Page images
PDF
EPUB

(It is suggested that provisions be added to this section as follows: le) Giving an injured workman a lien on the money due and unpaid on the contract.

(f) Giving expressly to the principal contractor who pays compensation voluntarily to a workman of a subcontractor the right to recover over against the subcontractor.

(g) Giving to a principal contractor when sued by a workman of a subcontractor a right to call in the subcontractor as codefendant.)

Sec. 5. Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof

(a) The workman may take proceedings both against that person to recover damages and against any person liable to pay compensation under this act for such compensation, but shall not be entitled to recover both damages and compensation; and

(b) If the workman has recovered compensation under this act, the person by whom the compensation was paid, or any person who has been called on to indemnify him under the section of this act relating to subcontracting, shall be entitled to indemnity from the person po liable to pay damages as aforesaid, and shall be subrogated to the rights of the workman to recover damages therefor.

Sec. 6. This act shall apply only to employment in the course of the employer's trade or business on, in, or about a railway, factory, mine or quarry, electric, building or engineering work, or in certain other hazardous employments, as hereinafter defined. And it shall not apply in any case where the accident occurred or the contract of employment was made before this act takes effect.

Sec. 7. In this act, unless the context otherwise requires:

(a) “Railway” means (all kinds of railways, including private railways, logging roads, etc., excluding only horse-car roads); and "employment on railways". (includes work in depots, power houses, roundhouses, and other appurtenances, and in private yards, switches, etc., and work on railways for express companies). (Limit to intrastate commerce.)

(b) Factory" means any premises wherein (mechanical) power is used in manufacturing, making, altering, adapting, ornamenting, finishing, repairing or renovating any article or articles for the purposes of trade or gain or of the business carried on therein, (including expressly any laundry or bakery whatsoever wherein power machinery is used); and includes also any shipyard, marble cutters' and polishers’ yard, brickyard, meat packing house, foundry, forge, smelter, blast furnace, coke-burning plant, lime-burning plant, phosphate works, steam-heating plant, electric-lighting plant, electric power plant and water-power plant; and any premises where ice is harvested and stored, or wherein a process requiring the use of any dangerous explosive or extra-hazardous intlammable material is carried on, which is conducted for the purpose of business, trade or gain.

A workman employed in a factory which is a shipbuilding yard shall not be excluded from the benefit of this act by reason only that the accident occurred outside the yard, in the course of his work upon a vessel in any dock, pier or tidal water near the yard.

(e) “Mine" means any (opening in the earth) for the purpose of extracting any mineral or minerals, and all underground workings, slopes, shafts, galleries and tunnels, and other ways, cuts and openings connected therewith, including those in the course of being opened, sunk or driven; and includes also the appurtenant structures at or about the openings of a mine and any adjoining (adjacent) work place where the material from a mine is prepared for use or shipment.

(d) “Quarry" means any place, not a mine, (including a bank or pit) where stone, slate, clay, sand, gravel or other solid material is dug or otherwise extracted from the earth or ground for the purposes of trade or barter or of the employer's trade or business,

(e) “Electrical work” means any kind of work in or directly connected with the construction, installation, operation, alteration, removal or repair of wires, cables, switchboards or apparatus charged with electric currents.

(f) “Building work" means any work (in any of the building trades") in the erection, construction, extension, decoration, alteration, repair or demolition of any building (or structural appurtenance).

(g) “Engineering work " means any work in the construction, alteration, extension, repair or demolition of a railway (as hereinbefore defined but including also a horsecar railway;) bridge, harbor, jetty, dike, breakwater, dam, pier, dock, (including dry. dock and floating dock), reservoir, canal, aqueduct, tunnel, underground conduit, sewer, well, oil tank, gas tank, water tower or waterworks (including connected standpipesor mains, any caisson work or work in artificiallycompressed air, any work in dredging. pile driving, asphalt paving (or other paving with molten material), moving buildings moving saies, or in laving, repairing or removing underground gas pipes and connections, or in millwrighting or the erection, installing, repairing or removing of boilers, furnaces, engines and power machinery (including belting and other connections), and any work in grading or excavating where shoring is necessary or power machinery or blasting powder, dynamite or other high explosive is in use (excluding mining and quarrying).

(h) The other hazardous employments” to which this act applies mean any work in a general or terminal warehouse, in a grain elevator, in a malt house, in a coal yard, in a lumberyard, in a stockyard, in a building-material yard, as a shipwright or rigger, or in loading or unloading the cargo of any vessel at dock in a port of this State.

(i) “Employer”includes any body of persons, corporate or unincorporated, and the (legal representative) of a deceased employer.

