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BILLS DRAFTED BY ASSOCIATIONS.
DRAFT OF BILL BY THE AMERICAN FEDERATION OF LABOR.
SECTION 1. If in any employment to which this act applies personal injury or death by accident, arising out of and in the course of the employment, is caused to any employee, the employee so injured, or in case of death, the members of his family, as hereinafter defined shall be entitled to receive from his employer, and the said employer shall be liable to pay, the compensation provided for in this act. This act shall apply to every employee, who shall, at the time of his accident be engaged in employment on, in or about any railway, street railway, factory, (including any premises where steam, water or other mechanical power is used in aid of any manufacturing or other process for gain, or on which explosives or inflammables are made or used), mine, quarry, or any engineering, building or construction work in the State of
: The employers to whom this act shall apply shall be any person or persons, association, partnership or corporation carrying on any such industry as aforesaid. Save as herein provided no such employer shall be liable for any injury or death for which compensation is recoverable under this act.
SEC. 2. The employer shall not be liable under this act in respect of any injury which does not disable the employee for a period of at least two weeks from earning full wages at the work at which he was employed, except for medical fee, as hereinafter provided, but for that period shall remain liable as though this act had not been passed.
Sec. 3. When the injury or death was approximately caused by (a) the criminal act or omission or (b) the negligence (including thereunder negligence in choice of servants but excluding the negligence of competent servants and their negligence in performance of employer's duties delegated to them) of the employer, committed or omitted by him individually if the employer be a natural person, or by any of its officers individually if the employer be a corporation, or by any of its partners individually if the employer be a copartnership, or by any member of the association individually if the employer be an association, the liability independent of this act of (such employer) shall not be affected by this act; but in such case the injured employee or in case of death the members of his family as herein defined, may elect between claiming compensation under this act, or pursuing any remedy which was available before the passage of this act.
SEC. 4. If it is proved that injury or death results from the deliberate intention of the employee to produce such result, or his willful failure to use a protection against accident required by statute and provided for him, or solely by his deliberate breach of statutory regulations affecting safety of life or limb, or by reason of his intoxication, any compensation claimed by him under this act shall be disallowed.
Šec. 5. Any employer who would be liable under this act to employees if directly employed by him, shall be liable hereunder to the employees of independent contractors for accidents occurring to them in the course of any work undertaken by such employer, or for the purposes of his business, on or in or about the premises or places under his control or management. Such liability shall be to pay such compensation as would be payable, if the employee has been directly employed by him, but at the wages he was actually receiving. Any employer who shall have paid compensation under this act for any accident, or any independent contractor who has indemnified himself, shall be subrogated to all the rights of recovery therefor of the person or persons to whom such compensation shall have been paid. An employee may, however, if he so elects, proceed against, or recover compensation directly from, any other person liable for his accident instead of from the employer.
SEC. 6. Proceedings for the recovery of compensation under this act shall not be maintainable, unless written notice of the accident, stating the time, place and cause thereof, and the name and address of the person injured has been given within thirty days after the happening of the accident, and unless claim for compensation has been made within six months from the occurrence of the accident, or in case death results therefrom, within six months from the time of death: Provided, always, That the want of, or any defect in such notice shall not be a bar, if the employer is not thereby prejudiced, or if such want or defect was occasioned by mistake or other reasonable cause. The failure to make a claim within the period above specified shall not be a bar, if such failure was occasioned by physical or mental incapacity or other reasonable cause. Such notice shall be delivered to or sent by registered letter addressed to the employer at his office, place of business or last known residence.
Sec. 7. There shall be selected by every employer subject to this act one or more doctors who shall be approved by the commission of arbitration and award, hereinafter constituted, and referred to as the commission, and it shall be the duty of such doctors to report forthwith to the commission every accident under this act, and also
whenever practicable, to render preliminary medical attention to the injured, and they shall be paid by the employer a fee of one dollar for such service in each case.
The amount of compensation payable under this act shall be: (a) Where death results from the injury: (1) If the employee leaves any dependents, who at the time of the accident were wholly dependent upon his earnings, a sum equal to his earnings in the employment of the same employer during the three years next preceding the injury, or the sum of one thousand dollars, whichever of these sums is the larger, but not exceeding in any case five thousand dollars: Provided, That the amount of any weekly payments made under this act shall be deducted from such sum; and if the period of the employee's employment by the same employer has been less than the said three years, then the amount of his earnings during the said three years shall be deemed to be nine hundred and thirty-six times his average daily earnings during the period of his actual employment under the same employer.
