cating liquors is not compensable.1 The Supreme Courts of Wisconsin and Washington2 have held the employer liable for death or disability resulting from the professional incompetence of the physician supplied by him. Death resulting from an operation necessitated by the original injury is compensable.3 REFUSAL OF MEDICAL INSTRUCTION OR RECOMMENDATION 5 As a rule, prolonged disability due to disobedience of the physician's instruction is not compensable. The question of whether or not a workman is unreasonable in refusing to submit to an operation advised by a physician to cure disability or save life must rest upon the circumstances of the case. Thus it has been held by a high English authority that it is not unreasonable to refuse to submit to an operation involving risk of life. On the other hand, it has been held unreasonable to refuse to submit to a minor operation to restore the use of a finger or a hand in a skilled trade." HERNIA Hernia is a special subject of decision and administrative rule. As a result of many difficult claims and considerable fraud the authoritative rule seems to be that there will be a strong presumption against a hernia directly arising from an accidental injury which will not be overcome by merely showing that hernia is coincidental with some exceptional exertion. Decisions respecting hernia are by no means harmonious. The Oregon Commission. 1 Kearns v. New London, etc., 1 Conn. Comp. Dec., 225. 2 Ross v. Erickson Construction Co., 89 Wash., 634. Paulak v. Hayes, 162 Wis., 503. In same connection, see modified view of Minn. Court, Vita v. Dolan, 155 N. W., 1077. 3 Canturel v. Travellers' Ins. Co., 2 Mass. Workmen's Compensation Cases, 246. * Weaver v. Eyster & Sone, 1 Cal. I. A. C. Dec., 563. 5 Jendrus v. Detroit Steel Products Co., 178 Mich., 265. Lesh v. Illinois Steel Co. (Wis.), 157 N. W., 539. 6 Tutton v. Owners of S.S. “Majestic," 2 Butterworth's Compensation Cases, 346 C. A. (1910). 19. 1 Slater v. New Britain Trap Rock Co., 1 Conn. Compensation Decisions, 501. Jost v. Gen. Electric Co., 1 Cal. I. A. C. Dec., 527. 8 Kozlowski v. Illinois Steel Co. Rep., Wis. Industrial Commission, 1915, page In comparison with the above, see Bell v. Hayes-Ionia Co. (Mich.), 158 N. W., 179. Also Poccardi v. Public Service Commission (Minn.), 84 S. E., 242. requires hernia claimants to provide affidavits establishing the non-existence of hernia before the accident.1 The Washington Commission requires proof that hernia is of recent origin, is accompanied by pain, was immediately preceded by an accidental strain and did not previously exist. The Nevada Commission has likewise adopted strict definitive rules. DISFIGUREMENT Injuries causing mutilation or disfigurement accompanied by disability to pursue the previous or other occupation have received considerable legislative and judicial attention. Eleven states have made statutory provisions. confined as a rule, however, to compensation for mutilation of the head or features. The acts of Vermont, Kentucky, and Idaho require that for the purpose of compensation mutilation must cause lessened capacity to secure employment. The Iowa Commission in the absence of a statutory provision held it would allow compensation only if it could be shown that the working capacity was affected. The New York courts share this view; the Industrial Commission, however, exercises certain discretionary powers; 3 the Supreme Court of Illinois modifies it.4 OCCUPATIONAL DISEASE AS AN ACCIDENT In Great Britain certain forms of occupational disease resulting from infection, like anthrax, were held to be a "personal injury by accident." By later legislation all occupational disease is defined in a separate statute to which additions are made by order of the Secretary of State. In our own legislation there is now a marked tendency to require separate provision for such disease and to deny it compensation as an "accident." The Supreme Courts of Connecticut,' Michigan, and Ohio have held their respective acts do not include occupational disease, 1 Oregon Industrial Accident Board, 1st Annual Rept., page 18. 8 2 Colo., Ill., Md., Mo., Ky., La., Nev., N. Y., S. Dak., Vt., Wis. 3 Shinnick v. Clover Farms Co., 154 N. Y. Supp., 423. 4 Waters v. Kroehler Mfg. Co., 187 Ill. App., 548. 5 Brinton's Ltd. v. Turvey (1905), A. C., 230. 6 British Workmen's Compensation Act, 1906, Section 8, Subsections (2) (6), and Secretary of State's orders made thereunder. 7 7 Miller v. American Steel & Wire Co., 90 Conn., 349. 8 Adams v. Acme White Lead & Color Works, 182 Mich., 157. 9 Industrial Commission v. Brown, 92 Ohio State, 309. 