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2. Insolvency of Employer [§ 149] p 130

K. Costs and Attorney's Fees [150] p 131

XIV. REVIEW AND TERMINATION OF COMPENSATION; SUSPENSORY AWARDS [§§ 151–152] p 131 A. In General [§ 151] p 131

B. Suspensory Awards [ 152] p 133

XV. EFFECT OF ACT ON OTHER CAUSES OF ACTION AND DEFENSES [§§ 153-173] p 133

A. In General [§ 153] p 133

B. Actions by Employee against Employer [§§ 154-163] p 135

1. Compulsory Acts [ 154] p 135

2. Elective Acts [$$ 155-163] p 135

a. Where Act Has Been Accepted [§ 155] p 135

b. Employer Rejecting or in Default under Act [$§§ 156-162] p 135

(1) In General [§ 156] p 135

(2) Negligence of Employer as Essential to Recovery [§ 157] p 135
(3) Contributory Negligence [158] p 136

(4) Assumption of Risk [§ 159] p 137

(5) Negligence of Fellow Servant [§ 160] p 138

(6) Negligence of Person Whose Duty Is Prescribed by Statute [ 161] p 138

(7) Willful Act of Employee [§ 162] p 138

c. Employee Rejecting Act [§ 163] p 138

C. Action by Third Person against Employer [§§ 164-166] p 138

1. In General [§ 164] p 138

2. Action for Death by Wrongful Act [§ 165] p 138

3. Action by Parent for Injury to Child [§ 166] p 139

D. Action by Employee or Representative against Third Person [§§ 167-172] p 139

1. Person Occasioning Primary Injury [§§ 167–170] p 139

a. In General [§ 167] p 139

b. Election of Remedies [§ 168] p 140

c. Right of Employer or Insurer to Remedy of Employee [§ 169] p 141

d. Right of Third Person to Assert Payment of Compensation [§ 170] p 143

2. Private Insurers [§ 171] p 143

3. Physician or Surgeon Guilty of Malpractice [§ 172] p 143

E. Pleading and Proof of Act; Trial of Issue as to Applicability [§ 173] p 143 XVI. INSURANCE FUNDS AND PREMIUMS [§ 174] p 145

XVII. ADMINISTRATIVE OFFICERS AND BOARDS [§ 175] p 146

I. DEFINITION, CLASSIFICATION, AND DISTINCTIONS [1] A. Definition. The statutes which are known as the workmen's compensation acts, while alike as to the object sought to be attained,1 are so numerous and so varied as to details of administration that any attempted definition of them must of necessity be general in its terms. However, a workmen's compensation act may be broadly defined as a statute providing that in the case of an injury to an employee, when the employment, the injury, and the employee are within the operation of the act, the injured employee or his dependents shall be paid an amount to be determined in accordance with a fixed system or schedule, the payment and the procedure to secure payment prescribed by the act being in substitution for all other remedies, if any, existing to the employee against the employer.8

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[2] B. Classification. Compensation legislation falls readily into two major classes (1) the compensation acts properly so-called, and (2) the insurance acts, the distinction being that under the first class the payment is made by the employer in whose service the injury occurs, either directly or through the agency of a private insurer, while under the second class provision is made for transfer of the liability for payment from the individual employer to a fund made up of contributions in the nature of premium payments exacted from all of the employers within the terms of the act. tain of the acts partake of both classifications, however, in that they make acceptance by the employer of the state systems of insurance optional.10 Both the compensation and the insurance acts are subject to a further classification as (1) voluntary

4. Employees coming within acts see infra §§ 38-43.

5. Dependents entitled to compensation see infra §§ 49-52.

6. Amount of compensation see
infra §§ 79-100.

7. Procedure to obtain compensa-
tion see infra §§ 101-150.
8. Effect on other rights of action
and defenses see infra §§ 153-173.
9. See Winfield v. New York Cent..
etc., R. Co., 168 App. Div. 351, 354, 153
NYS 499 (where the court said of
the New York act of 1913: "The
legislative intent primarily is not to
require any employer to make satis-
faction to his employee for an injury
sustained but to inake all the haz-
ardous businesses contribute to
fund which shall compensate for any
injury received in any one of such
employments").

a

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10. See Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 151 P 398.

