as thus used, means what would be called knowledge in common parlance, and not necessarily the first-hand knowledge of an eyewitness. 10 Ordinarily a third person is permitted to give the notice on behalf of the employee or dependents." 40 [103] C. Claim for Compensation. The statutes ordinarily provide that, in addition to the giving of notice of injury,2 a claim for compensation shall be made,13 and the making of such claim is not excused by ignorance on the part of the employee of the requirements of the statute.44 The necessity for a formal claim may, however, be waived or removed by knowledge on the part of the employer and attempts at settlement, or by denial of liability, or by his acts and attitude showing that it would be unavailing if made.48 And it has been held that its purpose may be fulfilled by the bringing, within the specified time, of a 47 steel; and apparently it was his duty to disclose that knowledge to the employer. In the practical working of the statute he was one of the persons, if not the only one, upon whom the employer would depend for information as to injuries to its workmen. We cannot say as matter of law that the board was not warranted in finding, as it did in effect, that Hedberg's agency was broad enough to make his knowledge of the injury sufficient to prevent the want of a written notice from barring the employee's claim." In re Bloom, 222 Mass. 434, 437, 111 NE 45. 38. Purdy v. Sault Ste. Marie, 188 Mich. 573, 155 NW 597; State v. Rice County Dist. Ct., 131 Minn. 352, 155 NW 103; Allen v. Millville, 87 N. J. L. 356, 95 A 130. a [a] Illustrations.—(1) Where street employee was injured and informed the superintendent of public works of the city, who had charge of work on the streets, the latter mentioning the matter to the board of public works, so that all city officials had notice of the injury, the employee was not barred from obtaining compensation under the act by his failure to give written notice. Purdy v. Sault Ste. Marie, 188 Mich. 573, 155 NW 597. (2) Knowledge of mayor and street commissioner is sufficient where the injury is to employee of city. State v. Rice County Dist. Ct., 131 Minn. 352, 155 NW 103. 39. In re Bloom, 222 Mass. 434, 111 NE 45. 40. Allen v. Millville, 87 N. J. L. 356, 95 A 130. 41. Matwiczuk v. American Car, etc., Co., (Mich.) 155 NW 412. 42. See supra § 102. 43. See statutory provisions; and Ehrhart V. State Industrial Acc. Commn., (Cal.) 158 P 193; Victor Chemical Works v. State Industrial Bd., 274 Ill. 11, 113 NE 173 (holding claim sufficiently established); In re Fierro, 223 Mass. 378, 111 NE 957; Devons v. Anderson, 4 BWCC 354. [1911] S. C. 181; Roberts v. Crystal Palace Football Club, 3 BWCC 51. [a] Distinct injuries.-"Section 16 of the [California] Workmen's Compensation, Insurance, and Safety Act fixes a general limitation of 6 months from the time of the accident within which period application for compensation must be made by the person injured; but section 16 (c) provides that payment of the indemnity or any part thereof or agreement therefor shall have the effect of extending the period within which proceedings for its collection may be commenced 6 months from the date of the agreement or last payment of such indemnity." Under these sections the commission, having awarded claimant compensation for an injured 46 common-law action to recover damages for the in- Claim against city. A statutory provision as to the manner in which claims against a city shall be presented applies to demands against a city by employees under a compensation act.5 53 Under the English practice. A formal claim or request for an arbitration or any commencing of proceedings is not essential; the requirement of a claim may be satisfied by any intimation that a claim is going to be made." Mere notice of injury is not a claim.55 The failure to make a claim is leg, cannot, more than six months | thereafter, award such claimant compensation for injuries to a lung sustained in the same accident, but not previously reported. Ehrhart v. State Industrial Acc. Commn., (Cal.) 158 P 193. [b] Claim against fund.—A dependent who is too late to claim against the employee may claim against a fund awarded in proceedings by other dependents. Smith v. Pearson, 2 BWCC 468. [c] Computation of time within which claim made.-Where a workman who was injured through an accident occurring at eleven-thirty a. m. on Nov. 24, 1908, lodged with his employers a claim for compensation at five-thirty p. m. on May 24, 1909, the claim was made within six months of the accident. Peggie v. Wemyss Coal Co., [1910] S. C. 93. 44. In re McLean, 223 Mass. 342, 111 NE 783. 45. Roberts v. Charles Wolff Packing Co., 95 Kan. 723, 149 P 413. 46. Halverhout V. Southwestern Milling Co., (Kan.) 155 P 916. 47. Ackerson v. National Zinc Co., 96 Kan. 781, 153 P 530. 48. Ackerson v. National Zinc Co., 96 Kan. 781, 153 P 530. 49. Ackerson v. National Zinc Co., 96 Kan. 781, 153 P 530. V. 50. Gailey v. Peet Bros. Mfg. Co., (Kan.) 157 Р 431; Matwiczuk American Car, etc., Co., (Mich.) 155 NW 412. [a] Use of prepared form.