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For later cases, developments and changes in the law see cumulative Annotations, same title, page and noie number.
2. Insolvency of Employer ($ 149) p 130 K. Costs and Attorney's Fees [ 150] p 131 XIV. REVIEW AND TERMINATION OF COMPENSATION; SUSPENSORY AWARDS ($ 151-152] p 131
A. In General ($ 151] p 131
B. Suspensory Awards (1 152) p 133
A. In General (Ø 153] p 133
1. Compulsory Acts ( 1541 p 135
a. Where Act Has Been Accepted (9 155) p 135
(i) in General (156) p 135
(7) Willful Act of Employee ($ 162] p 138
c. Employee Rejecting Act (j 163] p 138
1. In General (Ø 164] p 138
3. Action by Parent for Injury to Child ($ 166) p 139
a. In General ( 0 167! p 139
d. Right of Third Person to Assert Payment of Compensation ($ 170) p 143
3. Physician or Surgeon Guilty of Malpractice ( 172] p 143
E. Pleading and Proof of Act; Trial of Issue as to Applicability ($ 173] p 143
I. DEFINITION, CLASSIFICATION, AND DISTINCTIONS [$ 1] A. Definition. The statutes which are  B. Classification. Compensation legislation known as the workmen's compensation acts, while falls readily into two major classes (1) the comalike as to the object sought to be attained," are pensation acts properly so-called, and (2) the inso numerous and so varied as to details of admin
surance acts, the distinction being that under the istration that any attempted definition of them must first class the payment is made by the employer of necessity be general in its terms. However, a in whose service the injury occurs, either directly workmen's compensation act may be broadly defined or through the agency of a private insurer, while as a statute providing that in the case of an injury under the second class provision is made for transto an employee, when the employment,” the injury, fer of the liability for payment from the individual and the employeet are within the operation of the employer to a fund made up of contributions in the act, the injured employee or his dependents shall nature of premium payments exacted from all of be paid an amount to be determined in accordance the employers within the terms of the act. Cerwith a fixed system or schedule, the payment and tain of the acts partake of both classifications, the procedure to secure payment prescribed by the however, in that they make acceptance by the emact? being in substitution for all other remedies, ployer of the state systems of insurance optional. if any, existing to the employee against the em- Both the compensation and the insurance acts are ployer.S
subject to a further classification as (1) voluntary 1. Lewis, etc., County v. Indus- 4. Employees coming within acts 10. See Western Indemn. Co. v. trial Acc, Bd., (Mont.) 155 P 268, 270. see infra $$ 38-43.
Pillsbury, 170 Cal. 686, 151 P 398. “Each system seeks the same ulti
Dependents entitled to compen- [a] Foreign systems of legislamate end, but by somewhat different sation see infra SS 49-52.
tion. The foreign acts have been means, and 'workmen's compensation'
Amount of compensation see grouped by the Washington court in is a term sufficiently comprehensive infra $$ 79-100.
speaking of the sources of their own for all practical purposes to include 7. Procedure to obtain compensa- | act, follows: "Our legislators, both." Lewis, etc., County v. Indus- tion see infra $$ 101-150.
with three systems to imitate, chose trial Acc. Bd., supra.
Effect on other rights of action the most sweeping. There was that “Compensation Acts have had a and defenses see infra $$ 153-173. of England, which least interferes common origin and a common his
See Winfield v. New York Cent., with employers, a liability act retory, and the great majority of the etc., R. Co., 168 App. Div. 351, 354, 153 moving defenses but prescribing no twenty-four [now thirty-two see in- NYS 499 (where the court said of way in which the employer must fra § 5 note 46) thus far enacted in the New York act of 1913: "The provide for the claim. There our States bear close resemblance to legislative intent primarily is not to
of Denmark and Sweden, in each other essential features." | require any employer to make satis- which the state issues policies to the Powers v. Hotel Bond Co., 89 Conn. | faction to his employee for an injury employed at the master's expense. 143, 147, 93 A 245.
sustained but to inake all the haz- Finally, there was that of Germany. 2. Employments within acts
businesses contribute to which ours most nearly resembles, infra § 35.
fund which shall compensate for any and which provides both the rem3. Injuries compensated for injury received in any one of such
the fund by compulsory infra 88 53-78. employments").