[a] Foreign systems of legislation. The foreign acts have been grouped by the Washington court in speaking of the sources of their own act, as follows: "Our legislators, with three systems to imitate, chose the most sweeping. There was that of England, which least interferes with employers, a liability act removing defenses but prescribing no way in which the employer must provide for the claim. There was that of Denmark and Sweden, in which the state issues policies to the employed at the master's expense. Finally, there was that of Germany, which ours most nearly resembles, and which provides both the remedies and the fund by compulsory insurance with contribution of em

or elective, and (2) compulsory, the terms being self-explanatory and the distinction being in that the persons affected have an option to accept or to reject the provisions of an elective act, while no such option is conferred in case of a compulsory act.11

Several of the acts are elective as to employers generally but compulsory as to the state and municipalities; 12 at least one is elective as to the employee and compulsory as to the employer.13

14

17

16

ation.15 Further, it has been broadly stated that a compensation act cannot be held coercive when the only result attaching to nonacceptance is the deprivation of rights of which a citizen may lawfully be deprived without reference to any statute which might either be accepted or rejected.' Or, more concretely, a compensation act is not rendered compulsory by the fact that common-law defenses are withdrawn from employers who do not elect to come under its operation, nor because a particular right of action is withdrawn in the case of an employee who does not accept the compensation provided by the act and whose employer has elected to be bound by its provisions.18 An act cannot be regarded as compulsory for the reason that in the tage to each which the plan contem- | 208, 209, 90 A 859, LRA1916A 10, plates, we cannot say that the statute is coercive. As was said in the Wisconsin case: 'Laws cannot be set aside upon mere conjecture or speculation. The court must be able to say with certainty that an unlawful result will follow.' We do not see how any such thing can be said here. Every consideration of prudence and self interest (things not easily asso-ployer at common law"). ciated with compulsion and coercion) would seem to lead an employe to voluntarily make the contribution and waiver contemplated." State v. Creamer, supra.

Determination of compulsory or elective character. A compensation act will not be held coercive or compulsory on mere speculation or conjecture, nor because of the possibility of such a general acceptance that a large part of the labor employed within the state will come under its operployers collectively. Even the German scheme was somewhat exceeded; for the private parties under our law have no participation in the management, nor, during a first period of three months, does our workman contribute something toward the loss, as he did under the German." Stertz V. Industrial Ins. Commn., (Wash.) 158 P 256, 258.

[b] The Washington act "is not an employers' liability act. It is not even an ordinary compensation act. It is an industrial insurance statute.' Stertz V. Industrial Ins. Commn., (Wash.) 158 P 256, 259.

11. See Albanese v. Stewart, 78 Misc. 581, 583, 138 NYS 942 (where the court said: "The New Jersey act is not a compulsory statute. It is a so-called optional or elective statute. The act, in section 2, paragraph 9, provides that a contract of hiring shall be presumed to have been made under the act unless a contract of employment or a notice sent by either party to the other shall otherwise provide, and no such contract has been made or notice sent by either party in this case. The statute, therefore, becomes compulsory only in the event that neither party disaffirms it"); State v. Industrial Commn., 92 Oh. St. 434, 111 NE 299, LRA1916D 944; Middleton v. Texas Power, etc., Co., (Tex.) 185 SW 556.

Election to accept act see infra §§ 44-46.

Validity as determined by compulsory or elective character see infra § 6.

12. See statutory provisions; and Butte v. Industrial Acc. Bd., (Mont.) 156 P 130.

13. Arizona Cons. Smelting Co. v. Ujack, 15 Ariz. 382, 389, 139 P 465.

"Our Constitution and compensation act make the compensation provided compulsory upon the part of the employer, and optional on the part of the employee." Arizona Cons. Smelting Co. v. Ujack, supra.

14. State v. Creamer, 85 Oh. St. 349, 394, 97 NE 602, 39 LRANS 694; Borgnis v. Falk Co., 147 Wis. 327, 356, 133 NW 209, 37 LRANS 489.

"We meet the objection that the law, while in its words presenting to employer and employee a free choice as to whether he will accept its terms or not, is in fact coercive, so that neither employer nor employee can be said to act voluntarily in accepting it. As to the employer, the argument is that the abolition of the two defenses is a club which forces him to accept; and as to the employee, the argument is that if his employer accepts the law the ployee will feel compelled to accept also through fear of discharge if he do not accept. Both of these arguments are based upon conjecture. Laws cannot be set aside upon mere speculation or conjecture." Borgnis v. Falk Co., supra.

em

"On account of the common law and statutory rights still preserved to the parties by this statute (as we have pointed out) in cases where the election is made to come under its provisions as well as not to do so taken in connection with the advan

15. State v. Creamer, 85 Oh. St. 349, 97 NE 602, 39 LRANS 694.

16. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1069.

