due in part to a previous accident," it is held as a necessary consequence that there is no basis for an award for partial disability except as the schedule of the act may provide compensation for the specific injury causing the final disability since it is impossible to determine the amount.12

[86] b. Lump Sum Awards.13 Where the statute prescribes that in case of permanent partial disability the award shall be in a lump sum not to exceed a fixed amount, and in the proportion to which the extent of disability shall bear to an injury specified as the maximum partial disability, the amount of the award subject to such limitations is discretionary with the administrative officers.14

[87] c. Percentage Allowances. Under some statutes the allowances for permanent partial disability are based on a percentage of the weekly earnings based on the percentage of disability to total disability.15 Under such a statute, an award may be made for a percentage of disability less than the lowest percentage specifically stated."

17

16

[88] 4. Scheduled Injuries-a. In General. The compensation acts ordinarily contain a schedule of specific injuries to which attach specific awards of compensation, and any award of compensation as to an injury included in the schedule is limited and determined thereby.18 In this connection it should be noted that the provision of the statute for a minimum weekly award may in a particular case render the award for a minor injury the same as would have been the award for a greater injury according to the schedule, where the number of weeks is fixed by the statute, and only the amount is subject to variation.19 Where injury to one part of the body causes the loss of the use of another part, compensation may be based on the loss of such use.20 schedule providing that disability shall be deemed to exist for specified periods in case of particular

Scotland R. Co. v. Fraser, 38 Sc. L.
Rep. 653 (to same effect).

[a] Reason for rule.-"If this employment relieved the defendant of liability, then any employer can escape liability for compensation by retaining the injured employé and paying him wages, although he may not be able to do as good work after the injury as he did before. An injured employé may not wish to continue to work for the one in whose employ he was injured, and because of his injury he cannot obtain as good wages in another place. The injured employé has a right to compensation for his injury. It does not matter that his employer continues to accept his services and pay him regular wages, unless that employment continues for the entire period for which compensation might be allowed. The act fixed the liability when the employé was injured. That liability can be discharged only in the manner directed by the statute." Gailey v. Peet Bros. Mfg. Co., (Kan.) 157 P 431.

11. See supra § 84. 12.

Winn v. Adjustable Table Co., (Mich.) 159 NW 372. 13. Commutation payments see infra § 98.

of periodical

14. Sinnes v. Daggett, 80 Wash. 673, 142 P 5.

15. See statutory provisions. 16. Massachusetts Bonding, etc., Co. v. Pillsbury, 170 Cal. 467, 151 P 419.

17. See statutory provisions.

18. Vishney v. Empire Steel, etc., Co., 87 N. J. L. 481, 95 A 143; Bateman Mfg. Co. v. Smith, 85 N. J. L. 409, 89 A 979; Sinnes v. Daggett, 80 Wash. 673, 142 P 5.

[a] Illustration.-The loss of a portion of the fingers when so pro

Α

injuries does not contemplate that an award shall be made for the specific injury to commence after the termination of payments for total disability.21

26

89] b. Several Injuries. Where there are several independent injuries, for each of which there is a scheduled amount of compensation, an award may be made for each,22 as where there are distinct injuries to more than one finger.23 But, where the award is based on disability, it has been held that, where the full compensation for temporary total disability has been made for one injury, an additional award cannot be made for another injury,24 not, at any rate, until the expiration of the period for which the first award is made.25 Compensation for an injury made up of several other injuries, to each of which a specific award of compensation is allotted by the statute, should be based on the scheduled compensation for the greater injury and not on the awards for its component parts." For example, where the statute provides for compensation for the loss of an arm and for the loss of a hand, and provides further that amputation between the elbow and the wrist shall be considered equivalent to the loss of a hand, and that permanent loss of the use of a member shall be equivalent to the loss of the member, an award for injuries to the forearm and the hand should be based on the award for the loss of a hand; and an analogous holding has been made with regard to an injury to an ankle, the award being based on the loss of a foot.28 Likewise where the loss of several fingers creates a condition amounting to the loss of the use of the hand, an award may be made for the injury to the hand.29 [90] c. Proportionate Awards. The statutes ordinarily prescribe that, for injuries not scheduled, awards shall be proportionate to those sched

an in

that

(c) and (d) covered nothing additional, but merely provided for injuries of less severity; and clause (e) simply included a total incapacity resulting from either one of the causes specified." In re Burns, 218 Mass. 8, 13, 105 NE 601, Ann Cas1916A 787.

