Under provision that child under 18 shall be conclusively presumed wholly dependent on parent with whom living, boy, whose care, custody, main. tenance and education were awarded to mother by divorce decree, re- quiring father to pay $10.00 per month for such purposes, was not whol- ly dependent on father. Ninneman v. Indust. Comm. (Wis.) If widow of deceased employee was not living with him when he died, so as to be wholly dependent on him, question of dependency was to be de- termined by Board, free from presumption and in accordance with facts, existing at time of injury. Breakey's Case. (Mass.)
In enacting Act, legislature could provide for double dependency or deny compensation to any one for death of injured employee. Under pro- vision that child under 16, is conclusively presumed wholly dependent and that stepparents shall be regarded as parents, effect is to substitute stepparent for actual parent so that child whose natural father killed but who, at time, was living with stepparent is not repugnant to statute. Hoover v. Central Iowa Fuel Co. (Iowa.) 840
Where husband and wife had separated three years prior to death and had not lived together, and she was not relying upon or receiving contribu- tions from him, she was not "dependent". Collwell v. Bedford Stone & Construction Co. (Ind.)
189. SUBROGATION TO RIGHTS OF INJURED EMPLOYEE. Policy held to confer right of subrogation on insurer only in event it has paid whole amount due, notwithstanding act. Maryland Cas. Co. v. Cincinnati, C., C. & St L. Ry. Co. (Ind.). 68 Under act authorizing injured employee to either sue a third party injur- ing him, or seek compensation but not to do both, and providing that insurer paying compensation should be subrogated to employee's rights and pay any sum recovered in excess of compensation to injured em- ployee, employee after receiving compensation may sue third party upon insurer's failure or refusal to sue and recover full damages minus compensation previously received. Wm. Cameron & Co., Inc. V. Gamble (Tex.)...
In action by insurer to recover indemnity paid by it under policy issued telephone company on account of death of latter's employee, brought against power company whose negligence caused death, insurer's rights to recover were same as rights of deceased. Fidelity & Casualty Co. v. Cedar Valley Electric Co. (Iowa.)... Subrogation of employer to rights of employee injured by third party, to extent of compensation paid, does not involve splitting of causes of ac- tion-master who had paid compensation for injury occasioned by neg- ligence of third person is not subrogated to all rights of employee to recover damages under act, but only to extent of compensation paid is less than damages. Black v. Chicago Great Western R. Co. (Iowa)...... 218 Where master was liable because it had actual knowledge of accident it may recover from third person whose negligence caused death for which master paid compensation-in such action measure of damages is not fixed in act, but employer must pay to dependents difference, if any, over and above amount paid-making a claim by widow alone is sufficient to trans.er to employer right of recovery against third person whose acts caused death-where employer paid widow and there was no evidence that insurance carrier had paid compensation or served notice on widow that it accepted responsibility, employer may recover from third per- son whose acts caused death, regardless of claim that right of action was in insurance carrier. Western States Gas & Electric Co. v. Bayside Lumber Co. (Cal.) Insurance carrier and injured employee may jointly sue partly negligently causing injury without formal award of compensation. Moreno et al. v. Los Los Angeles Transfer Co. (Cal.) Act of plaintiff in collecting compensation from son's employer worked an assignment to employer or insurance carrier of any cause of action against defendant Electric Company for son's death, and employer or carrier could maintain such action in own names such plaintiff still retained interest in any recovery that might be had against defendant and was proper party plaintiff, but could not prosecute action with- out joining as plaintiffs or defendants the employer and insurance carrier. Stackpole v. Pacific Gas & Elec. Co. (Cal.) Where employee's injury was due to negligence of third party, employer has interest in employee's cause of action against third party, in the nature of lien which he can enforce in own name and which cannot be impaired by settlement by employee not concurred in by employer; third party being chargeable with notice that settlement could not affect employer's rights. Papineau v. Indust. Acc. Comm. (Cal.) ..... 492 Right of surety company to be subrogated to rights of injured employee after its payment of compensation is given for surety's benefit, and its suit against negligent third party is for its benefit to extent of compen- sation paid by it and for benefit of injured emploee for any excess, so that intervention of surety company which had so paid should not be dismissed. Lancaster et al. v. Hunter. (Tex.)
