Evidence sustained finding that accident resulting in death of decedent, Unimpeached report of master to Board stating manner of accident and in- (5). Dependents. Evidence examined and found insufficient to sustain finding of plaintiff's par- Under evidence mother and youngest brother of deceased were not dependent 337 331 331 396 451 46 174 735 Evidence is sufficient to sustain finding that claimant's father and mother Evidence held to show that injured employee verbally claimed compensation Special findings that plaintiff's disability is "about 50 per cent" and that he ....... § 412. In suit by employers to recover compensation paid for employee's death, Where employer and employee file their written agreement for compensation 415. RECEPTION OF EVIDENCE. Statements of adjuster who appeared before Commissioner as representative 600 473 777 613 311 396 647 586 Employer's objection that report of accident which it had made was not formally offered in evidence is not well taken, since employer is fully aware of contents of report-if employer's report is incorrect_employer shall call error to attention of Commission upon hearing. F. Eggers Veneer Seating Co. et al. Industrial Commission of Wisconsin et al. (Wis.) § 416. REPORT AND FINDINGS OR AWARD. Record of claimant on appeal from decision of committee of arbitration_to board held to be filled within time required by statute as existing December 4, 1914, where extensions of time had been granted. Sulzberger & Sons Co. v. Industrial Commission of Illinois et al. (Ill.).. Agreement for compensation between employee and employer approved by board has effect of award-award not reviewed or set aside, is conclusive on both paties except as provided in Sec. 45, allowing a modification on change of conditions. Pedlow v. Swartz Electric Co. (Ind.)......... Where question arises as to whether accident from which workman dies occurred in course of employment, findings of fact by compensation referee should be so explicit as to state full circumstances thereof. Gurski v. Susquehanna Coal Co. (Pa.) If injured servant's failure to give notice to employer did not result in prejudice to employer and insurer, Commission before making award should make appropriate findings. In re Colon. Appeal of American Linoleum Mfg. Co. et al. (N. Y.).. Board, where appeal has not been taken within ten days, cannot allow appeal nunc pro tunc as of time prior thereto. Wise v. Borough of Cambridge Springs (Pa.). Under act held that if compensation is fixed by commission it is required to determine who is entitled to it before determining the amount. provisions as to distribution by probate court applying only to cases where employer makes voluntary payment to administrator. Smith-Lohr Coal Mining Co v. Industrial Commission et al. (Ill.). Agreement entered into under Act and approved by Board has force and effect of award-in absence of rule of board to contrary, insurance carrier not necessary party to compensation agreement-not binding on insurance carrier, either before or after its approval as against proper proceeding seasonably made, where such agreement is result of mistake or tinctured with fraud-burden is on insurer to show fraud-board may determine fact of fraud and annual order-but where carrier has had reasonable opportunity to be heard on proposition of approval of agreement but has failed to avail itself thereof, its motion to vacate such order should not be entertained unless it clearly excuses failure-before vacating order carrier should be required to make at least an ex parte prima facie case on the merits. Aetna Life Ins. Co. v. Shively et al (Ind.) Act does not require that board serve notice that award has been made and any means ordinarily employed in sending papers, including transmission by mail, express or messenger may be used. Jefferson Hotel Co. v. Young (Ind.) Board has no jurisdiction to review award of full board although hearing was held before less than all the members-that the Act was amended so as to preclude review by full board, although hearing may have been before a less number did not deprive board of jurisdiction to grant rehearing where first hearing was had before amendment-where board on first hearing stated that applicant's injury resulted in total disability to work for certain definite period and then stated that disability "in this proceeding" did not result from his injury, finding was contradictory, and latter finding being general must yield to former specific finding. Kingan & Co., Limited v Ossam (Ind.) Findings of board held contrary to contention of employer appellant, that employee, a lineman, was guilty of willful misconduct. Indianapolis Light & Heat Co. v. Fitzwater. (Ind.) Whether or not statute providing aggrieved party may apply to Industrial Commission for review of award within five days after its date, repealed provision of Code requiring review to be filed within five days of decision, it superseded it as to fixing time to bring review and "date of award" means date of its filing with Commission. Herbig v. Walton Auto Co. et al. (Ia.) Where on review by full Board of award made by one member, appellant made no showing as to what additional testimony sought to be introduced by him would be, but stated only a conclusion, Board did not abuse its discretion in refusing to permit him to introduce additional testimony. Consumers' Co. v. Ceislik (Ind.)