MISCONDUCT OF EMPLOYER In nine states the employer may be sued if the injury of the employee is due to gross negligence or wilful misconduct of the employer. In Ohio and Oregon an employer may be heavily penalized through an action brought by the employee if he violates safety provisions, in Kentucky if he illegally employs minors. In Washington and West Virginia, in addition to his compensation, the employee may sue for excess damages if his injury is due to his employer's deliberate intention. It would therefore seem that the employee's misconduct should under like circumstances be more clearly defined and equally penalized. 1 Cal., Ky., Md., Ohio, Ore., Tex., Utah, Wash., W. Va. THE EXCLUSIVENESS OF COMPENSATION COMPENSATION AS COMPLETE SUBSTITUTE FOR Compensation acts are now generally held to be substitutional for, and not supplementary to, the system of employers' liability. It therefore follows that as between employer and employee who have accepted this mode of regulating their relation with respect to provisions for work injuries, the remedy provided excludes pursuit of any other.1 ELECTION AFTER INJURY LAW OF NEW HAMPSHIRE AND ARIZONA In all elective states, save New Hampshire and Arizona, the employee must choose between compensation and common-law remedies before injury, and is bound in any subsequent action by this choice. The right of the employee to choose his remedy after the injury evidently does not induce employers to accept compensation readily, for in New Hampshire but comparatively few employers have so elected. EFFECT OF ELECTION BY EMPLOYER In twenty-five states and Porto Rico the acceptance of compensation by the employer compels the employee who rejects it to meet, in an action at law, all the common-law defenses. Except for the states enumerated, suits at law may be brought against the employer only under circumstances which give them the nature of penal remedies for gross or wilful acts of negligence.3 1 Kennerson v. Thames Towboat Co., 89 Conn., 367. Smale v. Wrought Washer Mfg. Co., 160 Wis., 331. King v. Viscoloid Co., 219 Mass., 420. McRoberts v. National Zinc Co., 93 Kan., 364. State v. Mountain Timber Co., 75 Wash., 581. 2 Colo., Conn., Del., Ill., Ind., Iowa, Kan., Ky., La., Me., Mass., Mich., Minn., Mo., Mont., Neb., Nev., N. H., N. Dak., Ore., R. I., Tenn., Vt., Va., Wis. 3 Thus an employer may be sued if there has been a violation of the safety laws in Oregon and Ohio; if he illegally employs minors in Kentucky, and in quite a number if his insurance is defaulted or if his risk is not covered, as required. SUITS AGAINST THIRD PARTIES. THE WASHINGTON LAW Generally speaking, no act deprives an employee of the right to bring an action at law against third parties or strangers causing his injury while at work; but, by a decision of the Supreme Court of the United States sustaining a decision of the court of last resort of Washington, a brewery employee, injured in the brewery yard through the negligent movement of its cars by a railroad company, was held to be excluded from bringing a suit against the carrier.1 1 Northern Pacific R.R. Co. v. Meese, 36 Sup. Ct. Rep. 223. THE ADMINISTRATION OF COMPENSATION ACTS ADMINISTRATION BY COURTS OR COMMISSIONS Our compensation acts are administered either (1) through permanent boards or commissions, with an ultimate right of appeal to the courts on questions of law, or (2) through inferior state or county courts acting as arbitrators. This plan may be varied, through the appointment by the court or by the parties at interest, of individual or committee arbitrators. No fewer than twenty-nine states,1 Hawaii, and Porto Rico administer their acts through commissions.2 SETTLEMENT OF CLAIMS BETWEEN THE PARTIES In twenty-seven states and territories employer and employee are encouraged to settle claims between themselves, subject to the approval of some public board or officer. All the available evidence indicates that this method, more than any other, is speeding the adjustment of claims and lessening the expense involved. Where state insurance monopoly exists this course may not be pursued, since the State itself is interested in the pecuniary terms of the settlement. COMMISSION ADMINISTRATION Where the parties are unable to agree between themselves, the states administering through commissions provide for hearings by single commissioners, referees, or subordinate committees, with the right of appeal to the commission. Connecticut vests control in five commissioners, each administering the act within his own district, which is identical with the Congressional subdivisions of the state. States unprovided with boards or commissions adjudicate disputed cases through the inferior courts, or through officers authorized to adjust them. 1 Cal., Colo., Conn., Del., Idaho, Ill., Ind., Iowa, Ky., Me., Md., Mass., Mich., Mont., Nev., N. Y., N. Dak., Ohio, Okla., Ore., Pa., S. Dak., Tex., Utah, Va., Vt., Wash., W. Va., Wis. 2 A single commissioner in Ia., Neb., S. Dak., Vt., and W. Va. VARIOUS DUTIES OF COMMISSIONS To the various administrative bodies are likewise committed the settlement of many delicate questions involving adjustment of medical and hospital fees, and the determination of the adequacy of surgical, medical, and nursing service. To this end they often need, but are not always provided by law with, medical advisers. INSTALMENT PAYMENTS AND COMMUTATION With the exception of Wyoming, every state requires compensation payment to be made in periodical instal It is obvious, however, that circumstances may arise which make it desirable that lump sum payments be permitted. The practise ought to be strictly safeguarded, or the very purpose of compensation may be defeated. Most of the states, therefore, permit applications for commutation payments to be made on the motion of either party or at the suggestion of a court or a commission. In Wisconsin, Rhode Island, Maine, Massachusetts, Michigan, Colorado, Illinois, Kansas, Virginia, Kentucky, and Missouri lump sum payments cannot be made until six months after compensation is awarded. In Indiana and Massachusetts, however, it may be granted at any time on behalf of minors. REVISION OF AWARDS The various administrative bodies are likewise authorized to revise awards in cases where the condition of disability or dependency has so changed as to necessitate re-examination and award in conformity with new conditions. These provisions provide protection against fraud and secure additional aid where circumstances warrant it. VALIDITY OF COMMISSION ADMINISTRATION These various administrative functions have been examined in a variety of proceedings and uniformly sustained by judicial opinion as a valid exercise of the legislative police power.1 1 Cunningham v. N. W. Improvement Co. (Mont.), 119 Pac., 554. Borgnis v. Falk, 147 Wis., 327. Mackin v. Detroit-Timken Axle Co., 153 N. W., 49. State v. Creamer, 85 O. St., 349. Pigeon v. Employers' Liability Assurance Corp. (Mass.), 102 N. E., 932. Hawkins v. Bleakly, 220 Fed., 378. Affirmed, 37 Sup. Ct. Rep., 256. |