374-Death by fall caused by unconsciousness due to disease is held within Act. Gonier v. Chase Companies, Inc. (Conn.)...... 374-Disability compensable though increased by intervening causes-loss of leg by spread of infection after treatment of injury held compensable. Oleszek v. Ford Motor Co. (Mich.)............. SCOPE OF EMPLOYMENT. (1). In general. 268 418 $375. 375(1) 375(1) Injuries during disobedience of orders held not compensable. zewski v. Aluminum Co. of America (N. Y.) Workman using pathway along railroad track held within act. Peterson v. O'Neil (Minn.) Jenc 237 208 375(1)-Injury to gardener in stopping runaway team held within act. Sebo v. Libby, McNeil & Libby (Mich.) 375(1) 200 Death of custodian shot while selling gasoline without authority held not within act, Chicago & A. R. Co. v. Indust. Comm. (Ill.).. 128 375(1)-Injury to engineer voluntarily assisting in removing wall not within act. Wilson v. Dakota Light & Power Co. (S. D.).. 375(1)-Injury to salesman aiding fellow traveler not within act. Sichter man v. Kent Storage Co. (Mich.) 375(1)Accident" occurring while quenching thirst is within act. Was muth-Endicott Co. v. Karst (Ind.) 375(1)-Injuries to salesman reporting sales held compensable. J. E. Porter Co. v. Indust. Comm. (III.).. 375(1)-Injury while awaiting transportation from employer's premises held within act. Callihan v. Montgomery (Pa.).. 375(1) Employee's violation of order to use the street car in reaching a depot to which he was sent to mail a letter on a train did not take him out of the sphere of his employment. Republic Iron & Steel Co. v. Indus. Comm. et a!. (Ill.).. 375(1) Servant, who fell into a reservoir and was drowned while washing up preparatory to going home according to custom, died as the result of accident "arising out of and in the course of employment." Tennessee Chemical Co. v. Smith et ux. (Tenn.)... 375(1)-Injury while using beam as footpath, held not to "arise out of employment." Hurley's Case (Mass.) (2). Injury received while going to or from work. 375(2)-Injuries to insurance collector on street held due to risk of employment. Empire Health & Acc. Ins. Co. v. Purcell (Ind.).. 375(2)-Injury while leaving place of work held compensable. Payne V. Wall. (Ind.) 375(2)-Injury to seamstress, not employed on premises, injured while entering building, was not employee within act. Ross v. Howieson (N. Y.) 375(2)-Injuries to an employee going home on train furnished employer by railroad is held compensable. American Coal Mng. Co. v. Grenshaw (Ind.) 375(2) Cessation of employment within Act is a question of fact. Wertz v. Reynolds (Ind.) 375(2)-Whether injury was within act is question of fact. J. E. Porter Co. v. Indust. Comm. (Ill.) 375(2)-Where the manager of a store who was paid a weekly wage and commissions and who was required to take home each night money received after banking hours, was injured in a street accident while taking the money home by, the usual route, pursued to avoid danger from, holdups, the injury was compensable. Clifton v. Kroger Grocery & Faking Co. et al. (Mich.). .... 375(2)-Injury while riding to work on pass held not compensable as "arising out of employment." Tallon v. Interborough Rapid Transit Co. (N. I.) 375(2)-Injury in elevator while leaving work held compensable. Lienau v. Northwestern Telephone Exch. Co. (Minn.) 875(2)-Injury received while going to time clock held received in "course of employment" within act. Lee's Case (Mass.). 468 421 369 355 456 666 785 585 39 34 245 291 289 456 697 615 608 593 23 376(2)-Rule as to compensation for injury aggravating d' ase stated. Springfield Dist. Coal Mining Co. v. Indust. Comm. (Ill.)... 376(2)-Compensation held recoverable for death from disease accelerated by accident. General Am. Tank Car Corp. v. Weirick (Ind.)..... 147 376(2)-Compensation recoverable for entire disability from disease aggravated by injury. Pinyon Queen Mining Co. v. Indust. Comm. (Utah) 478 376(2)--Pre-existing disease does not preclude compensation. Centralia Coal Co. v indust. Comm. (Ill.) 560 376 (2) Death from heart failure held not compensable as resulting from injury by "accident" within act." Rusch v. Louisville Water Co. (Ky.) $ 377. DEFENSES TO CLAIMS FOR COMPENSATION. 575 $280. WILLFUL MISCONDUCT OF EMPLOYEE IN GENERAL. 380-Painter working on staging when subject to unconsciousness held not willful and serious misconduct within Act. Gonier v. Chase Companies, Inc. (Conn.) 380-Injury in play held compensable. Stark v. State Indust. Acc. Comm. (Ore.) 380-Mere negligence, however great, is not "willful misconduct,' precluding recovery, but eraployee is guilty of misconduct where such conduct occasioning the injury is of a quasi criminal nature, involving intentional doing of something with knowledge that it is dangerous, and with wanton disregard of consequences-coal miner guilty of misconduct where he jumped across the pit, instead of walking along path provided therefor, in violation of statute. Fortin et al. v. Beaver Coal Co. (Mich.) ..... 