..... Referee in proceedings should make his finding of fact so comprehensive and explicit as to disclose full story of accident but legal precision cannot be insisted upon-act contemplates brevity in matters of practice but if referee fails to pass upon any material matter of fact in evidence which either party considers vital in event of appeal to court, those affected should apply to Compensation Board for assistance on hearing de novo. Flucker v. Carnegie Steel Co. (Pa.) Where insurer failed within seven days after decision of committee of arbitration was filed, to file claim for review Industrial Board had no authority to grant insurer's motion for permission to file late its claim for review. Keohane's Case. In re McCarthy. In re Massachusetts Bonding & Ins. Co. (Mass.) 396 33 36 73 180 196 250 261 271 276 284 705 620 780 743 Mere fact that each finding of referee in proceedings under act is not labeled as finding of fact or conclusion of law in no way changes their actual character and where a series of facts are found showing that employee was injured on employer's premises lack of formality stated conclusion that injury so occurred is not fatal. Dainty v. Jones & Laughlin Steel Co. (Pa.) Nothing in Compensation Act authorizes award to dependent widow to be made upon conditions. Newton v. Rhode Island Co. (R. I.)..... (5). It must be presumed upon certiorari to board that the board gave due consideration to question of fact in issue. Adams v. W. E. Wood Co. et al (Mich.) 784 527 311 If evidence in favor of applicant sustains award of commission, weight of evidence to contrary will not be considered by reviewing court-determination of facts upon contradictory evidence by commission is final. Pekin Cooperage Co. v. Industrial Commission et al. (Ill.)....... (1). Nature and form of remedy. On application for judgment for award and attorney's fees in accordance with statute, court has no jurisdiction to review decision of board, construe statute, or determine whether decision is correct. Friedman Mfg. Co. v. Industrial Commission of Illinois et al. (Ill.).. Suit by insurer to annul and cancel award of Industrial Accident Board is not strictly speaking, an appeal, and trial is de novo; the effect being similar to that of an appeal from justice court judgment. Georgia Casualty Co. v. Griesenbeck et ux. (Tex.) Findings of fact by which Commission determines itself clothed with jurisdiction are reviewable by Supreme Court. Miller & Lux Incorporated v. Industrial Accident Commission of California (Cal.) Railroad company against which board of arbitration appointed under Compensation Act had made award in favor of widow of deceased servant, killed in interstate commerce, held entitled to certiorari to test right of Board to act, remedy by appeal after confirmation of award by district court not being plain. speedy or adequate. Des Moines Union Ry. Co. v. Funk, Industrial Com'r, et al. (Iowa) (3%). Payment of weekly allowance under award by Commission cannot be enJoined pending decision of court on questions involved. Employers' Mut. Ins. Co. et al. v. Industrial Commission of Colorado et al. (Col.)... Equity has jurisdiction of suit to enjoin successful claimant before Commission from enforcing award by execution or other process superior court not deprived of jurisdiction to restrain execution of award by Compensation Act. Gamble v. Superior Court in and for Alameda County et al. (Cal.) (8%). Decisions reviewable. Whether wife of deceased employee was entitled to award for injuries resulting in death which occurred outside of state involved the construction of Compensation Act, and if construction given by board was erroneous, section 19 permitted review. Friedman Mfg. Co. v. Industrial Commision of Illinois et al. (Ill.)...... Where reasons of appeals do not ask for correction or omission of some specific finding as to a subsidiary fact, or an addition of a material fact, not found, reasons of appeal alleging that evidence was insufficient to warrant commissioner in finding, etc.. do not present any assignable reasons of appeal. Rainey v. Tunnel Coal Co. et al. (Conn).... Finding of Board upon undisputed facts is finding of law, though it may be styled finding of fact by Board and is reviewable-finding as to whether employee is entitled to compensation as matter of law is reviewable. Bates & Rogers Const. Co. et al. v. Allen (Ky.).. Whether insurance association, subscribers or agent had notice of injury, whether claim had not been filed as required, whether failure to file was due to mistake or other reasonable cause and whether employee had received injury in course of employment were questions of fact as to which appeal will not lie. In re Pass' Case (Mass.) Findings of referee, affirmed by Board that condition of claimant's hands as result of accident constituted permanent loss of their use was a fact found and not conclusion of law reviewable on appeal. Cartin v. Standard Tin Plate Co. (Pa.) Under act no appeal from award of $40 will lie. Essington et al. v. Bowman (Ind.) Compensation Act does not authorize appeal from order of Board approving or disapproving attorney's fee. Galvin v. Brown (Ind.) (32). Under Compensation Law subjecting appeals from determinations of Commission to practice applicable to appeals in civil actions, following death of claimant, awarded compensation, substitution must be had of representative of estate, before appeal by employer and insurer from award 26 21 801 567 458 91 686 21 227 719 738 778 442 445 of Commission to Appellate Division can be heard. Waite v. E. W. Bliss Co. et al. (N. Y.) (3%). Right of review. 