-Where the statute did not prescribe the form of application for compensation from the workmen's compensation fund, a claim on one of the forms prescribed by the commission, which did not conflict with the act, cannot be rejected for a defect therein not affecting the merits after the time has expired when a new application could be made. Mercer v. Ott, (W. Va.) 89 SE 952. [b] In Kansas (1) any statement, oral or written, made within the proper time, by which the injured employee makes it known to his employer that he is claiming compensation, is sufficient to comply with the statute. Gailey v. Peet Bros. Mfg. Co., 157 P 431. (2) A recovery is not barred by the failure of the injured employee to make a written demand for compensation within three months after the accident, if an oral demand was made within that time. Knoll v. Salina, 157 P 1167. [c] In Michigan any claim for compensation made within the time limited by the statute, and which fairly gives the employer such information as the law intends, should be deemed sufficient. Shafer V. Parke, 159 NW 304. 51. Matwiczuk v. American Car, 54 etc., Co., (Mich.) 155 NW 412. See In re Fierro, 223 Mass. 378, 111 NE 957 (where the court held that there was no evidence to support a finding of the board that failure to file a claim for compensation within the period prescribed was occasioned by reasonable acts due "to the delay in obtaining the necessary authorization from said widow who resides in Italy"). "We think it too technical to say that a notice and claim made within 24 hours after the accident, caused to be given, as in this case, in behalf of the widow, who could not make the claim herself, because of the distance from where she lived, which action was ratified by her on being advised of the situation, must fail because the ratification did not reach this country within 6 months from the time of the accident. To so hold would not be according to the letter or the spirit of the Employers' Liability Act." Matwiczuk v. American Car, etc., Co., (Mich.) 155 NW 412, 413. 52. In re Lemieux, 223 Mass. 346, 111 NE 782. common course [a] Reason for rule.-"It is common knowledge that the results of physical injuries are very often not determinable at the time they are reof ceived; in the events, a requirement that such result shall be stated is to demand the performance of an impossible thing." In re Lemieux, 223 Mass. 346, 111 NE 782, 783. 53. Knoll v. Salina, (Kan.) 157 P 1167 (holding, however, that, if an action for compensation is brought against a city of the second class on a claim not so presented and verified, a recovery may be had upon it; but no recovery can be had against the city for the costs of the action). See Fry v. Cheltenham, 5 BWCC 162, 105 L. T. Rep. N. S. 495 (holding that the Public Authorities Protection Act, 1893, was not applicable to the workmen's compensation act). 54. Powell v. Main Colliery Co., [1900] A. C. 366, 2 WCC 29 [rev [1900] 2 Q. B. 145, 2 WCC 25]; Luckie v. Merry, [1915] 3 K. B. 83, 8 BWCC 447; Lowe v. Myers, [1906] 2 K. B. 265, 8 WCC 22; Linklater v. Webster, 6 WCC 50; Trenear v. Wells, 3 WCC 58. But see under act of 1897 Maver v. Park, 8 F. (Ct. Sess.) 250: Kilpatrick v. Wemyss Coal Co., [1907] S. C. 320. [a] Circumstances held to estabfish claim.-Allen v. Hoey, 8 BWCC 424. [b] Circumstances held not to establish claim.-Johnson V. Wootton, 4 BWCC 258, 27 T. L. R. 487. 55. Perry v. Clements, 3 WCC 56, 17 T. L. R. 525. 58 60 not a bar to the maintenance of proceedings for compensation if occasioned by mistake,56 absence from the United Kingdom,57 or other reasonable cause." Under the act of 1897 there was no provision for excusing the making of a claim, and the only way in which the necessity could be obviated was by way of estoppel of the employer.59 The amount of compensation demanded need not be specified in the claim." Where the employee has made a claim in his own behalf, his dependents may take advantage thereof without a new claim.61 False statements in a claim are not fatal unless prejudicial. Where payments have been made and terminated, delay on the part of the employee in proceedings to enforce payment will not constitute a bar unless such as to show acquiescence in the stoppage of payments. 62 63 [104] D. Medical Examination of Employee.64 Under some of the acts the employee is required to submit himself to a medical examination at the request of the employer, and a refusal deprives him of the right to compensation pending such refusal.65 Where the alleged accident has resulted in death, the family of the employee are not required to consent to an autopsy." 66 56. Roles v. Pascall, [1911] 1 K. B. 982, 4 BWCC 148; Judd v. Metropolitan Asylums Bd., 5 BWCC 420. [a] What constitutes mistake.Ignorance of the law is not mistake. Judd v. Metropolitan Asylums Bd., 5 BWCC 420. See 57. Dight v. Ship Craster Hall, [1913] 3 K. B. 700, 6 BWCC 674; Smith v. Pearson, 2 BWCC 468. Johansdotter v. Canadian Pac. R. Co., 47 Que. Super. 76 (holding absence in a foreign country an excuse for not filing a claim under the law of Alberta). 58. Sanderson V. Parkinson, BWCC 648. 6 [a] Burden of proof of excuse is on claimant. Smith V. Canadian Northern R. Co., (Man.) 7 West Wkly 596. [b] Matters constituting reasonable cause.