Imágenes de páginas
PDF
EPUB

(8). Partial disability.

Injured workman who only in pain and distress and with friendly help of fellow workmen can earn as much as he did before injury may maintain action against employer for permanent partial incapacity. Raffaghelle v. Russell (Kans.)

In computing compensation for one partially disabled, average weekly wages that injured servant has been able to earn since injury is factor, but not wages he has been able to earn since injury. Miller v. S. Fair & Sons et al. (Mich.) (10).

Injury to arm, hand, or finger.

Work of one engaged in what is ordinarily described as common labor is an "employment" within meaning of act, so that servant employed in shoveling, requiring two hands, at time of injury, was not wholly disabled. but was only partially disabled, where he could do other work with one hand. Miller v. S. Fair & Sons (Mich.)..

(11%).

Servant, who, with powerful glasses, had vision of one-third with injured right eye, if he closed other eye, so that he could have only one eye and if he used injured eye had but one-third vision was properly awarded compensation for loss of use of right eye. Smith v. F. & B. Const. Co. et al. (N. Y.)..

Where employee was near-sighted and had only 50 per cent vision lost use of eye, it was not error to allow compensation for loss of eye, as against claim that she had lost only 50 per cent of vision-wages received by empolyee must be considered her wage-earning capacity with defective vision. Hobertis v. Columbia Shirt Co., Inc., et al, (N. Y.)..

(12). Loss of arm, hand, or finger.

Where injury necessitated amputation of arm below elbow resulting in employee's permanent loss of use of his arm, he was entitled to compensation for loss of arm rather than loss of hand under that section which includes all cases of permanent loss of members mentioned therein without regard to point of amputation as well as in case of loss from injury not requiring amputation. Pater v. Superior Steel Co. (Pa.).................

...

293

752

752

189

498

793

(15). Temporary disability. Workman injured in course of employment is not to be denied compensation for such injury and consequent diminished earning capacity merely because injury was not so serious as to totally disable him from labor for first two weeks immediately succeeding accident. Raffaghelle V. Russell (Kansas) 293 Loss of leg-award for period of 133 weeks temporary total incapacity for work was warranted. Moustgaard v. Industrial Commission et al. (Ill.). 600 (16). Expenses of medical or surgical treatment, and nursing. Where injured employee was furnished physician during week following accident, but after apparent recovery and some months after accident required further medical attention because of tumor resulting from injury, employer was not required to reimburse employee for surgical and hospital expenses in treatment of tumor, such expenses not having been contracted during 30 days immediately following injury-provision construed so that 30-day period commences with actual disability of employee and not with accident, so that, if disability is not concurrent with accident, period does not start until medical attention becomes necessary. John A. Shumaker Co. et al. v. Kendrew (Ind.)...

....

122

562

(17). Deductions or set-offs, and duty of claimant to reduce loss. Though stevedore presented claim and accepted compensation under State Compensation Law held that as Commission was without jurisdiction the acceptance of compensation is not bar to libel in admiralty, the payments if made by employer being deductible from recovery and if made by.. state to be treated as gratuities. Neumann v. Morse Dry Dock & Repair Co., Inc. (U. S.).. Allowance for hospital charges and medical attendance of reasonable amount actually incurred by defendant for benefit of workman is proper. Gadberry v. Hutchinson Egg Case Filler Co. (Kan.) Where Fund agreed to pay weekly compensation to servant, who thereafter recovered from physician for malpractice, on petition of Fund, it is not entitled to credit for sum received by servant from physician in reduction of amount due from Fund to claimant under act. Smith v. Battjes Fuel & Building Material Co. et al. (Mich.).. 333

[blocks in formation]

Where condition of total disability was entirely due to original injury, State Fund not entitled to be relieved from weekly payment it had agreed to make during disability on ground that present disability was caused by unskillful treatment or refusal to have operation. Smith v. Batt's Fuel & Building Material Co et al. (Mich.).

