......

42

165

319

Provision of act that employee does not have right to grant release of claim applies to claim against insurer substituted for insolvent assured. Ill. Indemn. Ex. v. Indust. Comm. (Ill.).. Under act requiring commission to be made party to proceedings in district court and requiring commission's approval of compensation claims, district court has no power to render judgment on stipulation for sum less than that awarded by commission without its approval. Industrial Commission of Colorado v. London Guar. & Acc. Co. (Colo.)... Fact that injured employee may have obtained compensation for total incapacity from another master for subsequent injury to which he was not entitled cannot defeat his right to recover compensation for total disability in action against insurer of first master, fraud if any, being on second. Home Life & Accident Co. v. Corsey. (Tex.) Where employer and employee agreed with court's approval as to compensation for temporary disability, subsequent release executed by employee without consideration or approval of court was not "settlement" and did.. not affect original settlement. Clarkson v. Northwestern Consol. Milling Co. (Minn.) Where agreement upon settlement between employer and employee is reached subject to commissioner's approval and employer's insurer acts thereon and pays part of stipulated sum to insured employee without referring matter to Commissioner for approval, it is bound by the agreement and employee has action thereon without alleging or proving insolvency of employer. Adel v. Casualty Co. of America. (Ia.) Erroneous belief that state compensation laws applied to injury or death in maritime accident, facts of which accident were fully known, was mistake of law and not of fact, and does not invalidate resulting voluntary compromise and settlement.-where Board has no authority to compel parties to enter agreement but may invite them to do so and if they do not, may certify the case and facts to court. Compensation claims entered into upon such invitation accompanied by statement of certification to court would be result of failure to comply with invitation, is not entered into under compulsion. O'Brien v. Det Forende Damphibs Selskab. (N. J.) Employee was entitled to compensation for inguinal hernia sustained in course of employment notwithstanding agreement releasing employer from such liability. Hines v. Indust. Acc. Comm. (Cal.)

540

521

867

773

In widow's suit under Federal Act for death of husband, agreement between her and defendant railroad that judgment should be entered for $9000. If her contention that husband was injured in interstate commerce was correct, was against public policy in alternative provision that otherwise judgment should be entered for only $3000., approximate amount entitled to receive under State Act. Pinkney v. Erie R. Co. (Pa.)....... 892

(B) COMPENSATION.

383. ACCIDENT OR INSURANCE FUNDS, AND CONTRIBUTIONS THERETO. Where rider covered assured's liability under act, all conflicting provisions as to substitution of insurer of insolvent employer were set aside. Ill. Indem. Ex. v. Indust. Comm. (Ill.).

42

260

Where subcontractor, also engaged in independent work, applied to lumber company, his principal, to carry his liability insurance upon its policy, and its insurer endorsed upon polcy provision that policy should apply in all terms and conditions to include subcontractor, and he believed policy covered all his employees and paid premiums on that basis, it was too late for insurer on review of award of Board to claim policy covered only employees engaged in his work as subcontractor. Brown v. Bouschor. (Mich.) Where servant had arm fractured and four months later fracture parted when he attempted to crank automobile, such parting was result of first accident and compensation should be paid by insurance company carrying insurance at time of first accident, not by company carrying insurance at time of second accident. Phillips v. Holmes Express Co. (N. Y.) 440 Policy issued by indemnity company to paving company, held not to cover liability of latter for deceased workman injured in work expressly excepted-Commission was without power to make new contract between employer and insurer. Worswick Street Paving Co. v. Indust. Acc. Comm. (Cal.) While act merely requires school district to pay compensation and does not provide how fund to pay it shall be raised, yet that standing alone would not necessarily relieve school district from power or duty of paying compensation, nor would fact that school funds partake of nature of trust funds-under act school board is liable to injured teacher for amount awarded as compensation by commission, and such amount is payable out of funds raised by taxation for support and maintenance of schools. Woodcock v. Board of Education of Salt Lake City et al. (Utah.) Employer is primarily liable for compensation to employee and fact that he has insured payment does not relieve him where insurer is insolvent; default of either employer or insurer not excusing payment by the other. American Fuel Co. of Utah v. Indust. Comm. of Utah et al. (Utah.) Under act state treasurer is made custodian of fund for payment of claims and it is held that such fund is special and not public fund-when claim

342

620

.616

has been persented to board and been determined and definite amount
awarded, board may draw voucher against treasurer as custodian of such
fund, directing payment of amount stated-state auditor has no authority
to issue warrant for payment of award made by board. State ex rel.
Stearns v. Olson, State Treasurer. (N. D.)