-(1) Payment of wages by employer after knowledge of the accident and its circumstances. Luckie v. Merry, [1915] 3 K. B. 83, 8 BWCC 447; Turnbull v. Vickers, 7 BWCC 396. (2) Belief that injury is slight. Coulson v. South Moor Colliery Co., 8 BWCC 253, 112 L. T. Rep. N. S. 901; be suspended until such examination has taken place. There is a similar provision for examination after the employee has given notice of accident.70 Under these provisions the employee must submit to repeated examinations if reasonable.71 Under the National Insurance Act of 1911, the act of an approved society in attempting to limit the doctors. whose certificates may be accepted as proof of incapacity is one which may be inquired into by the courts and is not a mere matter of internal administration.72 In case of industrial diseases under the English act the right to compensation is based on the obtaining of a certificate of a certifying surgeon appointed under the Factory and Workshop Act of the district in which the workman is employed.73 Where the certificate is ambiguous and contradictory, the judge may refuse to act on it. An employee who has been refused a certificate that his disease was due to the employment is not barred from establishing such fact as in ordinary cases. 74 75 Medical referee. Where after a medical examination the parties have been unable to come to an agreement, provision is made by the English act for reference to a medical referee.76 The referee is required to give a certificate as to the condition of the workman and his fitness for employment, specifying, where necessary, the kind of employment for which he is fit, which certificate is conclusive evidence as to the matters certified." This provision applies in like manner where no agreement can be come to between the employer and the workman as to whether, or to what extent, the inca 64. Authority of commission to order see infra § 111. 65. See statutory provisions. [a] Evidence of refusal.-"The claim that petitioner refused to submit to medical examination at the trial is not substantiated. Before prosecutor's physician arrived, petitioner's counsel announced that they would not consent to an examination. but no demand appears to have been made after the physician arrived, and the anticipatory refusal, if it may be so called, did not lead prosecutor to countermand him, for he appeared and was sworn as a witness." Birmingham v. Lehigh, etc., Coal Co., (N. J. Sup.) 95 A 242, 243. Schoon 66. Voorhees V. Smith maker Co., 86 N. J. L. 500, 92 A 280. 67. Workmen's Compensation Act (1906) schedule I (14). of the employer's doctor was not necessarily unreasonable). 68. Harrison v. Dowling, [1915] 3 K. B. 218, 8 BWCC 544 (holding that refusal was not shown); Warby v. Plaistowe, 4 BWCC 67 (holding that a workman could not make it a condition that the examination be at his solicitor's office or in his solicitor's presence); Harding v Royal Mail Ellis V. Fairfield Ship- Steam Packet Co., 4 BWCC 59 (holdbuilding, etc., Co., 6 BWCC 308, [1913]ing that refusal to go to the surgery S. C. 217; Hoare v. Arding, 5 BWCC 36. (3) Belief that nystagmus will be cured by rest above ground. Moore v. Naval Colliery Co., [1912] 1 K. B. 28, 5 BWCC 87. (4) Ignorance of the law is not reasonable cause. Roles v. Pascall, [1911] 1 K. B. 982, 4 BWCC 148. 59. Rendall Hill's Dry Dock. V. etc., Co., [1900] 2 Q. B. 245, 2 WCC 40; Wright v. Bagnal, [1900] 2 Q. B. 240, 2 WCC 36; O'Neill v. Motherwell, [1907] S. C. 1076; Lee v. Cortonwood Collieries Co., 4 WCC 32. 60. Thompson v. Goold, [1910] A. C. 409, 3 BWCC 392 [rev 2 BWCC 166, 25 T. L. R. 163]. 61. Moffat v. Crow's Nest Pass Coal Co., (B. C.) 7 BWCC 1040. 62. Burnham v. Taylor, 3 BWCC 569, [1910] S. C. 705 (names and addresses of former employer in claims for industrial disease). 63. Rankine v. Fife Coal Co., 8 BWCC 401, [1915] S. C. 476. [a] Presence of workman's doctor. -The workman has no absolute right to have his own physician present at the examination, but it is a question of reasonableness in each case. Morgan v. Dixon, [1912] A. C. 74, 5 BWCC 184 [dism app 4 BWCC 363]. But see Devitt v. Steamship Bainbridge, [1909] 2 K. B. 802, 2 BWCC 383 (holding that workman is entitled to demand that his own doctor be present). 69. Harrison v. Dowling, [1915] 3 K. B. 218, 8 BWCC 544 (holding that enlistment in a regiment which was afterward sent to India did not amount to an obstruction). See Baird v. Kane, 7 F. (Ct. Sess.) 461 (holding that refusal to come from Ireland to Glasgow for examination was not unreasonable); Finnie v. Duncan, 7 F. (Ct. Sess.) 254. ers, [1900] 2 Q. B. 91, 2 WCC 130 (under the act of 1897). 71. Smith v. Davis, [1915] A. C. 528, 8 BWCC 313 [aff 7 BWCC 138]; Major v. South Kirkby, etc., Collieries, [1913] 2 K. B. 145, 6 BWCC 169; Longhurst v. Steamship Clement, 6 BWCC 218. 72. Heard v. Pickthorne, [1913] 3 K. B. 299, 6 BWCC N53 [rev 6 BWCC N9]. 73. See Workmen's Compensation Act (1906) § 8; and Mapp v. Straker, 7 BWCC 18 (where right to crossexamine certifying surgeon was considered); Curtis v. Black, [1909] 2 K. B. 529, 2 BWCC 239. [a] Production of certificate at arbitration is sufficient. Taylor v. Burnham, 2 BWCC 247, 46 Sc. L. Rep. 482. [b] Appeal may be taken to medical referee. Birks v. Stafford Coal, etc., Co., [1913] 3 K. B. 686, 6 BWCC 617. 74. Mapp v. Straker, 7 BWCC 18. 75. McGinn v. Udston Coal Co., 5 BWCC 559. 76. Carroll v. Gray, 3 BWCC 572, [1910] S. C. 700 (holding that reference could not be made by an arbitrator where there has been no proof as to the question to be submitted). [a] Privilege. It has been held that the report of a referee is privileged and only for use of the judge. Bowden v. Barrow, 3 WCC 215. [b] Under the act of 1897 the workman was not required to submit himself to an examination by a medical referee where he had submitted to an examination by the employer's physician. Neagle v. Nixon's Nav. Co., [1904] 1 K. B. 339, 6 WCC 140. On arbitration see infra § 108. 