insurance with contribution of em
or elective, and (2) compulsory, the terms being ation. Further, it has been broadly stated that a self-explanatory and the distinction being in that compensation act cannot be held coercive when the the persons affected have an option to accept or only result attaching to nonacceptance is the depto reject the provisions of an elective act, while no rivation of rights of which a citizen may lawfully such option is conferred in case of a compulsory be deprived without reference to any statute which
Several of the acts are elective as to em- might either be accepted or rejected.18 Or, more ployers generally but compulsory as to the state concretely, a compensation act is not rendered comand municipalities;12 at least one is elective as to pulsory by the fact that common-law defenses are the employee and compulsory as to the employer.18 withdrawn from employers who do not elect to
Determination of compulsory or elective char- come under its operation,?? nor because a particular acter. A compensation act will not be held right of action is withdrawn in the case of an emcoercive or compulsory on mere speculation or ployee who does not accept the compensation pro
14 conjecture, nor because of the possibility of such vided by the act and whose employer has elected to a general acceptance that a large part of the labor be bound by its provisions.18 An act cannot be reemployed within the state will come under its oper- garded as compulsory for the reason that in the ployers collectively. Even the Ger- | tage to each which the plan contem- | 208, 209, 90 A 859, LRA1916A 10, man scheme was somewhat exceeded; plates, we cannot say that the stat- AnnCas1914D 1280 (where the court, for the private parties under our law ute is coercive. As was said in the assuming the New Hampshire act to have no participation in the man- Wisconsin case: 'Laws cannot be set be elective, said: "In other words, agement, nor, during a first period of aside upon mere conjecture or spec- the means the legislature devised to three months, does our workman ulation. The court must be able to induce employers to accept the procontribute something toward the say with certainty that an unlawful visions of the act was to take from loss, as he did under the German." result will follow.' We do not see those who do not accept it about the Stertz Industrial Ins. Commn., how any such thing can be said here. only real defense to an action by a (Wash.) 158 P 256, 258. Every consideration of prudence and servant which
to his em[b] The Washington act "is not self interest (things not easily asso- ployer at common law"). an employers' liability act. It is not ciated with compulsion and coercion) [a] In Kentucky (1) a contrary even an ordinary compensation act. would seem to lead an employe to conclusion
to L. It is an industrial insurance statute." voluntarily make the contribution (1914) c. 73, the court saying: "If Stertz v. Industrial Ins. Commn., and waiver contemplated." State V. any employer should determine that (Wash.) 158 P 256, 259. Creamer, supra.
he wanted to carry his own risk and 11. See Albanese v. Stewart, 78 15. State v. Creamer, 85 Oh. St. make his own contracts instead of Misc. 581, 583, 138 NYS 942 (where 349, 97 NE 602, 39 LRANS 694.
having the law to make a contract the
court said: "The New Jersey 16. Hunter v. Colfax Cons. Coal for him, he can do so. He can operact is not a compulsory statute. It Co., (Iowa) 154 NW 1037, 1069.
ate his industries and pursue his is so-called optional or elective "If the Legislature may validly business, however hazardous, and statute. The act, in section 2, para- say: You shall not defend with con- ignore this act entirely. But what is graph 9, provides that a contract of tributory negligence, nor with fault the result? The law says to this hiring shall be presumed to have of fellow servants; you must prove employer: 'You may go on with your been made under the act unless a you are not in fault for the injury business industries, but if one of contract of employment or a notice suffered by your servant while doing your employes is injured or killed, sent by either party to the other your work; you must effect insurance you shall not avail yourself of the shall otherwise provide, and no such SO that your insolvency may not following defenses—the defense of contract has been made or notice leave him a crippled public charge, the fellow-servant; the defense of sent by either party in this case. or make a public burden of his de- the assumption of risk; or the deThe statute, therefore, becomes com- pendents; you may contract with fense of
contributory negligence.' pulsory only in the event that neither each other to arbitrate summarily, These are practically all the defenses party disaffirms it"); State V. In-effectively and cheaply, and the the employer has, and they are taken dustrial Commn., 92 Oh. St. 434, 111 award shall be not more than from him unless he accepts the proNE 299, LRA1916D 944; Middleton stated sum, and you shall not con- visions of this act. He cannot, under v. Texas Power, etc., Co., (Tex.) 185 tract for less payment-can validly these conditions, successfully defend SW 556.
compel all this without enacting a any suit for personal injury. If he Election to accept act see infra workman's compensation act--then is sued by an injured employe, about 88 44-46.
how can the saying that these things the only question a jury will have Validity as determined by compal- you shall lose and these things you to determine will be the amount of sory or elective character see infra shall do unless you accept the act recovery. Under these conditions an
be undue compulsion? One who is employer has practically no choice, 12. See statutory provisions; and at liberty to do or not to do a thing no volition. If he continues to operButte v. Industrial Acc. Bd., (Mont.) can always say, I will not do what ate his business, he is compelled to 156 P 130.