State fund having paid compensation to injured servant is entitled to be subrogated pro tanto to right of servant in judgment against third per- son for damages. Mayhugh v. Somerset Telephone Co. (Pa.)
PAYMENT OF COMPENSATION.
PERSONS LIABLE.
PENALTY FOR DEFAULT OR DELAY.
-AUDIT OF CLAIMS INCURRED OR PAID BY BOARDS OR COM- MISSIONS.
Minor sister of deceased is not "child" within act, and her, becoming of age after allowance was made, does not nullify right to award in full. Hasselman v. Travelers' Ins. Co. (Colo.).. Under act providing that insurer will pay insured employee weekly compensation for not more than 100 weeks from injury, and further providing that compensation shall begin to accrue on the 8th day after the injury or Incapacity commenced. If total and permanent incapacity continues 400 weeks after date of injury, servant is entitled to compensation for 400 not 401 weeks. Texas Employers' Ins. Ass'n v. Downing (Tex.)......... 582 13934. PRIORITIES. 393. MEDICAL ATTENDANCE AND SERVICES. Physician furnishing medical aid to insured employee may recover direct from insurer-where services rendered were surgical in nature and treatment given after expiration of two-week period was only incidental, physician may recover although services covered period in excess of two weeks injured employee, may at time of injury or immediately thereafter, call in any available physician to render first aid treatment necessary, at expense of association. Home Life & Accident Co. v. Cobb (Техав)
$894. NATURE AND FORM OF REMEDY. Remedy of assenting employee against assenting employer, by petition to Commission under act, is exclusive-remedy of employee who had elected to claim common-law rights under act is by common-law action simply. Nadeau v. Caribou Water, Light & Power Co. (Me.) Commission in enforcing payment of premium due from school district, included within term "employer," is not limited to mandamus against district officers, but may proceed by action. School Dist. No. 1, City & County of Denver v. Indust. Com. (Colo.)..
Remedy extended by act is exclusive of all other statutory or common-law remedies, except by specific provision. Helme V. Western Milling Co. (Cal.)..
If work in which railroad employee was engaged was part of interstate commerce, state act is inapplicable.-Generally, when applicability of Federal Act is uncertan, character of employment in relation to commerce may be adequately tested by inquiring whether injured employee was engaged in work so closely connected with interstate transportation as practicaly to be part of it.-Where lineman, when he had sustained fatal shock was working on wires so that if power had been short-circuited through his body, it would have stopped cars, work was essentially part of interstate transportation and Federal Act, not State Act, governed case. Southern Pac o. v. Indust. Acc. Comm. (Cal.).. Purpose of U. S. Constitutional provision was to designate existing law of sea as that by which rights of litigation in maritime cases were to be determined.-Validity of cited statute conferring exclusive Admiralty jurisdiction on Federal Courts, but saving right of common-law remedy where competent does not establish validity of amendment extending saving clause to claimants to rights as well as remedies under State Act.--Decision re interstate commerce in liquors to state prohibition does not establish power to subject Admiralty rights to State Law.Amendment of U. S. code saving rights and remedies for maritime injuries under State Act held unconstitutional. Sudden & Christenson v. Ind. Acc. Comm. (Cal.)..... Occupation of steamship company's stevedore was maritime in nature and his widow's claim for compensation could not have been made under State Act.-Federal statute saving to such claimants, rights and remedies under State Act. held not retroactive. Hogan v. United Fruit Co. (Pa.) Member of railroad wrecking crew killed while assisting in replacing derailed engine, not permanently assigned to particular branch of traffic, was not in interstate commerce. Reynolds v. Phila. & R. Ry. Co. (Pa.)..
