TENNESSEE.

ACTS OF 1919.

CHAPTER 123.-Compensation of workmen for injury.

SECTION 1. This act shall be known as the workmen's

tion act.

SEC. 2. In this act, unless the context otherwise requires(a) "Employer" shall include any individual, firm, association, or Definitions. corporation, or the receiver or trustee of the same, or the legal representatives of a deceased employer, using the services of not less than ten persons for pay. If the employer is insured it shall include his insurer, unless otherwise herein provided.

(6) "Employee" shall include every person, including a minor, in the service of an employer, as "employer" is defined in paragraph (a) above, under any contract of hire, apprenticeship, written or implied. Any reference herein to an employee who has been injured shall, when the employee is dead, also include his legal representatives, dependents, and other persons to whom compensation may be payable under this act.

(c) "Average weekly wages" shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of fifty-two weeks immediately preceding the date of the injury divided by fifty-two; but if the injured employee lost more than seven days during such period when he did not work, although not in the same week, then the earnings for the remainder of such fifty-two weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. Where the employment prior to the injury extended over a period of less than fifty-two weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed: Provided, Results just and fair to both parties will thereby be obtained. Where by reason of the shortness of the time during which the employee has been in the employment of his employer, it is impracticable to compute the average weekly wages as above defined, regard shall be had to the average weekly amount which during the first fifty-two weeks prior to the injury or death was being earned by a person in the same grade, employed at the same work by the same employer, and, if there is no such person so employed, by a person in the same grade employed in the same class of employment in the same district. Wherever allowances of any character made to an employee in lieu of wages are specified as part of the wage contract, they shall be deemed a part of his earnings.

(d) “Injury" and "personal injury" shall mean only injury by accident arising out of and in the course of employment, and shall not inlude a disease in any form except as it shall naturally result from the injury.

SEC. 3. From and after the taking effect of this act every employer Election preand every employee, except as herein stated, shall be presumed to sumed. have accepted the provisions of this act, respectively, to pay and accept compensation for personal injury or death by accident arising out of and in the course of employment, and shall be bound thereby, unless he shall have given prior to any accident resulting in injury or death, notice to the contrary in the manner herein provided.

tions.

SEC. 4. Either an employer or employee who has excepted himself Waiving rejecby proper notice from the operation of this act may at any time waive such exemption and thereby accept the provisions of this act by giving notice as herein provided.

The notice of exemption and the notice of acceptance heretofore referred to shall be given thirty days prior to any accident resulting in injury or death: Provided, That if any injury or death occurs less than thirty days after the date of employment, notice of such exemption or

Rejection to be posted.

Relation to other acts.

Excluded occu

pations.

What payment valid.

Remedy clusive.

acceptance given at the time of employment shall be sufficient notice thereof.

The notice of election not to accept the provisions of this act shall be as follows:

(a) The employer shall post and keep posted in his shop or place of business a written or printed notice of his election not to be bound by the provisions of this act, and shall file a duplicate thereof with the bureau of workshop and factory inspection of the State of Tennesse (b) The employee shall give written or printed notice to the employ et of his election not to be bound by the provisions of this act and tile a duplicate, with proof of service on the employer attached thereto, to gether with an affidavit of the employee that the action of the employe in rejecting the provisions of this act was not advised, counseled, or encouraged by the employer or by anyone acting for the employer with the bureau of workshop and factory inspection of the State of Tennessee SEC. 5. Nothing in this act contained shall be construed as amending or repealing any statute or municipal ordinance relating to associations or funds for the relief, pensioning, retirement, or other benefit of asy employees of such municipal employer, or of the widows, children, or dependents of such employees, or as in any manner interfering with the same as now or hereafter established.

SEC. 6. This act shall not apply to

(a) Any common carrier doing an interstate business while engan in interstate commerce.

(b) Any person whose employment at the time of injury is casual— that is, one who is not employed in the usual course of trade, business, profession, or occupation of the employer.

(c) Domestic servants and employers thereof; nor to farm or agricultural laborers and employers thereof.

This act shall not apply to employers engaged in the operation of eval mines nor to the employees thereof, except that any employer engaged in the operation of a coal mine or mines may accept the provisions of this act by filing written notice thereof with the State factory inspector at least thirty (30) days before the happening of any accident or death. and may at any time withdraw the acceptance by giving like notice of withdrawal.

(d) In case where less than ten persons are regularly employed. Por vided, however, That in such cases the employer may accept the provisions of this act by filing written notice thereof with the State factory inspector at least thirty days before the happening of any accident of death, and may at any time withdraw the acceptance by giving like notice of withdrawal.

(e) To the State of Tennessee, counties thereof, and municipal curporations: Provided, however, That the State, any county or municipal corporation, may accept the provisions of this act by filing written notice thereof with the State factory inspector at least thirty days before the happening of any accident or death and may at any time withdraw the acceptance by giving like notice of the withdrawal.

SEC. 7. Whenever payment of compensation is made to a widow of widower for her or his use, or for her or his use and the use of a chini or children, the written receipt thereof by such widow or widower shall acquit the employer.

