ARTICLE 2

COMPENSATION

Section 10. Liability for compensation.

11. Alternative remedy.

12. Compensation not allowed for first two weeks.
13. Treatment and care of injured employees.

14. Weekly wages basis of compensation.

15. Schedule in case of disability.

16. Death benefits.

17. Aliens.

18. Notice of injury.

19. Medical examination.

20. Determination of claims for compensation.

21. Presumptions.

22. Modification of award.

23. Appeals from the commission.

24. Costs and fees.

25. Compensation, how payable.

26. Enforcement of payment in default.

27. Depositing future payments.

28. Limitation of right to compensatior.

29. Subrogation to remedies of employee.

30. Revenues or benefits from other sources not to affect compensation. 31. Agreement for contribution by employee void.

32. Waiver agreements void.

33. Assignments; exemptions.

34. Preferences.

§ 10. Liability for compensation.- Every employer subject to the provisions of this chapter shall pay or provide as required by this chapter compensation according to the schedules of this article for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment, without regard to fault as a cause of such injury, except where the injury is occasioned by the willful intention of the injured employee to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employee while on duty. Where the injury is occasioned by the willful intention of the injured employee to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employee while on duty, neither the injured employee nor any dependent of such employee shall receive compensation under this chapter.

Denial of compensation because there has been no accident does not preclude action for negligence: Naud v. King Sewing Machine Co., 95 Misc. 676; 178 App. Div. 31; 223 N. Y. Rep. 567.

For decisions interpreting the phrases "arising out of" and "in the course of " compare notes to § 3, subd. 7.

Payment "without regard to fault" has been upheld by the Supreme Court of the United States in New York Central R. R. Co. v. White, 243 U. S. 188.

The burden of proving that an accident has been due to intoxication or willful intention to injure rests upon the employer: § 21, subds. 3, 4.

The employee's method and means of doing his work, however risky or careless, do not debar compensation: Ross v. Genesee Reduction Co., 180 App. Div. 846. The rule for determining when an employee's violation of his employer's orders takes him out of his employment is laid down in Macechko v. Bowen Mfg. Co., 13 S. D. R. 505; 179 App. Div. 573; non-enforcement of a rule or order abrogates it: Etherton v. Johnson Knitting Mills Co., 184 App. Div., 820; quasi acquiescence binds the employer: Smith v. Bartle Mfg. Corp., 19 S. D. R. 458, 4 Bul. 143; 189 App. Div. 426; N. Y. Rep., Mar. 9, 1920; texts of the opinions and remarks of the Commission are in Bulletins No. 87, pp. 203-207, and No. 97, pp. 156-160; compare also Yodakis v. Smith & Sons Carpet Co., 22 S. D. R. 417; App. Div. -, July 8, 1920; Levine v. McElwain, Morse & Rogers, Case No. 303341; App. Div. -, July 8, 1920; Krasner v. American Steel Wool Mfg. Co., 5 Bul. 93. Cases of intoxication in which the Commission has denied compensation are: Butler v. Sheffield Farms, 6 S. D. R. 368; Minnaugh v. Brooklyn Union Gas Co., 8 S. D. R. 446; and Trouton v. Sheahy Ice Co., 16 S. D. R. 484, 3 Bul. 201. The Appellate Division affirmed the Trouton denial (187 App. Div. 818). The Appellate Division reversed awards to widows and children of employees charged with intoxication and drowned while leaving their places of employment in Pope v. Merritt & Chapman Derrick & Wrecking Co., 10 S. D. R. 587; 177 App. Div. 69; and Whalen v. Stanwood Towing Co., 17 S. D. R. 626; 186 App. Div. 190. The Commission denied death benefits to the widow and children of an employee who drank himself to death after his accident in McGurgan v. Burns Bros., 19 S. D. R. —, 4 Bul. 91. For other alcoholic cases see Bulletin 87, pp. 201, 202. Cases of awards where the injured employees had been drinking are: Carroll v. Knickerbocker Ice Co., 169 App. Div. 450; 218 N. Y. 435; Kiernan v. Friestedt Underpinning Co., S. D. R. 390; 171 App. Div. 539; and where the employer claimed evidence of suicide: Ignatowsky v. Berman, 6 S. D. R. 326; Riedel v. Mallory Steamship Co., 10 S. D. R. 601; and Urban v. Frank & Co., 2 Bul. 46.