509 Where notice and copy of decision of board were sent and received by employer on certain day, and no writ of certiorari was sued out or sult in chancery commenced within 20 days thereafter, decision of board became conclusive. Friedman Mfg. Co. v. Industrial Commission of Illinois et al. (Ill.) (3%). Proceedings for appeal or other form of review. Act requires that one desiring review of award by full board make application therefor within seven days, regardless of when he received notice-applicant cannot waive provisions of section requiring application for review to be made within that period-board not authorized to extend time for filing application for review beyond period fixed by Act-fact that secretary of Board informed employer that review could not be had would not justify further delay of 21 days in filing an application. Jefferson Hotel Co. v. Young (Ind.).... (4.) Presentation and reservations of grounds of review. Objection that employee was awarded additional compensation by arbitrator for minor operation found necessary because first operation was not wholly successful forfeited his right to compensation, or some part thereof, by refusal to submit to second operation is waived by failure to assign it as ground to review before Industrial Commission. Chicago Steel Foundry Co. v.. Industrial Commission et al. (III.) Employee's act in going to lunch is incident to employment, hough dinner hour is not paid for by employer and injury during such business arises out of employment, rule not applying where employee chooses to go to dangerous place where employment does not necessarily carry himplaintiff in error cannot complain of incompetency of evidence, first excluded by workmen's compensation arbitrator on her objection, who subsequently brought it out herself on cross-examination of witness without even having made motion to exclude. H. W. Nelson R. Const. Co. v. Industrial Commission of Illinois et al (II.) Necessary that party object to hearsay evidence in order to overcome presumption that he consented to admission and consideration. Hege & Co. et al. v. Tompkins et al. (Ind.) (4%). Record. Where findings of subsidiary facts on which commissioner based his conclusions stand uncorrected on record they furnish the only basis of facts for testing the correctness of his conclusions-and conclusion that claimant's conduct in not consulting physician until two weeks after injury was not unreasonable was correct when tested by findings of subsidiary facts uncorrected on record-where none of reasons of appeal ask for corrections of any specific finding of subsidiary facts there is no occasion for certified transcript of evidence on appeal superior court may, by order in nature of writ of certiorari, require the whole or any part of. transcript of evidence to be certified up and made part of appeal record. Rainey v. Tunnel Coal Co. et al. (Conn.)... (5). Trial or review. 21 271 590 605 451 .. 227 115 178 Province of Board to draw inferences from facts proven and on appeal it will be assumed that Board drew those permissible deductions of fact that support award. Bachman v. Waterman (Ind.).. Recourse to rights and remedies permitted under federal act-point not having been raised before Commission it will be presumed notice of claim was given. Cimmino v. John T. Clark & Son et al. (N. Y.).. On appeal from order of Board denying petition of carrier to set aside order approving agreement on ground of fraud it will be assumed that there was no fraud where there was no finding on that issue, and facts found are not sufficient to force inference of fraud-it will be presumed in absence of finding to contrary that there was no rule of board that hearings regarding approval of agreement be formally set for hearing and that notice be served on carrier. Etna Life Ins. Co. v. Shivley et al. (Ind.).... 261 Contention that imposition of penalty, pursuant to Act upon defendant employers for failure to report accident, is wrong, will not be considered by reviewing court, where order made by board makes no reference to penalty, court being concerned only with orders made by Board. Gaffney v. Goodwillie Bros. (Mich.) 315 On review by full Board of award made by one member, admission of additional evidence was discretionary and action of Board in that regard not subject to review, unless record shows abuse of discretion. Consumers' Co. v. Ceislik (Ind.) Where referee's adjudication contains underlying findings of fact which elther negative or fail to support his ultimate findings, error of law is presented which may be reviewed on appeal. Flucker v. Carnegie Steel Co. (Pa.) Whether defendant railway was a common or private carrier under Compensation Act is question of law and appellate court is not bound by 620 780 decision of Industrial Commission. & Transfer