21. Limron v. Blair, 181 Mich. 76, 147 NW 546.

22. In re Meley, 219 Mass. 136, 106 NE 559.

23. Maziarski v. Ohl, 86 N. J. L. 692, 93 A 110; George W. Helme Co. v. Middlesex Co. Pl., 84 N. J. L. 531. 24. Fredenburg v. Empire United R. Co., 168 App. Div. 618, 154 NYS 351.

25. Fredenburg v. Empire United R. Co., 168 App. Div. 618, 154 NYS 351.

26. State v. Clay County Dist. Ct., 129 Minn. 91, 151 NW 530.

27. State v. Clay County Dist. Ct., 129 Minn. 91, 151 NW 530.

"If there were no injuries except to the hand and forearm, we think the court should have awarded compensation based upon a percentage of total disability to the hand. If there were permanent injuries to the arm above the elbow, the court should not have attempted to separate these injuries from those to the hand, but should have found the percentage of total disability to the arm as a whole, and should have awarded compensation accordingly." State V. Clay County Dist. Ct., 129 Minn. 91, 93, 151 NW 530.

28. Rakiec v. Delaware, etc., R. Co., (N. J. Sup.) 88 A 953.

29. Rockwell v. Lewis, 154 NYS 893.

[a] Reason for rule.-"The hand consists of the palm and the thumb and fingers, and it is not difficult to

uled,30 and in such case an award for a less injury should not equal that for a specific scheduled injury.31 Where, after enumerating specific injuries, the statute provides for proportionate compensation for injuries in all other cases in this class," the provision cannot be held to include an impairment occasioned by an injury different from those named in the schedule.32 Where because of the fact that a further reduction of the amount of the weekly payment would bring it below the minimum fixed by the statute, the award cannot be made proportionate by a variation in such amount, the result may be reached in the absence of statutory prohibition by a variation in the number of weeks for which payment is to be made.33 Where there is a specific provision for the loss of an eye and for the loss of both eyes, an award for partial impairment of both eyes should be fixed from the latter provision, and not by taking the sum of the awards for partial impairment of each eye separately considered.3

34

understand how in many instances the loss of three or four of the members would render the hand absolutely valueless for any practical use, and the statute has provided for just such a case as is now before us. Here there is a complete loss of the index, second, and third fingers, and fourth finger is stiff and practically useless. Such a hand as that is obviously permanently useless, as much so, practically, as though it were amputated at the wrist, and no good reason suggests itself why the compensation provided for a hand permanently useless should not be paid, rather than the rate established where one of the particular fingers is lost, and where the use of the hand may be seriously impaired for doing many kinds of labor." Rockwell v. Lewis, 154 NYS 893, 894.

30. See statutory provisions; and Mockett v. Ashton, 84 N. J. L. 452, 90 A 127; Northwestern Fuel Co. v. Industrial Commn., 161 Wis. 450, 152 NW 856.

36

35

40

89

tion has been amended by ch. 378, | Laws 1915, so that there is now no doubt of the legislative purpose to make it applicable to all cases of permanent disability resulting from injuries to those members of the body or its faculties named in the schedule although the member be not severed or the faculty totally_lost"). Blackford v. Green, 87 N. J. L. 359, 94 A 401; Barbour Flax Spinning Co. v. Hagerty, 85 N. J. L. 407, 89 A 919. But see De Zeng Standard Co. v. Pressey, 86 N. J. L. 469, 92 A 278 (which contains a dictum to the contrary, which is disapproved in Blackford v. Green, supra).

33.

Minimum where time specified see supra 88.

