payable under the law. Any amount secured in damages in excess of compensation paid the employee must be paid to him.

If the injured man or his dependents elect to sue the third party or parties and recover less than the compensation law provides, the difference may be secured from the employer or from the employer's insurance company but in such cases before the claim may be compromised the claimant must consult the employer or insurance company and obtain written approval of the contemplated action.

Miscellaneous Provisions.-There are other miscellaneous provisions of the New York law which are typical of compensation legislation in general:

1. Revenues or benefits from other sources shall not affect compensation. If, by reason of personal insurance, savings or other benefits, the employee or his dependents should actually receive more than 100 per cent of wages during disability or dependency, the compensation benefits must nevertheless be paid.

2. No share of the cost of compensation insurance or of benefits may be collected from employees. When the employer carries insurance, he must bear the entire cost and is not allowed to shift any part of the burden to his employees by deductions from wages or otherwise.

3. No agreement by an employee to waive his right to compensation shall be valid. This renders impossible the common law practice known as "contracting out."

4. Compensation or benefits due under the law shall not be assigned and shall be exempt from all claims of creditors and from levy, execution or attachment for recovery or collection of a debt. This makes it certain that compensation payments will be devoted exclusively to the purpose for which they are intended and that they will not be dissipated or used for the benefit of persons other than the injured employee or his dependents.

5. Compensation shall have the same preference or lien against the assets of the insurance company or employer, without limit of amount, as unpaid wages. The purpose of this provision is to protect the injured employee or his dependents in cases where the employer becomes insolvent before the compensation payments have been completed.

6. An owner or contractor is responsible for injuries to the employees of a sub-contractor unless such sub-contractor has taken steps to secure compensation to his employees in a manner acceptable under the law. This also serves as a measure of protection to claimants for it makes certain that some responsible person or corporation will be held liable for the compensation benefits even though the immediate employer may be unable to meet his obligations.

CONCLUSION

The principle of workmen's compensation is firmly established in this country but its application through legislation is still in an experimental stage. This is fully demonstrated by the flood of legislation which is introduced at each session of the state legislatures. Much of this is the result of dissatisfaction with failure to cover a certain class or classes of employees, with benefits which are considered inadequate, or with procedure which has failed to meet the test in peculiar cases not contemplated when the law was originally enacted. But in the main it represents an endeavor to discover that form of legislation which most satisfactorily accomplishes the desired result. The time will come when coverage will be universal, when benefit schedules will offer maximum compensation and when procedure will be perfected to the point where little further improvement is possible, but at this time the situation is an ever changing one. It is to be hoped that the ultimate development of workmen's compensation legislation will bring with it a greater degree of uniformity than exists today and that the ideal law when it is formulated will be enacted universally, for the great diversity of laws and procedure which are found in the several states creates one of the serious problems of the workmen's compensation movement in this country.

CHAPTER VIII

MALINGERING

"Malingerer, n.—A soldier or a sailor who feigns himself sick, or who induces or protracts an illness, in order to avoid doing his duty; hence, in general, one who shirks his duty by pretending illness or inability."

Webster's New International Dictionary.

A discussion of the principles of workmen's compensation would be incomplete without mention of malingering, for the problem of malingering is a by-product of workmen's compensation legislation and requires the most careful consideration by all who are interested in the subject.

The Problem.-Malingering is not a new practice; it has existed from time immemorial. But it has become prominent under workmen's compensation laws and, therefore, has attracted unusual attention because of the large number of people affected and the opportunity offered by this legislation to procure benefits for injuries which may be feigned, exaggerated, deliberately aggravated or which may result from some form of hysteria or neurasthenia. It does not require extended explanation to demonstrate the importance of safeguarding the law and its administration against illegitimate practices of this character, for otherwise the plan of workmen's compensation which has been adopted with the thought that it will benefit workers generally may actually result in the creation of moral hazards which will seriously impair its value.

The following reference to conditions in Germany may present an overdrawn picture of the situation but it nevertheless points out the possibilities which may result from failure to recognize and guard against the evil under discussion:

A survey of the medical literature clearly shows that instruction in simulation and aggravation has actually become a special science since

the introduction of workmen's insurance and through workmen's insurance.

