the foreman when he saw him cutting timber on the disputed territory. The Commission found that the deceased had not been the aggressor; that he had reason to believe that he was not trespassing but was acting in his employer's interest, and therefore awarded compensation.1

A foreman ordered an intoxicated employee to leave the plant where he was employed and go home. Another employee warned the foreman that the intoxicated man had a revolver and had threatened to shoot the foreman. The intoxicated employee became incensed at the informant, and shot and killed him. Compensation was granted to the dependents of the deceased.2

When the injured employee is the aggressor the provision of the law is involved which specifies that an injury is not compensable where it is occasioned by the wilful intent of the injured employee to bring about the injury or death of himself or another:

Compensation was denied to the dependents of a traveling salesman who entered into an argument with a druggist of Detroit, Michigan. As a result of the argument, a fight occurred during which the druggist fractured with a baseball bat the skull of the salesman. He died a few days later. It was found that the salesman had assaulted the druggist, and was the real aggressor.3

Compensation may be granted in some cases in which the employee has been the aggressor. It has been held, for example, that an employee has a legitimate right to resent an insult or an indignity, and that he may also attack another in the exercise of police powers or in the guardianship of the employer's property.

1 Millard vs. Ellsworth, 194 App. Div. 943 (1920). State of New York Department of Labor, Special Bull. No. 106, p. 134.

2 Klotz vs. Union Furnace Company, 194 App. Div. 949 (1920). State of New York Department of Labor, Special Bull. No. 106, pp. 134–135.

3 Jacobowitz vs. Ex-Lax Mfg. Company, 187 App. Div. 915 (1919). State of New York Department of Labor, Special Bull. No. 97, p. 123.

In cases of this type, the payment of compensation is dependent upon the question of whether the assault was in connection with the employer's work and interest. The following cases are illustrative:

Two employees of the same firm engaged in an altercation over the question as to which one should first load his motor truck with the contents of a railroad car. One assaulted the other and the neck of the assaulter was broken by a return blow. Compensation was denied by the court on the ground that the deceased employee "was not doing the duty he was employed to perform, when he left his work for the purpose of assaulting Vogt (his fellow employee), nor was the injury a natural incident of the work which he was required to perform."1

Two employees carrying material in a factory were passing each other when the load of one accidentally struck the other. An altercation resulted in which the employee who was struck was fatally injured. Compensation was awarded.2

Intoxication.-Intoxication may be a bar to collection of compensation but the New York law specifies that such intoxication must be the sole cause of the injury. It is also required that the employee must have been intoxicated while on duty before compensation is denied. An injury resulting from the effects of previous intoxication is compensable.

It is not easy to prove that intoxication is the sole cause of an accident or, in other words, to prove that the accident would not have happened had the employee been sober. The burden of proof is on the employer, and it is seldom that a case occurs where intoxication can be used as a bar to the collection of compensation. The following cases are illustrative:

1 Stillwagon vs. Callan Brothers, 183 App. Div. 141 (1918). State of New York Department of Labor, Special Bull. No. 97, pp. 120–123.

2 Griffin vs. Roberson & Son, 176 App. Div. 6 (1916). State of New York Department of Labor, Special Bull. No. 87; Part I, pp. 141–145.

A newly hired employee was being transported upon a truck to the place at which he was employed. It was learned later that he was in possession of two flasks of whiskey at the time. At his request, the driver permitted him to ride upon the seat from which he was thrown as the truck struck a hole in the pavement. The wheels of the truck passed over his body, and injured one of his legs so severely that amputation was necessary. The court held that the injury was compensable because the important contributing cause of accident was the fact that the truck struck a hole in the pavement and, presumably, an employee in sober condition might have sustained injury under similar circumstances.1

A teamster in a lumber camp tripped over an axe and cut his forearm while investigating at night a noise near the stables. Eight days later he was on his way to his doctor's office when he slipped on ice and reopened the wound, causing blood poisoning. All the witnesses at the hearing admitted that he had been intoxicated every day from the time of the original accident until the time of the second accident, and it was pointed out that he had fallen on two occasions since the original fall. Compensation was denied.2

1 Haworth vs. Brown, Decision of Industrial Commission (1919). State of New York Department of Labor, Special Bull. No. 97, pp. 154–155. 2 Lindsay vs. Gallagher, App. Div. (1917). State of New York Department of Labor, Special Bull. No. 87; Part I, p. 202.

CHAPTER VII

WORKMEN'S COMPENSATION LEGISLATION

CONTINUED

BENEFIT SCHEDULES

The Waiting Period. All injuries subject to the provisions of a particular workmen's compensation law do not necessarily require payments of indemnity. A "waiting period" is usually provided following the occurrence of an injury during which no indemnity payments are allowable.

Waiting periods are of two kinds. There is, first, a waiting period proper. A 1-week waiting period of this class excludes payment of indemnity for all injury cases causing disability of 1 week or less; in cases in which disability continues for more than 1 week compensation is payable only during its continuance beyond that period. With such a waiting period in effect an injury, to be compensable, must cause disability of 8 days or longer, compensation payments beginning on the eighth day of disability. The other type of waiting period involves a "retroactive" feature. A waiting period of 1 week retroactive at 3 weeks would: (1) bar payment of indemnity in all cases causing disability of less than 1 week in duration; (2) provide for compensation payments beginning with the eighth day of disability for injury causing disability of from 8 to 21 days; and (3) require payments of compensation beginning with the day of injury, provided disability extended beyond the 21-day period.

There are several reasons for the waiting period:

1. The waiting period enables legislators to augment the benefits in cases of severe injury and death where benefits should be substantial. Compensation is expensive, if the benefits are adequate. The problem is to obtain a distribution of this burden. so that the greatest good will be accomplished. The benefits should be allocated so that the payments for cases of severe injury

and death are made as complete as possible. The injured man can do without compensation payments for a short time, and the money which is saved by eliminating compensation payments for the waiting period can be added to the benefits in serious cases for the purpose of making them more adequate than they might otherwise be.

2. The waiting period reduces the cost of administration. Approximately 40 per cent of all injuries cause disability of one week or less. If these cases do not require compensation payments, the expenditure of a considerable amount of time in the calculation and payment of claims by the employer and the insurance company, and in the verification and supervision of these payments by the state administrative body is avoided. There is a point at which the cost of computing and making payment of a small claim to an injured employee, and of certifying it to the state supervising body is as great as the amount of the payment itself.

3. The waiting period tends to prevent fraud. To illustrate: if a man sustains a minor injury which normally would incapacitate him from work for 5 days, there is little incentive, under a 1-week waiting period, for him to stay away from work for more than the actual period of his incapacitation. He will probably return to work as soon as he is able to do so as every day he remains away means a loss of wages. If, however, compensation began as of the date of injury, he might be content to stay away 2 or 3 extra days, and to be satisfied for this additional period to accept a percentage of his regular wages in lieu of full wages. In this way, he would be able to take advantage of his injury to spend a part of the period of his alleged disability on vacation. The longer the waiting period the less likelihood there will be that an injured employee will exaggerate or make capital of a trivial injury. From this point of view, the correct waiting period is that which applies to all cases, including cases of longterm disability. The retroactive waiting period is dangerous if the retroactive feature runs from a date close to the date of injury. Thus, a week's waiting period retroactive at the end of one week is a direct invitation to the worker whose disability should last 5 days to feign disability until the seventh or eighth