34. Vishney v. Empire Steel, etc., Co., 87 N. J. L. 481, 95 A 143.

41

between the employee's average weekly wages and his wage earning capacity thereafter, payable during the continuance of such partial disability. Plaintiff suffered an accident necessitating amputation of the third finger of the left hand at the first phalange, which was followed by cellulitis of the joints, so that the remainder of the finger became practically useless. It was held that the finger must be deemed to have been lost, although not actually amputated, and hence the entire amount that could be recovered was that prescribed for loss of a finger. Feinman v. Albert Mfg. Co., 170 App. Div. 147, 155 NYS 909.

31. Blackford v. Green, 87 N. J. L. 359, 94 A 401; Barbour Flax Spinning Co. v. Hagerty, 85 N. J. L. 407, 89 A 919; O'Connell v. Simms Mag-taining the damages by a specified neto Co., 85 N. J. L. 64, 89 A 922.

[a] Reasons for rule.-(1) "The fallacy consists in regarding these statutory awards for permanent injury as payments for the employe's time as though the disability were temporary only, whereas they are in reality a statutory method of ascermultiple of the weekly wage, payable normally in weekly installments and reduced to present value if commuted to a lump sum." George W. Helme Co. v. Middlesex C. Pl., 84 N. J. L. 531, 532, 87 A 72. (2) "The act was not intended as a source of profit to the employé, or as a means of punishment of the employer, who in many cases is wholly free from any fault in connection with the accident. If concurring awards may be allowed, it is easy to see how that practice may be carried to such an extent as to become very burdensome and unjust to the employer and very unfortunate to an improvident em

[a] Illustrations.-(1) An award of compensation equal to that fixed for the loss of an arm is improper in the case of a partial injury to_the motion of the arm. Barbour Flax Spinning Co. v. Hagerty, 85 N. J. L. 407, 89 A 919. (2) Where a workmen's forearm and hand were impaired by an accident to the extent of seventy-five per cent, and his upper arm to the extent of eight per cent, an award of seventy-five per cent of what the statute fixed for an arm was not necessarily incongruous with the statutory provision making amputation between the elbow and the wrist equivalent to the loss of a handployé, and to a considerable extent only. Blackford v. Green, 87 N. J. L. 359, 94 A 401.

32. Northwestern Fuel Co. v. Industrial Commn., 161 Wis. 450, 152 NW 856.

[a] Applications of rule.-(1) Where the schedule gives a certain compensation for total blindness of one eye, the physical organ itself being retained, compensation under the relative injury provision of the statute was properly awarded, where there is partial blindness of the eye, the physical organ being retained. Stoughton Wagon Co. v. Myre, 163 Wis. 132, 157 NW 522. (2) A partial and permanent impairment of the strength and usefulness of an arm is not within a scheduled class of injuries referring to the physical loss of an arm. Northwestern Fuel Co. v. Industrial Commn., 161 Wis. 450, 152 NW 856. But see Stoughton Wagon Co. v. Myre, 163 Wis. 132, 134, 157 NW 522 (where it is said: "The relative injury clause in quesW. C. A.

4

render nugatory the beneficent purpose of the statute." Fredenburg v. Empire United R. Co., 154 NYS 351, 354.

36. Carpenter v. Detroit Forging Co., (Mich.) 157 NW 374; Northwestern Fuel Co. v. Industrial Commn., 161 Wis. 450, 152 NW 856.

37. Weber v. American Silk Spinning Co., (R. I.) 95 A 603.

38. Possner v. Smith Metal Bed Co., 171 App. Div. 960 mem, 155 NYS 912 mem; O'Neil v. West Side Storage Warehouse Co., 171 App. Diy. 960 mem, 155 NYS 912 mem; Feinman v. Albert Mfg. Co., 170 App. Div. 147, 155 NYS 909.

[a] Stiffening of finger.-Workmen's compensation act (Consol. L. c 67) § 15 subd 3, fixes two thirds of twenty-five weeks' salary as the full compensation for the loss of a third finger, and provides that in all other cases of this class of disability the compensation shall be sixty-six and two-thirds per cent of the difference

mem, 156 NYS 262.

