§ 392

$393.

3934.

393%.

AUDIT OF CLAIMS INCURRED OR PAID BY BOARDS OR
COMMISSIONS.

TERMINATION OF PAYMENTS.

PRIORITIES.

MEDICAL ATTENDANCE AND SERVICES.

393-Employer held not entitled to complain of want of notice of neces-
sity for medical aid required by Act. Bucyrus Co. v. Reisinger
(Ind.)

(C) PROCEEDINGS.

285

394. NATURE AND FORM OF REMEDY.

394. ABATEMENT OR SURVIVAL.

394--Cause of action against wrongdoer for compensable injuries within
Texas statute not abated by employee's death. Orange Ice, Light
& Water Co. v. Texas Comp. Ins. Co. (U. S.).....
WHAT LAW GOVERNS.

$395.
395-To recover under federal Act employment in interstate commerce must
be shown.-Injured servant enlarging old turntable held not en-
gaged in "interstate commerce" under federal Act. Seaver v.
Payne (N. Y.)
Williams V.

395-Engagement in interstate commerce is question of fact.

Southern Pacific Co. (Cal.)
395-Where an employee of a contractor engaged in constructing a pier was,
at time of injury, repairing boiler on scow, which was a navigable
craft in navigable waters, though used to assist in the construction
of piers, his work was maritime in its nature and within the ad-
miralty jurisdiction. McNamara V. McHarg-Barton Co. et al.
(N. Y.)
395-Where an interstate train was being cut so that each car when it
reached its destination might readily be detached and the train
sooner proceed, and thus interstate as well as the intrastate trans-
portation be better effected, the entire train, so far as liability is
concerned, was an interstate train. McNeill v. Director General of
Railroads et a!. (Pa.)......

487

67
108

744

777

Conner's Case (Me.)... 176

Darsch v. Thearle Duffield Fire Works

Display Co. (Ind.)

282

3972. REPORTS OF ACCIDENT.

§

398. NOTICE OF INJURY OR CLAIM, AND DEMAND FOR COMPEN-
SATION.

398-Compensation dependent on timely notice of accident. Black Diamond
Colleries v. Deal (Tenn.)
398-Claim held subject to short limitation instead of extended Imitation in
event of employee's return to employment. Swift & Co. v. Indust.
Comm. (Ill.)
398-Award against employer appearing without formal application and no-
tice held valid. Utah Fuel Co. v. Indust. Comm. of Utah (Utah.)
398 Delay in giving notice did not bar right to any part of compensation.
In re Troutman. In re Kirk (Ind.)..
398-Minor, claimant, is not dependent exempt from limitations-notice of

79

26

91

144

226

228

injury and caim are essential. Beagle v. Groff (N. Y.).
398-State treasurer's right to allowance under act not bared by failure to
file claim. Cook v. West Side Trucking Co. (N. Y.).
398-Notice of injury and certificate of necessity for medical treatment held
waived. Southern Surety Co. v. Beaird (Tex.).....
398-Petition for compensation held barred by time limitations.

252

Lemelin's

Case (Me.)

182

398-Claim held within enlarged limitation of act. Donovan v. Duluth St.
Ry. Co. (Minn.)

204

398-Claim is not barred by limitations if employer is not prejudiced-no-
tice of accident is sufficient claim-limitation in act is for em-
ployer's benefit-compensation is computed from date of estoppel.
Mulhall v. Nashua Mfg. Co. (N. H.)
398-Claim held barred by failure to give notice. Indust. Comm. v. Peppas
(Colo.)

211

339

398-Finding of waiver of delay in making claim held unwarranted.
ley v. General Baking Co. (Mich.)
398-Claim by unauthorized attorney held sufficient. Kottari v. Empire Iron
Casualty Co. (Mich.)

Kirk-

406

412

398-Formal notice of injury held unnecessary.

Franks v. Carpenter (Iowa) 374

398-Where injury seemed insignificant and there were later serious developments, the Commission did not err in awarding compensation, though notice was not served on the employer until 50 days after the accident instead of 30 days, the situation being within the meaning of term "unforeseen cause" excusing delay. Wardwell's Case (Me.) 398--Payments by employer for medical services were payments of compensation within Act, requiring employee to make claim within six months after the accident, or in the event that payments have been made within six months after such payments have ceased-where claim not filed within six months, no recovery could be had. Jackson v. Indus. Comm. et al. (Ill.)... 398-Industrial Board may waive strict compliance with requirements as to notice and the filing of claims. Millers' Indemnity Underwriters v. Patten et al. (Tex.)...