(20). Commutation of payments and award of gross sum. Injured servant, totally disabled permanently, and awarded compensation of $8 a week for his life, was entitled to lump sum settlement if facts

473

333

warranted relief. Karoly v. Industrial Commission of Colorado et al.
(Col.)

Error assigned on abuse of discretion in award of lump sum judgment instead
of periodical and terminable payments to injured workman examined
and not sustained. Raffaghelle v. Russell (Kans. (
Compensation Board might provide by rule that working days shall mean
total number of days in period covered according to calendar, less Sun-
days, legal holidays, half holidays for each week, and days when em-
ployee was prevented from working trough no fault of his own, to
facilitate determination of weekly wage upon which proportionate com-
pensation was based-the law did not give any definite meaning to
"working day," but left that as between parties in interest under various
circumstances to be determined by Board. Jensen v. Atlantic Refining
Co. (Pa.)

[blocks in formation]

Partially dependent mother of deceased painter, whose average weekly wage
amounted to $24, of which he gave her $15, or five-eights of maximum
weekly wage for purpose of computing compensation, held entitled to
award of $8.25 a week for 300 weeks, with burial expenses. General
American Tank Car Corporation v. Borchardt (Ind.)..

(2). Deductions.

In deciding whether parent is wholly or partially dependent on wages of
deceased child, expenses incurred by parent on account of child on one
side to be weighed against wages received by parent from child on other
side and all circumstances are to be considered in reaching conclusion-
no deduction can be made on account of expenses for clothing annually
incurred on account of child-that father chose to have deceased minor's
wages, as well as his own, turned over to his wife as manager of family
finances did not diminish his own right to son's wages or his obligation
to support family, and he was entitled to entire award as partial de-
pendent; wife not being such also. Dembinski's Case. Appeal of Em-
ployers' Liability Assur. Corporation. (Mass.)..

Injured employee's compensation under statute paid pursuant to voluntary
agreement with employer cannot be credited, upon employee's death,
against compensation awarded dependent. Jackson v Berlin Const. Co.
et. al. (Conn.)..
Under act providing that payments other than for necessary medical, surgical
or hospital fees shall be deducted from amount payable on death. and
section 8 providing that compensation for injury not resulting in death
shall include medical, surgical and hospital fees, not to exceed $200.,
master cannot have the excess over $200 voluntarily paid, credited upon
death compensation in absence or agreement therefor. Crescent Coal
Co. v. Industrial Commission et al. (Ill.).........

98

293

657

700

151

224

240

(4). Commutation of payments and award of gross sum.
Industrial Commission cannot direct payment to state insurance fund of
present value of future installments of compensation awarded dependent
mother of deceased employee, commuted on basis that such award is
of value equal to life award, in view of section providing that award to
dependent mother is only payable during dependency-basis for commu-
tation fixed by Law providing that commutations shall be upon basis of
Suvivorship Annuitants' Table of Mortality and Remarriage Tables of
Dutch Royal Insurance Institution, would not apply to award to a mother
during her dependency. Bailey v. Columbian Rope Co. et al. (N. Y.)... 176
In computing number of working days to determine workmen's average
daily earnings during six months preceding accident under rule of Board
providing that "days employee was prevented from working, through
no fault of his own," should be deducted, days during which work was
suspended on account of labor dispute, together with Sundays and
holidays should be deducted-in case of instaneous death period of com-
pensation does not begin until 14 days after death. Rakie v. Jefferson &
Clearfield Coal & Iron Co. (Pa.)....
661

Agreement of employer, as a condition of being allowed to carry its own in-
surance, to pay, when required, the present value of future payments
under award, not applying, when made, to an award of death benefits
to widow, no method of estimating contingency of remarriage existing
was not enlarged by subsequent amendment of statute, providing method
of estimating present value of such award. State Industrial Commission
V. Yonkers R Co.. (N. Y.)......

[blocks in formation]

512

Under act workman so injured as to be entitled to compensation may, if dis-
figured, also have compensation for disfigurement. Wells Bros. Co. v.
Industrial Commission et al. (Ill.) . . . . .
255

....