Because of the injured employee's willful intent to injure another, the Commission and court denied compensation in Griffin v. Robertson, 9 S. D. R. 303; 176 App. Div. 6; Ludwig v. Groh's Sons, 8 S. D. R. 426; 181 App. Div. 907; Jacobowitz v. Ex-Lax Mnfg. Co., Death Case, No. 55890; 187 App. Div. 915; and Muller v. Cohen, 186 App. Div. 845; and the courts reversed the award in Stillwagon v. Callan Bros., 3 Bul. 99; 183 App. Div. 141; 224 N. Y. Rep. 714; compare also the close case of Slane v. Cording & Salzman, 11 S. D. R. 631, 2 Bul. 9, 64; 179 App. Div. 952. Initiating assault is a willful thing but not so reacting against assault or insult: Verschleiser v. Stern & Sons, N. Y. - June 1, 1920. Recalcitrance of injured employees relative to medical treatment and care is noticed below under § 13.

§ 11. Alternative remedy.— The liability 1of an employer prescribed by the last preceding section shall be exclusive 2and in place of any other liability whatsoever, to such employee, his personal representatives, husband, parents, dependents or next of kin, or anyone otherwise entitled to recover damages, at common law or otherwise on account of such injury or death, except that if an employer fail to secure the payment of compensation for his injured employees and their dependents as provided in section fifty of this chapter, an injured employee, or his legal representative in case death results from the injury, may, at his option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury; and in such an action3 it shall not be necessary to plead or prove freedom from contributory negligence nor may the defendant4 plead as a defense that the injury was caused by the negligence of a fellow servant5 nor that the employee assumed the risk of his employment,5 nor that the injury was due to the contributory negligence of the employee. [As am'd by L. 1914, ch. 316; and L. 1916, ch. 622.]

1 Words "of an employer," inserted by L. 1916, ch. 622.

2 Words

66

and in place

or death," inserted by L. 1916, ch. 622.

The exclusiveness of the liability prescribed by § 10 has been upheld by the Court of Appeals in Shanahan v. Monarch Engineering Co., 219 N. Y. 469, in which case the Compensation Law was held to be a bar to an action under § 1902 of the Code of Civil Procedure.

Opinions conflict as to whether employment of a child or other person in violation of the Labor Law, or other statute, renders the employer liable for negligence in case of injury to such child or other person even though the employer is insured in accordance with the compensation law's provisions : Wolff v. Fulton Bag & Cotton Mills, 185 App. Div. 436; Ide v. Faul & Timmins, 179 App. Div. 567; Kenny v. Union Ry. Co., 166 App. Div. 497; Robilotto v. Bartholdi Realty Co., 104 Misc. 419; Boyle v. Cheney Piano Action Co., 110 Misc. 540.

Question has arisen whether a non-resident injured in another State under an employment contract made in New York can bring an action for negligence in the other State or in New York; an employer and employee resided in New Jersey, the hiring was in New Jersey and the employee met with an accident in New York the higher courts of New York reversing the trial court, held that the New Jersey Workmen's Compensation Law excluded action for negligence in New York: Barnhardt v. American Concrete Steel Co., Bulletin of Genl. Contractors' Assn., vol. 7, p. 224; 181 App. Div. 881; 227 N. Y. 531; compare Carlson v. Ogden Co., 14 S. D. R. 655, 3 Bul. 49; 181 App. Div. 963; Lloyd v. Power Specialty Co., 7 S. D. R. 409.

Other phases of the right to a negligence action are presented in the notes under § 29 and in the note on Extra-territoriality under § 3, subd. 4.

The acting police commissioner of New York City has held that provisions of the New York City charter granting full pay during absence on account of injury have been superseded by the Workmen's Compensation Law: Ryan v. City of New York, 18 S. D. R. 600.