If railroad employee lost life while in interstate commerce, case is within Federa! Act and there can be no recovery under State Act-Flagging
of interstate train is interstate commerce-Railroad's watchman on pub- lic road crossed by tracks used for both intra- and inter-state commerce was not engaged in interstate commerce when killed flagging an intra- state train. Di Donato v. Philadelphia & R. Ry. Co. (Pa.) Remedy under State Compensation Law is not exclusive of that in Admi- ralty Courts, but suitor has his election-phrase, common-law remedies to suitors, in code, means that common-law remedy is accorded as well as remedy in Admiralty, that remedies are concurrent and either may be adopted. Rohde v. Grant Smith-Porter Ship Co. (Ore) 762 Assignment under Act of claim against third person for death from injury of workman on payment of compensation by insurer held not to confer on assigning right of action under Maritime Law. Travelers Ins. Co. v. Prince Line. (N. Y.)
I 190. JURISDICTION OF COURTS.
Order of district court authorizing guardian of injured employee, rendered insane by accident to make lump sum settlement with employer and execute release, held not even prima facie evidence of reasonableness of settlement. Reteuna v. Indust. Com. (Utah). Work of longshoreman having been maritime in nature, employment was maritime contract, and rights and liabilities of himself and employers were within admiralty jurisdiction of U. S.. so that act of Louisiana had no application-Federal Statute saving rights under state act should not be given retroactive effect. Peters v. Veasey (U. S.) 278 Venue of claim under act is in county wherein occupation is carried on in which workman was injured and claim is to be filed in district court of such county. Albuquerque & Cerrillos Coal Co. v. Lermuseaux. (N. M.) Under cited statute, requirement that suit to set aside award be brought where injury occurred, is not in that jurisdiction but relates only to venue, and guit brought in another county should not be dismissed but upon defendant's application, transferred to county where injury occur. red. United States Fidelity & Guaranty Co. of Baltimore v. Lowry, (Tex)
↑ 197. BOARDS AND COMMISSIONS. Under act authorizing subrogation to employer's rights against insurer in case of employer's insolvency, insurer can be substituted to pay em- ployee, enforceable by commission.- Rider covering liability under act waives provision limiting insurer's liability to reimbursement and pre- cludes objection to commission's jurisdiction to enforce payment, pro- viding insurer be substituted for insolvent assured. Ill. Indemn. Ex. v. Indust. Comm. (Ill.) . . . . . Provision that fees of attorneys and physicians shall be subject to provision of Board, is not intended to enlarge authority of Board with reference to provision of physician's fees beyond that provision for emergencies caused by employer's failure to provide medical care. National Car Coupler Co. v. Sullivan. (Ind.)
397%. REPORTS OF ACCIDENT.
I 198. NOTICE OF INJURY OR CLAIM, AND DEMAND FOR COMPENSA- TION.
Not essential under act that claim be made to employer previous to presenta- tion to commission. providing done within six months. Miss. River Power Co. v. Indust. Comm. (Ill.) . . . . Mere fact that employer permitted injured employee to return to old position at full pay and to continue thus for several months would not give rise to claim that portion of pay thus received was compensation for previous injury to extend time within which application for compensa- tion should be filed-where injured servant went to employer's physician several times and was sent by physician to employer's claim agent for examination, no treatment or medicine being received, no such medical service was rendered as would extend time for filing application-in- jured servant cannot excuse failure to make application on ground, he was lulled into sense of security by representations made on behalf of employer by car dispatchers who told him claim had been sent in, where there was no showing that such persons had authority to make statement. Hunt v. Indust. Acc. Comm. (Cal.)......
Written notice of claim against employer, made within six months after date on which insurance carrier's check to claimant was received and cashed, held to have been in time, although accompanying receipt, signed by claimant, was dated more than six months prior to notice. Stephens Engineering Co. v. Indust. Comm. (Ill.) . .
Voluntary lump sum settlement agreement, executed after expiration of time prescribed for filing claim, though stating jurisdiction had been lost, held to confer jurisdiction on commisson to confirm settlement as award and to review same at employee's request on ground of increased disability. Tribune Co. v. Industrial Commission. (I11.) Claim for compensation, which Act requires to be made within six months, is jurisdictional. Under requirements for a claim to be made within six months after accident, or after payments made, employee suffering injury to eye who claimed and received medical services and failed to make claim
for other compensation until two years later when blindness developed, held not entitled to indemnity for loss of eye sight. Central Locomotive & Car Works v. Industrial Commission. (III.)
