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Contributing cause of disability

a short circuit, it was held that he was guilty of such negligence or misconduct as precluded an award of compensation. Re M. J. Ryan, Id., p. 341.

Where the claimant was injured by being struck in the eye with a wooden plug, which was blown out of a pump, in consequence of the opening of a certain valve by an apprentice boy, and the workman himself directed the boy to open the valve and that he knew that the opening of the valve, while a certain other valve was likewise open, would cause the plug to blow out, and that it was dangerous, was held to be guilty of such negligence as required that compensation should be denied. Re W. H. Taylor, Id., p. 324.

The claimant was going home from his work, and while walking upon the railroad tracks a train approached from the rear, entirely unnoticed, struck him and inflicted a severe injury to his left hip. It was held that the claimant had been guilty of such negligence as precluded an award of compensation. Re R. R. Lopez, Id., p. 330.

The claimant declared that he was walking on a trestle in the course of his employment when two engines jumped the track where he was and fell to the bottom of the river channel underneath the trestle, and that he was caught between the two engines and his foot crushed. The division engineer stated that the claimant was riding on the footboard of one of the engines and that he had been forbidden to ride on the engines. The Solicitor stated that if the statement of the claimant was to be relied upon he was entitled to compensation, whereas if the evidence of the division engineer and other witnesses were to be relied upon, no compensation could be awarded. The case was sent back for further testimony. Re Miguel Colmeneiro, Id., p. 327.

23. Contributing cause of disability.

A claim is not barred by evidence of congenital weakness which may have contributed to cause an injury to result in incapacity. Re J. F. Mulverhill, Op. Sol. Dep. C. & L., p. 538.

Injury means disability

To entitle an employé to continued compensation the disability must be due in an appreciable measure to the original injury. Re A. C. McAllister, Id., p. 546.

An injured employé is entitled to compensation no longer than his incapacity is due to his original injury and may not be paid, on account of old age or other bodily infirmity, because he is unable to resume work within a year. Re Elijah Blackhurst, Id., p. 556.

Where a claimant has worked for a considerable period up to the time of the accident and declared positively that he had no prior injury, and that his disability is due entirely to the accident, such circumstances are sufficient to support the claimant's statement where the medical testimony merely casts a doubt on the claimant's statement as to prior injuries, and the physician expresses the belief that the trouble dated back some time before the injury, although he was unwilling to make that statement as a positive fact. Re J. W. Davis, Id., p. 606.

24. Injury, definition of.1

The word "injury" is used comprehensively to embrace all the cases of incapacity to continue the work of employment unless the injury is due to the negligence or misconduct of the employé injured and including all cases where, as a result of the employé's occupation, he, without any negligence or misconduct, becomes unable to carry on his work and this condition continues for more than fifteen days. Re A. B. Adolphus, Op. Sol. Dep. C. & L., p. 31; citing the opinion of the Attorney General, dated May 17, 1909 in the Clark case.

25. Injury means disability.

Until the injury shall have caused incapacity it is not such an injury as is contemplated by the statute. The injury which may entitle an employé to compensation under the 1 See exhaustive discussion of this subject in Chapter VI.

Ability to resume work

Act does not begin to exist until the accident or literal injury has resulted in incapacity for work. When it has existed for more than fifteen days the right to compensation accrues. Re A. B. Adolphus, Op. Sol. Dep. C. & L., p. 31.

26. Injuries before act passed.

The accident or other cause of injury as well as the resulting incapacity must have occurred on or after the date fixed in the act, to wit, August 1, 1908, to entitle the claimant to compensation. Re A. B. Adolphus, Op. Sol. Dep. C. & L., p. 31.

27. Ability to resume work.

Ability to resume work means ability to resume the regular work of the injured person's employment, in the course of which the injury was sustained, not any work he may be able to do notwithstanding the injury. Re query of naval constructor of Boston Navy Yard, Op. Sol. Dep. C. & L., p. 263.