Construction of the Ashokan Dam under special legislative act is within the compensation law's coverage: Calamari v. Winston & Co., Death Claim, No. 67471; 184 App. Div. 923; 224 N. Y. Rep. 622.

In electing to bring an action for damages, the injured employee must allege that his employer has been negligent: Lindebauer v. Weiner, 94 Misc. 612; Dick v. Knoperbaum, 157 N. Y. Supp. 754; and has not secured compensation: Nulle v. Hardman, Peck & Co., 185 App. Div. 351; Campoccia v. Panama R. R. Co., 110 Misc. 116; burden of showing that the employer did not carry insurance is upon the employee: Barone v. Brambach Piano Co., 101 Misc. 670.

Relative to procedure in pleading the compensation law as a bar to action for negligence, compare Schattner v. American Tobacco Co., 100 Misc. 261; and Nilsen v. American Bridge Co., 176 App. Div. 915; 221 N. Y. 12.

Pursuit by the employee of one of his two remedies under § 11 precludes pursuit of the other: Pavia v. Petrolium Iron Works Co., 9 S. D. R. 378; 178 App. Div. 345; Crinieri v. Gross, 16 S. D. R. 432; 184 App. Div. 817.

For the General Employers' Liability Law, see article 14 of the Labor Law. See also §§ 29 and 53 of the Workmen's Compensation Law; Liability of Railway Companies, Railroad Law, § 64; Damages for Injuries Causing Death, Constitution of New York, Art. 1, § 18; and Code of Civil Procedure, § 1902; and Criminal Liability for Negligence, Penal Law, §§ 1052, 1893.

Relative to penalty for failure to secure compensation §§ 11, 50 and 52 should be read together.

§ 12. Compensation not allowed for first two weeks.- No compensation shall be allowed for the first fourteen days of disability, except the benefits provided for in section thirteen of this chapter, 1provided, however, that in case the injury results in disability of more than forty-nine days the compensation shall be allowed from the date of the disability. [As am'd by L. 1917, ch. 705.]

1 Remainder of section added by L. 1917, ch. 705.

§ 13. Treatment and care of injured employees. The employer shall promptly provide for an injured employee such medical, surgical or other attendance or treatment, nurse and hospital service, medicine, crutches and apparatus as the nature of the injury may require during sixty days after the injury; but the commission may where the nature of the injury or the process of recovery requires a longer period of treatment require the same from the employer. If the employer fail to provide the same, 3after request by the injured employee 4such injured employee may do so at the expense of the employer. The employee shall not be entitled to recover any amount expended by him for such treatment or services unless he shall have requested the employer to furnish the same and the employer shall have refused or neglected to do so, or unless the nature of the injury required such treatment and services and the employer or his superintendent or foreman having knowledge of such injury shall have neglected to provide the same. All fees and other charges for such treatment and services shall be subject to regulation by the commission as provided in section twenty-four of this chapter, and shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living. [As am'd by L. 1918, ch. 634.]

1 Words "the nature of the injury may require" substituted for words may be required or be requested by the employee," by L. 1918, ch. 634.

2 Words" but the commission

ch. 634.

from the employer," inserted by L. 1918,

3 Words "after request by," inserted by L. 1918, ch. 634.

* Words "such injured employee," inserted by L. 1918, ch. 634.

6 Words 66 or unless

See also §§ 19, 24, 26, 41-43.

provide the same," inserted by L. 1918, ch. 634.

The wife or other relative of a claimant for compensation, not being a professional or graduate nurse, is not entitled to payment for services in caring for him: Dunham v. Phelan & Sullivan, 1 Bul. 9, p. 30.

An injured employee is not entitled to an artificial limb upon demand from his employer: Kunasek v. N. Y. Consolidated Car Co., 176 App. Div. 135. The State Education Department furnishes artificial limbs, etc., at cost to physically handicapped persons; Education Law, § 1208, added by L. 1920, ch. 760.