I can refuse to do, with or without pay his premiums into the fund and 13. Arizona Cons. Smelting Co. v. reason, unless you do what I demand accept the provisions of the act. Ujack, 15 Ariz. 382, 389, 139 P 465. There can be no coercion in the sight Kentucky State Journal Co. v. Work
"Our Constitution and compensa- of the law effectuated by doing or men's Compensation Bd., 161 Ky. 562, tion act make the compensation pro- not doing what one has the absolute 570, 170 SW 437, 1166, LRA 1916A vided compulsory upon the part of right to do or not to do, no matter 389, AnnCas1916B 1273, 162 Ky. 387, the employer, and optional on the what terms are attached to doing or
172 SW 674, LRA1916A 402.
(2) part of the employee. Arizona Cons. | refraining, One who has absolute The act of 1916, L. (1916) c 33, is Smelting Co. v. Ujack, supra.
right to do or not to do a thing can held not compulsory in this respect, 14. State V. Creamer, 85 Oh. St. attach to his doing or not doing any
however. Greene V. Caldwell, 170 349, 394, 97 NE 602, 39 LRANS 694; condition, no matter how unreason- Ky. 571, 186 SW 648. Borgnis v. Falk Co., 147 Wis. 327, able or arbitrary. The remedy is re
18. In re Opinion of Justices, 209 356, 133 NW 209, 37 LRANS 489. fusal to accede to the unreasonable Mass. 607, 96 NE 308 (holding that
“We meet the objection that the demand. To threaten one with suit deprivation, under such circumlaw, while in its words presenting to on a note and resulting costs unless stances, of the right to maintain an employer and employee a free choice something asked be done is not action for death under the employers' as to whether he will accept
its duress if the note is confessed and liability act did not constitute legal terms or not, is in fact coercive, so due. One having a house to lease compulsion). that neither employer nor employee may decline to lease it unless the
[a) In Kentucky (1) a contrary can be said to act voluntarily in ac- proposing tenant will agree to stay conclusion was reached with refercepting it. As to the employer, the away from church, or to eat nothing ence to 'L. (1914) c 73, the court sayargument is that the abolition of the but tomatoes--the remedy is to get ing: "The action of the employer in two defenses is a club which forces another house. Constitutional rights paying into this fund his premiums him to accept; and as to the em- can be waived. That such waiver and accepting the benefits of this act ployee, the argument is that if his itself works a violation of the Con- necessarily brings the employe employer accepts the law the em- stitution where the inducement to within the act. The employe can go ployee will feel compelled to accept waive does nothing prohibited by the nowhere else, he has been legislated also through fear of discharge if he Constitution is inconceivable. The out of his causes of action, and all do not accept. Both of these argu- only penalty for nonacceptance of he can do is to accept such amount ments are based upon conjecture. this act is the infliction of what the as is allowed him by this board of Laws cannot be set aside upon mere Legislature may do in any event. compensation. The Legislature has speculation or conjecture." Borgnis This is not invidious compulsion." no right to say to one of its citizens v. Falk Co., supra.
Hunter Colfax Cons. Coal Co., that 'unless you accept the pro"On account of the common law supra.
visions of a law impairing your conand statutory rights still preserved 17. Powers v. Hotel Bond Co., 89 stitutional rights, it will take from to the parties by this statute (as we Conn. 143, 93 A 245; In re Opinion of you other rights more valuable.' In have pointed out) in cases where the Justices, 209 Mass. 607, 96 NE 308; the light of Section 54 of the Conelection is made to come under its State v. Creamer, 85 Oh, St. 349, 97 stitution [this section provides that provisions as well as not to do NE 602, 39 LRANS 694. Compare the Legislature "shall have no power taken in connection with the advan- Boody v. K., etc., Mfg. Co., 77 N. H. to limit the amount to be recovered
absence of notice to the contrary acceptance of its on any theory of actionable wrong on the part of provisions is presumed on the part of the employer19 the employer.22 or the employee.20
 D. Nature of Right to Compensation and [$ 3] C. Employers' Liability Acts Distinguished.21 Liability Therefor. The compensation acts are The distinction between the compensation acts and
a new theory of compensation distinct the employers' liability acts lies in the fact that the from the existing theories of damages,23 the underrecovery under the compensation acts is not based lying conception being one of insurance.? The for injuries resulting in death or for ers' Liability act.' The act of April | his servants, but on whether by act injuries to persons or property"), we 13th, 1909 (Pamph. L., p. 114), is of or by silence, he has adopted the must treat the contract made by the the latter character").