77. Wemyss Coal Co. v. Gruden, 6 BWCC 393, [1913] S. C. 534; Sapcote v. Hancock, 4 BWCC 184; Bryce v. Connor, 7 F. (Ct. Sess.) 193; Gourlay v. Ferrier, 39 Sc. L. Rep. 453; Boase Spinning Co. v. McAvan, 38 Sc. L. Rep. 772. See also Chuter v. Ford, [1915] 2 K. B. 113, 8 BWCC 160 (considering the conclusiveness of the certificate in the case of industrial 70. Workman's Compensation Act schedule I (4). See Osborn v. Vick-diseases). 79 pacity of the workman is due to the accident.78 Arbitration proceedings are not barred by the report of a medical referee that incapacity has ceased, and the report of the medical referee does not preclude the taking of proof as to the employee's earning capacity.80 Under the section relating to industrial diseases, the medical referee is limited to determining whether the original certificate as to incapacity was rightly granted.8 81 [105] E. Persons Who May Institute Proceedings. In the absence of provision in the statute to the contrary, proceedings to secure compensation are properly instituted by the person to whom payment is to be made,82 without the qualification or appointment of an executor or administrator,83 or a general guardian; but the act may by its terms indicate that the proceeding is to be instituted by the executor or administrator of the employee in case of death or, if there is none, then by such person as would be entitled to administration.85 Where the employee has made no claim, the insurer of the employer has been permitted to act to secure a determination of the employee's right to compensation.86 96 89 94 [106] F. Agreements as to Compensation. Subject under some of the acts to approval by the court or industrial commission,90 the employee and the employer or the insurer are permitted to settle the right to and the amount of compensation by private agreement.91 By express provision of the act such an agreement when filed with and approved by the industrial board is the legal equivalent of an arbitral award92 and may equally form the basis of a judgment for the purpose of enforcing payment of compensation.93 To have this effect the agreement must not be conditional or contingent." An agreement as to compensation, although approved by the commission, will not deprive the board of further jurisdiction where it is manifestly incomplete.95 To overcome the effect of a settlement the employee may show that it was procured In England a workman desiring to make a claim through fraud. Where an agreement is procured 78. See McGhee V. Summerlee, a minor for workmen's compensation [a] Illustration.-The board is not Iron Co., 4 BWCC 424 (holding that no guardian is necessary, since St. deprived of jurisdiction to hear an the burden of proof of supervening (1915) § 2394-7 subd 2, provides that application for further compensation incapacity due to the accident was on minors legally permitted to work sub- by an approved agreement entered the employee). ject to the workmen's compensation into by the employee while in a hosact (St. [1915] §§ 2394-1 to 2394-96)pital, totally incapacitated for work shall have the same power of con- as a result of a compound fracture tracting for the purposes of the act of the leg, which stated simply the as adult employees. Menominee Bay amount payable under the act for Shore Lumber Co. v. State Industrial total incapacity. Foley v. Detroit Commn., 162 Wis. 344, 156 NW 151. United R. Co., (Mich.) 157 NW 45, 47 (the court saying: "This agreement stated his average weekly wages and provided he should receive one-half of that amount 'per week payable under act.' This was just what the law provided as applied to the undisputed facts and then existing conditions, and nothing more. It did not specify how long such weekly payments should continue, though an intent to cover the period of total incapacity might be inferred. So far as it went it was according to law and fixed a weekly basis of compensation for the ascertained total incapacity. This the board approved. But it made no provision for the unascertained future partial incapacity which might follow the total, or for any lump sum which should be paid in final settlement. The approval by the board of this manifestly incomplete agreement, in view of the time when made and the nature of the injury, did not divest the board of jurisdiction, nor deprive it of its general supervisory powers in material matters necessarily left open for adjustment before final disposition of the case"). 79. Cruden v. Wemyss Coal Co., 6 BWCC 393, [1913] S. Č. 534 (holding that, where a medical referee reports that a person's condition is such that he ought to be fit to resume his ordinary work, the court, on a review, will not hear evidence as to his physical fitness on which point the referee's certificate is final, but will hear evidence as to the person's wageearning capacity); United Collieries v. King, 3 BWCC 546, [1910] S. C. 42. 