[a] Illustrations.-(1) Where an injury resulted in the taking off of a portion of the second phalange of plaintiff's index finger by amputation, compensation for the injury must be made on the basis of the total loss of the finger. Fortino v. Merchants' Despatch Transp. Co., 171 App. Div. 956 mem, 156 NYS 262. (2) The loss of the tip of a finger, which can be discovered on examination of an X-ray photograph only by careful examination, is not equivalent to the loss of the first phalange of the finger, within workmen's compensation act (Consol. L. c 67) 15 subd 3, providing that the loss of the first phalange is equal to the loss of one half of the finger. Mockler v. Hawkes, 173 App. Div. 333, 158 NYS 759.

40. Cline V. Studebaker Corp., (Mich.) 155 NW 519; Hirschkorn v. Fiege Desk Co., 184 Mich. 239, 150 NW 851..

41. See statutory provisions; and In re Floccher, 221 Mass. 54, 108 NE 1032 (where the court said of St. [1911] c 751 pt 2 § 11. as amended by St. [1914] c 708: "This amendment provides that the additional amounts to be paid 'in case of the loss of a hand, foot, thumb, finger, toe or phalange, shall also be paid for the number of weeks above specified in case the injury is such that the hand, foot, thumb, finger, toe or phalange is not lost but so injured as to be permanently incapable of use. This statute, so far as quoted, puts in implicit form the law as to the permanency of the injury assumed in Meley's Case, 219 Mass. 136, 106 NE 559, to be the reasonable construction of the words 'incapable of use' as set down in St. 1911, c. 751, Part II, § 11, as amended by St. 1913, c. 445").

42. In re Floccher, 221 Mass. 54, 108 NE 1032; In re Meley, 219 Mass. 136, 106 NE 559; In re Ethier, 217 Mass. 511, 105 NE 376; Rockwell v. Lewis, 154 NYS 893,

"The words 'incapable of use'

should receive a construction which, while fairly within their interpretation, is not narrow and technical, nor on the other hand so free and liberal as to give a right which the words themselves do not fairly import." In re Floccher, 221 Mass. 54, 108 NE 1032.

Corp.,

[a] Illustrations.—(1) Applicant's hand "was cut across and most of the flexor tendons were severed. Those in the thumb were cut. A physician testified that the hand was permanently disabled. The board was not required to accept as decisive the testimony of the physician called by the insurer. Even that testimony went little farther than to say that some things might be carried on the thumb as a hook, and that a steel splint might be used which would not hurt the hand, and that this would be much better than amputation. But we find no evidence that even with such an appliance there would be any real ability to use the hand. Certainly it could be found that the normal use of the hand was wholly gone, and so that the hand was 'so Injured as to be incapable of use.' The incapacity of use need not be tantamount to an actual severance of the hand; it is enough that the normal use of the hand has been taken entirely away." 46. In re Meley, 219 Mass. 136, 139, 106 NE 559. (2) "In the case at bar, for practical purposes, the ability to use the hand to the extent of a of small amount motion in the thumb and first finger, with the middle, ring and little finger paralyzed and with an interference of the circulation to such a degree that the hand goes to sleep, is negligible. The use approaches the infinitely small, and must be disregarded if we are to prevent the technical impairment of a humane In re Floccher, provision of law."

221 Mass. 54, 55, 108 NE 1032. (3) "Obviously the Legislature contemplated that there would be cases in which the loss of a large portion of the fingers and thumb would produce a permanent loss of the use of the hand,' and the case here under consideration is clearly such a one. The compensation provided for the loss of an index finger, standing alone, may be adequate for that loss; but if the index finger and the two next fingers are destroyed-are lost-and the fourth finger is made practically useless by reason of the bruised and strained condition, there can be no doubt that there has been a 'permanent loss of the use of the hand,' which is not compensated by the provision which is made for the separate fingers." Rockwell v. Lewis, 154 NYS 893, 894. (4) Under a statute providing that, in case a hand, foot, thumb, finger, or toe is so injured as to be permanently incapable of use, the same amount shall be awarded as if lost, compensation cannot be awarded for a permanent incapacity of an injured phalange, where the entire finger was incapacitated for use. In re Ethier, 217 Mass. 511, 105 NE 376.