Held that failure to give notice of injury within time required by Act, having been properly excused by commission was not bar to respondents' claim. Unity Drilling Co. v. Bentley. (N. Y.) Insurance carrier's payments to hospital for surgical, medical and hospital services, under act are not "payments of compensation" within provision that limitation for filng claim shall not take effect until one year from last payment. Claimant cannot recover on petition not filed until more than one year after accident although within year payment has been made to hospital for services, etc. Paolis v. Tower Hill Connellsville Coke Co. (Pa.) Where no claim for compensation for injury between ankle and knee with lacterated periostem was made by employee within time required by act and employee who fell and injured thigh more than three years thereafter, died of cellulitis of thigh, death claim cannot be based upon first injury. Wright v. Brooklyn Union Gas Co. (N. Y.). Master must be deemed to have actual knowledge of accident so as to be liable without claim where foreman visited scene and saw body before it had been removed. Western States Gas & Electric Co. v. Bayside Lumber Co. (Cal.) Employers, one of whom saw the injured employee a few minutes after accident, having known practically from time of accident extent and circumstances of injury, absence of statutory notification will not prevent recovery. Smith v. White (La.)
Under provision that if association fails to furnish medical aid after notice of injury, injured employee may provide medical aid at cost and expense of association and insurer is liable for medical aid rendered by physician procured by insured employee where procured by direction of employer or where employer had notified insurer and it had failed to furnish such medical aid. Home Life & Accident Co. v. Cobb. (Tex.) 916 Knowledge of forelady of department in which injured employee worked, that he was hurt while engaged in employer's work, is notice to employer. Hydrox Chemical Co. v. Indust. Comm. (Ill.)
Under evidence, conduct of employer held equivalent to refusal to consent to arbitration, autorizing workman to resort to action to recover. Stefan v. Red Star Mill & Elevator Co. (Kan.).
If employer refuse to consent, in writing, to arbitration workman is not obliged to resort to action to enforce payment of compensation, remedy by action being permissive and cumulative to remedy by arbitration-if workman has made fair effort to secure consent of employer to arbitration, expressed in writing and writing is not executed, employer may be regarded as having refused to consent-remedy by arbitration provided by act is distinct from that provided by general arbitration statute, is complete in itself, and is to be liberally interpreted and flexibly applied to accomplish its peculiar purpose-application to review, attacking merits of award, constitutes general appearance and waives objection on ground of failure to give required notice. Roper v. Hammer (Kan.).. $899. MEDICAL EXAMINATION OF CLAIMANT. Employee, by failing to give notice provided by statute, waives right to claim damages except under certain articles and thus waives right to assert common-law liability and consents to terms of act, and may be compelled to submit to physical examination in action to set aside award and for compensation in lump sum. Texas Employers' Ins. Ass'n. v. Downing. (Tex.) Act is sole authority by which court may order physical examination of claimant without his consent-statute gives master's insurer privilege of having physical examination of claimant made by physician of own selection and, in case of refusal, insurer should apply to board or court having jurisdiction for order for examination-general provisions of act relative to compelling submission to examination are not limited by specific provisions requiring exercise in particular cases, but make exercise in those particular cases mandatory instead of discretionary-facts developed on trial of motion for order to submit to physical examination as well as merits of case held to show true extent and effect of injuries was in doubt after introduction of all available testimony, and that X-ray examination sought would probably ascertain truth and clear up doubt so that motion should have been granted, where there was no conflict in evidence to the effect that X-ray examination would be helpful in clearing up controversy as to spinal injury testimony of physician on subsequent trial would not justify court's over-ruling such motion as matter of discretion. Where claimant had been examined by order of board but had made no claim before filing suit for injuries to sight and hearing and it subsequently became known that physician would testify he had curvature of spine, such facts afforded reasonable grounds for defendant's request to court for physicial examination where court refused to order submission to physical examination it was not necessary that motion be made that plaintiff be refused compensation until he submitted since he could not be allowed compensation while refusal continued. Texas Employers' Ins. Ass'n v. Downing (Tex.)..
