Filing claim with the Secretary of Commerce and Labor. Re G. P. Melchor (alias Martin Lorenzo), Id., p. 521. If a beneficiary in case of death, in person or by an agent, files a claim for compensation or what is equivalent to a claim within the time prescribed, and an "affidavit" in the technical sense is not filed until ninety days have expired, owing to the delay of Government officers in supplying the necessary forms, the right to compensation is not barred. Re S. A. Powers, Id., p. 497. An employé was killed on March 28th, 1909. He was unmarried and his father lived in Spain. On April 21, 1909, the claimant executed a power of attorney in Spanish, authorizing the Spanish consul at Panama to act on behalf of the claimant. On June 17, 1909, this power of attorney was filed with the examiner of accounts of the Isthmian Canal Commission, and the Spanish consul requested that proper forms be sent him for the purpose of making the claim and affidavit required. As the power of attorney and accompanying letter were written in Spanish they were referred to another office for translation, and in some way the matter was overlooked for several weeks and until the ninety day limit had expired. It was held that under the circumstances the delay should be excused and the claim allowed, as having been filed in time. Re J. H. Maillo, Id., p. 498. An employé was killed May 3, 1909, and his parents who resided in Spain received word of the death of their son on May 28, 1909. They duly executed, under the laws of Spain, a power of attorney authorizing the Spanish consul in the City of Panama to do all necessary acts for the purpose of securing whatever indemnity might be available to them under the circumstances. This power of attorney was duly filed by the Spanish consul with the claim officer of the Canal Commission, who advised the former official that he should file a claim on behalf of the claimants, to which he replied that inasmuch as the claim had been filed by the parents Resignation of employé after injury direct he did not care to file a claim. This power of attorney was duly sworn to and fully evidenced the intention on the part of the claimants to make a claim for such indemnity as they would under the laws be entitled to receive. Subsequently, on June 30, 1909, the Department of State forwarded to the American Vice Consul at Madrid, Spain, blank forms adopted by the Department, to be filled out by claimants for the purpose of making a formal claim thereon. These forms were in turn sent to the claimants, who, as stated by the American consul, lived in a little town far in the country and with but little communication with the outside world. The blanks were filled out and owing to the absence of the notary in the little town a delay was occasioned, but the papers, properly authenticated, were mailed at a town in Spain on August 2, and reached the American consul on August 5. As the ninety day limit expired on August 1, it was first decided that the claim had not been filed within the statutory period. When the first decision was made, however, there was nothing in the record to show the filing of the power of attorney by the Spanish consul at Panama. Under the circumstances, it was held that the filing of this paper was sufficient to comply with the law to prevent the statute of limitation running against the claim and compensation was awarded. Re N. M. Martin, Id., p. 499. An affidavit of claim may be executed before any person authorized to administer oaths generally, and the authority of a person in a foreign country to administer oaths generally is a question of fact which should be established by satisfactory evidence. Re Joseph Gilfillen, Id., p. 523. Authority to administer oaths generally is not indispensable if the specific authority to administer oaths is not so limited as to exclude the oath in question. Re Leon Grant, Id., p. 528. 33. Resignation of employé after injury. Where an employé becomes incapacitated by reason of Medical examination an injury received in the course of his employment, his status as a beneficiary immediately attaches, and a resignation thereafter handed in while incapacity still exists, does not have the effect of changing the man's status as being a person employed by the United States and he is entitled to compensation, notwithstanding the resignation. Re Charles Salzmann, Id., p. 599. Where an employé quit work under the United States because he was unable to continue work and made an application for compensation, based on an injury received while in the service, but he stated that he had not made the claim while still in the service by reason of the fact that he did not know of the Compensation Act, it was held that he was entitled to compensation. Re T. H. Watson, Id., p. 596. 34. Medical examination. A refusal of a claimant to submit to a medical examination by a representative of the Government, during his period of alleged incapacity, is sufficient reason to bar him from the benefits of the Compensation Act. Re J. H. Boyan, Id., p. 430. In order to defeat a right to compensation for refusal to submit to an examination, it is necessary that such an examination shall have been directed by the Secretary, that it be made without expense to the employé, and the employé be advised that such examination is required by the Secretary. Re J. E. Mayott, Id., p. 616. If the Secretary so directs, an examination made by a naval surgeon designated by the Secretary of the Navy to examine an employé to determine this right to continue compensation would be a compliance with the Act. Re Enrique Villanueva, Id., p. 615. The law requires an examination at least once in six months during incapacity and contemplates that payments of compensation be not authorized for a longer period than Administration six months at a time even though the disability is permanent in its nature. Re Sam Haynes, Id., p. 611. The duty of claimants to submit to medical examination at least once in six months is mandatory upon them, but the obligation of the Secretary to provide such an examination is directory so that a right to compensation is not lost by the Secretary's failure to act. Re Feliciano Villafranca, Id., p. 612. 35. Physician's certificate. Where the evidence shows incapacity for more than fifteen days, the attending physician's certificate covering only the thirteen days the employé was under his observation satisfies the law. Re F. C. Kuehnle, Op. Sol. Dep. C. & L., p. 531. The fact that no physician was employed satisfactorily accounts for the non-production of a physician's certificate. Re Charles Wagner, Id., p. 532; Re James Foster, Id., p. 533. 36. Administration. The duty of determining whether a claim for compensation has been established involves a discretion on the part of the secretary, which cannot be delegated to any other person. Re Feliciano Villafranca, Op. Sol. Dep. C. & L., p. 542. All questions of fact under the Federal Statute are to be determined by the Secretary of Commerce and Labor, and it is not the privilege of the Attorney General to determine questions of fact or mixed questions of fact and law. Re W. P. Hutton, Opinions of Attorney General, p. 322. The Act of May 30th, 1908 (35 Stat. 556), is exclusive after it came into effect and after that date it was no longer in the power of the Isthmian Canal Commission by regulations past or present to enlarge or diminish the provisions of that Act, as to the relief extended to employés of the Commission for injuries received in the line of such employment. Letter of Comptroller Tracewell to the Isthmian Canal Text of Act Commission, Sept. 1, 1908, Op. Sol. Dep. C. & L., p. 618; 15 Comp. Dec. p. 115. ARTICLE B-TEXT OF FEDERAL ACTS AN ACT granting to certain employés of the United States the right to receive from it compensation for injuries sustained in the course of their employment. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That when, on or after August first, nineteen hundred and eight, any person employed by the United States as an artisan or laborer in any of its manufacturing establishments, arsenals, or navy-yards, or in the construction of river and harbor or fortification work or in hazardous employment on construction work in the reclamation of arid lands or the management and control of the same, or in hazardous employment under the Isthmian Canal Commission, is injured in the course of such employment, such employé shall be entitled to receive for one year thereafter, unless such employé, in the opinion of the Secretary of Commerce and Labor, be sooner able to resume work, the same pay as if he continued to be employed, such payment to be made under such regulations as the Secretary of Commerce and Labor may prescribe: Provided, That no compensation shall be paid under this Act where the injury is due to the negligence or misconduct of the employé injured, nor unless said injury shall continue for more than fifteen days. All questions of negligence or misconduct shall be determined by the Secretary of Commerce and Labor. SEC. 2. That if any artisan or laborer so employed shall die during the said year by reason of such injury received in the course of such employment, leaving a widow, or a child or children under sixteen years of age, or a dependent parent, such widow and child or children and dependent parent shall be entitled to receive, in such portions and under such regulations as the Secretary of Commerce and Labor may prescribe, the same amount, for the remainder of the said year, that said artisan or laborer would be entitled to receive as pay if such employé were alive and continued |