43. Rockwell v. Lewis, 154 NYS 893, 894 (where the court said: "We do not recognize the theory that the question of the use of the hand is to be determined by the particular work in which the claimant has been engaged; the act has not attempted

519.

re

to an operation is unreasonable." McNally v. Hudson, etc., R. Co., 87 N. J. L. 455, 457, 95 A 122. To same effect Feldman V. Braunstein, N. J. L. 20, 93 A 679.

87

[c] Operation held unreasonable. -"At present the elbow of the claimant's right arm is permanently gone, the right hand, save 'a small amount of motion in the thumb and first finger,' is paralyzed, and there is 'interference of the circulation, so that he has a hand that goes to sleep.' The operation proposed is to place the arm, under ether, in a right angle and then have the arm set. This leaves the elbow permanently impaired, but gives the arm a wider field of motion than when hanging at the side. It well may be asserted that it would be unreasonable to put the claimant at least to the discomfort attending an operation the result of which would be the probability of a shoulder 'stretched out' and of muscles 'used up,' and in addition doubt as to the time within which some uncertain and indeterminate degree of benefit reasonIn ably might be expected." Floccher, 221 Mass. 54, 55, 108 NE 1032.

re

47. McNally v. Hudson, etc., R. Co., 87 N. J. L. 455, 95 A 122.

[a] Chance of fatal result.-"In the present case, the proof before the court was that out of twenty-three thousand operations only about forty-eight have been unsuccessful or resulted in death. The consensus of opinion of the medical witnesses is that the operation is a major one accompanied with some peril to life. Although the peril to life seems to be very slight, forty-eight chances in twenty-three thousand, nevertheless the idea is appalling to one's conscience that a human being should be compelled to take a risk of death, however slight that may be, in order that the pecuniary obligation created by the 1 law in his favor against his employer may be minimized." McNally v. Hudson, etc., R. Co., 87 N. J. L. 455, 457, 95 A 122. 48. Feldman V. Braunstein, 87 N. J. L. 20, 93 A 679.

a

[a] Illustration.-A workmen who received an injury to his eye, which would permanently destroy the sight unless he submitted to an operation, should be awarded compensation under the workmen's compensation act (P. L. p 134) for loss of an eye, which is pay for one hundred weeks, and not for temporary disability not to exceed three hundred weeks, Feldman v. Braunstein, 87 N. J. L. 20, 93 A 679.

49. Kricinovich v. American Car, etc., Co., (Mich.) 159 NW 362; O'Neill v. Ropner, 2 BWCC 334.

[a] Burden is on employer.—(1) To show that operation would accomplish purpose. Marshall v. Orient Steam Nav. Co., [1910] 1 K. B. 79, 3 BWCC 15. (2) To show that refusal is unreasonable. Marshall v. Orient Steam Nav. Co., [1910] 1 K. B. 79. 3 BWCC 15; Molamphy v. Sheridan, 7 BWCC 957; Hays Wharf v. Brown, 3 BWCC 84. (3) Unless there is evidence that the undergoing of an operation will tend to lessen the amount of compensation payable by the employers, the workman's refusal to submit to an oper

[95] C. Compensation for Death 1. In General. Under the compensation acts in the case of a claim where the employee is killed by a personal injury arising out of and in the course of his employment two questions arise, the first as to the existence of dependency on the part of claimant,50 and the second as to the amount to be paid the dependent.51 The provisions for the compensation to be paid to the employee and to his dependents in case of his death are not necessarily to be construed together.52 For example, a provision in the schedule of injuries which provides that in the case of permanent injury to an employee who has attained a certain age the compensation shall be reduced a fixed per cent has been held not to apply to the compensation to be paid in the case of the employee's death;53 and payments to the employee, it has been held, need not be deducted from the compensation awarded to his widow as a dependent.54 Where the employee was instantly killed, compensation may be awarded to begin at the time of death, notwithstanding a provision in the act that compensation shall not begin until two weeks after the injury.55 Where a minimum weekly payment is fixed by the statute, it is not necessary that the dependency approximate that sum. In determining compensation it is held immaterial whether claimant inherited anything from the estate of the employee. Where the employee leaves a widow and children entitled to claim as dependents, the amount awarded is not to be reduced because of the failure of the widow to claim, but the children should take the entire award.58

57

56

Dependency on several. Unless the statute so provides, the amount of compensation is not limited by the maximum provided in the case of the death of a single employee, where claimant was dependent on more than one employee killed in the same accident,59 as, for example, where the earnings of a father and sons contributed to one common fund out of which an entire household was maintained.60

Specific provisions. The statutes usually contain

ation is not unreasonable. Molam-
phy v. Sheridan, 47 Ir. L. T. 250.
50. See supra §§ 49-52.