Under act, it is not necessary that executor of deceased file petition with commission, but it may be filed by those entitled to compensation. Miss. River Power Co. v. Indust. Comm. (Ill.)
In action by servant under act to recover damages from third person for injuries, where compensation has been paid by employer, he should be brought into case in order that he may be indemnified in case damages are recovered. Black v. Chicago Great Western R. Co. (Iowa).. Where insurer of president of company filed report with Board of injury to employee of company and subsequently raised no question that it was insurer of president and not of company, it waived possible ob- jections as to parties, conceded dependent's claim that it was jointly liable with company, employer. Diebel v. Spitzley & Widenman Const. Co. (Mich.).... Under provision subrogating employer to right of action against causing injury but not providing in whose name action shall be brought, employee may sue for benefit of insurer. Donahue v. Thorndike & Hix Inc. (Me.)
Injured servant may bring ordinary suit or in alternative under act and de- fendant cannot complain of being allowed 10 days to answer instead of 7. Norwood v. Lake Bisteneau Oil Co. (La.) Answer pleading Illinois act as defence to action for injuries to smelting em- ployee in Missouri need not allege employee was not engaged in farming or exceptions in act. Mitchell v. St. Louis Smelt'g & Ref. Co. (Mo.).... Declaration in action at common law for injury to servant must, to state cause, show what is essential under act to right to maintain such action, that either he or employer was not governed by act-where claim is that employment is casual and that employee, therefore, is not under act, declaration in action at common law for injury must affirmatively allege facts bringing him within exception. Bishop v. Chicago Rys. Co. To avail himself of exemption from suits created by act, assenting employer must plead and prove it-in any case, regardless of number of workmen employed by one not assenting to act, employee injured by negligence of nonassenting employer may bring and maintain common-law action, alleging due care on his own part and need not allege employer to be non- assenting-where servant brings common-law action against master em- ploying more than five workmen, he may omit allegations of due care on his part, but must then show that defendant belongs to class of "large employers"-in common-law action under act, against nonassenting em- ployer of more than five, servant, plaintiff, must where he does not allege due care, allege and prove he is employee of defendant in specified occupation, and that defendant employs more than five workmen regular- ly in same business in which plaintiff is employed-plaintiff, in action at common-law under act, must allege and prove injury was in whole or in part caused by negligence of employer or of some person for whose care employer was responsible-in common-law action by servant under act, it is not inconsistent for plaintiff to join in separate counts in his declaration that he was himself in exercise of due care and that defendant belonged to class of employers against whom plaintiff's care was not material. Nadeau v. Caribou Water, Light & Power Co. (Me.) 238 In action for injuries by failure to enclose gears, plaintiff must allege and prove such failure was "gross negligence" or "willful misconduct," that failure was personal on part of elective officer of defendant and indicated willful disregard of employees' safety. Helme v. Great Western Mill- ing Co. (Cal.).
Prayer, in action by widow for wrongful death of husband, that, should court hold that case is governed by Act, then relief should be given according to Act, was not sufficient to justify judgment under Act. Colorado V. Johnson Iron Works, La.) 392
Under statute saving, to admiralty claimants, rights to workmen's compen- sation, exception of no cause of action to libel for personal injuries will not be sustained where libel fails to show that award had been re- ceived; but if award has been received, that fact may be set up in defense, for admiralty courts will not permit two recoveries for same tort. Hogan et ux., for Use of Coffey, v. Buja (U. S).................. 647 Where complaint for personal injuries shows that plaintiff's employment was in one of classes covered by act, failure of defendant to comply with such act must be pleaded in order to give cause of action, and where complaint does not show on its face that such act applies there is no presumption to that effect. Baggs v. Standard Oil Co. of New York (N. Y.)......................... 749 Answer which board accepts is not insufficient because not signed and sworn to by defendants, and need not be disregarded by board and petition taken- answer accepted by referee and board as answer of defendants need not set forth authority of person who signed it. O'Brien v. Tuch et al. (Pa.) 745 Exception of no cause of action, because plaintiff did not allege accident was wholly accidental not having filed in limine and followed by proper objection to evidence, but first filed on appeal, is unavailing if case was made out by evidence. Smith v. White et al. (La.)
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