Ry. Co. et al (Wis.).. (7). Waldum v. Lake Superior Terminal 671 Questions of fact. Where there is some evidence to sustain award it will not be disturbed on appeal. Pedlow v. Swartz Electric Co. (Ind.).... The act as amended does not give Appellate Court power to weigh evidence, although member of board who heard evidence found for appellant, and award from which appeal is prosecuted was made by other two members of board-where evidence as to whether refusal to permit operation was such misconduct as to deprive decedent's dependents of benefit of act was clearly open to more than one inference, determination of board cannot be disturbed on appeal-finding as to whether autopsy was necessary to determine cause of death and whether demand therefor was made within reasonable time based on conflicting evidence, will not be disturbed on appeal-there was some evidence to support finding that strangulation of intestines which caused death resulted from hernia, which was caused by strain resulting from master's work. Vonnegut Hardware Co. et al. v. Rose et al. (Ind.).. Finding of board as to extent of disability from injury being a legitimate conclusion from facts proved by competent evidence, is conclusive on Supreme Court. Scully v. Industrial Commission of Illinois (Ill.). Findings and award of Commission manifestly supported by competent evidence may not be lawfully overturned on appeal. Employers' Mut. Ins. Co. et al. v. Industrial Commission of Colorado et al. (Col.)... It not being contended that any one engaged in the administration of Compensation Act was guilty of fraud or misconduct, findings of fact of Board cannot be reviewed or set aside. Nelson v. Kentucky River Stone & Sand Co. (Ky.).... Decisions of Board on questions of fact stand on same footing as verdict of jury or finding of judge and are not subject to review except to determine whether there is any evidence to support them-weight and credibility of testimony as to any causal connection between injury to decedent and tuberculosis which resulted fatally is for Board. McCarthy's Case (Mass.) Findings of Board of all questions of fact are final and cannot be set aside, if there is any evidence to support them-whether deceased servant received injury which caused death and whether injury arose out of employment were questions of fact for Board-where on question whether deceased servant's death was caused by strain of swinging heavy sledgehammer, thereby injuring and weakening an already diseased heart, or was matter of speculation and conjecture, evidence was conflicting, finding of Board must stand. Weatherbee's Case. In re Massachusetts Bonding & Ins. Co. (Mass.) One question to be decided is whether claimants were dependent on deceased child held, thus showing point was considered and passed on at hearings, such point is open on appeal, though no request was made respecting it. Dembinski's Case. Appeal of Employers' Liability Assur. Corporation (Mass.) If there is any competent evidence fairly tending to support claim reviewing court cannot consider weight of evidence. nor reverse because contrary to preponderance of testimony. Bergstrom v. Industrial Commission et al. (Ill.) As commission has no jurisdiction to apply act to persons not within its provisions. evidence on question of jurisdiction may, contrary to general rule, be reviewed by courts. Thede Bros et al. v. Industrial Commission et al. (Ill..) ...... 36 42 30 91 132 141 147 151 232 .... 242 As to whether employee killed by falling down stairway was intoxicated, is question of fact, in proceedings under act, where evidence is contradictory and will not be reviewed-duty of aribtrator and commission to fairly and impartially consider and weigh all evidence presented and make their findings in accordance with preponderance of evidence and their conclusions on questions of fact are not reviewable. Lefens et al. v. Industrial Commission et al. (Ill.) Where Industrial Commission made award for death of servant courts in their review are restricted to determination whether there is any evidence to show that death arose out of and in course of servant's employment. Smith-Lohr Coal Mining Co. v. Industrial Commission et al (11.) Where there was competent evidence tending fairly to prove that deceased employee contributed to support of parents so as to entitle them to compenseation under act. the sufficiency of evidence cannot be reviewedheld there was competent evidence to show that deceased who was minor child, had within four years previous to injury contributed to support of parents so as to sustain award. Metal Stampings Corporation v. Industrial Commission et al. (Ill.) Finding in applicant's favor on question of change of condition must be given same effect as verdict of jury or finding of court in ordinarily civil action -where evidence as to whether applicant is suffering from depressed mental condition as result of injuries is conflicting court will not weigh evidence. Kingan & Co., Limited. v. Ossam (Ind.).. Where there is evidence which would lead reasonable men to conclude as did the Board on question of daughter's dependency in fact, under Act, Appellate Court is not at liberty to disturb such conclusion. Schwartz v. Gerding & Aumann Bros. et al (Ind.) 246 250 258 276 282 |