51. In re Gove, 223 Mass. 187, 111 NE 702.

52. In re Nichols. 217 Mass. 3. 104 NE 566, AnnCas1915C 862; Milwaukee v. Ritzow, 158 Wis. 376, 149 NW 480.

53. Milwaukee v. Ritzou, 158 Wis. 376, 149 NW 480.

89

54. In re Nichols, 217 Mass. 3, 104 NE 566, AnnCas1915C 862 and note. 55. Conners V. Public Service Electric Co., (N. J. Sup.) 97 A 792. 56. Hotel Bond Co.'s App., Conn. 143, 154, 93 A 245 (where the court said: "The General Assembly has thus, in explicit terms, made the minimum weekly payment on account of death from injuries $5. Considerations of public policy dictated the adoption of this minimum; its wisdom is not our concern. A minimum might be adopted which would plainly violate constitutional rights of property; that objection has not been, and cannot be, made to this provision").

[a] In Minnesota, under Gen. St. (1913) 8208, the minimum compensation to a person wholly dependent on the deceased employee is six dollars a week for three hundred weeks. State V. Beltram County Dist. Ct., 131 Minn. 27, 154 NW 509.

57. State v. Beltrami County Dist. Ct., 131 Minn. 27, 154 NW 509; Pryce V. Penrikyber Nav. Colliery Co., [1902] I K. B. 221, 4 WCC 115. [a] Reason for rule.-"There some suggestion that since the rec

is

definite schedules of the amounts of compensation to be paid to persons in particular relationship to the deceased employee who are either actually or under the terms of the statute conclusively presumed to be dependent on him.61 Such provisions of the statutes are to be so construed as to effectuate their main intent;62 for example, a provision allowing, "if widow and father or mother, fifty per centum of wages" was construed to permit the payment of twenty-five per cent of the wages to the surviving parent, although there was no widow.63 A provision that "thirty per centum of the average wages of the deceased during widowhood [shall be paid a surviving wife] . and if there be surviving child or children of the deceased under the age of eighteen years, the additional amount of ten per centum of such wages for each such child until the age of eighteen years' authorizes the payment to the wife not only of her thirty per cent, but also of the additional amount which is allotted for the support of the several children.64 Where the statute provides that the wife, and the children under the age of eighteen, of a deceased employee are conclusively presumed to be dependent under certain circumstances, and if there are several dependent children they shall share equally, and that in all other cases dependency shall be a question of fact, and that in such other cases if there shall be more than one person wholly dependent the benefit shall be divided equally among them, a child of the deceased by a former wife, who is presumed to be dependent, is entitled to share in the benefits equally with the surviving wife, since the section as a whole indicates a purpose to make an equal division, even though technically speaking the provision therefor applies only in cases where the dependency is not presumed, or where the presumed dependents are all children. under eighteen.65 An allowance to a dependent parent of a minor employee is not terminated at the time when the employee would have attained his majority, although an allowance to a parent not based on dependency would so terminate."

66

ages actually sustained. The statute provides a definite method of ascertaining the amount of compensation in case of death, with a certain maximum and minimum. This amount is not subject to deduction or offset." State v. Beltrami County Dist. Ct., 131 Minn. 27, 29, 154 NW 509.

58.

59.

Gill v. Fortescue, 6 BWCC 577. Hodgson v. West Stanley Colliery, [1910] A. C. 229, 3 BWCC 260 [rev 2 BWCC 275].