382-Though Department of Labor is not a court, its approval of contact for compensation between employer and employee, on which judgment may be entered without notice, cannot be attacked on the ground of fraud in a collateral proceeding by the employee against the wrongdoer, but the agreement may be impeached in a direct proceeding in equity. Smith v. Port Huron Gas & Electric Co. (Mich.) 268 445 701 719 (B) COMPENSATION. 383. ACCIDENT OR INSURANCE FUNDS, AND THERETO: CONTRIBUTIONS 383-New election, designation and approval are not necessary on charge of insurers--change must be to company authorized to carry riskmust be insured in single company-insurer is not liable after cancellation where employer has procured other insurance. Gratopp v. Carde Stamping & Tool Co. (Mich.)... 188 383-State treasurer hust obey directions to invest compensation fund. Strong, State Treas.. v. Indust. Comm., State of Colo. (Colo.)...... 513 AMOUNT AND COMPUTATION OF AWARD. $384. $385. DISABILITY BENEFITS. (1). In general. $85 (1)-"Average weekly wage" of claimant defined. Utah Fuel Co v. Indust. Comm. of Utah (Utah.).. 385 (1) Statutory wage basis of compensation held to apply only to death benefits. Crisco v. Edgewater Sawmills Co. (N. Y.) 885 (1)—Earnings from increase of pay are not considered in determining extent of partial incapacity. Kanawha Fuel Co. v. Indust. Comm. (Ill.) 385(1)—An jury incapacitating an employee for a particular employment does not establish his right to compensation, if the injured member could fulfill in a reasonable degree its normal functions in any employment for which claimant was fitted. McNamara v. McHargBarton Co. et al. (N. Y.) 385(1)-Award based on depreciated earning capacity valid. Centralia Coal Co. v. Indust. Comm. (III.).. (2). Injury to arm, hand, or finger. 385(2)-Compensation recoverable for permanent injury to nerve impairing upward motion of arms. Knight v. Ferguson (N. Y.)................. 385(6) Compensation allowable for loss of finger stated. Ulaski W. Morris & Co. (Neb.) 61 385 (9)-Percentage of loss of vision is question of fact for board. Turpin v. St. Regis Paper Co. (N. Y.))....... (10). ....... Injury to arm, hand, or finger. (11). Permanent disability. 385 (11) Compensation is held properly awarded for permanent partial_disability for loss of capacity from septicemia, Bucyrus Co. v. Reisinger (Ind.) (11)-Compensation for 50 per cent permanent disability not limited to $2,500. In re Swartz (Ind.) 385 385(11) 441 285 284 Where workman suffers permanent partial disability, compensation 385 (11)-When it appears that workman suffers the loss of both hands or both feet or both legs or both eyes or any two thereof, or the permanent loss of the use of such members he cannot be denied compensation provided in the act because he obtains employment at better wages at a task which he is able to perform. Superior Smokeless Coal & Mining Co. et al. v. Bishop et al. (Okla.) 385 (11) The test of the right to an award is not limited to the loss of earning power in the industrial world. Cameron Coal Co. et al. V. Dunn et al. (Okla.) 385 (11)-Minimum con.pensation held proper. 770 751 Duncan v. Kansas City Pack ing Box Co. (Kan.). 570 (11%). Loss of or injury to eye. 385 (11%)-One-eyed workman's loss of eye held compensable as permanent loss of one eye. Stevens v. Marion Mach., Fdry. & Supp. Co. (Ind.) 154 385 (11%)-No award of compensation can be made for an injury resulting in a loss of vision, which may be corrected or supplied by the use of glasses. McNamara v. McHarg-Barton Co. et al. (N. Y.)...... (11%). Loss of or injury to ear. (12). Loss of arm, hand, or finger. 744 373 385 (12)--Award for loss of fingers held proper. In re Hart (Ind.).. 385(12)-Loss of parts of fingers compensable as partial loss of use of hand. Indust. Comm. v. Gen'l Acc., Fire & Life Assur. Corp. (Colo.).. ..... 337 385 (12)-An employee compensated for loss by amputation of half of thumb and the third and fourth fingers is entitled to further compensation for partial disability on showing that the inability to earn as great a wage as when injured was due to the results of the accident on the two remaining fingers. Webber v. Dort Motor Co. et al. (Mich.) 385(12)-Loss of thumb not compensable as loss of finger. Doris v. James Butler, Inc. (N. Y.) 725 624 385 (12) Loss of fingers.between middle joint and finger tip held not compensable as a severance at or above the second joint"-hand held not capable of use within act. Ramondetta's Case (Mass.)...... 598 385 (13)-Where permanent partial disability to hand is only equivalent to 50 per cent to 75 per cent of the total loss of the hand or a total loss of its use. compensation for such injury cannot be awared by applying statutory schedule of allowance prescribed for total loss of hand or total loss of its use; nor does statute permit compensation to be based on a proportionate amount of such scheduled allowance' for the total loss of the hand. Emry v. Cripes (Kan.).. 684 (14). Injury to leg or foot. (15). Temporary disability. 385(15)—An injured employee unable to do his regular work but who could and did do other work, was not entitled to an award for full comDensation. McNerney v. Heller et al. (N. Y.) 747 (16). Expenses of medical or surgical treatment, and nursing. 