(j) “Workman” means any person who has entered into the employment of or works under contract of service or apprenticeship with an employer; but does not include a person (whose employment is of a casual nature or) who is employed otherwise than for the purpose of the employer's trade or business. Any reference to a workman who has been injured, shall, where the workman is dead, include a reference to (his dependents, as hereinafter defined, or to his legal representative) or, where he is a minor or incompetent, to his committee or guardian.

(k) “Dependents” mean such members of the workman's family as were wholly or in part dependent upon the workman at the time of the accident. And members of a family for the purposes of this act mean only widow or husband, as the case may be, and children; or if no widow, husband or children, then parents and grandparents; or if no parents or grandparents, then grandchildren; or if no grandchildren, then brothers and sisters. In the meaning of this section parents include step-parents, children and grandchildren include step-children and step-grandchildren, and brothers and sisters include stepbrothers and stepsisters.

(1) " Accident” and “injury” in this act mean only such an accident and injury as cause the injured workman to be absent at least five consecutive hours or an entire half-day's time from his work; and “injury” includes an injury resulting in death.

SEC. 8. In case an injured workman is mentally incompetent or a minor, (or where death results from the injury, in case any of his dependents as herein defined is mentally incompetent or a minor), at the time when any right, privilege or election accrues to him under this act, his committee or guardian may, in his behalf, claim and exercise such right, privilege or election; and no limitation of time, in this act provided for, shall run, so long as such incompetent or minor has no committee or guardian.

Sec. 9. Saving clause. (Deemed inadvisable.)
Sec. 10. The amount of compensation under this act shall be-
(a) Where death results from the injury-

(1) If the workman leaves any dependents 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, but not exceeding in any case ($3,000): Provided, That the amount of any weekly payments made under this act

shall be deducted from such sum; and, if the period of the workman's employment by the said 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 156 times his average weekly earnings during the period of his actual employment under said employer: And provided, however, That if the workman does not leave any dependents, residing at the time of the accident in the United States or the Dominion of Canada, the amount of compensation shall not exceed in any case ($1,000).

(2) If the workman does not leave any such dependents, but leaves any dependents in part dependent upon his earnings, such proportion of the amount payable under the foregoing provisions of this section, as may be agreed upon or determined to be proportionate to the injury to the said dependents; and

(3) If he leaves no dependents, the reasonable expense of his medical attendance and burial, not exceeding ($100).

(b) Where total or partial incapacity for work results from the injury, a weekly payment during the incapacity, commencing at the end of the second week, equal to, in the case of total incapacity, and not exceeding, in the case of partial incapacity, 50 per cent of his average weekly earnings during the previous twelve months, it 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: Provided, however, that if the workman is under twenty-one years of age at the date of the accident and his average weekly earnings are less than $10, his compensation shall be a weekly payment not exceeding his full average earnings:

Provided further, however, That:
(1) No such weekly payment shall exceed ($10).

(2) No such weekly payment shall extend over a period exceeding (10) years, nor continue after the workman has reached the age of (60) years, unless at the date of the injury he was over (55) years of age, in which case it may continue for a period of (5) years after such date.

Sec. 11. For the purposes of the provisions of this article relating to "earnings” and “average weekly earnings” of a workman, the following rules shall be observed:

(a) “Average weekly earnings " shall be computed in such manner as is best calculated to give the average rate per week at which the workman was being remunerated: Provided, That where by reason of the shortness of the time during which the workman has been in the employment of his employer, or the casual nature or the terms of the employment, it is impracticable to compute the rate of remuneration, regard may be had to the average weekly amount which, during the twelve months previous to the accident, was being earned by a person in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person in the same grade employed in the same class of employment and in the same district;

(b) Where the workman had entered into concurrent contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer, his "earnings” and his “average weekly earnings” shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident;

(c) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the workman was employed at the time of the accident, uninterrupted by his absence from work due to illness or any other unavoidable cause:

(d) Where the employer has been accustomed to pay to the workman a sum to cover any special expenses entailed on him by the naiure of his employment, the sum so paid shall not be reckoned as part of the earnings.

(e) In fixing the amount of the weekly payment, allowance shall be made for any payment or benefit which the workman may receive from the employer during the period of his incapacity.

(1) In the case of partial incapacity the weekly payment shall be computed to equal, as closely as possible, 50 per cent of the diiference between the amount of the "average weekly earnings ” of the workman before the accident, to be computed as herein provided, and the average weekly amount which he is most probably able to earn in some suitable employment or business after the accident, subject, however, to the limitations hereinbefore provided.