60. Hodgson v. West Stanley Colliery, [1910] A. C. 229, 3 BWCC 260 [rev 2 BWČC 275].

61. See statutory provisions; and State V. State Industrial Commn., 92 Oh. St. 434, 111 NE 299, LRA 1916D 944; Gourlay v. Murray, 1 BWCC 335, 45 Sc. L. Rep. 577 (holding that the maximum amount need not be awarded in all cases). 62. In re Coakley, 216 Mass. 71, 102 NE 930, AnnCas1915A 867; Blanz v. Erie R. Co., 84 N. J. L. 35, 85 A 1030.

63. Reardon v. Philadelphia, etc., R. Co., 85 N. J. L. 90, 88 A 970; Tischman v. New Jersey Cent. R. Co., 84 N. J. L. 527, 87 A 144; Quinlan v. Barber Asphalt Pav. Co., 84 N. J. L. 510, 87 A 127; McFarland v. Central R. Co., 84 N. J. L. 435, 87 A 144; Blanz v. Erie R. Co., 84 N. J. L. 35, 85 A 1030 [aff 85 N. J. L. 367, 91 A 1067 mem].

64. Woodcock v. Walker, 170 App. Div. 4, 155 NYS 702.

65. In re Coakley, 216 Mass. 71, 102 NE 930, AnnCas1915A 867.

66. Boyd v. Fratt, 72 Wash. 306, 130 P 371 (holding that under the

Under the English act of 1906. If the workman leaves any dependents wholly dependent on his earnings, the amount of compensation is a sum equal to his earnings in the employment of the same employer during the three years preceding the injury, or the sum of £150, whichever of those sums is larger, but not exceeding in any case £300.67 Under this provision a determination of average earnings is necessary only where the period of employment has been less than such three years." [96] 2. Partial Dependents. A provision as to the minimum of compensation applies to partial dependents, there being no contrary limitations in the statute.70

71

69

68

Financial injury to dependent. Under the English act in case of partial dependency the amount recoverable is required to be reasonable and "proportionate to the injury to said dependents'; under this statute it becomes a question whether the death of the employee was a financial injury to the de

act of March 14, 1911 [L. (1911) c 74], relating to the compensation of injured workmen, § 5 subd 3 of the compensation schedule, which provides that, if a workman leaves a dependent, a monthly payment shall be made to each dependent equal to fifty per cent of the average monthly support actually received by such dependent from the workman during the preceding twelve months, and further provides that, if the workman is under the age of twenty-one years and unmarried at death, his parents shall receive twenty dollars for each month after his death until he would have arrived at twenty-one years of age, the dependent mother of an employee nineteen years of age when he was killed was entitled to an allowance of twenty dollars a month so long as her dependent condition continued, and not merely until decedent would have arrived at the age of twenty-one years, the latter provision referring only to cases of nondependency by beneficiaries).

67. Greenwood v. Nall, [1915] 3 K. B. 97, 8 BWCC 503; Forrester v. McCallum, 38 Sc. L. Rep. 448; Russell v. McCluskey, 37 Sc. L. Rep. 931. See under the similar provision of the act of 1897 Osmond v. Campbell, [1905] 2 K. B. 852, 8 WCC 95; Buckley v. London, etc., Dock, 2 BWCC 327 [rev 2 BWCC 491] (holding that concurrent employments should not be considered).

68. Greenwood v. Nall, [1915] 3 K. B. 97, 8 BWCC 503.

69. Who are partial dependents see supra § 52.

70. In re Murphy, 218 Mass. 278, 279, 105 NE 635 (where the employee turned over his entire wages to his father for the support of the family, and the industrial accident board said: "The workmen's compensation act, Section 6, Part II, provides that if the employee leaves dependents only partly dependent upon his earnings for support, there shall be paid such dependents a weekly compensation equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents bears to the annual earnings of the deceased at the time of his injury. There is no provision in the act which provides for any deduction from an employee's wages when the employee contributes to the dependent all of his wages. The section above referred to provides for a case where only part of the employee's earnings are contributed to the dependent, and the statute gives no rule by which to measure the extent of the compensation due the partial dependent when the employee contributes all of his earnings, leaving it fair to assume that it was the intention of the Legislature in such a

case, that the rule provided should be adopted, that one half of the wages of the employee should go to the dependent, which never should be less than the minimum of $4 per week"); State v. Ramsey County Dist. Ct., 132 Minn. 249, 251, 156 NW 120 (decided under L. [1913], but in which the court said: "The amendments of 1915 remove the difficulty of construction which this case presents").