385 (16)-Insurer was not liabe for services of masseuse not rendered under physician's direction. Golden's Case (Mass.) 385(16)-Hospital services within act defined. Southern Surety Co. v. Beaird (Tex.) 58 252 (17). Deductions or set-offs, and duty of claimant to reduce loss. 385(17)-Payment before award is to be credited on award. 65 14 211 478 337 to operation. 577 385(18) Compensation not defeated by refusal to submit 169 (20). Commutation of payments and award of gross sum. 611 386(1)-Award for death of employee leaving a resident sister and non_ (2). Deductions. 386(2)--Act providing that should the employee die from injury, "the period" 274 785 634 779 (4). Commutation of payments and award of gross sum. (5). Apportionment of payments. 643 77 387-Award for permannt partial disability cannot include award for tem- 387-Compensation allowable for temporary total disability and for perma- Co. (Neb.) 427 387-The Commission is a creature of the statute and no jurisdiction is con ........ 691 ferred except as the statute confers it; but, whenver the granted powers are discretionary within reasonable limits, then the Act permitting of liberal construction, applies with full force. Wardwell's Case (Me.) 387-Statute, construed and held to authorize Commission to award employee compensation for permanent disfigurement, although employee had been awarded compensation for loss of an eye-Commission must consider to what extent loss of eye has contributed to disfigurement of Injured employee, in determining proper amount-where injured employee has been compensated for specific injury, he is not entitled to compensation again for such injury as constituting part of disfigurement. Seneca Coal Co. et al. v. Cartier et al. (Okla.)........ 767 PERSONS ENTITLED TO COMPENSATION FOR DEATH OF EMPLOYEE (DEPENDENTS). 388. 36 57 388 Child living with divorced mother who supported her held not "dependent" entitled to compensation for father's death. Stephens V. Stephens (Ind.) 388-Compensation to dependent parents not measured by extent of depend_ ency. Harris v. Calcasieu Long Leaf Lumber Co. (La.).. 388-In order to be "dependent" parent, it is not necessary for an old and crippled parent to exaust all resources of his life's work, and face dependent old age. Lumbermen's Reciprocal Ass'n v. Warner (Tex.) 388-Mother held dependent within law. Smith V. MacArthur Bros. Co. (N. Y.) .388-Child's right to compensation held not dependent on legal liability for support. Federal Mut. Liab. Ins. Co. v. Indust. Acc. Comm. (Cal.) 101 388-Posthumous child held entitled to compensation as dependent. King v. Peninsular Port. Cement Co. (Mich.) 192 388 Sister living apart from single brother held dependent. Passini v. Aberthaw Const. Co. (Conn.) 388-Claimant, not legitimate wife, is held as not entitled to compensation as surviving widow. Green v. Green (Tex.), 388-A child becoming 18 between time of parents' injury and death is not conclusively presumed dependent. Ressi's Case (Mass.). 388-Intent to adopt established construction of words held presumed. Kirkley v. General Baking Co. (Mich.). 388-Dependency within act question of fact-not proved by liabilty to support-not negatived by non-support. Merrill v. Penasco Lumber Co. (N. M.) 388-Where widow receiving compensation remarries and becomes entitled to two years' compensation in one sum, the increase of the compensation due the deceased's children to 15 per cent. of his wages under statute, providing for such increase to take effect "at the time" of the death of the surviving wife, is effective from her death, though she dies within the two years after her remarriage for which she has received a lump sum, Vaughn v. Buena Vista Oil Co. et al. (N. Y.) 388-Common-law "marriage" held within Act. Woodward Iron Co. V." Bradford (Ala.) 388-Dependent parents" within act includes those partially dependent. Miller's Indem. Underwriters v. Green (Tex.) 388-Compensation as "total dependents" justified; "partial dependents." Peterson v. InJust Acc. Comm. (Cal.). 3882 $389. 388-Assignment of award "paid" by assignee held invalid. Pacific Elec. Ry. Co. v. Commonwealth Bonding & Cas, Ins. Co. (Cal.)................. SUBROGATION TO RIGHTS OF INJURED EMPLOYEE. 389-Parents of employee are dependent on him if dependent on him for ald in supporting other children who are dependent upon them for support. Harris v. Calcasieu Long Leaf Lumber Co. (La.). 389-Where employee was killed by third person, personal representative of deceased could not maintain action. McNaught v. Hines, Dir. Gen. of R. R. (III.) 389-Approval by the Department of Li or of a contract for compensation entered into hy the employer and the employee precludes the employee from proceeding against a third party for negligence and transfers such right to the employer. Smith v. Port Huron Gas & Electric Co. (Mich.) 80 TO 274 305 302 406 437 748 496 645 508 330 57 133 PAYMENT OF COMPENSATION-INTEREST OF DEFERRED PENALTY FOR DEFAULT OR DELAY. 391-Violation of act is punishable as misdemeanor under penal law. People v. Donnelly (N. Y.) 622 |