. At the hearing before an arbitrator it was stipulated that on March 26, 1958, both parties were operating under the provisions of the Illinois Workmen's Compensation Act, and the relationship of employer and employee existed between the parties on that date. It was further stipulated that Fountain's earnings for the year next preceding the alleged injury were $4,784; that his average weekly wage was $92; that on March 26, 1958, Fountain was 50 years of age and had one child under 18 years of age; and that no compensation had been paid on account of the alleged injury.
The arbitrator, after hearing evidence introduced by both parties, found that Fountain failed to prove that he sustained any accidental injury arising out of and in the course of his employment by Republic, and denied the claim for compensation. The arbitrator's decision, which was filed with the Industrial Commission on September 24, 1959, further found no compensation had been paid by Republic, but that Republic had furnished necessary first aid, medical, surgical and hospital services.
On October 7, 1959, Fountain filed his petition with the Commission asking for a review of the arbitrator's decision. On March 11, 1960, the hearing on review was held before the Industrial Commission, at which time the parties stipulated that the record before the arbitrator should be the sole evidence. On June 13, 1960, the Industrial Commission set aside the decision of the arbitrator, and found Fountain did sustain accidental injuries arising out of and in the course of his employment on March 26, 1958, and that he became permanently and totally incapacitated for work. The Commission ordered Republic to pay Fountain $40 per week for 281 weeks, $10 for one week, and thereafter an annual pension for life of $1350, payable in 12 equal monthly installments pursuant to section 8(f) of the Workmen's Compensation Act (Ill. Rev. Stat. 1957, chap. 48, pars. 138.1 et seq.). The Commission further ordered that Republic have credit for all sums of money, if any, previously paid on account of the injury. This order found that on March 26, 1958, Republic was operating under the act, that the relationship of employer and employee existed, that notice of the accident was given within the time required under the act, and contained the same additional findings as to earnings, age and dependency of Fountain and the furnishing by Republic of necessary first aid, medical, surgical and hospital services that the arbitrator had previously found in his order.
On July 1, 1960, Republic filed its petition for a writ of certiorari with the superior court of Cook County, and on October 17, 1960, before any hearing had been had in the superior court, Fountain died. On June 9, 1961, Republic filed a motion suggesting the death and asking the proceedings be abated. Thereafter, on December 1, 1961, a motion was filed on behalf of Bernice Fountain, administratrix of Fountain's estate by appointment of the superior court of Lake County, Indiana, asking leave to substitute the administratrix as petitioner in place of the decedent. Republic filed its answer objecting to the administratrix's motion to substitute and renewing its motion to abate and extinguish the cause of action, and alleging that the widow had filed a petition with the Industrial Commission for death benefits based upon a heart attack sustained by her husband while at work on March 26, 1958. This petition, according to the record, was filed with the Commission on October 16, 1961, less than one year after Fountain's death, and alleges Fountain left surviving his widow (who is the same person as the administratrix) and one child under 18 years of age.
On December 5, 1961, the superior court of Cook County entered an order substituting the administratrix for the deceased Fountain, allowing Republic credit under section 8(j) of the act for $1400 paid by its group insurance plan, and ordering Republic to pay to the administratrix of Fountain's estate the amount of compensation accrued as of October 17, 1960. The order abates any other compensation due under the award, and affirms the order of the Industrial Commission in all other respects. Republic Steel Corporation thereafter filed its petition for writ of error which we allowed, bringing the matter to this court for review.
The record before the arbitrator shows that on March 26, 1958, Fountain started work for Republic at 7 A.M., and was engaged at his regular job of cut-off operator. This involved the operation of a cutting machine which cuts metal pipe into proper lengths as previously designated by the inspection department and sometimes bevels or chamfers the ends of the pipe after cutting. The operator does not handle the pipe before the cutting operation and control buttons on the machine are used by the operator to bring the pipe to the proper place for cutting. After the cutting and bevelling, the operator pushes another control button and the pipe goes back to the skid or cradle which brings the pipe to cutting position. The end pieces cut off the pipe drop into a pan at the end of the machine, and the operator carries these ends to a scrap box. In this case there were two scrap boxes, one about 4 or 5 feet away and the other about 10 feet away. The actual cutting operation is automatic and controlled by pushbuttons. The operator occasionally has to straighten the pipe into position for cutting and for that purpose a turning stick similar to a pick handle is used, but he does not have to pull or lift the pipe. Sometimes the operator has a helper, sometimes not.
The scrap ends picked up by the operator vary in size and length from 3 1/2 inches to 5 feet, and some are so large and heavy it takes two men to handle them. Herbert Williams, general foreman in Republic's tube finishing mill, in charge of the operation where Fountain was working on March 26, 1958, testified that the company records indicate Fountain's machine processed fourteen pieces of 7-inch outside-diameter pipe between 7 and 8 o'clock that morning, the machine operating a half-hour, and the other half-hour being delay time waiting for recuts. Between 8 and 9 o'clock, 4 pieces of 7-inch pipe were cut taking 2/10 of an hour, and the remaining 8/10 of the hour was delay time. The machine did not operate after 9 A.M. until 2 P.M., which was after Fountain had left the area. Williams further testified the records showed that 13 of the 7-inch pipes were .317 gauge, weighing 23 pounds per lineal foot; one piece was .498 gauge, weighing 32 pounds per lineal foot; and 4 pieces were .362 gauge. The machine records were received into evidence after Williams' testimony.
