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TOTAL DISABILITY

From one point of view it would appear to be one of the simplest problems of workmen's compensation to determine when an employee is to be classed as totally disabled. In practice, however, the question is complicated by reason of the terminology of the laws and perhaps by the point of view of the administrative bodies as well. The point is illustrated by the decision of the Supreme Court of Kansas in Souvain v. Battelle (164 Pac. 1086), in which it was held that a workman customarily engaged at hard manual labor prior to his injury and totally incapacitated for such labor by reason of an industrial accident was entitled to compensation even though he subsequently obtained employment at better wages than he had earned before. The Kansas law is somewhat peculiar in its provisions as to partial disability, directing that payments shall be made therefor in amounts not less than 25 per cent nor greater than 50 per cent of the weekly earnings, during the continuance of the disability, but without directing that the payments shall correspond to the wage loss. It can hardly be said that the award in the Souvain case is the result of this provision, however, since the Wisconsin Supreme Court was constrained to make an award as for total incapacity in the case of a man who was only partially disabled for employment in many occupations, but would never be able to follow the employment in which he was engaged at the time of his injury. (Mellen Lumber Co. v. Industrial Commission, 142 N. W. 187.) The adoption by the legislature of a schedule of maimings eliminated the difficulty in this particular case; and it is clear that to make an award as for permanent total disability in cases where there is room for readjustment and rehabilitation does not accord with the spirit of the compensation law. Still, the rights of the injured man and the fact that he has suffered serious economic and physical loss can not be overlooked in any settlement of this question.

A case of temporary total disability, involving an award for the entire loss of a previously mutilated but usable member, was passed upon by the Pennsylvania board, the workman having lost in boyhood four fingers at the knuckles and the thumb at the first joint. However, he had acquired such skill as to be able to perform many of the duties of a laborer with this hand until a second injury removed the remainder of the thumb and the entitre palm of the hand. It was said that no award could be made for the loss of use of the hand because he had had no hand to lose; but an award was made on the basis of 50 per cent of the wage loss due to the injury for the period of total disability, the award being subject to revision on the basis of the wage loss remaining after the healing and adjust

ment period had expired, subject to the statutory limitations. (Wills case, 1918; see Purchase case, pp. 72, 73.)

DEPENDENCE.

Other than as prescribed by the statutes themselves, questions of dependence for purposes of compensation administration involve identical principles with those elsewhere applicable. A somewhat peculiar situation arose in a case passed upon by the Pennsylvania Compensation Board where a woman had lived apart from her husband and was not dependent; but not having been legally separated she was held by the board to be the widow of a deceased workman in such a sense as to bar the claim of his dependent mother, the law allowing awards to dependent parents only "if there be neither widow, widower, or children." (Zimmerman case, 1917.)

The provision of law declaring that the status of dependents is fixed as of the time of the injury giving rise to the claim was held by the Supreme Court of Wisconsin to bar the claim of a widow who had become the wife of an injured man subsequent to his injury; moreover, the child who was legitimated by the marriage was denied benefits as not a potential dependent at the time of the injury, all compensation going to the dependent father of the deceased. (Kuetbach v. Industrial Commission, 165 N. W. 302.) On the other hand, the Supreme Court of New York (Crockett v. International Ry. Co., 162 N. Y. Supp. 357) held that, though the law of that State makes a similar provision, this does not affect the status of a widow, who is entitled to benefits as the "surviving wife" of the injured workman, without regard to actual dependency or the date of the marriage.

BASIS OF AWARDS.

An item that may be noted under this head is the ruling of the Pennsylvania Compensation Board to the effect that bonuses regularly paid as an inducement to steady work are to be considered as a part of the wages and used as a basis on which percentage awards are to be computed.

SETTLEMENTS.

Provisions are found in some of the laws clarifying the subject of the vesting of compensation rights and the disposal of unpaid remainders in the case of the death of beneficiaries. The New Jersey law as originally enacted authorized payments to an injured workman during disability, but not beyond 400 weeks. An amendment of 1913 provided that in case of the death of a person from any cause other than accident during the payments for permanent injury. surviving dependents should receive any unpaid balance of the award

within the term indicated. It was held (Erie R. Co. v. Callaway, 103 Atl. 6) that an award under the unamended law ceased with the death of the injured man, if from some other cause than the injury, even though the death occurred after the enactment of the amendment continuing unaccrued payments to dependents.

The Texas statute names the potential beneficiaries and provides that they shall be entitled to compensation according to the laws of the State governing descent and distribution. This is construed by the industrial accident board of the State to warrant a readjustment of benefits on the lapse of payments to any member of the group, whether by death or otherwise; the survivors taking, however, not as heirs of a deceased beneficiary, but by their original right which was either reduced by a cobeneficiary in being at the time of the earlier award, or was entirely in abeyance on account of a superior claimant. The effect of this construction is to continue the payment of the full amount of 60 per cent of the wages as benefits so long as any person of the designated class or classes, entitled thereto if standing alone, is in being, up to the end of the term contemplated by the act.

Under the law of Washington, an injured man dying without heirs after an award made, but not paid, leaves nothing to his administrator. (Ray v. Industrial Insurance Commission, 168 Pac. 1121.)