$384. AMOUNT AND COMPUTATION OF AWARD.

574

.....

Where claimant worked for employer only short time, mostly plece work,
commission was justified in determining average weekly wage as that
of employees in same class. Shaw v. American Body Co. (N. Y.)..
Inquiry respecting extent of injury to employee should be directed to con-
dition at time of examination or trial. Updike Grain Co. v. Swanson
(Neb.)
Intent and purpose of act was to secure to injured employee compensation
to extent of disability actually sustained, and provisions as to payments
for specific injuries must yield thereto; they create a greater disability.
State ex rel. Broderick v. District Court of Ramsey County. (Minn.)
In computing wages under act, regard may be had to average weekly amount
earned by one in same grade, same work, and same employer, when by
reason of shortness of time of employment, its nature or terms, it be-
comes impracticable to compute average wage during 12 months preced-
ing injury by dividing amount by 52-amount actually earned by em-
ployee in particular employment should govern in computing compensa-

112

289

286

tion unless computation is impracticable King's Case. (Mass.) ...... 256

Where employee worked only five days per week, average weekly wage can-
not be computed under provision that daily wage be multiplied by 300 and
divided by 52, but should be computed under provision that sum represent-
ing annual earning capacity be divided by 52. Remo v. Skenandoa Cotton
Co. (N. Y.)

Injured employee of hotel, held not entitled to have money value of fres
board included as part weekly wages in computing amount of compensation,
money value of board not having been fixed at time of hearing. Picanardi
v. Emerson Hotel. (Md.)

442

..... 394

740

Where claimant had not been steadily employed, earning only $395. in seven
months and had worked only six days as fireman at $4.50 a day, prior
to accident, and receiving less for other services, compensation should be
based on actual earning capacity, not on basis of 300 times daily wage as
fireman. Rooney v. Great Lakes Transit Corporation et al. (N. Y.)....... 730
Liability of master for aggravation of injury received in accident because of
failure to furnish proper medical aid is nt liability covered by act.
Baggs v. Standard Oil Co of New York (N. Y.).
Widest discretion is vested in Commission to determine whether under
particular circumstances there should be applied rule that degree of
disability is to be determined by general impairment of earning capacity.
Globe Indemnity Co. et al. v. Indust. Comm. (Colo.)
Where employee is not engaged to work on Sundays and does not so work,
it cannot be said that, when he failed to work on Sunday, he had lost
a day, within provision for manner of computing average weekly wage.
In re Wheeler.

(2).

(3).

(Ind.)

......

Injury to arm, hand, or finger.

Injury to leg or foot.

495

821

Phrase "total incapacity for work", does not imply absolute disability to
perform any kind of labor and person disqualified from performing usual
tasks of workman in such way as to render nim unable to procure and
retain employment is ordinarily regarded as totally incapacitated.
Home Life & Accident Co. v. Corsey. (Tex.)

Where servant had fingers cut off and physician testified he was temporar-
ily totally disabled but that hand would be 25% efficient when cured,
compensation should be adjudged under specified section of act. Deemer
Steel Casting Co. v. Frank. (Del.)

319

170

(8). Partial disability.

Where there was evidence tending to show that as result of injury plaintiff
was less able to perform work and jury made finding that he was partially
incapacitated and awarded minimum compensation, held defendant was
not entitled to judgment on special findings, although findings show that
within few months after injury he obtained employment elsewhere in same
kind of work and had been earning almost double average earnings at
time of injury. Hood v. American Refrigerator Transit Co. (Kan.)..... 524

Employee whose injury results in loss of sight of one eye except 10 per cent, though such reduced vision is of no benefit in any vocational pursuit, is not cntitled to compensation for "entire and irrecoverable loss of sight of either eye." Keyworth v. Atlantic Mills (R. I.)..

