Citations
- 275 Ill. 366
Full opinion text
Mr. Justice Cooke
delivered the opinion of the court:
This writ of error was sued out to review the judgment of the circuit court of Cook county affirming the decision of the Industrial Board of Illinois awarding to Dominick Mustaccio the sum of $4.75 per week for a period of 406 weeks, to be paid by the Simpson Construction Company, plaintiff in error.
On October 16, 1913, Dominick Mustaccio was in the employ of plaintiff in error as a hod-carrier on a building which it was constructing in the city of Chicago. While Mustaccio was at work, a board about fourteen feet long, one foot wide and seven-eighths of an inch thick fell from the fourth story of the building and struck him on the left hip, resulting in an injury. Mustaccio at that time was earning $17.60 per week. Plaintiff in error after the injury paid him compensation at the rate of $8.80 per week for ten weeks, according to the provisions of the Workmen’s Compensation act. At the end of that time, on December 23, 1913, the plaintiff in error ceased making these payments. On March 14, 1914, Mustaccio filed his application with the Industrial Board for an adjustment of his claim for compensation, alleging that the nature of his injury was a broken thigh-bone and that temporary total disability had not yet passed away. The matter was submitted to a committee of arbitration, and on June 3, Í914, the committee of arbitration found that Mustaccio was not entitled to receive or recover any amount from plaintiff in error. On June 15, 1914,' Mustaccio filed a petition with the Industrial Board for a review of the decision of the committee of arbitration. Thereafter he filed a statement of facts shown by the evidence heard before the arbitration committee. From this it appeared that the evidence produced by Mustaccio before the committee of arbitration was to the effect that he had sustained an injury to the cartilage involving the hip. A hearing was had by the Industrial Board, at which additional testimony was produced by both Mustaccio and plaintiff in error. On August 6, 1914, the Industrial Board confirmed and approved the finding of the committee of arbitration. On September 8, 1914, Mustaccio filed a petition with the Industrial Board praying that the decision of August 6, 1914, be vacated and set aside. On December 31, 1914, that petition was dismissed. On April 30, 1915, Mustaccio filed another petition with the Industrial Board seeking a review of the decision of August 6, 1914, under the provisions of paragraph (h) of section 19 of the- Workmen’s Compensation act, in which it was alleged that the disability of Mustaccio had increased or recurred. Plaintiff in error moved to dismiss this petition on the ground that the board had no jurisdiction to hear the matter, and decision on that motion was reserved until the testimony should have been heard. Evidence was then heard on behalf of both parties, and on August 9, 1915, the Industrial Board denied the motion to dismiss the petition and found that the injury to Mustaccio on October 16, 1913, was caused by a fracture of the fifth lumbar vertebra ; that he had been unable to follow his usual occupation since the time of the injury; that the disability had recurred and that the sanie is partial and permanent, and that he should have $4.75 per week for a period of 406 weeks. These proceedings were reviewed in the circuit court of Cook county by certiorari, where the decision of the Industrial Board was affirmed.
Plaintiff in error contends that the Industrial Board was without jurisdiction to make the award of August 9, 1915, and that the motion of plaintiff in error to dismiss the petition should have been allowed, and that in making such award the Industrial Board acted in excess of its jurisdiction and without legal evidence to support it.
Paragraph (h) of section 19 provides that an agreement or award under the act providing for compensation in installments may, at any time within eighteen months after such agreement or award, be reviewed by the Industrial Board at the request of either the employer or employee on the ground that the disability of the employee has subsequently recurred, increased, diminished or ended, and on such review compensation payments may be re-established, increased, diminished or ended. After the injury to Mustaccio plaintiff in error voluntarily made payments, under the provisions of the act, for a period of ten weeks. After plaintiff in error ceased making these payments Mustaccio had the right to make application to the Industrial Board for an adjustment of his claim for compensation, and if he had been able to show that the disability continued he would have been entitled to have compensation awarded him. He pursued this course and the case was fully presented to the committee of arbitration and later to the Industrial Board, resulting in a finding on August 6, 1914, ■that he was not entitled to receive or recover any amount from plaintiff in error. Mustaccio abided this decision of the Industrial Board and sought no review by certiorari under the provisions of the act. Paragraph (/) of section 19 of the Workmen’s Compensation act provides as follows: “The decision of the Industrial Board, acting within its powers, according to the provisions of paragraph (