The employer is not liable for physician's services if the employee has rejected the physician selected by the employer: Keigher v. General Electric Co., 173 App. Div. 207; Junk v. Terry & Tench Co., 176 App. Div. 855. The insurance carrier has no voice in selection of the physician: Mezeritsky v. Mezeritsky & Miller, 15 S. D. R. 613, 3 Bul. 145; 185 App. Div. 919.

Character of the treatment to be furnished by the employer is touched upon in the Keigher and Junk opinions. Inadequate or improper treatment justifies an employee in procuring a physician of his own selection without making further request of his employer: Brastowicz v. Doehler. Die Casting Co., 17 S. D. R. 650, 4 Bul. 24; 187 App. Div. 961; and operates to the employer's disadvantage in other respects: McNeill v. N. Y. Central R. R. Co., Death Claim No. 14239; 181 App. Div. 912; Boice v. Patent S. S. Co., 17 S. D. R. 614, 3 Bul. 265.

On the other hand, employers have vainly plead bad management of the em ployee's physician or recalcitrance of the employee relative to treatment or reinjury, such as a green stick fracture caused by drunkenness or other conduct of the employee, though they have prolonged disability or transformed trivial injuries into fatal ones; cases in point are: Lindsay v. Gallagher, 9 S. D. R. 275, 2 Bul. 50; App. Div. Mar. 20, 1917; Beatty v. McAllister Dry Dock Co., N. Y. State Depts., Weekly Reports, Apr. 14, 1917, p. 819; Stolte v. N. Y. State Sewer Pipe Co., Death File No. 18389; 179 App. Div. 949; Beckwith v. Bastian Bros., 13 S. D. R. 538; 181 App. Div. 909; Fawcett V. Lagen

backer Bros., Claim No. 40370; 181 App. Div. 911; 223 N. Y. Rep. 680; House v. Robinson & Carpenter, File No. 7796; 181 App. Div. 911; Mack v. N. Y. Dock Co., Death Case, No. 24142; 181 App. Div. 963; 223 N. Y. Rep. 683; Miller v. U. S. Radiator Corp., File No. 12862; 183 App. Div. 914; and O'Esau v. Bliss Co., 14 S. D. R. 696, 3 Bul. 79.

Amendment of this section by L. 1918, ch. 634, offsets Goldflam v. Kazemier & Uhl, 181 App. Div. 140, in which the court absolved the employer from the expense of treatment and care because the employee had not made request therefor. It suffices that the employee has obtained the employer's consent to a physician selected by the employee: Mezeritsky v. Mezeritsky & Miller, 15 S. D. R. 613, 3 Bul. 145; 185 App. Div. 919. Imminence of death may imply a request: Mohan V. Cluett & Sons, 4 Bul. 56.

§ 14. Weekly wages basis of compensation.- Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation or death benefits, and shall be determined as follows:

1. If the injured employee shall have worked in the employment in which he was working at the time of the accident, whether for the same employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed;

2. If the injured employee shall not have worked in such employment during substantially the whole of such year, his average annual earnings shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed;

3. If either of the foregoing methods of arriving at the annual average earnings of an injured employee cannot reasonably and fairly be applied, such annual earnings shall be such sum as, having regard to the previous earnings of the injured employee and of other employees of the same or most similar class, working in the same or most similar employment in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the accident;

4. The average weekly wages of an employee shall be one-fifty-second part of his average annual earnings;

5. If it be established that the injured employee was a minor when injured, and that under normal conditions his wages would be expected to increase, the fact may be considered in arriving at his average weekly wages.

Wages are defined by § 3, subd. 9; for other wage provisions compare §§ 15, 101, 102, 113.

Methods of computing the wage basis under the three subdivisions of this section are interpreted by court opinions in Littler v. Fuller Co., 223 N. Y. 369; Fredenberg v. Empire U. Rys., 168 App. Div. 618; Bylow v. St. Regis Paper Co., 179 App. Div. 555; Cohen v. Rothstein & Pitofsky, 176 App. Div. 35; Prentice v. N. Y. State Rys., 181 App. Div. 144; Remo v. Skenandoa Cotton Co., 189 App. Div. 367; Shaw v. American Body Co., 189 App. Div. 365; and Rooney v. Great Lakes