Fountain testified that he was feeling pretty good when he started to work at 7 A.M.; that he had slept well the night before, and had not been sick; that around 9 or 9:30 in the morning he got a sharp pain in his chest while he was bending over picking up scrap pieces of pipe. He had picked up one piece of scrap over 3 feet long weighing 100 pounds or more. He had worked on rejects all morning and estimated he had spent about one hour picking up scrap and either ran the machine or waited for pipe the rest of the time. He had no helper that morning. The pain hit him so suddenly that he dropped the scrap end and straightened up and stood around waiting for the pain to pass. Then he picked up some more scrap, but the pain got worse and he stopped. He tried to find his foreman, Joe Bondi, to tell him he wanted to go home. He couldn't find Bondi, but found Herbert Williams, the general foreman, and told him he did not feel good and wanted to go home. Williams told him to see Bondi first. He then walked about 300 feet and found Bondi, telling him the same thing that he didn't feel good and wanted to go home. Bondi said he would get him a pass. Fountain then went upstairs to change clothes, but the pain was so severe he lay down on a bench. He could not bend over to untie his shoes. Bondi then brought the pass, and Fountain changed his clothes, washed up, and started for the dispensary, since Bondi had told him he would have to check out through the dispensary. He walked about two blocks through the building and another three blocks to the dispensary where he told the nurse he had pains. She got a Dr. Little to examine him, and after listening to his chest with a stethoscope, Dr. Little sent him to the hospital. A company employee drove Fountain to St. Margaret's Hospital in Hammond, Indiana, where he was discharged at the street entrance, rather than the emergency entrance. Fountain then walked into the hospital and checked himself in. He remained in the hospital for 31 days under the care of his personal physician and two other doctors. The hospital records were received in evidence by agreement.
Fountain further testified that while he was off work, he received $42 a week for 26 weeks from Metropolitan Life Insurance Company under the company group health plan, a total of $1092. In September, 1958, he went back to Republic after his doctor released him for light duty, but was told by the nurse there was no light duty available. He neither looked for other work nor worked at any other job after March 26, 1958. He testified that his wife had filled out the group insurance benefit applications, but that he had signed them. He had had no chest pains or difficulty with his heart before March 26, 1958.
The claimant presented the testimony of Dr. George L. Perusse of Chicago, an industrial surgeon and specialist in geriatrics, who examined Fountain on April 2, 1959, including the taking of an electrocardiogram, and compared it with the electrocardiograms taken at the time of Fountain's admission to the hospital. He diagnosed Fountain's condition at the time of the examination as old myocardial infarction, marked coronary insufficiency, with left heart strain, and no cardiographic reserve. In answer to a lengthy hypothetical question, Dr. Perusse expressed the opinion that there was a direct causal connection between the hypothetical individual's present state of ill-being and his exertion of that morning (March 26, 1958). On cross-examination, he testified that lifting one end of a hundred-pound pipe could very definitely be the cause of this heart condition.
The employer's evidence consisted of the testimony of Williams, Bondi and numerous exhibits consisting of the personnel reports of the incident filed by Williams and Bondi, photographs of the machine operated by Fountain and of the cradles or pockets into which the pipe rolls after cutting, the production records of the Fountain machine and others in the group operation for the period from March 19 to March 29, 1958, and Fountain's group insurance application, the latter being employer's exhibit 6.
We have detailed the history of this litigation and the evidence in the record because of the errors assigned by plaintiff in error and its contention that previous holdings by this court have been disregarded or misinterpreted by the Industrial Commission in heart cases and its request that clarifying expression and guidance be given by us. Republic contends in the first place that there was no claim of accident or notice of accident given by Fountain until the filing of the application for adjustment of claim with the Industrial Commission on December 3, 1958. The act (Ill. Rev. Stat. 1957, chap. 48, par. 138.6(c)) provides that no proceedings for compensation shall be maintained unless oral or written notice of the accident is given the employer not later than 45 days after the accident. It is undisputed that Fountain told his foreman, Bondi, the general foreman, Williams, the nurse and the doctor at the company dispensary, and the company employee who drove him to the hospital, that he "didn't feel good," and had chest pains, and wanted to go home. The employer through its supervisory employees knew almost immediately of the physical ill-being of Fountain, and knew he had worked at least 2 to 2 1/2 hours on the morning of March 26, 1958, without complaint. It is true that employer's exhibit 6, being the statement of claim for group sickness benefits, contains only the name, age, address, and date of disablement over Fountain's signature dated 4/14/1958. But we note that immediately below ...