statutory terms. The amount of his employe under the provision of this [a] “Liability and compensation pecuniary liability is fixed by statute act as compulsory and therefore statutes are not to be grouped to- and not by the verdict of a jury. void." Kentucky State Journal Co.gether.They are the antipodes of Employer and employe adopt as a v. Workmen's Compensation Bd., 161 labor legislation, having their part of their contract a novel method Ky. 562, 569,
170 SW 437, 1166, foundation in essentially different of procedure in which the liability LŘA1916A 389. AnnCas1916B 1273, social and economic ideas. The com- and the compensation are determined 162 Ky. 387, 172 SW 674, LRA1916 A mon law of England and America | by the judge instead of by a jury. 402. (2) The act of 1916, L. (1916) and the Civil Code of continental Eu- And the compensation is ordinarily c 33, is held not compulsory in this rope furnished but a single remedy meant to be paid by installments, in respect, however. Greene v. Caldwell, for a servant's injury-an action for lieu of wages as it were, and may be 170 Ky. 571, 579, 186 SW 648 (where damages in which it was made to changed if circumstances change. the court said: "It is true that appear that the negligence of the The scheme is more like a pension under section 76b the employe who master was a proximate cause of scheme than a liability for a breach does not elect to accept the act and the injury. The harshness of the of contract, or damages in tort. The who brings an action to recover dam- rule was emphasized when there was difference between the two kinds of ages for personal injuries, sustained ingrafted on it the defenses of con- legislation is illustrated in our act. by the alleged negligence of the em- tributory negligence (Butterfield v. Section 1 is an employer's liability ployer who has accepted its pro- Forrester, 11 East 60, 103 Reprint act similar to the act of congress, visions, may be met with the de- 926, 19 ERC 189), fellow servant's and regulates the liability in a comfenses that he was guilty of con- negligence (Murray v. R. Co.26
law action of tort. Section 2 tributory negligence, or that the in- S. C. L. 385, 36 AMD 268; Priestley creates and regulates the new statujuries complained of were caused by v. Fowler, 3 M. & W. 1, 150 Reprint tory right. But for paragraph 8 of the negligence of a fellow servant, 1030, 19 ERC 102), and assumption section 2, there might have been a or that he assumed the risk of the of risk (Farwell v. Boston, etc., R. double recovery, a recovery for the accident that resulted in his injury. Corp., 4 Metc. (Mass.) 49, 38 AmD tort in a common law action, and a But, clearly, the fact that the em- 339, Laning v. New York Cent., etc., recovery of the statutory compensaployer may rely on these defenses R. Co., 49 N. Y. 521, 10 AMR 417). tion by means of the statutory prois far from denying to the employe With the increased hazards conse
cedure. Nor would that double rethe right to recover for injuries quent upon the use of high explosives, covery have been illegal, however caused by the negligence of the em-complicated and dangerous
unjust it might be and was in fact ployer. He still has his cause of chinery, and the powerful agencies considered to be by the legislature; action as he has always had, and the of steam and electricity, the percent- for compensation by way of pension employer has only the right to rely age of injured employes having justi- from the master is quite different in on defenses that he always had the ciable claims rapidly increased, until character from compensation by a right to rely on").
relief was sought in liability stat- tort-feasor, master or third person, 19. Hunter v. Colfax Cons. Coal utes which modified or eliminated for a wrong not arising out of conCo., (Iowa) 154 NW 1037; Mathison some or all of the common-law de- tract." Rounsaville v. Central R. v. Minneapolis St. R. Co., 126 Minn. fenses. But whether the remedy Co., 87 N. J. L. 371, 372, 94 A 392. 286, 295, 148 NW 71, LRÁ1916D 412. was sought at common law or under (2) "A recognition of the principles
"The choice is no less voluntary an employers' liability statute, the upon which the Federal and state and optional because party is actionable wrong of the master, or ac
statutes are founded will demondeemed to have accepted these pro- tionable wrong for which the master strate that they are not in pari visions unless he give notice to the was liable under the maxim respon- materia. The federal Employers' contrary, than it would be if he were deat superior, was the gist of the Liability, Act prescribes the rules deemed not to have accepted them claim for damages and the basis of under which certain employers are until he gave notice to that effect." any right to recover.
