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Vaught v. Industrial Com.





APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding.


Rehearing denied September 29, 1972.

The principal issue in this appeal is the determination of the proper method of ascertaining the petitioner's annual earnings under the provisions of section 10 of the Workmen's Compensation Act (Ill. Rev. Stat. 1967, ch. 48, par. 138.10) for the purpose of computing the applicable compensation rate as provided in section 8(b) of the Act. Ill. Rev. Stat. 1967, ch. 48, par. 138.8(b).

The petitioner, Henry L. Vaught, a married man with five children under the age of 18, was employed full time as a welder by General Motors Corporation. His earnings as a welder were in excess of $140 per week. In addition to this employment, he held a regular part-time job on weekends as a cabdriver for respondent Yellow Cab Company, and had been so employed for 13 years. He worked as such cabdriver on Friday night, Saturday night and sometimes on Sunday night of each week. He had no fixed hourly wage, his earnings were in excess of $20 per day, and he worked on an average of from 2 to 3 days per week.

After a hearing on his application for compensation, the arbitrator made the following award to the petitioner: $49 per week for 143 1/2 weeks based upon 60 weeks for disfigurement to the face, 23 1/2 weeks for 10% loss of use of the right arm and 60 weeks for 30% loss of use of the right leg, and the further sum of $119 for necessary medical expenses.

On review, which was requested by both parties, the Industrial Commission sustained the compensation rate of $49 per week, held applicable by the arbitrator, and reduced the remainder of the award to 80 weeks based upon $49 per week for 20 weeks for the fracture of a facial bone, and $49 per week for 60 weeks for 30% loss of use of the right leg, and awarded the further sum of $1,149 for reimbursement of necessary hospital and medical expenses. The portion of the arbitrator's award for temporary total disability, for disfigurement to the face, and for permanent injury to the right arm, was set aside.

The circuit court of Cook County thereafter reversed the Commission in part. It reinstated the arbitrator's award for 9 weeks temporary total disability, set aside the Commission's award for 20 weeks for a facial fracture, restored the arbitrator's award for 60 weeks for disfigurement, and confirmed the decision of the Industrial Commission in all other respects, including its finding that the minimum compensation rate of $49 per week was applicable.

It was stipulated by the parties that the respondent, Yellow Cab Company, operated 365 days a year; that most of its driver-employees work 5 or more days per week; that drivers who work less than 5 days per week are regarded as part-time employees; and that all driver-employees earned in excess of $20 per day.

On December 24, 1967, the petitioner was injured while driving a cab for the respondent. He received immediate emergency room care at Mt. Sinai Hospital, was X-rayed and then released by his attending physician, and was instructed to see a specialist for further medical care for his jaw, which had been fractured.

The petitioner testified that later the same day he was admitted to Little Company of Mary Hospital where he was again examined. His fractured jaw was set by wiring his mouth closed. Three teeth loosened by the accident were removed by Dr. Curth, an oral surgeon. He was given medication and blood plasma and remained hospitalized for four days. His testimony indicated no other injuries or medical treatment at that time.

Following his release from the hospital, he saw Dr. Curth at his office from time to time until he was discharged. He returned to his full-time employment with General Motors Corporation, and continued to work in that capacity.

At the arbitration hearing, the petitioner testified that he frequently had headaches, and had cramps on the right side of his face. He had then regained only 8 to 10 of the 20 pounds in weight which he had lost after the accident. Four of his teeth had been knocked out in the accident, and later three more had to be pulled. He complained of insomnia, and of trouble in the lower part of his back. He also stated that his arm, elbow and right shoulder were frequently sore and stiff when he awakened in the morning. He testified further that upon walking two or three blocks, his right leg, in the groin area, and his knee and the ankle would "just give way on me," and sometimes he had to return by cab from a store which was located only four blocks away. He said he had none of these complaints before December 24, 1967.

On cross-examination, the petitioner admitted that five years prior to this accident an automobile in which he and his wife were riding had been struck in the rear by a bus, and that he had received "a couple of shots" for back pain, which never recurred. He also related that he had been in another automobile accident in 1952 or 1953, and that both his arm and back were hurt at that time, but that the pain which he then experienced in his back never recurred.

In addition to the petitioner's testimony, two medical reports by Dr. Michael I. Reiffel, dated January 22, 1968, and May 24, 1968, were introduced in evidence. The report of January 22 concerned an X-ray examination. It indicated evidence of fractures in the mid-region of the lower jaw, and a fracture of the vertical ramus of the right jaw. X rays of the spine indicated some scoliosis to the right and "a definite increase in the normal lordotic curvature * * * rendering this lumbo sacral region unstable and sensitive to injury." The report stated further: "Traumatic aggravation here could precipitate considerable low back pain."

Dr. Reiffel's report on May 24 described his findings after re-examining the petitioner. A scar on the left side of the petitioner's face was noted which caused some distortion "on smiling and pursing of the lips." Other tests performed indicated pain in the lower lumbar area and that flexion of the spine was so restricted that the tips of the petitioner's extended fingers could only reach a ...

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