§383. ACCIDENT OR INSURANCE FUNDS, AND CONTRIBUTIONS THERETO. Mere contest by employer of order of Commission for commutation of award of death benefit to widow does not constitute good cause within act empowering Commission to revoke, for good cause shown, its consent for self-insurance. State Industrial Commission v. Yonkers R. Co. (N. Y.). 512 It was improper for Commission, pursuant to previous resolution, to require self-insurer, whose solvency was not questioned to pay into state fund present value of award to widow and children of deceased employeewhile law provides that Commission may require agreement on part of any employer to pay award computed under section 27 into special fund or state fund as condition to self-insurance, such consent does not require employer to observe arbitrary and illegal orders of Commission. Sperduto v. New York City Interborough Ry. Co. (N. Y.).......... 503 Insured employee seeking compensation must submit to operation which will cure him, when so advised by attending physician, when not attended with danger to life or health or extraordinary suffering and he cannot obtain compensation for permanent impairment resulting from such refusal. Enterprise Fence & Foundry Co. v. Majors (Ind.). Under Act, life expectancy of claimant, suffering from permanent partial disability is at least proper element for consideration to assist in determining whether he is entitled to full maximum allowance or less sum -Act is to be construed liberally for protection of employee and Commission is restricted as to amount of weekly allowances only by statutory maximum, regardless of aggregate amount awarded. Employers' Mut. Ins. Co. et al. v. Industrial Commission of Colorado et al. (Col.).... Claimant who suffered fracture of base of skull as result of which his sight and hearing were impaired and who suffered from dizziness, headache and general disability, being unable to work at his occupation of mining coal, condition being probably permanent, not inequitable to allow compensation for 25 per cent, disability, to be reduced at any time of proof of improvement. Employers' Mut. Ins. Co. et al. v. Industrial Commission of Colorado et al. (Colo.).. "Compensation" in connection in which used in Compensation Act means money relief afforded according to scale established and for persons designated and not compensatory damages recoverable in action at law for wrong done or contract broken. Duart v. Simmons (Mass.).. Where employee lost not only sight of his eye but eye itself, his case would not fall within that part of section 18, making compensation solely for "loss of sight" but within general provision awarding compensation "in all other cases of permanent partial disability." Nelson v. Kentucky River Stone & Sand Co. (Ky.).......... Schedule of compensation for specific injuries may be used by Compensation Board as standard by which to measure compensation to be allowed by injuries not specified but falling within general clause awarding compensation "in all other cases of permanent partial disability." Nelson v. Kentucky River Stone & Sand Co. (Ky.).. Painter who, through laceration of left hand, affecting extensor muscles controlling third and fourth fingers practically lost use of fingers, though earning capacity was not diminished, did not "lose" fingers within Compensation Act and was entitled to compensation only for difference in earning capacities before and after accident. In re Merchant's Case (Me.).. Award for loss of arm under act justified by medical testimony that amputation of forearm and wrist, though it had not destroyed use of arm entirely, had taken away a great deal of its function. Stocin v. C. R.. Wilson Body Co. et al. (Mich.). Loss of more than fourth but less than half of index finger-not entitled to award for loss of half. Tetro v. Superior Printing & Box Co. et al. (N. Y.) (5). Total disability. Held, where servant who had already lost an arm suffered loss of leg, there was total disability, for employer hiring servant as one able only to do work of one-armed man. Wabash Ry. Co. v. Industrial Commission et al. (Ill.) Employee, who had previously lost part of one finger, but nevertheless had use of hand, who, as result of latter injury not resulting in total severance, totally lost use of hand, was entitled to compensation for "total loss of use of hand," though with mechanical appliance on wrist he could perform some manual labor. Mark Mfg. Co. v. Industrial Commission et al. (Ill.) . . . . 118 91 91 186 182 730 732 763 360 435 594 (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.) 293 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.) 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.)..... 752 752 189 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.)............ 498 Loss of arm, hand, or finger. (12). 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.)....... 793 293 (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) 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.). 473 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.)... (18). Submission to surgical operation. 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 333 333 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 Sundays, legal holidays, half holidays for each week, and days when employee was prevented from working trough no fault of his own, to facilitate determination of weekly wage upon which proportionate compensation 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.) 886. .... DEATH BENEFITS. (1). In general. 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 conclusionno 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 dependent; wife not being such also. Dembinski's Case. Appeal of Employers' 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. (Ïll.)........ 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 commutation 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 compensation does not begin until 14 days after death. Rakie v. Jefferson & Clearfield Coal & Iron Co. (Pa.).... Agreement of employer, as a condition of being allowed to carry its own insurance, 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.)..... Under act workman so injured as to be entitled to compensation may, if disfigured, also have compensation for disfigurement. Wells Bros. Co. v. Industrial Commission et al. (Ill.).. 661 512 255 1888. PERSONS ENTITLED TO COMPENSATION FOR DEATH OF EMPLOYEE (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. (II). 102 258 282 643 798 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. (I.). 250 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.).. "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.).. 527 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.)... 526 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 (Ill.)... 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 541 424 386 596 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 carrier, latter could maintain action against wrongdoer. Travelers' Ins. Co. v. Padula Co., Inc. (N. Y.) § 391. — PERSONS LIABLE. 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- (8). Where assignment or change of interest without endorsement was prohibited and insured's wife inherited and carried on his business after death, company was not liable after she had sent policy to company to be transferred, 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 I 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 compensation under award ceased with death. Lahoma Oil 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. McCarl 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. Newton v. Rhode Island Co. (R. I.). § 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 insurance 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 consulted physician of own choice. Leadbettor et al. v. Industrial Accident Commission (Cal.)... 192 788 527 420 377 414 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. Test of whether or not locomotive engineer was engaged in interstate commerce 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 employed 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.).. V. 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.) 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.). All controversies touching liability of railroad company engaged in interstate commerce to employees likewise engaged are removed by federal Employers' Liability Act from sphere of state legislation and Commission has no jurisdiction where injury occurred while engaged in interstate 645 775 629 693 |