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XIV. EMPLOYER'S RIGHT TO HAVE INJURED EXAMINED.

Any workman entitled to receive compensation under this act is required, if requested by Department, to submit himself for medical examination from time to time at place reasonably convenient for workman, and as may be provided by rules. If workman refuses to submit to examination or obstructs same his right to monthly payments shall be suspended until such examination takes place and no compensation shall be paid on account of or during such period. If injured workman shall persist in insanitary or injurious practices which tend to imperil or retard his recovery or refuses to submit to surgical or medical treatment, the Commission may reduce or suspend compensation of such workman. If workman incurs traveling expenses in attending examination pursuant to request of Department such traveling expenses shall be repaid him out of accident fund.

XV. JURISDICTION AND PROCEDURE.

Where workman is entitled to compensation he shall file with Department his application, together with certificate of physician who attended, and when death occurs someone in behalf of parties entitled to compensation shall file with application, proof of death and proof of relationship of parties entitled to compensation certificate of attending physician.

Any employer, workman, beneficiary or person feeling aggrieved at decision of Department may have same reviewed by proceeding for that purpose in nature of appeal initiated in Superior Court of county of his residence in so far as decision rests upon question of fact or proper application of provisions of this act, it being the intent that matters resting in discretion of Department shall not be subject to review. Notice of appeal shall have been served twenty days following rendition of decision appealed from. Appeal shall lie from judgment of Superior Court as in other civil cases.

WEST VIRGINIA.

(Enacted 1913; Amended Acts 1915, pages 52, 609; Acts 1919, Chapter 131.)

I. SCOPE AND APPLICATION.

1. It applies to all persons, firms, associations and corporations regularly employing other persons for purpose of carrying on any form of industry or business, county and municipal corporations, the State of West Virginia, and all governmental agencies and departments created by it, and all persons in service of such employers for the purpose of carrying on industry, business or work in which they are engaged, and checkweighmen, as provided for in Chapter 20, Acts of 1911, are employees and subject to its provisions; provided, act shall not apply to employer or employees in domestic or agricultural service, persons prohibited by law from being employed, traveling salesmen, employees of any employer while employed without the state, nor shall a member or firm or employee or any officer of an association, corporation employer, including manager, superintendent, assistant managers and assistant superintendents, any elective official of state, county or municipal corporation be deemed an employee within meaning of this act.

2. Any employer subject to this act who shall elect to pay into workmen's compensation fund the premiums provided by this act shall not be liable to respond in damages at common law or by statute for injury or death of any employee, after such election and during any period employer is not in default; provided, injured employee has remained in his service with notice that employer has elected to pay premiums. The continuation in service of such employer with such notice shall be a waiver of right of action aforesaid. Each employer electing to pay premiums to compensation fund shall post notices about his place of business stating fact of such election, and when so posted shall constitute sufficient notice to employees.

3. All employers subject to act, except the state, who shall have elected to pay premiums and shall be in default of same shall be liable to their employees for damages suffered by reason of injuries sustained in the employment; also to personal representatives where death results, and in any action by such employee such defendant shall not

avail of common-law defenses or of any defense that negligence in question was that of someone whose duties are prescribed by statute.

4. No employee or dependent shall be entitled to receive any sum from compensation fund on account of any personal injury or death of employee caused by self-inflicted injury, willful misconduct or disobedience of rules or regulations or intoxication of employee, or failure of employee to use safety devices.

If injury or death results from deliberate intention of employer to produce injury or death, the employee or dependent shall have privilege to take under act and also have cause of action for excess damages.

11. COMPENSATION.

1. FOR INJURY RESULTING IN DEATH:

(a) If death ensues from injury within period of one year, reasonable funeral expenses, not to exceed $150.00, may be paid from fund, in addition to award made to dependents.

In case injury causes death within period of one year from date of original injury, and disability is continuous from such injury until date of death, benefits shall be in the amounts and to persons named as follows: (b) If no dependents, the disbursements shall be the expense provided for medical, surgical and hospital treatment and for funeral expenses as provided in clause "a."

(c) If deceased employee be under age of twenty-three years and unmarried and leave a wholly dependent father or mother, the father, or if there be no father, the mother, shall be entitled to a payment of 50 per cent of average weekly wages of deceased, not to exceed maximum of $6.00 per week, and to continue for such portion of six years after date of death as Commissioner in the case may determine; provided, that in case the deceased employee be under age of fifteen years at time of death, payment shall continue until such employee would have been twenty-one years of age. Compensation in either case to cease upon death of dependent.