80. Wemyss Coal Co. v. Cruden, 6 BWCC 393, [1913] S. C. 534; Arnott v. Fife Coal Co., [1911] S. C. 1029, 1262 (where an arbitrator ended the compensation on the ground that the medical referee had certified that the workman was physically fit to resume work and that the certificate was final, and it was held that such certificate, although final as to the workman's physical condition, was not final as to his earning capacity, and the arbitrator must hear evidence on that matter). But see Gray v. Shotts Iron Co., 6 BWCC 287, [1912] S. C. 1267 (holding that, where the referee reports that the employee is fit to resume his work, proof cannot be taken of his earning capacity where the employee asserts that he has gone to work and ascertained that his earning ability is reduced). 81. Garrett v. Waddell, 5 BWCC 507, [1911] S. C. 1168. 82. McFarland v. Central R. Co., 84 N. J. L. 435, 87 A 144. 83. Reimers v. Proctor Pub. Co., 85 N. J. L. 441, 89 A 931. But see Brown v London, etc., R. Co., 1 WCC 147 (where under the English act of 1897, arbitration was adjourned to permit the widow to take out letters of administration). [a] Illustration.-Father of decedent, an unmarried man, may bring proceeding. Reimers v. Proctor Pub. Co., 85 N. J. L. 441, 89 A 931. 84. Woodcock v. Walker, 170 App. Div. 4, 155 NYS 702; Menominee Bay Shore Lumber Co. v. State Industrial Commn., 162 Wis. 344, 156 NW 151. See Kerr v. Stewart, 2 BWCC 454 (holding that guardian ad litem of lunatic defendant should be appointed); Barrie v. Diamond Coal Co., (Alta.) 7 BWCC 1061 (holding that infant should be represented by next friend). [a] Illustration.-In proceedings before the industrial commission by 85. Conners v. Public Service Elec- 87. Allen v. Francis, [1914] 3 K. 88. Bobbey v. Crosbie, 8 BWCC 236, 112 L. T. Rep. N. S. 900; Burnham v. Hardy, 8 BWCC 57, 112 L. T. Rep. N. S. 837. 89. Allen v. Francis, [1914] 3 K. B. 1065, 7 BWCC 779; Rushton V. Skey, [1914] 3 K. B. 706, 7 BWCC 508. 90. See statutory provisions; and Kricinovich v. American Car, etc., Co., (Mich.) 159 NW 362. [a] A settlement receipt in full in order to bar a claim for further compensation must be filed with or approved by the commission. Foley v. Detroit United R. Co., (Mich.) 157 NW 45. 91. Barry v. Bay State St. R. Co., 222 Mass. 366, 110 NE 1031; Pierce v. Boyer Van Kuran Lumber, etc., Co., 99 Nebr. 321, 156 NW 509, LRA1916D 970. 92. Spooner v. Beckwith, (Mich.) 149 NW 971. [a] Illustration.-Where a molder was injured by a splash of molten iron into his right eye, and after ample opportunity for investigation an agreement as to compensation was entered into between him and a casualty company insuring the employer's liability under the workmen's compensation act (Pub. Acts [Ex. Sess. 1912] No. 10), in which it was recited that the nature and cause of injury and ground of claim was molten iron splashed into right eye causing a bad burn in the corner of the eye, such agreement, when approved by the industrial accident board, and an order for compensation entered in accordance therewith, were conclusive as to the cause of the injury. Spooner v. Beckwith, (Mich.) Review of compensation see infra $151. 96. Barry v. Bay State St. R. Co., 222 Mass. 366, 110 NE 1031; Carpenter v. Detroit Forging Co., (Mich.) 157 NW 374. [a] Illustrations.—(1) Where in an action against a railway company for injuries sustained by plaintiff, an employee of a third person, a subscriber under the workmen's compensation act, defendant set up in bar of plaintiff's right to recover an agreement of settlement entered into between plaintiff and his employer, St. (1911) c 751 pt 3 § 4, as amended by St. (1912) c 571 § 9, authorizing such agreements, the filing of same, and the approval thereof by the industrial accident board, plaintiff was entitled to show that the agreement was void and that the board was without jurisdiction because his signature thereto was procured by false representations, although it is the purpose of the statute to give on the understanding that in case the injured employee's condition should not improve the industrial board would see that he received further com pensation, it cannot be regarded as binding on the theory that the employee's mistake was one of law.97 Where the statutes contemplate a hearing on an application therefor with respect to the validity or justice of a compromise, the application may be in the form of an application for an original award.98 A mere formal award on the stipulation of the parties is not a review by the commission precluding a further review under a statute providing that compromises of disputes shall be subject to review by the commission on application made within a year." 99 The English act confers full power on the parties to settle questions as to compensation by agreement, which may be express or implied, although an agreement to continue payments cannot be implied from the fact that the employer makes payments to a workman during a period of clear liability. The act further makes specific and detailed provisions for the registration of a memorandum of any such agreement on which it becomes enforceable, in the manner of a county court judgment. It is a condition to the registration of the memorandum that the registrar be satisfied as to its genuineness and that it represent the agreement actually made. Provision is made for notice to the parties interested' and for a reference to the county court judge in specified cases, such as where it is contended that the workman has returned to work and is earning the same wages as before the accident, or where an agreement as to the payment of a lump sum appears inadequate10 or to have been obtained by fraud, undue influence, or improper Godbolt v. London County Council, 7 8 [1915] S. C. 520. 