Act does not give compensation for loss of member, but for loss of earning capacity actually caused by loss of limb. Centliver Beverage Co. V. Ross. (Ind.) Where in addition to loss of eye, plaintiff suffered permanent partial disability on account of partial paralysis, held he was entitled to additional compensation-provisions of act relating to amount of compensation interpreted, and methods of computing stated. Stefan v. Red Star Mill & Elevator Co. (Kan.).....

(11%). Loss of or injury to eye. Where injured eye, with aid of glass, is nearly normal for many purposes, there is no "loss of eye." Valentine v. Sherwood Metal Working Co. (N. Y.) Loss of employee's only eye constitutes total permanent disability, subject to allowance for not more than 400 weeks, and not a partial permanent partial disability subject to allowance for 100 weeks; and where commissioner allowed compensation for total disability, less compensation allowable for previous loss of other eye, thereby reducing statutory allowance to 300 weeks, employer received substantial equity, whether commissioner had authority to make such reduction or not. Jennings v. Mason City Sewer Pipe Company. (Iowa) Where injury necessitated removal of lens of an eye so it would not co-ordinate with normal eye, employee must de deemed to have suffered total loss of one eye, within Act. Juergens Bros. Co. v. Industrial Commission. (Ill.) Under evidence, plaintiff held to have suffered permanent loss of use of eye as direct result of injury within act. Stefan v. Red Star Mill & Elevator Co. (Kan ).... Injury to laborer's only eye affecting vision as to incapacitate for work he has been doing, and rendering ability to do any remunerative labor more than doubtful, constitutes permanent total disability within act. Brooks v. Peerless Oil Co., Inc. (La.).

....

(112). Loss of or injury to ear.

(12). Loss of arm, hand, or finger. Provision against payment under more than one clause, does not limit compensation for loss of three fingers to that for loss of one, nor preclude payments to one who went back to work and received same wages, but required assistance of other employees to do his work. Norwood v. Lake Bistenau Oil Co. (La.).

Where act fixed compensation for loss of hand at half wages for 150 weeks, recovery cannot be had as for permanent total disability on theory that workman, being uneducated and dependent on manual labor, is totally incapacitated to do work of that character. Smith v. White. (La.) Under provision for payment of definite sum for loss of particular fingers and also providing that permanent loss of use of hand shall be considered as equivalent to its loss, where servant received injury of loss of four fingers, portion of palm, and thumb was of little use, there was permanent loss of use of hand, rendering proper award therefor. Bristow Cotton Oil Co. v. State Ind. Comm. (Okla.)

To come within personal injury provisions for loss of member, it must have been severed or amputated, but where disabled but not severed, injury comes under genera provisions. Norwood V. Lake Bisteneau Oil Co. (La.)

(14).- Injury to leg or foot.

It is proper in cases not specifically provided for to consider cumulative effect of several injuries befalling same person. Porter V. Alfred S Amer. Co. (La.)

(15). Temporary disability.

(16). Expenses of medical or surgical treatment, and nursing. (17). Deductions or set-offs, and duty of claimant to reduce loss. Insurance carried by employer on life of employee without expense to insured and paid to widow before employer's liability for compensation had been determined should be allowed as credit on acount of compensation to be paid. American Smelting & Refining Co. v Cassil. (Neb.) Submission to surgical operation.

(18).

.........

Where employee lost 1-16 inch off first phlange of finger, injury not interfering with use of joint nor of entire finger, compensation cannot be a

116

212

695

115

233

369

695

701

76

531

884

76

846

553

warded as for loss of first phalange, under act. Edward E. McMorran
& Co. v. Industrial Commission. (Ill.)

(19). Excessive award.