(d) If deceased employee be under age of twenty-one and unmarried and leave a partially dependent father or mother, the father, or if there be no father, the mother, shall be entitled to payment of 50 per cent of average weekly wages, not to exceed maximum of $6.00 per week, to continue until employee would have been twenty-one years of age.

(e) If deceased employee leaves a dependent widow or invalid widower the payment shall be $20.00 per month until

death or remarriage of such widow or widower, and in addition $5.00 per month for each child under fifteen years of age, to be paid until such child reaches such age; provided, if such widow or invalid widower shall remarry within two years from date of death of employee, such widow or widower shall be paid at the time of remarriage 20 per cent of amount that would be due for the period remaining between the date of such remarriage and the end of ten years from date of death of said employee, provided that if, upon investigation, it shall be ascertained that said widow or widower is living with a man or woman, as the case may be, as man and wife and not married, or the widow living the life of a prostitute, the Commissioner shall stop payment of benefits herein provided to said widow or widower. (f) If deceased employee be an adult and there be no dependent widow or widower or child under fifteen years of age, but there are wholly dependent persons at time of death, the payments shall be 50 per cent of average monthly support actually received from employee during the preceding 12 months, to continue for the remainder of period between the date of death and six years after date of injury, but shall not amount to more than a maximum of $20.00 per month.

(g) If deceased employee be an adult and there be no dependent widow, widower or child under fifteen years of age, wholly dependent persons, but there are partly dependent persons at time of death, payment shall be 50 per cent of average monthly support actually received from employee during the preceding 12 months, and to continue for such portion of the period of six years after date of death as Commissioner in the case may determine and not to amount to more than a maximum of $20.00 per month.

Compensation under subsections (f) and (g) shall cease upon death of dependent and the right thereto shall not vest in his or her estate.

(h) Dependent, as used in this act, means widow, invalid widower, child under fifteen years of age, invalid child over such age, a posthumous child, who at time of injury causing death is dependent, in whole or in part, for his or her support upon the earnings of employee; also the following persons who are and continue to be residents of United States or its territorial possessions: Stepchild under fifteen years of age, child under fifteen years of age legally adopted prior to injury causing death; father, mother, grandfather, grandmother, who at the time of injury causing death is dependent, in whole or in part, for his or her support upon the earnings of employee; an invalid brother or sister wholly dependent for

his or her support upon earnings of employee at time of injury causing death.

Notwithstanding anything herein contained no sum shall be paid to widow or widower who shall have been living separate and apart or has been abandoned by employee, and who shall not have been supported by him or her at the time of the injury causing death.

2. INJURY NOT RESULTING IN DEATH:

(a) First aid, medical. Commissioner shall pay (a) Such sums for medical, surgical and hospital treatment as may reasonably be required, not to exceed $150.00; in case of extensive injuries further expenditures, not to exceed $300.00 in any case. (b) In case injured employee sustained a permanent disability and such fact is determined, if said disability may be materially reduced by medical or surgical treatment, an amount not to exceed $300.00, in addition to sums that may have been expended for medical and hospital treatment under clause "a." (c) Payment for services rendered under clause "a" may be made to employee, person who furnished services or who has advanced payment for same, as Commissioner deems proper. (d) No payment made out of fund for medical or hospital services if employee be entitled under contract connected with his employment or by reason of subscription list to medical and hospital service with further charge to him.

(b) Temporary total disability. Employee shall receive during continuance thereof 50 per cent of average weekly earnings, not to exceed maximum of $12.00 per week; not to be less than a minimum of $5.00 per week. This paragraph shall be limited as follows: Aggregate award for a single injury causing temporary disability shall be for a period not exceeding 52 weeks; provided, that in case an injured employee, by reason of having an ununited fracture, or having undergone a surgical operation to correct a vicious union following a fracture, or for the repair of an ununited fracture or having suffered an injury to the spine or pelvic bones which is of a temporary nature, or for an ankylose joint, is disabled for a longer period than 52 weeks, the period for which compensation shall be paid may be extended, but shall not exceed 78 weeks.

(c) Temporary partial disability. No provision. (d) Partial disability. Any injury resulting in temporary total

disability for which compensation is awarded under paragraph "b" of this subsection, and such injury is later determined a permanent partial disability under paragraph "g," the amount so paid shall be considered as pay

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