398-The notice provided for in the Act is not jurisdictional.

691

662

971

Consolidated

765

Fuel Co. et al. v. State Indus. Comm. et al. (Okla.). 398-Under statute amending Compensation Act so as to permit claim to be made within six months after the actual injury, disability, or incapacity develops or makes itself apparent, no hard and fast rule can be fixed to establish the date at which the statute begins to run, but each case must be governed by its own facts. White v. Morgan and Wright (Mich.)

727

398 The Act provides that compensation will be made to deceased's widow and failure to give the 30-day notice or show excuse for not giving such notice, defeats a recovery notwithstanding a minor child of five was one of the claimants. Patten Hotel Co. v. Milner (Tenn.).... 780 398--Compensation insurer he'd not prejudiced by delay in giving notice of clain. Sullivan's Case (Mass.)

398-Notice of compensable injury may be waived for "good cause." Consolidated Underwriters v. Seale (Tex.)

600

650

398-Notice to compensation insurer not condition precedent to employee's action against wrongdoer. Van Zandt v. Sweet (Cal.)

511

§ 3982. ARBITRATION.

§ 399. MEDICAL EXAMINATION OF CLAIMANT.

399-Estoppel to plead limitation as defense to claim. Mulhall v. Nashua Mfg. Co. (N. H.)

211

399-Claimant required to submit to physical examination before determina

tion of claim. Paradise Coal Co. v. Indust. Comm. (Ill.).. 399-Claimant required to submit to physical examination without payment

550

540

of award. Pocahontas Mining Co. v. Indust. Comm. (III.)..

§ 400. PARTIES.

400-Children necessary parties to widow's proceeding for commutation of award. Ciaccia v. Gen'l Fire Extinguisher Co. (R. I.)

466

§ 401. PLEADING.

401-Declaration for common-law damages held sufficient under Act. Kinnan v. Chas. B. Hurst Co. (III.).

526

§ 402. EVIDENCE.

403-Suicide not presumed in case. Fernald's Case (Mass.)

§ 403.

587

PRESUMPTIONS AND BURDEN OF PROOF. 403-Railroad has burden of proving that employee's work was in interstate commerce. Goldsmith v. Payne, Dir. Gen. of R. R. (Ill.)... 130 403-Burden of proof rests upon claimant. Pioneer Coal Co. v. Hardesty (Ind.) 296 403-Burden of proof is on claimant. J. E. Porter Co. v. Indust, Comm. (Ill.) 355 403-Compensable injury must be proved by claimant, Bingham Mines Co. v. Allsop (Utah)

405-Burden of proof is upon claimant. Hall v. Ind. Comm. of Colorado et al. (Colo.) 403-Fact that the injury complained of arose out of and in the course of employment must be found to sustain award, and the burden is on applicant. Gardiner v. Cochran Chair Co. (Ind.)... 403-In a proceeding for death of a brakeman on an interstate train, the burden was on claimant to prove that some other railroad than deceased's employer was responsible for the injury in order to recover on theory that Federal law did not apply. McNeill v. Director General of Railroads et al. (Pa.)

403-Petitioner had the burden of affirmatively showing that the employer was not engaged in interstate commerce within the Federal Employers' Act. Lincks et al, v. Erie R. Co. (N. J.)..

ADMISSIBILITY.

§ 404. 404-Criminal record of deceased son of caimants held properly excluded. Lumbermen's Reciprocal Ass'n v. Warner (Tex.)....

473

655

669

777

740

80

404-Testimony of witness that he knew deceased did not pull plug for
purpose of stopping machine, because he came down right after
accident and switch and fuse were then in, was merely expression
of opinion not binding on Board. Hubbard Steel Foundry Co. V.
Remiszewski (Ind.)
404-Board held not bound by strict rules of evidence. Gen. Am, Tank Car
Corp. v. Weirick (Ind.)
404-Evidence as to liability under act for hospital service held admissible.
Southern Surety Co. v. Beaird (Tex.)
404-Evidence proffered by the applicant, consisting of a wholly unidentified
written statement of the employer respecting a claim of decedent
as to the accident, dependent's notice of the accident and claim for
compensation, and statements made by decedent at various times
long subsequent to the alleged accident, was properly excluded.
Hall v. Ind. Comm. of Colorado et al. (Colo.)...