(20). Commutation of payments and award of gross sum.
Where at time of hearing before Board, injuries of claimant may have re-
sulted in total disability for indefinite period, although obvious that
such disability will ultimately be followed by partial disability, case
falls under act and board will deny or postpone application for com-
mutation of weekly payments. Deemer Steel Casting Co. V. Frank.
(Del.)
Refusal by commission to approve lump sum settlement with injured em-
ployee rendered insane by accident held not arbitrary. Reteuna v. In-
dustrial Commission. (Utah)
There may be lump sum settlement by parties with approval of board, and
board may at any time and in any case, without consent of employer,
provide for commutation of deferred payments if its discretion is mov-
ed by special circumstances attending-part of act authorizing such ac-
tion is not inconsistent with other parts-where injured employee,
carpenter, was permanently incapacitated for work but might be able
to do other kinds of work where he could sit, and incurred medical ex
penses over $900. to obtain which his father mortgaged his farm
board on showing of such facts was authorized to order lump settle-
ment without consent of employer. McMullen v. Gavette Construction
Co. (Mich.)
Injured employee suing indemnity company in which employer was insured,
in absence of agreement, is entitled to judgment in lump sum for com-
pensation already due and weekly installments during balance of time,
but not to lump sum judgment for whole period. United States Fidelity
& Guaranty Co. v. Parker. (Tex.)
Arbitrator has no authority to make award in lump sum. Roper v. Ham-
mer (Kan.)

....

183

170

327

2.0

468

690

Facts that lump sum settlement would enable injured servant to live upon
his farm and that he could not support family in town upon weekly allow-
ance are to be considered, Texas Employers' Ins. Ass'n v. Downing. (Tex.) 582

Where janitor left employment and went to work elsewhere while wife was
engaged to do his work, he occasionally helping her for no compensa-
tion from employer and later being engaged regularly to wax floor of
building, for which he was paid, and in which employment he received
mortal injuries, he was not employed as janitor at time of injury and
award based on his average weekly wage for waxing floor of building
was correct. Marvin's Case. (Mass.)
Where Janitor employed under separate concurrent contracts with three em-
ployers, was killed by fall, employer served at time of injury was liable
for compensation based on total earnings received from all employers.
In re Howard (Ind.)

259

208

256

Compensation under act for death of employee receiving $28.00 a week, in
course of Saturday night employment by newspaper company in which
he received $9.20 for each night's work, should be based on a weekly
wage of $9.20 and not on average weekly amount earned by person in
same grade, employed in same work by same newspaper steadily.
King's. Case
(Mass.)..
Award to non resident parents of deceased employee of one-half average
weekly wage held error since it should have been for only 25%. Skil-
laris et al. v. United States Railroad Administration et al. (U. S.).... 724
Under act, amount of compensation for death of miner is to be computed
upon gross earnings and not upon gross earnings less amount deducted by
employer for union dues and items purchased by deceased from em-
ployer. Springfield Coal Mining Co. v. Industrial Comm. et al. (IN.).......... 675
(2). Deductions.

(4). Commutation of payments and award of gross sum.
In proceedings for lump sum compensation claim by deceased employee's
mother as beneficiary and sister as dependent, it was error to make
award to mother and sister jointly-employer, by filing writing indica-
tion willingness to pay commuted compensation does not waive right to
object to payment in lump sum-"probable future payments" means
such payments ordinarily become payable in natural course of events
taking into consideration expectancy of beneficiary. H. W. Clark Co. v.
Indust. Comm. (III.)

Though payments depending on number of children are to be made to widow,
children have interest therein, so commutation of payments cannot be
made without joinder of guardian acting under authority of court for
children, Act not having declared that mother as natural guardian
should act for them Lovasz v. Carnegie Steel Co. (Pa.)

(5). Apportionment of payments.

Section of act providing that no award shall provide payment in lump sum
except such portion as shall be found due and unpaid at time of award,

805

902

governs award in arbitration in case in which injury resulted in death. Boyd v. J. R. Crowe Coal & Mining Co. (Mo.).