6. McLean v. Allen Line SS. Co., 5 BWCC 527, [1912] S. C. 256; Hartshorne v. Coppice Colliery Co., 5 BWCC 358, 106 L. T. Rep. N. S. 609; Lunt v. Sutton Heath, etc., Collieries, 4 BWCC 219; Shore v. Steamship Hyrcania, 4 BWCC 207; Maundrell v. Dunkerton Collieries Co., 4 BWCC 76; Pearson v. Babcock, [1913] S. C. 959. such agreements the same effect as 1 [1914] 2 K. B. 257, 7 BWCC 168; | Scott v. Sanguhar, etc., Collieries, a decision of the board. Barry v. Bay State St. R. Co., 222 Mass. 366, 110 NE 1031. (2) Where no deceit was practiced by the insurer's agent in inducing the injured employee to accept certain compensation and the employee, although supposing he was signing a receipt, did not read it or ask to have it read, he could not deny its validity. Winn v. Adjust able Table Co., (Mich.) 159 NW 372. 97. Carpenter v. Detroit Forging Co., (Mich.) 157 NW 374. 98. Menominee Bay Shore Lumber Co. v. State Industrial Commn., 162 Wis. 344, 156 NW 151. 99. Menominee Bay Shore Lumber Co. v. State Industrial Commn., 162 Wis. 344, 156 NW 151. 1. See Workmen's Compensation Act (1906) § 1 (3); and cases infra this section. [a] Consideration.-The receipt of a sum which there is an existing legal liability to pay does not constitute a consideration for a release of future liability. Hughes v. Vothey Quarry Co., 1 BWCC 416. [b] An agreement may be terminated where by its terms it is to continue only until payments are ended in pursuance of the act, and they have been so ended. London, etc., R. Co. v. Taylor, 4 BWCC 11. [c] Under the act of 1897 it was held that the mere fact that the employee returned to work for the former employer amounted to an agreement as to the termination of compensation. Williams v. Vauxhall Colliery Co., [1907] 2 K. B. 433, 9 WCC 120. See Bradbury v. Bedworth Coal, etc., Co., 2 WCC 138 (holding that compensation might be terminated by mutual consent). [d] The provision for the registration of agreements for the redemption of a weekly payment by a lump sum has no application where no weekly payment has ever been made. Ryan v. Hartley, [1912] 2 K. B. 150, 5 BWCC 407. [e] Particular agreements construed-Branford v. North Eastern R. Co., 4 BWCC 84; Rosie v. Mackay, 2 BWCC 150, 46 Sc. L. Rep. 999; Lawrie v. Brown, 1 BWCC 137, 45 Sc. L. Rep. 477; Cleverley v. Gas, etc., Co., 1 BWCC 82, 24 T. L. R. 93. 2. Ferriter v. Port of London Authority, 6 BWCC 732; Baird V. Dempster, 2 BWCC 144, 46 Sc. L. Rep. 119. See Rankine v. Fife Coal Co., 8 BWCC 401, [1915] S. C. 476 (holding an agreement for the termination of compensation not established). 3. Phillips v. Vickers, [1912] 1 K. B. 16, 5 BWCC 23; Hartshorne v. Coppice Colliery Co., 5 BWCC 358, 106 L. T. Rep. N. S. 609; McCarthy v. Stapleton-Bretherton, 4 BWCC 281. 4. Workmen's Compensation Act (1906) schedule II (9); Goodsell v. Sailing Barge Lloyds, [1914] 3 K. B. 1001. 7 BWCC 631; Rex V. Bow County Ct. Registrar, [1914] 3 K. B. 266, 7 BWCC 1001; Bonney v. Hoyle, [a] Agreement not in writing.An agreement to pay compensation under the workmen's compensation act of 1897, although not in writing, may be enforced under the act by lodging a memorandum of agreement and getting the authority of the sheriff to register it in terms of the act; and this may be done, although six months from the date of the accident have elapsed. Cochrane v. Traill, 2 F. (Ct. Sess.) 794. [b] Memorandum of an implied agreement may be registered. Jones v. Great Cent. R. Co., 4 WCC 23. See also Humphreys v. Law Land Bldg. Department, 57 Sol. J. 114 (where an implied agreement was recorded, although incapacity was alleged to have ceased). a [c] The award may be registered instead of a memorandum. Bailey v. Plant, 3 WCC 207, 17 T. L. R. 449. [d] Death of party. When valid agreement for redemption has been come to, the subsequent death of either party does not prevent the agreement from being recorded and SO made binding. Price V. Westminister Brymbo Coal, etc., Co., [1915] 2 K. B. 128, 8 BWCC 257 (where the court held that the right of the workman under such an agreement passed to, and vested in, his administrator). V. 5. McLaughlin V. Pumpherston Oil Co., 8 BWCC 354; Moore v. Pryde, 6 BWCC 384, [1913] S. C. 457; McGuire v. Paterson, 6 BWCC 370, [1913] S. C. 400; Macandrew v. Gilhooley, 4 BWCC 370, [1911] S. C. 448; McCarthy v. Stapleton-Bretherton, 4 BWCC 281; Frogbrook Potts, 4 BWCC 266; Addie v. Coakley, 2 BWCC 437, 46 Sc. L. Rep. 408. [a] Omission from memorandum. -It is no objection to the genuineness of an agreement that it omits to state the payment (in addition) of a sum for costs to the solicitor of the workman. McLaughlin v. Pumpherston Oil Co., [1915] S. C. 65. [b] Inference from receipts.-(1)| The judge is not bound to infer an agreement from receipts for compensation. Madden v. Guest's Executors, [1916] 1 K. B. 76 (where the court declined to infer an agreement). (2) Where a workman who had accepted payments "as the amounts payable under the Workmen's Compensation Act, 1906,' sought to record a memorandum which stated that the employers admitted liability to pay conpensation during his incapacity for work; it was held that the agreement as shown by the receipts was not an agreement to pay during total incapacity only, and that the sheriff was wrong in refusing to record the memorandum as not being genuine. 