388. PERSONS ENTITLED TO COMPENSATION FOR DEATH OF EM-
PLOYEE (DEPENDENTS).

In proceedings by deserted wife and by mistress of deceased, fact that wife
was wholly dependent on deceased, and that illegitimate children of

mistress and deceased were wholly dependent upon him did not necessitate disposal of case under act, as though there were no dependents, on theory that condition was one not contemplated by statute-deserted wife, who had subsequent to her desertion been guilty of adultery, is not a "dependent" illegitimate children of deceased employee living with decedent and their mother are "dependents" of decedent within the act as part of his family; a "family" being a collective body of persons who live in one house under a head or manager who has legal or moral duty to support. Scott's Case (Me.)....

To entitle parents of deceased to compensation for his death sufficient if he contributed to their support within four years prior to time of injury and they need not have been dependent on him. Humphrey et al. v. Industrial Commission of Illinois et al. (Ill.)..

To entitle parents of deceased employee who died during minority as result of injury caused by employment to compensation it is not necessary that contribution of minor was in excess of expenses or that contrabution to parents had any regularity-it is duty of parents to support minor children until they reach age of majority and minor child "contributes to support of its parents" within the act when it contributes substantial sum to support of family. etc. Metal Stamping Corporation v. Industrial Commission et al. (III.).

49

102

258

250

282

643

527

Wife can claim support if husband was under legal obligations to support her, although they were not living together at the time and wife was not dependent on him for support. Smith-Lohr Coal Mining Co. v. Industrial Commission et al. (III.)... Dependency of 13 year old daughter of deceased, not presumed to be conclusively dependent, is to be determined as question of fact upon consideration of father's legal obligation under divorce decree ordering payment for her support, or moral obligation, and whether order would be discharged or enforced. Schwartz v. Gerding & Aumann Bros. et al (Ind.) Daughter of deceased servant, over 18, married and living with her blind husband, she herself being totally blind and therefore physically incapacitated from earning, was entitled to equal share in death benefit with surviving widow. Gavaghan's Case. In re Employers' Liability Assur. Corporation, Limited (Mass.)... Father, partially dependent upon wages of son, could participate in compensation allowed, though son left totally dependent widow, father being entitled to part of award proportionate to his part of total contribution to support father and wife made by son. Penn et al. v. Penn. (Ky.).... 634 Award to widow does not preclude award also to minor children. Wolford v. Geisel Moving & Storage Co. (Pa.) 798 "Dependency" means reliance for support upon workman's earnings at time of injury resulting in death and not at any time thereafter. Newton v. Rhode Island Co. (R. I.).... Word "widow" since it is not defined by act is to be given its ordinary meaning, which is "a married woman whose husband is dead"-although claimant and deceased had lived together for about six years under belief that they were lawfully married, where there was no compliance with statute further than to make out two of three affidavits for license, claimant was not "widow" of deceased within act-though claimant believed she was lawfully married she was not a "dependent." Meton v. State Industrial Insurance Department (Wash.).. Where deceased workman leaves widow and minor children award should be made in favor of children to begin after award to widow ceases and to continue until each child reaches 16 years of age. Irvin v. William M. Frost & Co. et al. (Pa.).. Persons in enumerated classes may be wholly or partially dependent and come within contemplation of provisions, if dependency existed at time of injury one claimed to be dependent must show that contributions were relied upon for living-"support" as applied to "dependency" is broader than food, clothing, etc., and includes all means of living-condition of health of claimant and need for medical attention, etc., are proper subjects for consideration in determining question of dependency. Benjamin F. Shaw Co. v. Palmatory et al. (Del.).. Beneficiaries as well as apportionment must be determined by Compensation Act and not statutes governing recovery of damages for wrongful death. Vaughan et al. v. Southern Surety Ins. Co. (Tex.)..