(2) If the employee leaves only dependents who at the time of the accident were partly dependent upon his earnings such sum not exceeding in any case the amount payable under the foregoing provisions of this section as may be agreed upon, or, in default of agreement, may be determined on arbitration under this act.
(3) If the employee leaves no dependents who at the time of the accident were dependent the reasonable burial and medical expenses, not exceeding in all two hundred dollars.
(b) Where total or partial incapacity results from the injury:
À weekly payment during the incapacity after the second week, not exceeding one-half of his average weekly earnings in such employment during the previous twelve months if he has been so long employed, but, if not, then for any less period during which he has been in the employment of the same employer. If, however, the employee is a minor whose average weekly earnings are less than ten dollars, his compensation shall be a payment not exceeding his full average earnings. Such weekly payments shall not in any case exceed fifteen dollars, and it shall not extend over a period exceeding ten years, unless the injured will thereafter be permanently totally disabled from engaging in any work or occupation for wages.
Sec. 8. All death payments under this act shall be paid into court where the accident happens, and also any payments to persons under legal disability if the court on application to it so directs. Any question as to who is a dependent and the amount payable to each dependent shall be decided by the said court, if not settled before such payment into court.
The receipt of the court shall be a sufficient discharge for any amount paid in and it shall be apportioned and distributed for the benefit of the persone entitled thereto in such manner as the court may think best: Provided, That the court may thereafter on application to it, vary any of its previous orders or apportionments.
The courts referred to in this act shall be the probate.
Sec. 9. The commission shall make regulations under which an employee injured shall, if so requested by the employer, submit himself for examination by a duly qualified doctor furnished and paid by the employer as soon as practicable after his injury, and also from time to time during the receipt by him of any weekly payments hereunder. A copy of the report of the employer's doctor shall be furnished to the employee, or if no such examination be made, then the employee shall be examined by his own doctor and furnish a report thereof to his employer. Such reports shall be furnished within six days after the examination. If a dispute then exists as to the employee's condition, or as to whether or to what extent the incapacity is due to the accident, such regulations shall provide for the examination of the employee by a medical referee on an order to that effect being given by the court hereinaiter specified, and the payment of a fee not exceeding five dollars, to be taxed by said court. The certificate of the medical referee shall be conclusive evidence of the matters so certified. If the employee refuses to submit himself to such examinations, or in any way obstructs the same, his right to take compensation and to take or to prosecute any proceeding under this act in relation to compensation may be suspended, and his compensation during such period of suspension shall be forfeited until such examination has been made.
Sec. 10. Any weekly payment may be reviewed at the request either of the emplover, or of the employee, and on such review may be ended, diminished or increased, subject to the maximum provided above: Prorided, That where the employee was at the date of the accident under twenty-one years of age, and the review takes place more than twelve months aiter the accident, the amount may be increased, to any amount, not exceeding fifty per cent of the weekly sum the employee would probably have been eaming at the date of the review if he had renained uninjured, but not in any case exceeding ten dollars.
Sec. 11. Where any weekly payment has been continued for not less than six months, the liability therefor may on application by or on behalf of the employer or employee, respectively, be redeemed by payment of a lump sum, but if the incapacity is permanent or total, the sum shall not exceed the purchase price of an annuity yielding seventy-five per cent of the weekly payments calculated under the American Experience Table of Mortality at four per cent per annum.
Sec. 12. If an employee receiving a weekly payment ceases to reside in the United States, he shall thereupon cease to be entitled to receive any weekly payment.
SEC. 13. In default of agreement between the parties interested, the following questions shall be settled by arbitration under this act, subject to judicial procedure as hereinafter provided: All questions as to the employer's liability to pay compensation and the amount payable, and as to the duration, review or redemption by a lump sum of any weekly payment; any question as to whether the employee is one to whom the act applies, and whether he has dependents, and if so the amounts payable to them; all questions as to the liability of an independent contractor, and of any third party by consent, under section five.
Arbitration proceedings shall be as follows: First. The employer and his employees may choose a committee, whose unanimous adjudication of a matter within three months shall be final and binding on both parties, unless either objects in writing before it is considered.