Another question that may be considered under this head was passed upon by the Workmen's Compensation Board of Pennsylvania in a case in which the employer had continued to pay full wages by voluntary action on his part during the term of the disability of an injured employee, the injured man subsequently claiming compensation. The board ruled that in the absence of proof that the wages had been paid in settlement of the employer's obligation to pay compensation, they would be treated as a gratuity, and an award was allowed the claimant within the terms of the act. (Keyser case, 1917.) The Indiana statute specifically provides that payments made to an injured employee, not due or payable under the act, may be taken into account in making an award; so that an award deducting the amount advanced by the employer was approved. (Underhill v. Central Hospital for the Insane, 117 N. E. 870.)

MEDICAL TREATMENT.

The fact that an injured workman, claiming compensation on account of his status as an element in the productive forces of society, owes a reciprocal duty to make the most advantageous use of the provisions afforded him would seem to be increasingly recognized. A number of the laws direct compliance with reasonable medical instructions, and provide for the suspension of compensation payments during any period of refusal or neglect. Thus the refusal of an em

ployee to undergo an operation for the removal of a cataract caused by accidental injury was held by the Supreme Court of Illinois to be so unreasonable, in view of medical experience and testimony, as to warrant the withholding of an award while such refusal continued, the court holding that the loss of sight was probably due to such refusal and not to the accident; if the operation should be a failure, the question of compensation for any existing disability would then be open for a decision in the light of the facts. (Joliet Motor Co. v. Industrial Board, 117 N. E. 423.) Similarly, the Industrial Accident Board of Massachusetts directed the discontinuance of compensation payments until a woman who had lost a hand should agree to undertake to wear and accustom herself to the use of an artificial hand furnished by the employer, which, it was expected, would enable her to earn wages and so reduce the amount of compensation necessary, physicians having testified that the stump left by the amputation was suitable for the use of such a hand. (Wiaczkis case, 1917.) The Superior Court of Rhode Island also refused to allow a claim. for permanent total disability where the sensitiveness of an injured. finger could probably be remedied by the simple operation of removing a portion of the bone to secure a better flap to cover the end, and ordered compensation to cease after six weeks unless an operation was submitted to.

While there is an evident movement toward allowing the injured workman a measure of freedom in the selection of his physician, the arrangement for the treatment must be made in conformity with the law, which, while it makes the employer responsible therefor, does not provide for independent action on the part of the employee in this respect. Thus it was held that although the New York law authorizes and requires the employer to furnish medical aid as required or demanded, it does not permit the recovery of medical costs in a separate suit at law, the industrial commission having the duty to make awards in this field and passing upon all fees and charges (Semmen v. Butterick Publishing Co., 166 N. Y. Supp. 993); nor can the employee assign a claim for services to his physician, the law giving the physician no recourse in his own right or by assignment that will permit him to sue the employer for his fees. (Bloom v. Jaffe, 157 N. Y. Supp. 926.)

The Indiana statute provides for medical, etc., services for 30 days immediately following the injury. The Court of Appeals held that where the disability developed some time after the accident causing it, the date of the beginning of the disability should be taken as the date for the computation of the period of treatment. (In re McCaskey, 117 N. E. 268.) However, the Supreme Court of Michigan held (Cooke v. Holland Furnace Co., 166 N. W. 1013) that, though the words "accident" and "injury" are not synonymous,

they are concurrent in point of time; so that though a disability accruing after the expiration of the period for medical treatment was clearly due to the accident, it was entitled to, no such treatment; nor could an award be extended beyond the statutory period, even though it appears that the legal provision as to furnishing treatment was not fully complied with, the board having no power to assess any form of damages, but only to administer the act according to its terms. (McMullen v. Gavette Construction Co., 166 N. W. 1019.)

The matter of paying for home nursing was considered by the industrial commission of Utah, the claim for services rendered being allowed the wife of an injured man in a case recognized as a "hospital case" on the testimony of the physician in charge, where it appeared that the wife was competent and actually rendered the services for which payment was claimed. (Fowler case.) It was said that if the employer objected he should see that such cases are cared for at a hospital. (Sec Bul. No. 203, pp. 277, 278.)

NOTICE AND CLAIM.

The requirement that notice be given by the injured person of his injury and of his intention to claim compensation is phrased differently in the different acts. Thus the law of Michigan directs that notice be given within three months of the happening of the injury, if a claim is to be submitted. This was construed by the court to mean within three months of the happening of the accident causing the injury, and not three months from the time disability commenced or the real seriousness of the injury was understood. (Dane v. Michigan United Traction Co., 166 N. W. 1017). The New York law, on the other hand, requires notice of the accident within 10 days after disability, which would obviously imply a different starting point from that fixed by the Michigan statute. In construing its law, the Court of Appeals of New York held that no sufficient notice of an injury had been given in a case where a cloak model claimed that she had spoken of the pricking of her finger with a pin and had asked for peroxide to use on it. Infection resulted, and an employee of the company carried the girl's pay to her and saw that she had a swollen arm, but no connection was made with the alleged pin prick, nor was any claim submitted until some nine months later, when the industrial commission approved the claim on the ground that the employer had not been prejudiced by the lack of notice. This was rejected by the appellate division and by the Court of Appeals, the latter court saying that the requirement of notice should not be regarded as a mere formality, and that the burden rested on the claimant who had been negligent in the matter of notice to supply evidence and secure a finding that no

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