§ 389. SUBROGATION TO RIGHTS OF INJURED EMPLOYEE. Under section providing for adjustment of compensation where employee is injured by act of third person, the employee, after employer has indemnified himself by suing third person, is entitled to entire balance of judgment recovered if more than sufficient for such indemnification-employer may sue for entire damages either in his own name or that of his employee, or may continue any suit begun in name of such employee after liability is fixed-court may by order distribute proceeds as between employee and employer. Gones v. Fisher (II.)... Compensation Act permits assignment of injured person's right of action against tort-feasor not previously sanctioned by law and provides that making by injured employee of lawful claim under act against employer and latter's insurer shall operate as transfer of legal title to his claim for damages against tort-feasor to employer or latter's insurer-use of word "subrogated" did not render right of action against tort-feasor

541

526

424

386

596

acquired by employer's insurer, which paid claim, an equitable cause of
action as against tort-feasor, though as between insurer and employee
right of subrogation was equitable right arising out of payment of claim.
Massachusetts Bonding & Ins. Co. v. San Francisco-Oakland Terminal
Rys. (Cal.)
Where dependents of killed employee assigned the cause to insurance car-
rier, latter could maintain action against wrongdoer. Travelers' Ins. Co.
v. Padula Co., Inc. (N. Y.).

[blocks in formation]

Decision of higher state court denying relief under New Jersey Act for
drowning in navigable waters not reviewable by national Supreme Court
on writ of error. Coon v. Kennedy (U. S.)......

§ 392.

574

339

403

-AUDIT OF CLAIMS.INCURRED OR PAID BY BOARDS OR COM-
MISSIONS.

(8).

Where assignment or change of interest without endorsement was prohibited
and insured's wife inherited and carried on his business after death, com-
pany was not liable after she had sent policy to company to be trans-
ferred, but before insurer endorsed transfer of interest, even though
afterwards insurer accepted balance of earned premiums, where it had
no knowledge of injury to servant. Kolb v. Brummer et al. (N. Y.).. 351
393. TERMINATION OF PAYMENTS.
Where one entitled to compensation secured a determination and award for
permanent disability and died before lapse of maximum number of
payments had been made according to terms of award, right to compen-
sation under award ceased with death. Lahoma Oll Co. et al. v. State
Industrial Commission of Oklahoma et al. (Okla.)

If award to widow ceases before decedent's children reach 16 years of age,
they are entitled to compensation until they reach that age. McCari
et al. v. Borough of Houston (Pa.).............

In view of fact that no provision is made that remarriage of widow shall
excuse further payments where court awarded 300 weeks' compensation,
widow's remarriage did not entitle employer to vacation of award. New-
ton v. Rhode Island Co. (R. I.)..

192

788

527

§ 3932.

Where workman directed by master to one hospital, went to another and
was refused care, he was not entitled to award for medical services.
Cella v. Industrial Accident Commission et al. (Cal.)..
Not against public policy, under Compensation Act for employer to agree
to pay doctor salary, employer to retain medical fees allowed by in-
surance association. Sherrill v. Union Lumber Co. (Tex.)...
Injured servant authorized to select own physician at expense of employer
only where latter has neglected or refused to abide employer under
no duty to offer further medical attention, servant having previously con-
sulted physician of own choice. Leadbettor et al. v. Industrial Accident
Commission (Cal.)....

(C) PROCEEDINGS.

420

377

414

[blocks in formation]

Procedure for recovery of compensation under act not applicable to cases
where suit is to enforce terms of agreement to pay stipulated sums,
made after accident. Burns v. Edison (N. J.)..

895. WHAT LAW GOVERNS.

V.

Test of whether or not locomotive engineer was engaged in interstate com-
merce when he was injured is that, if accident was incident to interstate
work or to whole day's work. partly interstate and partly intrastate,
he is engaged in "interstate commerce"-where locomative engineer em-
ployed by common carrier, acting under two orders, one to help interstate
freight train to summit and other to return with engine, was injured on
return trip, he was engaged in "interstate commerce." Callahan
Boston & M. R. R. (N. H.).....
Plaintiff, as station agent of defendant, was not, while attempting to
start fire in depot stove, engaged in "interstate commerce"-for railroad
employee to come under Federal Employers' Liability Act it must appear
that injury was incurred while he himself was employed in interstate
commerce. Benson v. Bush (Kan.)