Second. On failure of such unanimous adjudication the matter shall be investigated and settled by a single arbitrator agreed on by the parties, and in the absence of such agreement a statement of the facts shall be filed in court in such form as may be prescribed by the rules of said court, and unless within thirty days thereafter a written application for a jury trial is also filed, a jury trial shall be deemed to have been waived, and the matter shall then be determined by the judge of the said court, or by a referee appointed by the said court under such procedure as may be prescribed by rules of court, and such referee shall for the purposes of this act have full power to procure witnesses and all evidence which he may regard as necessary to his decision, and his fees shall be fixed by the commission and paid out of the appropriation for this act. Said court may compel the attendance of witnesses and the production of evidence before said referee in the same manner and under the same penalties as apply to the attendance of witnesses and the production of evidence before said court.
Any question of law may be submitted for the opinion of the State's attorney for the jurisdiction where the accident happens by any committee, arbitrator or referee, and an appeal shall lie from them to such judge, on a question of law only, and his decision shall be final. Unless reversed on appeal taken in accordance with appellate practice of the courts of the State.
The services of a medical referee may be utilized in all arbitration proceedings under regulations made by the commission.
The cost of arbitration proceedings shall be in the discretion of the committee, the arbitrator or the referee, respectively; they shall not exceed, however, the taxable costs for similar services allowed by the rules of court for
Sec. 14. Any sum awarded as compensation under this act shall be paid on receipt of the person to whom it is payable under any agreement or award; and in case of the death of the person injured the same shall be payable, as the court may determine, to the members of his family dependent upon the injured at the time of his injury, namely, the widow or husband as the case may be, and the children, or if no widow or husband or children, the parents or grandparents, or if no parents or grandparents, the grandchildren, or if no grandchildren, the brothers and sisters.
Sec. 15. All proceedings for compensation under this act shall take place in the judicial district where all the parties reside, unless otherwise prescribed by order or regulation of the commission.
Sec. 16. Whenever the amount of compensation under this act has been ascertained, or any weekly payment varied, or redeemed, or any other matter decided, by any referee, committee or arbitrator, or by agreement, a memorandum thereof, shall be sent by said referee, committee, or arbitrator, or by any party interested, to the clerk of the said court in the jurisdiction in which such decision was rendered, in the form and manner prescribed by such court. The said clerk shall forth with send notice thereof to the parties interested, and shall seven days after the sending of such notice file such memorandum and register it without fee as the judgment of said court. Such memorandum shall thereafter for all purposes have the same force and effect as the judgment of said court: Provided, That the judge may at any time, on evidence proving to his satisfaction that any agreement as to the redemption of a weekly payment by a lump sum, or as to the amount of compensation payable to a person under legal disability, or to dependents, was inadequate, or was obtained by 85048°—Bull. 92–11
fraud or undue influence or other improper means, order that the memorandum be not recorded, and if recorded, he may order the record to be erased within six months after it has been so recorded, and he may hear such evidence, take such proceedings, and make such order as will effectuate the purpose of this act.
Sec. 17. An agreement as to the redemption of a weekly payment by a lump sum, or as to the amount of compensation to be paid to a person under a legal disability or to dependents, if not registered in accordance with this act, shall not, nor shall any payment under such agreement, exempt the person by whom the compensation is payable, from liability to pay compensation, unless he prove that the failure to register was not due to any neglect or default on his part.
Sec. 18. The fees of any attorney or other representative of the person to whom any payment is made under this act shall be determined by the commission.
Šec. 19. No payment under this act shall be assigned or subject to attachment or liable in any way for any debts.
Sec. 20. If any employer becomes bankrupt or insolvent and has any insurance against his liability under this act to any employee killed or injured, such employee, or his beneficiaries hereunder shall thereupon be subrogated to such employer's rights and remedies therefor under such insurance; and if the employer has no such insurance, or euch insurance is insufficient, any amount then due such employees or such beneficiaries shall have priority over all other claims against the bankrupt or insolvent estate.
Sec. 21. If the commission certifies in writing that any scheme of compensation, benefit, or insurance provides scales of compensation not less favorable to the employees and their dependents specified in this act than the corresponding scales contained in this act, or is on the whole not less favorable to such employees and their dependents than are the provisions of this act and that where the scheme provides for contribution by the employees, the scheme confers benefits at least equivalent to those contributions in addition to the benefits, or the equivalent thereof under this act, the employer may agree with any of his employees that the provisions of the scheme shall be substituted for the provisions of this act, and thereupon the employer shall be liable only in accordance with the scheme, but save as aforesaid this act shall apply, notwithstanding any contract to the contrary made after the passage of this act. No scheme shall be certified which contains an obligation upon the employees to agree to it as a condition of their hiring, or which does not contain provisions enabling an employee to withdraw from the scheme. Such agreement or withdrawal shall be in writing and signed by the employee. If the commission shall at any time find that the scheme no longer fulfills the requirements of this section, or other reasonable cause exists for so doing, they shall revoke the certificate. When a certificate is revoked or expires any moneys or securities held for the purpose of the scheme shall, after due provision has been made to discharge the liabilities already accrued, be distributed as may be arranged between the employer and his employees, or as may be determined by the commission in the event of a difference of opinion.