"If the Legislature may validly say: You shall not defend with contributory negligence, nor with fault of fellow servants; you must prove you are not in fault for the injury suffered by your servant while doing your work; you must effect insurance SO that your insolvency may not leave him a crippled public charge, or make a public burden of his dependents; you may contract with each other to arbitrate summarily, effectively and cheaply, and the award shall be not more than a stated sum, and you shall not contract for less payment-can validly compel all this without enacting a workman's compensation act-then how can the saying that these things you shall lose and these things you shall do unless you accept the act be undue compulsion? One who is at liberty to do or not to do a thing can always say, I will not do what I can refuse to do, with or without reason, unless you do what I demand. There can be no coercion in the sight of the law effectuated by doing or not doing what one has the absolute right to do or not to do, no matter what terms are attached to doing or refraining. One who has absolute right to do or not to do a thing can attach to his doing or not doing any condition, no matter how unreasonable or arbitrary. The remedy is refusal to accede to the unreasonable demand. To threaten one with suit on a note and resulting costs unless something asked be done is duress if the note is confessed and due. One having a house to lease may decline to lease it unless the proposing tenant will agree to stay away from church, or to eat nothing but tomatoes-the remedy is to get another house. Constitutional rights can be waived. That such waiver itself works a violation of the Constitution where the inducement to waive does nothing prohibited by the Constitution is inconceivable. The only penalty for nonacceptance of this act is the infliction of what the Legislature may do in any event. This is not invidious compulsion." Hunter V. Colfax Cons. Coal Co., supra.

not

17. Powers v. Hotel Bond Co., 89 Conn. 143, 93 A 245; In re Opinion of Justices, 209 Mass. 607, 96 NE 308; State v. Creamer, 85 Oh. St. 349, 97 NE 602, 39 LRANS 694. Compare Boody v. K., etc., Mfg. Co., 77 N. H.

AnnCas1914D 1280 (where the court, assuming the New Hampshire act to be elective, said: "In other words, the means the legislature devised to induce employers to accept the provisions of the act was to take from those who do not accept it about the only real defense to an action by a servant which is open to his em

[a] In Kentucky (1) a contrary conclusion was reached as to L. (1914) c 73, the court saying: "If any employer should determine that he wanted to carry his own risk and make his own contracts instead of having the law to make a contract for him, he can do so. He can operate his industries and pursue his business, however hazardous, and ignore this act entirely. But what is the result? The law says to this employer: 'You may go on with your business industries, but if one of your employes is injured or killed, you shall not avail yourself of the following defenses-the defense of the fellow-servant; the defense of the assumption of risk; or the defense of contributory negligence.' These are practically all the defenses the employer has, and they are taken from him unless he accepts the provisions of this act. He cannot, under these conditions, successfully defend any suit for personal injury. If he is sued by an injured employe, about the only question a jury will have to determine will be the amount of recovery. Under these conditions an employer has practically no choice, no volition. If he continues to operate his business, he is compelled to pay his premiums into the fund and accept the provisions of the act." Kentucky State Journal Co. v. Workmen's Compensation Bd., 161 Ky. 562, 570, 170 SW 437, 1166, LRA1916A 389, AnnCas1916B 1273, 162 Ky. 387, 172 SW 674, LRA1916A 402. (2) The act of 1916, L. (1916) c 33, is held not compulsory in this respect, however. Greene v. Caldwell, 170 Ky. 571, 186 SW 648.

18. In re Opinion of Justices, 209 Mass. 607, 96 NE 308 (holding that deprivation, under such circumstances, of the right to maintain an action for death under the employers' liability act did not constitute legal compulsion).

[a] In Kentucky (1) a contrary conclusion was reached with reference to L. (1914) c 73, the court saying: "The action of the employer in paying into this fund his premiums and accepting the benefits of this act necessarily brings the employe within the act. The employe can go nowhere else, he has been legislated out of his causes of action, and all he can do is to accept such amount as is allowed him by this board of compensation. The Legislature has no right to say to one of its citizens that 'unless you accept the provisions of a law impairing your constitutional rights, it will take from you other rights more valuable.' In the light of Section 54 of the Constitution [this section provides that the Legislature "shall have no power to limit the amount to be recovered

absence of notice to the contrary acceptance of its provisions is presumed on the part of the employer19 or the employee.

