§ 34. Preferences. The right of compensation granted by this chapter1 and any awards made thereunder shall have the same preference or lien without limit of amount against the assets of 2an employer, 3or of any stock corporation or mutual association authorized to transact business to workmen's compensation insurance in this state, as is now or hereafter may be allowed by law for a claim for unpaid wages for labor. [As am'd by L. 1916, ch. 622; and L. 1920, ch. 527.]

1Words "and any awards made thereunder,"inserted by L. 1916, ch. 622. "Word "an" substituted for word "the," by L. 1920, ch. 527.

3 Words or of any

this state," inserted by L. 1920, ch. 527.

For preference of unpaid wages for labor see Debtor and Creditor Law, § 22; Lien Law, §§ 13, 32, 33, 45, 56; Tenement House Law, § 127.

§ 35. Compensation to town, village, city and county employees.-The board of supervisors of each county of the state may provide for the payment of compensation under this chapter to town, village, city and county employees by taxation, which shall be known as the "taxation system "of paying such compensation. Whenever compensation shall be awarded under this chapter to a town, village, city or county employee, in a county which has adopted such taxation system, the county treasurer of such county forthwith shall pay such award out of any money of such county applicable thereto. If he have no such money in his possession or under his control, he shall immediately borrow upon the credit of the county by temporary loan sufficient money to pay and he shall pay such award. The moneys so borrowed shall be a county charge and shall be included by the board of supervisors in the next succeeding tax levy, in addition to all other sums authorized to be raised thereby, and such money shall be levied by such board on the taxable property in such county and, when raised, shall be paid into the county treasury and used to reimburse the county for any money advanced or to pay money borrowed to pay awards under this chapter. [Added by L. 1919, ch. 458.]

Compare 50, subd. 4.

The board should levy money borrowed on account of injury to a town, village or city employee, not upon the entire county, but upon the particular town, village or city: Letter of Attorney-General, March 15, 1920.

§ 37. Definitions.- Whenever used in this article: 1. "Disability " means the state of being disabled from earning full wages at the work at which the employee was last employed.

2. "Disablement" means the act of becoming so disabled as defined in subdivision one.

§ 38. Disablement treated as accident. The disablement of an employee resulting from an occupational disease described in section forty-nine-a of this article, except where specifically otherwise provided, shall be treated as the happening of an accident within the meaning of this chapter and the procedure and practice provided in this chapter shall apply to all proceedings under this article, except where specifically otherwise provided herein. Compare 3, subd. 7.

§ 39. Right to compensation. If an employee is disabled or dies and his disability or death is caused by one of the diseases mentioned in section fortynine-a of this article, and the disease is due to the nature of the corresponding employment as described in section forty-nine-a in which such employee was engaged and was contracted therein, he or his dependents shall be entitled to compensation for his death or for the duration of his disablement in accordance with the provisions of article two, except as hereinafter stated; provided, however, that if it shall be determined that such employee is able to earn wages at another occupation which shall be neither unhealthful nor injurious, and such wages do not equal his full wages prior to the date of his disablement, the compensation payable shall be a percentage of full compensation proportionate to the reduction in his earning capacity.

Compare 15, subd. 3, "Other cases paragraph.

§ 40. Time limit.- Neither the employee nor his dependents shall be entitled to compensation for disability or death resulting from disease unless

3

the disease is due to the nature of his employment and contracted therein within the twelve months previous to the date of disablement, whether under one or more employers.

Section 2 of Chapter 538 of the Laws of 1920 declares that the provisions of this Article 2-a shall not apply to disability or death resulting from a disease contracted prior to May 5, 1920. Date of disability is determined under §§ 41, 42, 44.

§ 41. Certifying physicians.— The industrial commission and the industrial council, in joint session, shall divide the state into districts, and the commission, with the advice and consent of the industrial council, shall, so far as they are needed, appoint one or more competent and suitable physicians in each of such districts whose duty it shall be to examine any claimant under this article, either at the request of such claimant or at the request of his or her employer, and certify (1) whether he is suffering from a disease mentioned in the schedule of diseases in section forty-nine of this article, and (2) whether he is thereby disabled from earning full wages at the work at which he was employed, and (3) whether the disease is due to the nature of the employment and contracted therein, and (4) the date on which the disability began.