71. As fixing status of dependency see supra § 52.

72. Tamworth Colliery Co. V. Hall, [1911] A. C. 665, 4 BWCC 313; Byles v. Pool, 2 BWCC 484; O'Neill v. Bansha Co-op. Agricultural, etc., Soc., [1910] 2 Ir. 324; Gourlay v. Murray, 45 Sc. L. Rep. 577.

[a] Outlay in medical and funeral expenses.-In fixing compensation under the act, the arbitrator in a claim by partial dependents may take into account the outlays which claimants have incurred in medical and funeral expenses. Hughes V. Summerlee, etc., Iron, etc., Co., 5 F. (Ct. Sess.) 784.

73. Mahoney v. Gamble-Desmond Co., (Conn.) 96 A 1025; In re Gove, 223 Mass. 187, 111 NË 702; In re Murphy, 218 Mass. 278, 105 NE 635.

[a] English rule distinguished.— "In place of following the English rule (the amount of injury caused to the dependents) the Legislature adopted the wages of the deceased as the basis by which the amount to be paid was to be measured. They provided that where the claimant was wholly dependent upon the deceased one half of his average weekly wages (within a maximum and minimum amount there stated) should be allowed for a period of 300 weeks from the date of the injury. Where the claimant is wholly dependent upon the deceased it is of no consequence whether he contributed all his wages or only a fraction of them to the dependent, and it is of no consequence whether the deceased did or did not receive any benefit from the dependent. The sum to be paid is measured by the wages of the deceased not by the injury done to the dependent. Where the dependents were only partly dependent upon the earnings of the deceased the amount to be paid is 'a weekly compensation equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employé bears to the annual earnings of the deceased at the time of his injury.' The amount to be paid in case the dependent was partly dependent and the amount is to him only is to be a portion of that paid in case of those wholly dependent and the amount is to be determined on the same basis -that is to say, it is to be measured

not by the injury done the dependent, but by that portion of the average weekly wages of the deceased which the amount of the wages contributed by him to the dependents bore to the amount of his annual earnings, without regard to the benefits, if any, received by the deceased from the dependents.' In re Gove, 223 Mass. 187, 111 NE 702, 705.

[b] Deductions for earnings not contributed to common fund. Where the employee handed substantially all his earnings to his mother and received back from her money for clothing, college tuition, and incidentals, it was held that the mother was dependent to the extent of the balance of his earnings without deduction for his board, the court saying: "The insurer in the case at bar has made the further contention, namely, that the rule adopted by the Board was inconsistent with itself. His argument in this connection is that if no deduction is to be made from the amount of wages of the deceased by reason of board which was worth $5 a week, no deduction ought to have been made by reason of the $150 spent by the deceased 'for clothing, tuition and incidentals.' But the two stand on different footings. It appears that the deceased handed substantially all of his earnings to his mother; that when he wished to spend money for 'clothing, tuition and incidentals' he procured the necessary money from her. So far as these matters are concerned it is plain that his mother acted as his banker. He did not make a contribution to his mother of all his earnings. It appears that 'he took some of the money for car fares and lunches and other different expenses' before he handed anything to his mother. The sums deducted by him for these purposes before handing anything to his mother stood on the same footing as the money he got from his mother to spend in 'clothing, tuition and incidentals.' The distinction between the two is that in one case he obtained a benefit from the common fund to which he made a contribution and in the other that he spent some money on his own account out of his wages before he contributed the balance to the dependent his mother." In re Gove, 223 Mass. 187, 111 NE 702, 705.

74. State V. St. Louis County

Dist. Ct., (Minn.) 158 NW 792. 75. Recovery against employer by physician see infra § 148.

76. See statutory provisions; and In re Panasuk, 217 Mass. 589, 105 NE 368; State v. Koochiching County Dist. Ct., (Minn.) 158 NW 713 (holding that the award of one hundred and fifty dollars should be reduced to one hundred dollars); James A. Banister Co. v. Kriger, 84 N. J. L.