But even simulation itself is not the worst. A far more dubious phenomenon is the thought which creates close connection between every sickness and a title to a pension. As a result attention is ceaselessly directed to the conditions connected with one's own body; and those nervous phenomena appear which are called "pension hysteria" by physicians.1

The same state of affairs has been observed in experience with workmen's compensation cases in England:

The happening of an accident too often so perverts the mental outlook of the recipient that he deliberately fosters and exaggerates every morbid sensation, which in process of time so gets possession of him that to a certain extent he genuinely believes that he is not fit for work. Physically, these men are perfectly able to work, provided they have sufficient stimulus. The Workmen's Compensation Act deprives them of this stimulus, and so, after months and years of idleness, they become unfitted for any laborious work. The psychological moment having passed, when by real effort they could have again become useful members of society, they acquire by irregular and loafing habits a mental outlook which renders them incapable of doing an honest day's work; and it follows that, in order to retain compensation, they exaggerate such symptoms as do exist, and attempt to introduce others which have no foundation at all.2

It is no use saying that men and women will not take advantage of opportunities of obtaining relief from all possible sources if the pathways are made easy enough. Those who attempt fraud are a minority, but they constitute a serious, disreputable and expensive minority.3

Finally, two references to indicate that the problem is recognized as one of importance in this country:

desire for compensation... may provoke, engender or prolong a hysteria . . . In Denmark it is the custom to pay insured workingmen lump-sum settlements at a very early date of their incapacity, and 93.6 per cent recover from what is known as traumatic neu1 BERNHARD, LUDWIG, "The Future of Social Policy in Germany," p. 11. Translated from Stahl und Eisen, vol. XXXII, pp. 641–649, Apr. 18, 1912. 2 COLLIE, SIR JOHN, "Malingering," first ed., pp. 100-101.

3 APPLETON, W. A., Secretary, General Federation of Trade Unions of Great Britain in "Unemployment,” p. 60.

rasthenia. In Germany, however, where the injured is entitled to a pension, only 9.3 per cent recover from the same disease It is the opinion of contemporary neurologists that were it not for the possibility of compensation the traumatic neuroses would practically not exist.1

Malingering is usually a product first of an attempt on the part of the injured to make those who may help him appreciate the degree of his disability and later a desire to perpetuate the same. The result is distortion of his sense of justice and dulling of his honesty."

Forms of Malingering. Malingering takes many forms and is, in fact, often extremely difficult and sometimes impossible to detect. A workman may deliberately simulate an injury alleging, for example, that he has become partially blind in one eye, or that an injury to his back has subjected him to spells of weakness and general debility, or has resulted in paralysis of the lower extremities. In these cases there may have been an actual injury which did not, however, produce the symptoms complained of or there may have been no injury at all, the entire matter being a deliberate fraud.

In other cases an injury may be unduly prolonged or aggravated. An employee sustaining an injury which normally might cause disability lasting for two months may magnify it in order that he may remain idle for a further period. He may refuse reasonable, adequate treatment such as a surgical operation, or he may simply decline to acknowledge his true condition, or he may actually do something to aggravate his condition. Cases illustrating the latter practice are numerous. A worker with a superficial wound may deliberately use an improper treatment which he knows full well will not be curative but which is designed to have just the opposite effect. Collie3 cites a case in which an employee whose finger had been amputated claimed a continuation of compensation on the ground that the stump had become extremely tender. In fact, after a time the trouble affected his hand and forearm which became badly swollen. The claimant was removed to a hospital where, suspicion being

1 POLLOCK, LEWIS J., "The Neuroses" in "Proceedings of the Eight Annual Meeting, International Association of Industrial Accident Boards and Commissions." Bull. No. 304, U. S. Bureau of Labor Statistics, p. 156. 2 Report of Industrial Commission of California, 1922, p. 36.

3 COLLIE, SIR JOHN, "Malingering," first ed., p. 159.