405 (1) Finding of employer's knowledge of injury held justified where in-
jured immediately told foreman and was sent by him to nurse and
by nurse to company's surgeon. Terre Haute Malleable & Mfg.

Co. v. Wehrle (Ind.)

405 (1) Evidence held to support finding negativing willful misconduct.-
Defense of willful misconduct must be established by prepoderance
of evidence. Hubbard Steel Foundry Co. v. Remiszewski (Ind.)...
405 (1) Award based on unsworn report of physician, received by Commission
without notice to employer and insurance carrier, outside of regu-
lar hearing, without opportunity for cross-examination, is preju-
dicial to employer and insurance carrier, and must be reversed.
Stimal v. Jewett & Co. (N. Y.)

28

147

252

655

32

28

71

405 (1) Evidence held to show employer was estopped by acts of insurer's
agent from claiming prejudice from delay in filing claim. Mulhall
v. Nashua Mfg. Co. (N. H.)
.... 211
405 (1) Award cannot be based on mere conjecture-Board's findings sus-
tained, if facts proven with reasonable inferences will sustain it.
Pioneer Coal Co. v. Hardesty (Ind.)....

296

405 (1)

405 (1)

Finding of employment in interstate commerce held sustained by
evidence. O'Neill v. Sioux City Terminal Ry. Co. (Iowa).
Evidence to be considered according to rules applicable to
McNeil v. Panhandle Lumber Co. (Idaho).

378

courts.

342

405(1)
405 (1)

Finding of timely claim justified. Kirkley v. General Baking Co.
(Mich.)

406

Evidence sustained that the insurance carrier had received due no-
tice of claim. Miller's Indemnity Underwriters V. Patten et al.
(Tex.)

791

405 (1) Evidence that claimant continued to work for more than six months
after arm was injured, with satisfaction to his employer, and was
persuaded by the latter's physician, no X-ray examination was
necessary, and that thereafter an operation was decided upon as
the result of examination by a specialist, but it was still hoped to
save the usefulness of the arm until it was discovered that the en-
tire head of the diseased bone had to be removed, held to sustain
a finding by the Department of Labor that the date of the opera-
tion was the date of actual incapacity within the Act-evidence
that employee asked officer in charge of the employer's compensa-
tion department what the company was willing to do in giving him
compensation and that the employer replied by letter denying lia-
bility, sustained a finding that the employee had made an unequiv-
ocal claim for compensation. White v. Morgan & Wright (Mich.).. 727
405 (1) Legitimate inference by commission from facts is not conjecture.
Benton Coal Co. v. Industrial Commission (Ill.)
(2). Relation of parties.

520

405 (2) Evidence held to show claimant was employee, not independent con-
tractor. Brower v. W. H. Isgrigg & Son (Mich.)..
405 (2) Evidence held to show employment was not within act. Dearborn
v. Indust. Acc. Comm. (Cal.)

186

259

(Ind.)

405(2)-Claimant is shown to be an employee of partnership operating a
threshing outfit. Hadley v. Rogers (Ind.)
405(2)-Finding of employment within act sustained. McDowell v. Duer

301

364

Hoosier Veneer Co. v.

563

(3). Acceptance or rejection of statute.

(4). Injury arising out of and in course of employment.

405(4) Claimant need not be corroborated to recover for hernia.-Prepon-
derance of evidence sufficient to justify finding of compensable in-
jury. Buncle v. Sioux City Stockyards Co. (Iowa).

51

405 (4) Evidence held insufficient to prove that claimant's permanent incapacity for work from heart disease was caused solely by accident in which ribs were injured. Springfield Dist. Coal Mining Co. v. Indust. Comm. (Ill.) 405 (4)-Evidence held to support finding that death of welder by lightning while working on bridge was caused by accident arising out of employment. Hassell Iron Works Co. v. Indust, Comm. (Colo.).. 405 (4) Evidence held sufficient to warrant inference that injuries of insurance collector from assault resulted from conditions brought about by reason of his employment. Empire Health & Acc. Ins. Co. v. Purcell (Ind.)