7. Price v. Westminister Brymbo Coal, etc., Co., [1915] 2 K. B. 128, 8 BWCC 257; Bonney v. Hoyle, [1914] 2 K. B. 257, 7 BWCC 168; Árniston Coal Co. v. King, 6 BWCC 826, [1913] S. C. 892. 8. See Workmen's Compensation Act (1906) schedule II (9). 9. Scott v. Sanquhar, etc., Collieries, 8 BWCC 405, [1915] S. C. 520; Keevans V. Mundy, 7 BWCC 883. See Cunningham v. McNaughton, 3 BWCC 576 (where record was refused because of recovery of employee). [a] Simultaneous application for review.-Where an application by a workman for the recording of an agreement fixing compensation and an application by his employer to have the compensation ended or diminished came before the sheriff at the same time, the sheriff allowed a proof in the application for review. The workman having moved for a warrant to record the memorandum in respect that its genuineness was not disputed and that no other question of fact arose, the sheriff refused the motion and allowed a proof to proceed on the same day as the proof in the application for review. It was held, on appeal, that the sheriff was not bound to grant а warrant to register the memorandum of agreement without awaiting the result of the proof in the_application for review. McVey v. Dixon, [1910] S. C. 544; McEwan v. Baird, [1910] S. C. 436. 10. Rex v. Bow County Ct. Registrar, [1914] 3 K. B. 266, 7 BWCC 1001; Baird v. Ancient Order of Foresters, 7 BWCC 943; McVie v. Taylor, 7 BWCC 891; McGuire v. Paterson, 6 BWCC 370, [1913] S. C. 400; Johnson v. Oceanic Steam Nav. Co., 5 BWCC 322. [a] Adequacy.—(1) The registrar is not bound, before registering a memorandum of agreement under the Workmen's Compensation Act (1906) (6 Edw. 7 c 58) schedule II (9) (d), to institute inquiries to obtain information as to the adequacy of the payment made thereunder, and an agreement so made is binding on the workman, although the injuries ultimately prove much more serious than they were at first supposed to be. McGuire v. Paterson, 6 BWCC 370, [1913] S. C. 400. (2) The registrar must record a memorandum of agreement to redeem weekly payments by a lump sum on being satisfied of its genuineness, or proceed. under the Workmen's Compensation 11 means. Further, the county court judge may at any time rectify the register.12 The powers of the judge on reference are, in general, limited to determining whether the memorandum submitted for registration is one which ought or ought not to be recorded.13 But on an application to record a memorandum of an agreement to pay compensation during total incapacity, where there is a counter application to reduce or to end the compensation, the arbitrator should find as to the wage-earning capacity of the employee.14 In order that the memorandum may be registered: (1) The agreement must be one settling a question as to liability to pay compensation under the act;15 (2) it must be confined to compensation in case of either death or partial or total incapacity;16 (3) the obligation must be limited to an obligation to pay money and must not be contingent on any event other than death or total or partial incapacity;17 and (4) it must be a subsisting agreement under which either arrears or future payments are or may become due.18 Where an agreement is recorded it may be enforced until varied by the recording of another agreement or by a review." On refusal to record a memorandum the agreement is done away with.20 [107] G. Arbitration-1. In General. The British Workmen's Compensation Act contemplates a settlement of disputes arising under its provisions by an arbitrator agreed on by the parties, or, in Act (1906) (6 Edw. 7 c 58) schedule II (9) (d), to ascertain whether the lump sum is adequate. The workman has no right to object to the recording of the memorandum either because the amount named in the agreement is inadequate, or on any other grounds. Rex v. Bow County Ct. Registrar, [1914] 3 K. B. 266, 7 BWCC 1001. 11. Burns v. Baird, 6 BWCC 362, [1913] S. C. 358. 12. Schofield v. Clough, [1913] 2 K. B. 103, 6 BWCC 67 (holding that under this provision there was no power to modify the agreement); McGuire v. Paterson, 6 BWCC 370, [1913] S. C. 400; Schofield v. Clough, 5 BWCC 417. [a] Expunging record. The power given by par 8 of the second schedule to the workmen's compensation act of 1897, to "rectify" the special register appointed to be kept for the registration of memorandums of agreement, does not empower the of agreement between an employer and a workman on the ground that at the date when the memorandum was recorded the workman had completely recovered and was earning on an average as much wages as he did before the accident. Baird v. Stevenson, [1907] S. C. 1259. expunging of a memorandum 13. Mortimer v. Secretan, [1909] 2 K. B. 77, 2 BWCC 446; Halls v. Furness, 3 BWCC 72; McDonald v. Fairfield Shipbuilding, etc., Co., 8 F. (Ct. Sess.) 8; Cammick v. Glasgow Iron, etc., Co., 4 F. (Ct. Sess.) 198; Goffin V. Plummer, 49 L. Jo. 343; McVie v. Taylor, [1914] S. C. 533. See Goodsell v. Sailing Barge Lloyds, [1914] 3 K. B. 1001, 7 BWCC 631 (holding that the judge cannot decline to record an agreement on the ground that the applicant is not a workman). [a] Appeal will lie from a decision. Addie v. Coakley, 2 BWCC 437, 46 Sc. L. Rep. 408; Johnson v. Mew, 1 BWCC 133, 98 L. T. Rep. N. S. 517; Brown V. Orr, [1910] S. C. 526. Contra Binning v. Easton, 8 F. (Ct. Sess.) 407; Lochgelly Iron, etc., Coal Co. v. Sinclair, [1907] S. C. 3. 