Sec. 12. The (commissioner of labor) shall prescribe reasonable regulations governing the time, place, and manner in which weekly payments shall be made within this State, having regard to the security and convenience of the employer and the welfare of the workman; but a (justice of the court), upon the application of either party, may modify such regulations in a particular case, as to him may seem just. If a workman receiving a weekly payment cease to reside in the State (or in his residence at the time of the accident in an adjoining State) his right to weekly payments shall cease; but he shall be entitled to receive monthly or quarterly as may be agreed upon or as the

- court, upon application, having regard to the welfare of the workman and the convenience of the employer, may determine, the sum of the weekly payments accruing during the preceding month or quarter, so long as he proves in such manner and at such intervals as may be prescribed by the rules of the court, his identity and the continuance of the incapacity in respect of which the weekly payment is payable.

Sec. 13. 'Where death results from the injury and the dependents of the deceased workman, as herein defined, have agreed to accept compensation, and the amount of such compensation and the apportionment thereof between them has been agreed to or otherwise determined, the employer may pay such compensation to them accordingly (or to an administrator if one be appointed), and thereupon be discharged from all further liability for the injury. Where only the apportionment of the agreed compensation between the dependents is not agreed to, the employer may pay the amount into (court), or to (the administrator) of the deceased workman, with the same effect. Where the compensation has been so paid into (court) or to an (administrator), (the proper probate court), upon the petition of such (administrator) or of any of such dependents, and upon such notice and proof as its rules may provide, shail determine (and decree) the distribution thereof among such dependents... Where there are no dependents, medical and funeral expenses may be paid and distributed in like manner).

Sec. 14. (Persons entitled to compensation to be given the highest practicable preference in case of insolvency of employer. The right to compensation to be unassignable and to be given the broadest exemptions from attachment, execution, etc.; but to be extinguished by the death of the person entitled thereto).

Sec. 15. (Employers affected by this act to report annually to the commissioner of labor such reasonable particulars in regard thereto as he may require, including particulars as to all releases of liability under this act and any other law. The penalty for failure to report or for false report might be to invalidate the settlement.)

Sec. 16. An injured workman shall submit himself to examination by a duly qualified medical practitioner provided and paid by the employer, as soon after the accident as demanded, and from time to time thereafter during the pendency of his claim for compensation or during the receipt by him of payments under this act; but he shall not be required to so submit himself otherwise than in accordance with regulations made by (the commissioner of labor), nor at more frequent intervals than prescribed by those regulations.

It shall be the duty of the employer to cause such an examination to be made of the injured workman immediately after the accident, and to serve a copy of the report by his medical practitioner of euch examination upon the workman within six days after the accident. If no such examination be made and report furnished by the employer within that time, the workman shall be examined by his own medical practitioner, and shall furnish a report thereof by his medical practitioner to the employer, for which he shall be entitled to recover ($1) from the employer, which amount may be added to the compensation. Upon the receipt by either party of such a report from the other party, the party receiving it, if he disputes such report or any statement therein, shall notify the other party of that fact within six days, otherwise such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this act.

If thereafter a dispute existe as to the condition of the workman, the- - court, upon application of either party, shall order an examination of the workman to be made by a medical examiner appointed by it. The fees of such examiner shall be fixed by the court at not to exceed ($10), and shall be paid in advance by the applicant. Such medical examiner shall report his conclusions from such examination, in duplicate, to each party, and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this act.

Sec. 17. If an arbitrator has been selected or appointed pursuant to the provisions of this act, the workman shall submit himself for examination by such arbitrator or by a medical practitioner selected by him, whenever, wherever and under such conditions as such arbitrator in the exercise of a reasonable discretion may order.

Sec. 18. If the workman refuses to submit himself to an examination herein before provided for or in any wise obstructs the same, his right to compensation and to take or prosecute any further proceedings under this act shall be suspended until such examination take place. And, when a right to compensation is suspended, no compensation shall be payable in respect of the period of suspension.

Sec. 19. Proceedings for the recovery of compensation under this act shall not be maintainable, unless written notice of the accident, stating the time, place and particulars thereof, and the name and address of the person injured, has been given within (7) days after the accident; and unless a claim for compensation has been made within six months after the accident, or, in case of death, within six months from the date of death. (Such notice shall be delivered by registered letter. The want of or any defect in such notice or in its service shall not be a bar unless the employer proves that he has in fact been thereby prejudiced, or if such want or defect was occasioned by mistake, physical or mental incapacity or other reasonable cause. And the failure to make a claim within the period above specified shall not be a bar, if such failure was occasioned by mistake, physical or mental incapacity or other reasonable cause).

SEC. 20. Compensation due under this act may be settled by agreement. Every such agreement, other than a release, shall be in the form hereinafter provided.

Sec. 21. If compensation be not so settled by agreement:

(a) If any committee, representative of the employer and the workman exists, organized for the purpose of settling disputes under this act, the matter shall, unless either party objects by notice in writing delivered or sent by registered mail to the other party (before the committee meets to consider the matter), be settled (in accordance with its rules) by such committee or by an arbitrator selected by it.