20

[3] C. Employers' Liability Acts Distinguished.21 The distinction between the compensation acts and the employers' liability acts lies in the fact that the recovery under the compensation acts is not based

for injuries resulting in death or for injuries to persons or property"], we must treat the contract made by the employe under the provision of this act as compulsory and therefore void." Kentucky State Journal Co. v. Workmen's Compensation Bd., 161 Ky. 562, 569, 170 SW 437, 1166, LRA1916A 389, AnnCas1916B 1273, 162 Ky. 387, 172 SW 674, LRA1916A 402. (2) The act of 1916, L. (1916) c 33, is held not compulsory in this respect, however. Greene v. Caldwell, 170 Ky. 571, 579, 186 SW 648 (where the court said: "It is true that under section 76b the employe who does not elect to accept the act_and who brings an action to recover damages for personal injuries, sustained by the alleged negligence of the employer who has accepted its provisions, may be met with the defenses that he was guilty of contributory negligence, or that the injuries complained of were caused by the negligence of a fellow servant, or that he assumed the risk of the accident that resulted in his injury. But, clearly, the fact that the employer may rely on these defenses is far from denying to the employe the right to recover for injuries caused by the negligence of the employer. He still has his cause of action as he has always had, and the employer has only the right to rely on defenses that he always had the right to rely on").

19. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037; Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 295, 148 NW 71, LRA1916D 412. "The choice is no less voluntary and optional because a party is deemed to have accepted these provisions unless he give notice to the contrary, than it would be if he were deemed not to have accepted them until he gave notice to that effect." Mathison v. Minneapolis St. R. Co.,

supra.

[a] The Illinois act of 1913 has been held not to give an unreasonably short time in which to elect. Victor Chemical Works v. Industrial Bd., 274 III. 11, 113 NE 173.

son

20. Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49; Mathiv. Minneapolis St. R. Co., 126 Minn. 286, 148 NW 71, LRA1916D 412. But see Kentucky State Journal Co. v. Workmen's Compensation Bd., 162 Ky. 387, 388, 172 SW 674. LRA1916A 402 (where the court said on rehearing: "Some provision should be made in the act whereby the employe signifies his acceptance of the provisions of the act by some affirmative act on his part. Silence on this subject should not be construed into acceptance").

21. Employers' liability acts see Master and Servant [26 Cyc 1079], and passim seq.

on any theory of actionable wrong on the part of the employer.22

[4] D. Nature of Right to Compensation and Liability Therefor. The compensation acts are based on a new theory of compensation distinct from the existing theories of damages,23 the underlying conception being one of insurance.24 The ers' Liability act.' The act of April | his servants, but on whether by act 13th, 1909 (Pamph. L., p. 114), is of or by silence, he has adopted the the latter character"). statutory terms. The amount of his pecuniary liability is fixed by statute and not by the verdict of a jury. Employer and employe adopt as a part of their contract a novel method of procedure in which the liability and the compensation are determined by the judge instead of by a jury. And the compensation is ordinarily meant to be paid by installments, in lieu of wages as it were, and may be changed if circumstances change. The scheme is more like a pension scheme than a liability for a breach of contract, or damages in tort. The difference between the two kinds of legislation is illustrated in our act. Section 1 is an employer's liability act similar to the act of congress, and regulates the liability in a common law action of tort. Section 2 creates and regulates the new statutory right. But for paragraph 8 of section 2, there might have been a double recovery, a recovery for the tort in a common law action, and a recovery of the statutory compensation by means of the statutory procedure. Nor would that double recovery have been illegal, however unjust it might be and was in fact considered to be by the legislature; for compensation by way of pension from the master is quite different in character from compensation by a tort-feasor, master or third person, for a wrong not arising out of contract." Rounsaville v. Central R. Co., 87 N. J. L. 371, 372, 94 A 392. (2) "A recognition of the principles upon which the Federal and state statutes are founded will demonstrate that they are not in pari materia. The federal Employers' Liability Act prescribes the rules under which certain employers are liable to their employees for injuries which result to the latter from negligence. The Workmen's Compensation Law is radically different in principle, purpose, scope and method from the Federal Employers' Liability Act. It inaugurated an entirely new method of dealing with industrial accidents. without inaccuracy, it may be said that the primary purpose of this act was to give compensation in those cases where no claim of negligence on the part of the employer could reasonably be made." Winfield v. New York Cent., etc., R. Co., 216 N. Y. 284, 288, 110 NE 614, AnnCas 1916A 817.