Whenever payment is made to any person eighteen (18) years of age or over the written receipt of such person shall acquit the employer Whenever payment is made to a person under the age of eizhuva (18) years, or to a dependent child as defined in subsection 2 of sectia 30 over the age of eighteen (18) years, the same shall be paid to a dus and regularly appointed guardian or trustee of such child, and the receipt of such guardian or trustee shall acquit the employer and shall be in lieu of any claim of the parents of such child or minor for loss of services.

ex- SEC. 8. The rights and remedies herein granted to an employee subject to this act on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, dependents or next of kin, at common las o otherwise, on account of such injury or death.

SEC. 9. Nothing in this act shall be construed to relieve any employer or employee from penalty for failure or neglect to perform any statutory duty.

SEC. 10. No compensation shall be allowed for an injury or death due to the employee's willful misconduct or intentional self-inflicted injury, due to intoxication, or willful failure or refusal to use a safety appliance or perform a duty required by law. If the employer defends on the ground that the injury arose in any or all of the above-stated ways the burden of proof shall be on the employer to establish such defense.

SEC. 11. Every employer who elects not to operate under this act as herein provided shall not, in any suit brought against him by an employee, who has elected to operate under the provisions of this act, to recover damages for personal injury or death arising from accident, be permitted to defend such suit upon any of the following grounds, namely:

(a) That the employee was negligent.

(b) That the injury was caused by the negligence of a fellow servant or fellow employee.

Available,

when.

(e) That the employee had assumed the risk of the injury. SEC. 12. Every employee who elects not to operate under the provisions of this act, in any action to recover damages for personal injury or death by accident brought against an employer who has elected to operate under this act, shall proceed as at common law, and the employer in such suit may avail himself of all common law defenses. SEC. 13. When both employer and employee elect not to operate Same. under this act the liability of the employer for injury or death from accident shall be the same as at common law, and the employer may avail himself of all common law defenses in actions brought by such employee to recover damages for personal injury or death due to accident.

SEC. 14. Whenever an injury for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may at his option either claim compensation or proceed at law against such other person to recover damages, or proceed against both the employer and such other person, but he shall not be entitled to collect from both; and if compensation is awarded under this act the employer having paid the compensation or having become liable therefor, may collect, in his own name, or in the name of the injured employee in a suit brought for the purpose, from the other person in whom legal liability for damages exists, the indemnity paid or payable to the injured employee.

SEC. 15. A principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors and engaged upon the subject matter of the contract to the same extent as the immediate employer.

Any principal, intermediate, or subcontractor who shall pay compengation under the foregoing provisions may recover the amount paid from any person who, independently of this section, would have been liable to pay compensation to the injured employee, or from any intermediate

contractor.

Every claim for compensation under this section shall be in the first instance presented to and instituted against the immediate employer, but such proceedings shall not constitute a waiver of the employee's rights to recover compensation under this act from the principal or intermediate contractor: Provided, That the collection of full compensation from one employer shall bar recovery by the employee against any others, nor shall he collect from all a total compensation in excess of the amount for which any of the said contractors is liable. This section shall apply only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management. SEC. 16. No contract or agreement, written or implied, nor rule, regulation, or other device, shall in any manner operate to relieve any employer in whole or in part of any obligation created by this act except as herein provided.

Liability

third parties.

of

Employees of

contractors.

Waivers.

Preference.

Assignments,

etc.

Injuries outside State.

Second injuries.

Prior injuries.

Notice of injury.

Contents.

Limitation.

Medical, aid.

SEC. 17. All rights of compensation granted by this act shall have the same preference or priority for the whole thereof against the assets of the employer as is allowed by law for any unpaid wages for labor: Pro vided, however, That such compensation shall not prejudice or be superior to the rights and interests of third persons in and to such asses if such rights and interests are secured by registered mortgage or in any form or manner which is valid as to general creditors of the employer. SEC. 18. No claim for compensation under this act shall be assignable, and all compensation and claims therefor shall be exempt from clains of creditors.

SEC. 19. When an accident happens while the employee is employed elsewhere than in this State, which would entitle him or his dependents to compensation had it happened in this State, the employee or his dependents shall be entitled to compensation under this act if the contract of employment was made in this State, unless otherwise expressly provided by said contract.

SEC. 20. If an employee has previously sustained a permanent injury elsewhere than in the employment in which he sustains a subsequent permanent injury, he shall be entitled to compensation only for the disability that would have resulted from the latter accident if the earlier injury had not existed, and such earlier injury shall not be considered in estimating the compensation on the basis of either a total or partial disability to which the employee may be entitled under this act. SEC. 21. This act shall have no retroactive effect, and shall not apply to actions for accidental injury or death occurring prior to the passa of this act, but claims for damages with respect thereto shall be redressed by the law as it stood prior to the enactment of this statute.