405 (4) Evidence held to support finding that teamster killed while driving team to work was within act. Punches v. American Box Board Co. (Mich.)

405 (4)-Finding of death from breathing gas held justified. Gen'l American Tank Car Corp. v. Weirick (Ind.)

23

14

39

195

147

405 (4)

Evidence held to show compensable death from blow, although immediate cause was rupture of heart. Mansfield Engineering Co. v. Winkle (Ind.)

152

405 (4)

405 (4)

Evidence of compensable loss of vision held insufficient. Landau V. E. W. Bliss Co. (N. Y.) 405 (4)-Finding of compensable injury by scratch held unwarranted by evidence. Hubbard v. Republic Motor Truck Co. (Mich.. Evidence held not to show compensable injuries to aged elevator operator. Kelly v. Nichols (N. Y.)

242

190

241

405 (4)-Evidence held to show that injury while driving employer's car
was not within act, Wertz v. Reynolds (Ind.).
405 (4)-Injury is provable by circumstantial evidence.-Finding of compen-
sable injury to a watchman killed by an assailant is held unwar-
ranted. Pioneer Coal Co. v. Hardesty (Ind.)
405 (4)-Fixing time of accident within reasonable probability is sufficient.
McNeil v. Panhandle Lumber Co. (Idaho)
405 (4)-Injury is provable by circumstantial evidence. J. E. Porter Co. V.
Indust. Comm. (Ill.)

405 (4)-Evidence of compensable disability as result of fall held insufficient.
Nelson v. Indust. Acc. Comm. (Cal.)
405 (4)-Evidence held to establish death by lead poisoning within act.
O'Donnell' Case (Mass.)

405 (4)-Injury shown contributory cause in development of tuberculosis
causing death. Kelly v. Watson Coal Co. (Pa.)
405 (4)-Where driver was found dead, evidence held not to show death was
result of accident-compensable injury must be shown to reason-
able certainty. Haddad v. Commercial Motor Truck Co. (La.).....
Evidence held to show compensable injury by electric shock. Bing-
ham Mines Co. v. Allsop (Utah)

289

296

342

355

333

405

465

384

473

681

691

405 (4) 405(4) Evidence fairly supported the conclusion that the injury arose out of employment. Casebeer et al. v. Carbon Coal Co. (Kan.).... 405 (4)-Finding of injury to knee by accident arising out of employment, sustained by the evidence. Wardwell's Case (Me.). 405 (4) Evidence sustained the Board's finding that disability did not arise out of employment. Gardiner v. Cochran Chair Co. (Ind.). ..... 669 405 (4)-Evidence sustained a finding that the fall was caused by accident and not by disease. Bryan v. Hudson Motor Car Co. et al. (Mich.) 694 405 (4)-Evidence that an employee, while engaged in heavy work, requiring him to hold heavy hangers above his head, had an attack of acute dilation of the heart and died within a short time, held to support award as against the objection that no accident in the sense of a fortuitous, unforeseen mishap was shown. Helder v. Luce Furniture Co. et al. (Mich.) 405(4)--Action for compensation for death of a printer from blood poisoning --employers' reports to the Department of Labor, stating that the place of accident was in the employers' job rooms, and that the cause and manner was a cut on the finger and infection from handling type, constituted prima facie evidence that the accident rose out of employment. McCartney et al. v. Wood-Temple Co. (Mich.)

405 (4)-In proceeding to recover for death of miner from blood poisoning caused by a scratch, evidence held not to permit an inference that the scratch arose out of and in the course of the employment. Wilo v. Quincy Mining Co. (Mich.)

405 (4) Evidence sustained a finding that death was caused by accident arising out of employment; body of deceased being found in reservoir near plant-death may be shown by circumstantial evidence. Tennessee Chemical Co. v. Smith et ux. (Tenn.)...

706

713

730

785

405 (4)-Evidence held to sustain finding of compensable disability. James
O'Donnell Teaming Co. v Industrial Commission (Ill.)
405 (4)-Compensable injury shown. Duncan v. Kansas City Packing Box
Co. (Kan)
405(4)-Finding on question of cause of death supported by evidence in case.
Feldman's Case (Mass.)