645

775

629

Test whether railroad employee is engaged in interstate commerce is whether
at time of injury he was engaged in interstate transportation or in work
so closely related to it as to be practically part of it-work of repairing
tracks of interstate railroad is part of interstate commerce. Kusturin
v. Chicago & A. R. Co. (Ill.).
... 693
All controversies touching liability of railroad company engaged in interstate
commerce to employees likewise engaged are removed by federal Em-
ployers' Liability Act from sphere of state legislation and Commission
has no jurisdiction where injury occurred while engaged in interstate

TOPICAL INDEX

From January to June, 1919, inclusive.

1. THE RELATION.

(A) CREATION AND EXISTENCE.

§ 6 (2).

Though adjustment and payment of compensation operated to transfer legal title to employer, or surety, employee still retained equitable interest and was real party in interest. Bassot et al. v. United Railroads of San Francisco (Cal.)

§ 8 (6).

Federal act applies and there is no liability under state act if employee at time of injury was engaged in interstate commerce. Wangerow v. Industrial Board et al. (III.).....

(C) TERMINATION AND DISCHARGE.

20. Indefinite term.

State Act which in actions against employer who has not accepted its terms provides a different measure of compensation from that of maritime law, does not apply to seaman injured while employed on vessel on navigable waters of the United States. Barrett v. Macomber & Nickerson Co. (U. S.)..

27. Disability of servant.

417

439

89

Test as to whether employee was engaged in "Interstate commerce" at time of injury is whether performance of act in which he was engaged directly and immediately tended to facilitate movement of interstate commerce, or, conversely, whether failure to perform act directly and immediately interfered with or hindered movement of such commerce. Morrison v. Chicago, M. & St. P. Ry. Co.. (Wash.).... 81

§ 27 (7).

Employee in local switching crew injured while setting brake on car being switched between sidings, car having come from Pennsylvania consigned to company in New Jersey not engaged in interstate commerce. Delaware, L. & W. R. Co. v. Peck (U. S.). .559

III. MASTER'S LIABILITY FOR INJURIES TO SERVANT.

(A) NATURE AND EXTENT IN GENERAL.

$87. Statutory provisions.

There can be no recovery against master under federal Act without plaintiff showing negligence of carrier's officers, agents or employees. Reed's Adm'x v. Illinois Cent. R. Co. (Ky.) Street railway engaged in carrying passengers between states is "common carrier by railroad" within Federal Act. Nelson v. Ironwood & B. Ry. Light Co. (Mich.)..

[blocks in formation]

Where master had not elected to come under act agreement for compensation was not binding upon servant. Nelson v. Ironwood & B. Ry. & Light Co. (Mich.) 327

§ 88 (7). Commencement, suspension, or termination of relation. Servant employed in cleaning fires and coaling locomotives injured when riding to work on master's engine, such being method of reaching work provided by master, was injured while relation of master and servant existed. Lindstrom v. New York Cent. R. Co. (N. Y.)... 514

95. Unlawful employment or services.

Employment of minor between 14 and 16 years of age will not be held to be illegal on account of fact that child's mother signed age and employment certificate issued by school committee under Statute and falsely stated that she had control of child, when child was in fact under control of father. Taglinette v. Sydney Worsted Co. (R. I.).... 662

Under statute inhibiting employment in certain places during hours schools are in session, child of 15, not supplied with age and schooling certificate his employment for all hours of day, being an entirety, is illegal even after school hours-employment is not saved from illegality by fact he is attending night school. Maryland Casualty Co. v. Industrial Accident Commission of California et al. (Cal.)

563

(B) TOOLS, MACHINERY, APPLIANCES, AND PLACES FOR WORK. §§ 101, 102 (10). Care required dependent on knowledge and (X perience of servant.

Absence of light on locomotive moving in yard is not negligence as to employee who knew his position and was injured after jumping from it with light, creating absence of light. Palermo v. Erie R. Co. (N. Y.)...... 346

« AnteriorContinuar »