SEC. 22. Every injured employee or his representative shall, immediately upon occurrence of an injury or as soon thereafter as is reasonable or practicable, give or cause to be given to the employer written notice of the injury, and the employee shall not be entitled to physician's fees nor any compensation which may have accrued under the provisions of this act from the date of the accident to the giving of such notice, unless it can be shown that the employer had actual knowledga of the accident; and no compensation shall be payable under the provisions of this act unless such written notice is given the employer within thirty days after the occurrence of the accident, unless reasonable excuse for failure to give such notice is made to the satisfaction of the tribunal to which the claim for compensation may be presented. SEC. 23. The notice required to be given of the occurrence of an accident to the employer shall state in plain and simple language the name and address of the employee, the time, place and nature and cause of the accident resulting in injury or death, and shall be signed by the claimant or by some person in his behalf, or by any one or more of the claimant's dependents if the accident resulted in death to the emplovec. But no defect or inaccuracy in the notice shall be a bar to compensation unless the employer can show to the satisfaction of the tribunal in which the matter is pending that he was prejudiced by the failure to give the proper notice, and then only to the extent of such prejudice. The notice shall be given personally to the employer or to his agent of agents having charge of the business in working at which the injury was sustained by the employee.

SEC. 24. The right to compensation under this act shall be forever barred unless within one year after the accident resulting in injury or death occurred the notice required by section 23 is given the employer and a claim for compensation under the provisions of this act is tied with the tribunal having jurisdiction to hear and determine the matter. etc., Sec. 25. During the thirty days after the notice required by section 23 of this act to be given the employer or his agent, the employer shall furnish free of charge to the injured employee such medical and surgical treatment, medicine, medical, and surgical supplies, crutches, and apparatus as may be reasonably required, and the injured employee shall accept the same; and at the option of the employer he may furnish the same free of charge to the injured employee for such length of time after the expiration of the thirty days as the employer may elect and the employee shall accept the same: Provided, however, That the total liability of the employer under this section shall not ex

ceed one hundred dollars: And provided further, That the pecuniary liability of the employer for such services rendered the employee shall be limited to such charges as prevail for similar treatment in the community where the injured employee resides. All cases of dispute as to the value of such services shall be determined by the tribunal having jurisdiction of the claim of the injured employee for compensation. In case death results from the injury, the employer shall, in addition to the medical service, etc., referred to above, pay the burial expenses of the deceased employee, not exceeding one hundred dollars. If the deceased employee leaves no dependents entitled to claim compensation under the provisions of this act, the employer shall not be further liable to any one for compensation on account of the accident except for the medical service and burial expense herein provided for.

The injured employee must submit himself to the examination of the employer's physician at all reasonable times if requested to do so by the employer, but the employee shall have the right to have his own physician present at such examination, in which case the employee shall be liable to such physician for his services. The employer shall pay for the services of the physician making the examination at the instance of the employer. And in case of dispute as to the injury, the court may, at the instance of either party or of its own motion, appoint a neutral physician of good standing and ability to make an examination of the injured person and report his findings to the court, the expense of which examination shall be borne equally by the parties. If the injured employee refuses to comply with any reasonable request for examination, or refuses to accept the medical service which the employer is required to furnish under the provisions of this act, his right to compensation shall be suspended, and no compensation shall be due and payable while he continues such refusal.

In all death claims where the cause of death is obscure or is disputed, Autopsy. any interested party may require an autopsy, the cost of which is to be borne by the party demanding the same.

Any physician whose services are furnished or paid for by the employer and who treats or makes or is present at any examination of an injured employee may be required to testify as to any knowledge acquired by him in the course of such treatment or examination as same relates to the injury or disability arising therefrom.

Evidence.

Cost of treat

If in an emergency or on account of the employer's failure or refusal to provide the medical care and service required by this act, the in- ment. jured employee or his dependents may provide the same, and the cost thereof, not exceeding one hundred dollars, shall be borne by the employer: Provided, That the pecuniary liability of such employer shall be limited to the charges for such service as prevail in the community where the services are rendered. All cases of dispute as to the value of such services shall be determined by the tribunal having jurisdiction of the matter of compensation to the employee.

SEC. 26. No compensation shall be allowed for the first fourteen days of disability resulting from the injury except the benefits provided for in section 25 of this act, but if disability extends beyond that period, compensation shall commence with the fifteenth day after the injury. In the event, however, the disability from the injury exists for a period as much as six weeks, then compensation shall be allowed beginning with the first day after the injury.

Waiting time.

Agreements.

SEC. 27. The interested parties shall have the right to settle all matters of compensation between themselves, but all settlements, before the same are binding on either party, shall be approved by the judge of the circuit court of the county where the claim for compensation under this act is entitled to be made. Upon such settlement being approved, judgment shall be rendered thereon by the court and duly entered by the clerk. The costs of the proceeding, which shall not exceed two ($2) dollars, shall be borne by the employer. SEC. 28. The following is the schedule of compensation to be allowed Compensation employees under the provisions of this act:

for

(a) Forinjury producing temporary total disability, fifty per centum of Temporary the average weekly wages as defined in this act, subject to a maximum total disability; compensation of $11 per week and a minimum of $5 per week: Provided, That if the employee receives $5 or more per week, then he

177982-21-Bull. 272-57