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[a] "Liability and compensation
statutes are not to be grouped to-
gether. They are the antipodes of
labor legislation, having their
foundation in essentially different
social and economic ideas. The com-
mon law of England and America
and the Civil Code of continental Eu-
rope furnished but a single remedy
for a servant's injury-an action for
damages in which it was made to
appear that the negligence of the
master was a proximate cause of
the injury. The harshness of the
rule was emphasized when there was
ingrafted on it the defenses of con-
tributory negligence (Butterfield v.
Forrester, 11 East 60, 103 Reprint
926, 19 ERC 189), fellow servant's
negligence (Murray V. R. Co., 26
S. C. L. 385, 36 AmD 268; Priestley
v. Fowler, 3 M. & W. 1, 150 Reprint
1030, 19 ERC 102), and assumption
of risk (Farwell v. Boston, etc., R.
Corp., 4 Metc. (Mass.) 49, 38 AmD
339; Laning v. New York Cent., etc.,
R. Co., 49 N. Y. 521, 10 AmR 417).
With the increased hazards conse-
quent upon the use of high explosives,
complicated and dangerous
chinery, and the powerful agencies
of steam and electricity, the percent-
age of injured employes having justi-
ciable claims rapidly increased, until
relief was sought in liability stat-
utes which modified or eliminated
some or all of the common-law de-
fenses. But whether the remedy
was sought at common law or under
an employers' liability statute, the
actionable wrong of the master, or ac-
tionable wrong for which the master
was liable under the maxim respon-
deat superior, was the gist of the
claim for damages and the basis of
any right to recover.
pensation laws proceed upon the
theory that the injured workingman
is entitled to pecuniary relief from
the distress caused by his injury, as
matter of right, unless his own
willful act is the proximate cause,
and that it is wholly immaterial
whether the injury can be traced to
the negligence of the master, the
negligence of the injured employe or
a fellow servant, or whether it re-
sults from an act of God, the public
enemy, an unavoidable accident, or a
mere hazard of the business which
may or may not be subject to more
exact classification." Lewis, etc.,
County V. Industrial Acc. Bd.,
(Mont.) 155 P 268, 269.

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[b] "The Federal Employers' Liability act (1) is an act, as its name imports, to regulate the liability of employers, and, as its body shows, is applicable only to liability in tort for negligence. No new right of action is given; all that is done is to 22. Lewis, etc., County v. Industake away certain defences which trial Acc. Bd., (Mont.) 155 P 268; had come to be thought unjust. The Winfield v. New York Cent., etc., R. legal liability of the employer under Co., 216 N. Y. 284. 110 NE 614, the act does not depend upon the AnnCas1916A 817. See Gregutis v. terms of the contract of service, and Waclark Wire Works, 86 N. J. L. is neither increased nor diminished 610, 612, 92 A 354 (where the court thereby. The amount of the pecunisaid: "The act of April 4th, 1911 ary liability is in no way regulated (Pamph. L., p. 134), to which herein- or limited. The act applies only to after we shall have occasion to refer, certain classes of employers. In all is sometimes called the 'Workmen's these respects the Workmen's ComCompensation act' and sometimes pensation act differs. Liability therethe Employers' Liability act.' Coun- under is contractual, and while the sel in the present case call it the contract liability is implied from latter. Of course, it has the charac- silence, either party is at liberty to teristics of both, yet, since its chief adopt or reject the statutory conpurpose was compensation to injured tract. A new right of action is workmen or their dependents, we given, of a character unknown to our think it is more properly to be re- law, at least for several centuries. ferred to as the 'Workmen's Compen- The liability of the employer desation act,' rather than the 'Employ- | pends not on any fault of his own or

Perhaps,

23. In re Kenney, 222 Mass. 401, 111 NE 47; In re Cripp. 216 Mass. 586, 104 NE 565, AnnCas1915B 828; Andrejwski v. Wolverine Coal Co., 182 Mich. 298, 303, 148 NW 684.

"We enter a new field, to consider only the question of compensation, and to turn absolutely away from the idea of damages." Andrejwski v. Wolverine Coal Co., supra.

[a] Designation of proceedings.— Proceedings under the workmen's compensation act are designated as proceedings to recover compensation rather than to recover damages. De Biasi v. Normandy Water Co., 228 Fed. 234.

24. Trim Joint Dist. School V. Kelly, [1914] A. C. 667, 675, 7 BWCC 274 [aff 6 BWCC 921].

"If we had to consider the principle of the Workmen's Compensation Act as res integra, I should be of opinion that the principle was one more akin to insurance at the expense of the employer of the workman against accidents arising out [of] and in the course of his employment than to the imposition on

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