(b) If either party so objects, or there is no such committee, or the committee or the arbitrator to whom it refers the matter fails to settle it within ninety days from the date of the claim, the matter may be settled by a single arbitrator agreed on by the parties or selected by any person or persons or judge of court agreed on by the parties. The consent to arbitration shall be in writing and signed by the parties, and may limit the fees of the arbitrator and the time within which the award must be made. And unless such consent expressly refers other questions, only the question of the amount of compensation shall be deemed to be in issue.

SEC. 22. (The arbitrator shall not be bound by any technical rules as to procedure or evidence, but shall give the parties reasonable opportunity to be heard and act reasonably and without partiality: He shall make and file his award, with the consent to arbitration attached, in the proper county clerk's office, within the time limited in the consent, or if no time limit is fixed therein, within ninety days after his selection, and shall give notice of such filing to the parties by mail.)

Sec. 23. Unless the arbitrator's fees be fixed by the consent to arbitration or be agreed to by the parties before the arbitration they shall be taxed by a justice of the

court, upon notice, (at not to exceed $ per day and disbursements or in any event $25 in all). The arbitrator shall apportion the cost of such fees in his discretion between the employer and workman (but not more than two-thirds against either one), and shall add the amount apportioned against the employer to the first payment to be made under the award. And he shall note the amount of his fees on the award, and shall have a lien therefor on the first payments due under the award.

Sec. 24. Every agreement for compensation and every award shall be in writing, signed and acknowledged by the parties or by the arbitrator or secretary of the committee hereinbefore referred to, and shall specify the amount due and unpaid by the employer to the workman up to the date of the agreement or award, and, if any, the amount of the weekly payments thereafter to be paid by the employer to the workman, and the length of time such weekly payments shall continue.

Sec. 25. It shall be the duty of the employer to file or cause to be filed every release of liability hereunder, every agreement for or award of compensation, or modifying an agreement for or award of compensation, under this act (if not filed by the committee or arbitrator), to which he is a party, (or a sworn copy thereof), in the county clerk's office of the county in which the accident occurred), within (60) days after it is made, otherwise it shall be (void as against the workman). The county clerk shall accept, receipt for and file any such release, agreement or award, without fee, and record or index it, etc.) Nothing herein shall be construed to prevent the workman from so filing such agreement or award.

SEC. 26. At any time within (one year) after an agreement or award has been so filed, a justice of the court, may, upon the application of either party, cancel such agreement or award, upon such terms as may be just, if it be shown to his fatisfaction, that the

workman has returned to work and is earning the same or higher wages as or than he did before the accident, or that the agreement or award has been obtained by fraud or undue influence, or that the committee or arbitrator making the award acted without authority or was guilty of serious misconduct.

SEC. 27. At any time after the filing of an agreement or award and before judgment has been granted thereon, the employer may stay further proceedings thereon by filing in the county clerk's office wherein such agreement or award is filed: (a) () proper certificate of a qualified insurance company that the payment of the compensation to the work man is insured by it); or (b) (a proper bond, undertaking to secure the payment of the compensation.) (Such certificate or bond to be approved by a justice of the court as to form and sufficiency, etc.)

Sec. 28. At any time aiter an agreement or award has been filed, the workman may apply to the court, for judgment against the employer for a lump sum equal to (90 per cent) of the amount of payments due and unpaid and prospectively due under the agreement or award; and, unless the agreement or award be stayed, modified or canceled, or the liability thereunder be redeemed or otherwise discharged, the court shall examine the workman under oath, and, unless sati-tied that the application is made for other reasons than doubt as to the security of his compensation, shall compute the sum and direct judgment accordingly, as if in an action.

Sec. 29. An agreement or award may be modified at any time by a subsequent agreement; or, at any time after (one year) from the date of filing, it may be reviewed, upon the application of either party, on the ground that the incapacity of the work man has subsequently increased or diminished. Such application shall be made to the

court; and, unless the parties consent to arbitration, the court may appoint a medical practitioner to examine the workman and report to it; and upon his report and after hearing the evidence of the parties, the court may modify such agreement or award, as may be just, by ending, increasing or diminishing the compensation, eubject to the limitations hereinbefore provided. (The fee- of the arbitrator, or the fees of the medical examiner, to be fixed by the court at not to exceed ($10), shall be paid in advance by the party applying. If the compensation be increased, a prior stay shall not be effective, unless the employer file a further certificate or bond to secure the increased compensation).

Sec. 30. Where any weekly payment has been continued for not less than (six months) the liability therefor may be redeemed by the employer by the payment to the workman of a lump sum of an amount equal to 75 per cent of the sum of the weekly payments which may become due according to the award, such amount to be determined by agreement, or, in default thereof, upon application, by a justice of the court. 2 paying such amount the employer to be discharged from all further

« PreviousContinue »