66 although the term "injury" and not "accident” qualifies the statute of each of these states. The Supreme Court of Massachusetts, on the contrary, has held that the term 'personal injury" includes occupational disease.1 The construction and practice of administrative commissions indicates an increasing tendency to allow compensation for many forms of disease contracted during employment without requiring a clear proximate relation thereto to be established. The courts, however, appear to be drawing a distinction between industrial diseases and disease resulting from accident, allowing compensation in the latter class of cases and denying it in the former unless definitely included by the terms of the statute. 1 Johnson v. London Guaranty & Accident Co. Ltd., 217 Mass., 388. VII "MISCONDUCT" BY EMPLOYER AND EMPLOYEE VARIOUS DEFINITIONS OF MISCONDUCT The one generally recognized bar to recovery of compensation for occupational injury is "serious and wilful misconduct." This is variously defined in different acts or qualified by such further phrases as "self-inflicted injury," wilful intoxication," or "the violation of the safety rule made for the employee's protection." The major phrase is taken from the English act, where it does not bar recovery if the injury received results in "serious and permanent disability or death." MISCONDUCT OF EMPLOYEE AS A DEFENSE It is an affirmative defense which the employer asserting must establish.2 As a general rule, if there be any serious element of doubt that the serious and wilful misconduct of the employee occasioned his injury, compensation will be allowed. Since the negligence of the employee is in itself no obstacle to recovery under the compensation theory, the phrase "serious and wilful misconduct" means much more than even gross negligence."3 66 PRACTICAL CONSTRUCTION OF MISCONDUCT It means deliberate performance of an act with reckless disregard of the consequences.4 The word "serious" applies to the misconduct of the employee and not to the consequence of his injury. INTOXICATION AS MISCONDUCT Except where the statute specifically provides, intoxication amounting to drunkenness does not in itself constitute such "wilful misconduct" as will bar recovery, and 1 British Workman's Compensation Act (1906), Sec. 1 (2), paragraph (c). 2 Ruprecht v. Red River Lumber Co., 2 Cal. I. A. C. Dec., 864. Sirica v. Scovill Mfg. Co., 1 Conn. Compensation Decisions, 171. 3 In re Nickerson, 218 Mass., 158. In re Burns, 218 Mass., 8. Neradjic v. Northwestern Iron Co., 154 Wis., 97. 4 Hoffemayer v. United Film Co., 1 Cal. I. A. C. Dec., 620. the defendant must establish the existence of the condition by affirmative evidence.1 Distinction is made between the wilful taking of liquor and its effects, which, it is considered, may be aggravated by pre-existing abnormal conditions affecting an individual in a manner not intended or anticipated. Generally speaking, even where drunkenness is shown, the defendant must make clear, not merely that the applicant was intoxicated at the time of injury, but that such condition was either the exclusive or the strongly contributing cause of injury.3 2 VIOLATION OF SAFETY RULES AS MISCONDUCT The disobedience by the employee of a reasonable rule designed and qualified to secure his safety becomes "serious and wilful misconduct" only when such rule has been clearly brought to the attention of the injured employee and the employer has not tacitly tolerated its violation. The disobedience itself must be wilful. VARIOUS STATUTORY PROVISIONS Our statutes vary widely as to what misconduct shall bar recovery of compensation. Arizona, Illinois, Montana, and Utah do not penalize even the gross fault of the employee. The great majority of the states, however, bar recovery for any injury either "wilfully" or "intentionally" inflicted. In twenty-nine states recovery is barred if the injury is due to intoxication. In New Hampshire, Louisiana, Oklahoma, Kansas, Indiana, Tennessee, Vermont, and West Virginia the removal of safety appliances or the violation of a safety regulation may bar recovery. In about a dozen states "wilful misconduct" bars recovery. This lack of a uniform standard or definition for penal misconduct is reflected in the decisions of both courts and industrial commissions, which exhibit reluctance to restrict relief, especially to dependents. But it is highly essential that in the interest of the worker as well as in justice to the employer a strong effort should be made to maintain an intimate relation between prevention and relief. 1 Hewitt v. Red River Lumber Co., 2 Cal. I. A. C. Dec., 286. |