Com- liable to their employees for injuries Mathison v. Minneapolis St. R. Co., pensation laws proceed upon the which result to the latter from negsupra.
theory that the injured workingman ligence. The Workmen's Compensala] The Dunois act of 1913 has is entitled to pecuniary relief from
tion Law is radically different in been held not to give an unreason- the distress caused by his injury, as principle, purpose, scope and method ably short time in which to elect. a matter of right, unless his own from the Federal Employers' LiabilVictor Chemical Works v. Industrial willful act is the proximate cause, ity Act. It inaugurated an entirely Bd., 274 Ill. 11, 113 NE 173.
and that it is wholly immaterial new method of dealing with indus20. Mackin v. Detroit-Timkin Axle whether the injury can be traced to
Perhaps, Co., 187 Mich. 8, 153 NW 49; Mathi- the negligence of the master, the without inaccuracy, it may be said son v. Minneapolis St. R. Co., 126 negligence of the injured employe or that the primary purpose of this act Minn. 286, 148 NW 71, LRA1916D a fellow servant, or whether it re
was to give compensation in those 412. But see Kentucky State Journal sults from an act of God, the public cases where no claim of negligence Co. v. Workmen's Compensation Bd., enemy, an unavoidable accident, or a the part of the employer could 162 Ky. 387, 388, 172 SW 674, mere hazard of the business which reasonably be made." Winfield v. LRA1916A 402 (where the court said may or may not be subject to more New York Cent., etc., R. Co., 216 rehearing: "Some provision exact classification." Lewis, etc.,
N. Y. 284, 288, 110 NE 614, AnnCas should be made in the act whereby County
Industrial Acc. Bd., 1916A 817. the employe signifies his acceptance (Mont.) 155 P 268, 269.
23. In re Kenney, 222 Mass. 401, of the provisions of the act by some [b] "The Pederal Employers' Lia- 111 NE 47; In re Cripp, 216 Mass. affirmative act on his part. Silence / bilty act (1) is an act, as its name 586, 104 NE 565, AnnCas1915B 828; on this subject should not be con- imports, to regulate the liability of Andrejwski v. Wolverine Coal Co., strued into acceptance").
employers, and, as its body shows, 182 Mich. 298, 303, 148 NW 684. 21. Employers' labiuty acts see is applicable only to liability in tort "We enter a new field, to consider Master and Servant [26 Cyc 1079], for negligence. No new right of only the question of compensation, and passim seq.
action is given; all that is done is to and to turn absolutely away from 22. Lewis, etc., County v. Indus- take away certain defences which the idea of damages." Andrejwski v. trial Acc. Bd., (Mont.) 155 P 268; had come to be thought unjust. The Wolverine Coal Co., supra. Winfield v. New York Cent., etc., R. legal liability of the employer under [a] Designation of proceedings. Co., 216 N. Y. 284, 110 NE 614, the act does not depend upon the Proceedings under the workmen's AnnCas1916A 817. See Gregutis v. terms of the contract of service, and compensation act are designated as Waclark Wire Works, 86 N. J. L. is neither increased nor diminished proceedings to recover compensation 610, 612, 92 A 354 (where the court thereby. The amount of the pecuni- rather than to recover damages. De said: "The act of April 4th, 1911 ary liability is in no way regulated Biasi v. Normandy Water Co., 228 (Pamph. L., p. 134), to which herein- or limited. The act applies only to Fed. 234. after we shall have occasion to refer, certain classes of employers. In all 24. Trim Joint Dist. School is sometimes called the 'Workmen's these respects the Workmen's Com- Kelly,  A. C. 667, 675, 7 BWCC Compensation act' and sometimes pensation act differs. Liability there- 274 [aff 6 BWCC 921]. the Employers' Liability act.' Coun- under is contractual, and while the "If we had to consider the princisel in the present case call it the contract liability is implied from ple of the Workmen's Compensation latter. Of course, it has the charac- silence, either party is at liberty to Act as res integra, I should be of teristics of both, yet, since its chief adopt or reject the statutory con- opinion that the principle was one purpose was compensation to injured tract. A new right of action is more akin to insurance at the exworkmen their dependents, given, of a character unknown to our pense of the employer of the workthink it is more properly to be re- law, at least for several centuries. man against accidents arising out ferred to as the 'Workmen's Cumpen- The liability of the employer de- [of] and in the course of his emsation act,' rather than the 'Employ- | pends not on any fault of his own or I ployment than to the imposition on