Ability to resume the regular work of the injured person's employment appearing, compensation ceases under the Act, although the employé remains seriously and permanently injured. Re David Carroll, Id., p. 285. In the lastmentioned case the employé, while driving a team hauling stone out of a trench, was hit on the jaw by rock thrown from a place and the jaw was fractured. At the time compensation was disallowed the fracture was still ununited, but it was found that the employé, notwithstanding the permanence of the injury, was still able to do the work which he had done before. Compensation, therefore was discontinued.

Inability to resume work of employment appearing, compensation is payable although the claimant is discharged and obtains other employment of a different character. Re E. L. Hill, Id., p. 287.

Ability to resume work at a given date cannot be predicated on the fact that an injured person refuses to submit

Computing year during which compensation is payable

to an operation and therefore, according to the medical opinion, delayed recovery. Re Pete Passus, Id., p. 289.

28. Successive claims.

An employé, who, after an injury, had resumed work pursuant to orders, being assigned to lighter duties and was again injured, resulting in immediate incapacity was held to have established a new claim. Re W. R. Fletcher, Op. Sol. Dep. C. & L., p. 610.

29. Computing year during which compensation is payable. The year for which compensation was payable begins to run on the day following the injury and terminates with the anniversary of the day of the injury, under the Federal Act. Re D. J. Kelly, Op. Sol. Dep. C. & L., p. 255; Re Atancio Lacorte, Id., p. 258.

The date of the injury from which the year of compensation begins to run is the date on which the injury results in incapacity for work. Re William Bowen, Id., p. 258; Re E. A. Drummond, Id., p. 261; Re J. L. Malone, Id., p. 261.

The provision of the statute that the compensation shall be paid for one year after the injury unless he is sooner able to resume work means that the employé or his dependent is entitled to pay for a full year, excluding Sundays, and the fact that the employé, if living, not disabled, would not have been able to work all the year, by reason of the shutting down of the works or a portion thereof, has no effect on the amount of compensation which should be paid. Re Frank J. Huff (Op. of the Comptroller of the Treasury), Id., p. 459.

Where the workers are employed on a per diem basis and are injured in the course of their employment, they are entitled to compensation for absence on Sundays and holidays if in the regular course of the work they would have been compelled to have worked on these days, and if not, they should not be allowed compensation for Sundays and holidays. Re Letter of Comptroller Tracewell to the

Wages as basis of compensation

Secretary of the Interior, December 10, 1909, Op. Sol. Dep. C. & L., p. 632; 15 Comp. Dec. 464.

30. Wages as basis of compensation.

The compensation granted includes allowance for subsistence or in lieu of subsistence, when the same forms part of the regular remuneration of earnings. Re Ed. Lanzy, Op. Sol. Dep. C. & L., p. 291.

The right of a laborer to the same pay as if he continued to be employed is not lost or diminished because the work on which he was employed has been stopped or suspended. before he was able to resume work. Re George McCrae, Id., p. 293.

The amount of compensation payable to a dependent parent is equivalent to the full pay of the deceased for the balance of the year following the latter's death, although the parent had not been wholly dependent upon him or had received, before the injury, only a share of his wages. Re Ymsel Noriega, Id., p. 296; Re J. J. Korp, Id., p. 297.

The right to the same pay as though he continued to be employed includes the right to any increase in the pay attached to the injured person's position made after the injury and during incapacity. Re J. W. Hamilton, Id., p. 297; Re Michael O'Brien, Id., p. 298.

Where an injured employé, although unable to return to his regular employment, returns to work of a different character and receives the same pay as if his duties remained unchanged, compensation under the Act ceases; his right to compensation is merged in his right to receive pay for his services. Re Antonio Manaloc, Id., p. 301.

The question of fact as to what is the same pay a workman would receive if he continued to be employed is ordinarily better determined by the administrative and accounting officers of the establishment in which he is employed than by the Secretary of Commerce and Labor. Re A. E. Clark, Id., p. 299; Re William R. Miller, Id., p. 299.

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