The commission may make regulations for the purpose of carrying this section into effect.
Sec. 22. Nothing in this act shall effect any proceeding for the recovery of penalties under safety appliance and other enactments relating to the safety of employees, except that hereafter, in the discretion of the judge before whom the penalty is enforced, such penalties shall be payable in whole or in part to any employees injured as a direct result of the absence of the appliance for which such proceedings were brought, or for the benefit of the family of any employee killed.
Sec. 23. There is hereby created for the purposes of this act a commission of arbitration and award, which shall be composed of three commissioners, who shall be appointed by the governor by and with the advice and consent of the senate. The commissioners first appointed under this act for the purpose thereof shall continue in office for the term of two, four and six years, respectively, from the first day of July, 1910; the terms of each to be designated by the governor; but their successors shall be appointed for terms of six years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired time of the commissioner whom he shall succeed. Any commissioner may be removed by the governor for inefficiency, neg: lect of duty, or malfeasance in office. Not more than two of the commissioners shall be appointed for (from) the same political party. No vacancy in the commission shall impair the right of the remaining commissioners to exercise all the powers of the commission.
The commission is hereby authorized to exercise any and all lawful powers necessary to perform the duties imposed upon it by this act, and to make all such rules and regulations not otherwise provided for as they may consider necessary to carry into effect the purposes thereof.
The commission shall have full power and authority to investigate accidents to which this act applies, to administer oaths, and require the attendance and testimony of witnesses and the production of any evidence, relating to such accidents and to employ agents who shall have like power or authority. It shall be the duty of the commission to include in its annual report a list of all accidents and a full report in detail of each accident investigated, to require from employers at stated intervals returns showing amounts of compensation paid, to ascertain the means adopted for the prevention and treatment of accidents to employees covered by this act, and to make recommendations relative thereto, and to appoint such properly qualified medical practitioners as are necessary, to be medical referees for the purposes of this act, to remove them, and to determine their fees.
Sec. 24. This act shall not apply to accidents happening to seamen employed on vessels of the United States engaged in navigation.
TENTATIVE DRAFT OF A BILL BY THE NATIONAL CIVIC FEDERATION.
SECTION 1. If, in any employment to which this act applies, personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation to the workman in accordance with this act. Save as herein rovided no such employer shall be liable for any injury for which compensation is recoverable under this act:
(a) The employer shall not be liable under this act in respect of any injury which does not disable the workman for a period of at least two weeks from earning full wages at the work at which he is employed.
(b) If it is proved that the injury to the workman results from his deliberate intention to cause such an injury, or from his willful failure to use a guard or protection against accident required pursuant to any statute and provided for him, or solely from his deliberate breach of statutory regulations affecting safety of life or limb, or from his intoxication, any compensation in respect of that injury shall be disallowed.
Sec. 2. Where the injury was proximately caused by the individual (personal) negligence either of commission or omission of the employer, (including such negligence of the directors or of any officer if such employer is a corporation, or of any of the partners if such employer is a partnership, or of any member if such employer is an association, but excluding the negligence of competent employees in the performance of their duties or of the employer's duty delegated to them), the existing liability of the employer shall not be affected by this act, but in such case the injured workman, or if death results from such injury, his dependents as herein defined if they unanimously agree, otherwise (his legal representative, (with the approval of the probate court), may elect between any right of action against the employer upon such liabilty and the right to compensation under this act.
SEC. 3. Nothing in this act shall affect the liability of the employer to a fine or penalty under any other statute.
Sec. 4. (a) Where any person (in this section referred to as the principal) undertakes to execute any work which is part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then, in the application of this act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed:
(b) Where the principal is liable to pay compensation under this section, he shall be entitled to indemnity from any person who would have been liable to pay compensation to the workman independently of this section, and shall have a cause of action therefor.
(c) Nothing in this section shall be construed as preventing a workman from recovering compensation under this act from the contractor instead of the principal.
(d) This section shall not apply in any case where the accident occurred elsewhere than on, or in, or about premises on which the principal has undertaken to execute work or which are otherwise under his control or management.