537

570

583

405(4) Evidence in case held to show accidental discharge of pistol. nald's Case (Mass.)

Fer

587

405 (4)-Finding of compensable injury to eye sustained. Sullivan's Case (Mass.)

405 (4)--Award for death of employee falling during illness sustained. Sullivan's Case (Mass.)

600

603

(5). Dependents.

405 (5)-Evidence held to show that claimant, child of undivorced woman living with deceased as wife, was a member of deceased's family. Federal Mut. Liab. Ins. Co. v. Indust, Acc. Comm. (Cal.).. Evidence held not to sustain finding of claimant's incapacity. Creek Coal Co. v. Indust. Comm. (Ill.)...

101

Shoal

139

405 (5)

405 (5)-Finding that child born one month after marriage and child born three months after death of employee were dependents, held sustained by evidence. King v. Peninsular Port. Cement Co. (Mich.).. 192 405 (5)-Evidence held to justify award to wife claiming as dependent. Kirkley v. General Baking Co. (Mich.) 406

405 (5)-Evidence sustained a finding that applicant was living apart from husband at the time of his decease for justifiable cause. McGee v. Columbia Body Co. et al. (Mich.)

714

785

405 (5)-Finding of deceased employee's divorce justified by evidence in case. Woodward Iron Co. v. Bradford (Ala.).

405 (5)-Finding that the parents were partial dependents sustained by the evidence. Tennessee Chemical Co. v. Smith et ux. (Tenn.). 405 (5)-Tota! permanent incapacity within act held not shown. Old Ben Coal Corp. v. Industrial Commission (Ill.)

496

529

(6). Compensation.

405 (6)—Evidence held to sustain finding that applicant was completely and permanently disabled by injury. Joliet & E. Traction Co. v. Indust. Comm. (Ill.)

16

405 (6)

405 (6)-Evidence of average daily wage as basis of compensation held sufficient. Lumbermen's Reciprocal Ass'n v. Warner (Tex.). Evidence held not to support findings for insurer against wrongdoer. Globe Indemnity Co. v. Henderson (Cal.). 405 (6)-Award for partial incapacity held not sustained by competent evidence. Kanawha Fuel Co. v. Indust. Comm. (Ill.) 405 (6)-Evidence held to sustain finding of disability. Poast v. Omaha Mer. Express & Trans. Co. (Neb.)

80

117

137

405 (6)-Elements of vision within act include both field and binocular vision. Turpin v. St. Regis Paper Co. (N. Y.) 405 (6)

Record examined and evidence found sufficient to support findings of fact. Superior Smokeless Coal & Mining Co. et al. v. Bishop et al. (Okla.) 405 (6) A finding that there were times when claimant could not wear glasses while engaged in the regular course of his employment, and therefore had sustained a partial loss of the use of an eye, is not supported by claimant's testmony that it was very inconvenient for him to wear glasses, and that he did not wear goggles at the work he was doing when injured because it was dark in the room and he could not have seen through goggles. McNamara v. McHarg-Barton Co. et al. (N. Y.)

427

441

770

744

405 (6) Evidence held not to sustain compensation for permanent disability. Benton Coal Co. v. Industrial Commission (Ill.) 405 (6)-Permanent partial disability of arms not shown. Pocahontas Mining Co. v. Indust. Comm. (II.) . . .

520

540

405 (6)

Evidence held not to support award for partial disability. Paradise Coal Co. v. Indust. Comm. (Ill.) 405 (6) Loss of vision within act held shown. Old Ben Coal Corp. v. Industrial Commission (T11.)

550

531

405 (6)

Compensation award sustained. Centralia Coal Co. v. Indust. Comm. (II.)

560

405 (6)

Evidence held not to show permanent compensable disability-anding of compensable permanent injury cannot rest on conjecture. Taylor Coal Co. v. Indust. Comm. (Ill.)..

408-Suit held maintainable without arbitration. Duncan V. Kansas City Packing Box Co. (Kan.)..

570

$409.

§ 4092.

TIME AND PLACE OF HEARING.
QUESTIONS FOR JURY.

4092-Negligence as to minor employee held for jury. Moore v. Hoyt (N.H.) 434

TRIAL OR HEARING BY COURT-VERDICT AND FIND-
INGS.