§ 42. Appeal to commission.- If an employer or an employee be aggrieved by the action of a certifying physician in giving or omitting or refusing to give a certificate as to disability or as to date or cause of disability, such employer or employee may appeal to the commission for the designation of another physician. The commission shall thereupon agree with such employer or employee upon the physician to be designated by the commission, who shall have all the powers of a certifying physician under this article. If the determination of such physician shall in anywise differ from the determination of the certifying physician in the same case the commission shall finally determine the questions involved, in accordance with the provisions of this article.

§ 43. Fees of physicians. The industrial commission, with the advice and assistance of the industrial council, shall make rules regulating the duties and fees of certifying and other physicians under this article. These fees shall be paid by the state as the other expenses of the commission are paid. See also §§ 13, 24, 26.

§ 44. Date of disablement.- For the purposes of this article the date of disablement, unless fixed by agreement of the parties, shall be such date as the certifying physician certifies as the date on which disability began or, if he is unable to certify such a date, the date on which his certificate is given; provided, however, that if appeal is taken to the commission under section forty-two, the date of disablement shall be such date as the commission may determine. But where an employee dies from an occupational disease covered by this article without having obtained a certificate stating the date on which such disability began, the date of his death shall be the date of disablement.

45. Workmen, when not entitled. If an employee, at the time of his employment, wilfully and falsely represents in writing that he has not previously suffered from the disease which is the cause of disability or death, no compensation shall be payable.

Compare 8 48, 115,

§ 46. Liability of employer.- The total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted. If, however, such disease was contracted while such employee was in the employment of a prior employer, the employer who is made liable for the total compensation as provided by this section, may appeal to the commission for an apportionment of such compensation among the several employers who since the contraction of such disease shall have employed such employee in the employment to the nature of which the disease was due. Such apportionment shall be proportioned to the time such employee was employed in the service of such employers, and shall be determined only after a hearing, notice of the time and place of which shall have been given to every employer alleged to be liable for any portion of such compensation. If the commission find that any portion of such compensation is payable by an employer prior to the employer who is made liable to the total compensation as provided by this section, it shall make an award accordingly in favor of the last employer, and such award may be enforced in the same manner as an award for compensation.

§ 47. Notice to employers.- The employer to whom notice of death or disability is to be given, or against whom claim is to be made by the employee, shall be the employer who last employed the employee during the said twelve months in the employment to the nature of which the disease was due and in which it was contracted, and such notice and claim shall be deemed seasonable as against prior employers.

Compare 18.

§ 48. Information; penalty.- The employee or his dependents, if SO requested, shall furnish the last employer or the commission with such information as to the names and addresses of all his other employers during the said twelve months, as he or they may possess; and if such information is not furnished, or is not sufficient to enable such last employer to take proceedings against a prior employer under section forty-six, unless it be established that the disease actually was contracted while the employee was in his employment, such last employer shall not be liable to pay compensation, or, if such information is not furnished or is not sufficient to enable such last employer to take proceedings against other employers under section forty-six, such last employer shall be liable only for such part of the total compensation as under the particular circumstances the commission may deem just; but a false statement in the information furnished as aforesaid shall not impair the workman's rights unless the last employer is prejudiced thereby.

§ 49. Presumption as to the cause of disease.— If the employee, at or immediately before the date of disablement, was employed in any process mentioned in the second column of the schedule of diseases in section forty-nine-a, and his disease is the disease in the first column of such schedule set opposite the description of the process, the disease presumptively shall be deemed to have been due to the nature of that employment.

§ 49-a. Schedule of occupational diseases.* For the purposes of this chapter only the diseases enumerated in column one, following, shall be deemed to be occupational diseases:

*For compensatableness of anthrax, glanders or inhalation of poisonous fumes or gases, prior to enactment of this section, see note, above, page 23.