Where employee suffered injury to head for which he was awarded compensation for temporary total and permament partial disability he could not be also awarded compensation for permanent disfigurement. SmithLohr Coal Mining Co. v. Industriaal Commission et al. (III.). Under definition of "children" to include stepchildren and those to whom employee stood in loco parentis if members of his household at his death, and under provision that receipt of benefits from any association or fund shall not bar recovery of compensation, children who are receiving compensation for death of natural father may receive additional and concurrent compensation for death of stepfather who stood in loco parentis and on whom they were dependent. Decker v. Mohawk Mining Co. (Pa.)

If injured servant continued to work from time of injury at same wages until job was finished and at own request was moved on different job at less wage but receiving full wage of well man, he was not entitled to compensation. Humphreys v. Chevrolet Motor Car Co. (U. S.)

$ 388.

236

669

889

878

PERSONS ENTITLED TO COMPENSATION FOR DEATH OF EM-
PLOYEE (DEPENDENTS).

....

Where dependency is not to be determined as fact but exists by act, it is not affected by dependent's wealth or poverty and continues though minor dependent becomes self supporting. Cronin's Case (Mass.). Provision for compensation to parents does not require dependency-sufficient if employee contributed to support within four years before injury. Peabody Coal Co. v. Indust. Comm. (Ill.). Husband and wife, after divorce decree for wife, making no provision for her support. held living separate by agreement so that husband was not personally liable for support, and she was not entitled to presumption of total dependency act. London Guarantee & Acc. Co. v. Indust. Acc. Comm. (Cal.) Fact that deceased's mother, to whose support he contributed, had made will in his favor is not material in determining her claim under act, in absence of evidence wil was result of agreement. Miss. River Power Co. v. Indust. Comm. (Ill.)...

Wife, not living with husband, but receiving support from him under decree for separate maintenance, is within act, and award for his death cannot be defeated on ground that it came under common-law liability. Continental Casualty Co. v. Pillsbury (Cal.)

That deceased minor servant gave wages to father in aid of him and children constituted father actual dependent. Colucci V. Edison Portland Cement Co. (N. J.).

Minor daughter, deserted by father, living apart from him for justifiable cause, is not conclusively presumed wholly dependent on him for support under act. Moran's Case (Mass.)

Mere fact that deceased son made regular gifts to mother, is not alone sufficient to establish dependency-award in favor of grandmother of deceased employee cannot be sustained on ground that he was helping her to pay mortgage-test of dependency is not what conditions arise after death of servant, but what were conditions at time of accident. Mulraney et al. v. Brooklyn Rapid Transit Co. (N Y.).... Illegitimate children are not included within the protection of act providing payment of compensation for death if employee leaves children or other lineal heir. Murrell v. Industrial Commission et al. (III.).. Where deceased alien employee left no wife or child, award to each parent nonresident aliens of 25 per cent of wages, is erroneous and should be modified by striking out award in favor of mother. Skarpeletzos Counes & Raptis Corporation et al. (N. Y.)..

V.

Where deceased employee's wife had secured divorce, giving her custody of two minor children with no alimony, and he furnished children no support after brief time except small gifts of money and occasional gift of clothing they were not total dependents under act. State Industrial Accident Commission v. Downton et al. (Md.)...

80

57

20

50

302

249

731

673

720

709

573

Act does not allow compensation to woman living with servant as his wife, but not legally married to him-illegitimate children are not entitled to benefits under act as "dependents.' Scott v. Independent Ice Co (Md.).. 702 Under act, insurance carrier must pay state treasurer $100 for injury causing death of employee without surving dependents, though employee himself before death received compensation for brief period. Stemfler v. J. Rheinfrank & Co. et al. (N, Y.) Mother, father and family of minor employee killed in accident are dependents if his contributions are reasonably necessary to support family. In re Stewart. (Ind.) Commission, in proceedings to recover death benefits for support of employ ee's minor child, existing award to divorced mother can determine whether amount father was required to pay for support was sufficient for entire support. Where such payments were sufficient for entire support, Commission can find child was wholly dependent. Robert Sherer & Co. v. Ind. Acc. Comm. (Cal.)

515

775