14. Smith v. Petrie, 6 BWCC 833. 15. Popple V. Frodingham Iron etc., Co., [1912] 2 K. B. 141, 5 BWCC 394. default of an agreement, by the judge of the county court or an arbitrator appointed by him to act in his place.21 A somewhat similar provision is found in several of the statutes in the United States, with this difference, however, that, with apparently but one exception,22 they provide for an arbitration committee of three members, one of whom shall be a member of the industrial accident board or commission, or an agent appointed by it.23 The decision of the arbitrator or arbitration committee, as the case may be, is subject to review, according to the provision of the particular act involved, by a court designated, by the state industrial commissioner,2 or by the industrial accident board or commission.26 Where no claim for a review is made, the decision of the arbitrators is final and binding on the parties.27 24 [§ 108] 2. English and Canadian Practice. Under the English statute, in the absence of agreement, questions arising under the act may be settled by a committee, if any exists, representing the employer and employees,28 by a single arbitrator agreed on by the parties,29 by the judge of the county court,30 or by a single arbitrator appointed by that judge.31 The county court judge acting under this provision acts in the capacity of arbitrator and not of judge,32 and he cannot exercise powers which he possesses as judge and not by virtue of the compensation act.33 16. Popple v. Frodingham__Iron, etc., Co., [1912] 2 K. B. 141, 5 BWCC 394. 17. Popple v. Frodingham Iron, etc., Co., [1912] 2 K. B. 141, 5 BWCC 394; McEwan v. Baird, [1910] S. C. 436. 18. Popple v. Frodingham Iron, etc., Co., [1912] 2 K. B. 141, 5 BWCC 394; McNaughton v. Cunningham, 3 BWCC 576, [1910] S. C. 980; Hanley V. Niddrie, etc., Coal Co., [1910] S. C. 875. But see Blake v. Midland R. Co., [1904] 1 K. B. 503, 6 WCC 163 (holding that an agreement need not be in force at the time of the application); Keeling v. Eastwood, 6 WCC 167 (holding that a memorandum should be registered, although there is another of later date). [a] An agreement for a lump sum may be recorded, although the money has already been paid. Rex V. Thetford County Ct. Registrar, [1915] 1 K. B. 224, 8 BWCC 276. 19. Fife Coal Co. v. Lindsay, 1 BWCC 117, 45 Sc. L. Rep. 317. But see Baird v. McWhinnie, 1 BWCC 109, 45 Sc. L. Rep. 338 (holding that the receipt of wages operated as an implied agreement to reduce the compensation). 20. Beech v. Bradford Corp., 4 BWCC 236. 21. See infra § 108. 23. See statutory provisions. 24. See cases infra this note. [a] In Illinois.-(1) Under the act of 1911, appeals were authorized to the circuit or county court, and questions in dispute were heard de novo. Lauruszka V. Empire Mfg. Co., 271 Ill. 304, 111 NE 82. (2) The county court had concurrent jurisdiction with the circuit court in all matters arising under that act, although the amount of the claim or judgment entered exceeded one thousand dollars. Lauruszka v. Empire Mfg. Co., supra. 25. Iowa Acts (1913) c 147 § 33. 26. See statutory provisions. [a] Necessity of pursuing statutory remedy.-The Michigan act secures to parties claiming to be aggrieved by the decision of an arbitration committee: First, an appeal to the industrial accident board; second, a review of questions of law involved in the decision on appeal; and the supreme court will not review in certiorari proceedings an award of a committee of arbitration which has not been appealed from to the industrial accident board. Schrewe V. New York Cent. R. Co., (Mich.) 158 NW 337. Hearing and determination on review see infra §§ 116-121. 27. In re Hunnewell, 220 Mass. 351, 107 NE 934. 28. Mulholland V. Whitehaven Colliery Co., 3 BWCC 317. 29. Workmen's Compensation Act (1906) schedule II (2). 30. Workmen's Compensation Act (1906) schedule II (2). [a] Sheriff's court in Scotland is included. Rex v. Owen, [1902] 2 K. B. 436, 4 WCC 150. [b] Accident in England and employer resident in Scotland.-Where a workman resident in England is engaged by an employer resident in Scotland, and during the engagement meets with an accident in England, the judge of the county court within whose district the accident happens under has jurisdiction the Workmen's Compensation Act (1897) schedule II par 9, to hear an arbitration for the settlement under the act of the compensation due to the workman. Rex v. Owen, [1902] 2 K. B. 436, 4 WCC 150. 31. Workmen's Compensation Act (1906) schedule II (3). 32. Mountain v. Parr, [1899] 1 Q. B. 805, 1 WCC 110. 33. Taylor v. Cripps, [1914] 3 K. B. 989, 7 BWCC 623; Mountain v. Parr, [1899] 1 Q. B. 805, 1 WCC 110. [a] Applications of rule.-(1) The county court judge sitting as an arbitrator has no power to make an order for the examination of the applicant who is in a hospital, by a substitute. Taylor v. Cripps, [1914] 3 K. B. 989. 7 BWCC 623. (2) An application for a new trial cannot be entertained after the award has been made. Mountain V. Parr, 1 WCC 110, 15 T. L. R. 262. (3) There is no power in the arbitrator to order interrogatories to be delivered, or an answer to interrogatories. Sutton v. Great Northern R. Co., [1909] 2 K. B. 791, 2 BWCC 428. (4) When the award has been properly drawn up, signed, and sealed, the judge has no |