« ForrigeFortsett »
(c) The findings and conclusions of the commission on questions of fact shall be conclusive and final and shall not be subject to review; such questions of fact shall include ultimate facts and the findings and conclusions of the commission. The commission and each party to the action or proceeding before the commission shall have the right to appear in the review proceeding. Upon the hearing the court shall enter judgment either affirming, modifying or setting aside the order, decision or award.
(d) The provisions of the Code of Civil Procedure of this State relating to writs of review shall, so far as applicable and not in conflict with this act, apply to proceedings in the courts under the provisions of this section. No court of this State (except the supreme court and the district courts of appeal to the extent herein specified) shall have jurisdiction to review, reverse, correct or annul any order, decision or award of the commission or to suspend or delay the operation or execution thereof, or to restrain, enjoin or interfere with the commission in the performance of its duties: Provided, That a writ of mandamus shall lie from the supreme court or the district courts of appeal in all proper cases.
Sec. 85. (a) The filing of an application for a rehearing shall have the effect of suspending the order, decision, award, rule or regulation affected, in so far as the same applies to the parties to such application, unless otherwise ordered by the commission, for a period of ten days, and the commission may, in its discretion and upon such terms and conditions as it may by order direct, stay, suspend or postpone the same during the pendency of such rehearing.
(6) The filing of an application for, or the pendency of, a writ of review, shall not of itself stay or suspend the operation of the order, decision, award, rule or regulation of the commission subject to review, but the court before which such application is filed may, in its discretion, stay or suspend in whole or in part the operation of the order, decision, award, rule or regulation of the commission subject to review upon such terms and conditions as it may by order direct.
SEC. 86. (a) Whenever this act, or any part or section thereof, is interpreted by a court, it shall be liberally construed by such court.
(b) If any section, subsection, subdivision, sentence, clause or phrase of this act is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this act. The legislature hereby declares that it would have passed this act, and each section, subsection, subdivision, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses or phrases is declared unconstitutional.
(c) This act shall not be construed to apply to employers or employments which, according to law, are so engaged in interstate commerce as not to be subject to the legislative power of the State or to employees injured while they are so engaged, except in so far as this act may be permitted to apply under the provisions of the Constitution of the United States or the acts of Congress.
Sec. 87. (a) Any employer, having in his employment any employee not included within the term "employee" as defined by section fourteen of this act or not entitled to compensation under this act, and any such employee, may, by their joint election, elect to come under the compensation provisions of this act in the manner hereinafter provided.
(b) Such election on the part of the employer shall be made by filing with the commission a written statement to the effect that he accepts the compensation provisions of this act, which, when filed, shalloperate, within the meaning of section twelve of this act, to subject him to the compensation provisions of this act, and of all acts amendatory thereof, for the term of one year from the date of filing, and thereafter without further act on his part, for successive terms of one year each, unless such employer shall, at least sixty days prior to the expiration of such first or any succeeding year, file in the office of the commission a notice in writing that he withdraws his election. Such acceptance shall not be held to include employees whose employment is both casual and not in the usual course of the trade, business, profession or occupation of the employer, unless expressly mentioned therein.
(c) Any employee in the service of any such employer, shall be deemed to have accepted, and shall, within the meaning of section
twelve of this act, be subject to the compensation provisions of this act, and of any act amendatory thereof, if, at the time of the accident for which liability is claimed:
(1) The employer charged with such liability is subject to the compensation provisions of this act, whether the employee has actual notice thereof or not; and
(2) Such employee shall not, at the time of entering into his contract of hire, have given to his employer notice in writing that he elects not to be subject to the compensation provisions of this act; or, in the event that such contract of hire was made in advance of the election by the employer, such employee shall have given to his employer notice in writing that he elects to be subject to such provisions, or without giving either of such notices, shall have remained in the service of such employer for thirty days after the employer has filed his election.
SEC. 88. The commission shall, not later than the first day of Decem Reports. ber of each calendar year, subsequent to the year 1913, make a report to the governor of the State covering its entire operations and proceedings for the previous fiscal year, with such suggestions or recomiendations as it may deem of value for public information. Such report shall be printed and a copy thereof furnished to all applicants within this State.
Sec. 89. The sum of one hundred eighty-seven thousand four hun. Appropriation. dred seventy dollars is hereby appropriated out of any money in the State treasury, not otherwise appropriated, to be used by the Industrial Accident Commission in carrying out the purposes of this act, and the controller is hereby directed to draw his warrant on the general fund from time to time in favor of said Industrial Accident Commission for the amounts expended under its direction, and the treasurer is hereby authorized and directed to pay the same.
Sec. 90. All acts or parts of acts inconsistent with this act are hereby Ropealer. repealed.
Sec. 91. The compensation provisions of this act shall not apply to Prior injuries. any injury sustained prior to the taking effect thereof.
Sec. 92. This act shall take effect and be in force on and after the Act in effect. first day of January, A. D. 1914.
Approved May 26, 1913.
ACTS OF 1913.
PART 1. EMPLOYERS' LIABILITY,
SECTION 1. In an action to recover damages for personal injury sus-. Defenses abol
ished. tained by an employee arising out of and in the course of his employ- ished ment, or for death resulting from injury so sustained, it shall not be a defense: (a) That the injured employee was negligent; (b) that the injury was caused by the negligence of a fellow employee; (c) that the injured employee had assumed the risk of the injury. SEC. 2. The provisions of section l of Part A of this act shall not apply. When abromi
* tion does not to actions to recover damages for personal injuries sustained by em
"apply. ployees of any employer having regularly less than five employees, by casual employees, or by out workers; nor shall the same provisions apply to actions against any employer who shall have accepted Part B of this act in the manner hereinafter prescribed.
PART B. WORKMEN'S COMPENSATION.
Section 1. When any persons in the mutual relation of employer and Election of employee shall have accepted Part B of this act, the emplover shall not compensation. be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from injury so sustained; but the employer shall pay compensation on account of such injury in accordance with the scale hereinafter provided, except that no compensation
shall be paid when the injury shall have been caused by the willful and serious misconduct of the injured employee or by his intoxication. The acceptance of Part B of this act by employers and employees shall be understood to include the mutual renunciation and waiver of all rights and claims arising out of injuries sustained in the course of employment as aforesaid, other than rights and claims given by Part B of this act, including the right of jury trial on all questions affecting compensation and all right of appeal from the compensation commis
sioners except as hereinafter established. Election pro- SEC. 2. Every contract of employment not made before the date of sumel
this act shall be conclusively presumed to include a mutual agreement between employer and employee to accept Part B of this act and be bound thereby, unless either employer or employee shall by written stipulation in the contract, or by such other notice as is prescribed in section three of Part B, indicate his refusal to accept the provisions of said Part B. Every contract of employment made before the date of this act and continued in force after said date shall be conclusively presumed to include a mutual agreement between employer and employee to accept Part B of this act and be bound thereby, unless by the date at which this act goes into effect either employer or employee has indicated his reiusal to accept said Part B in the manner prescribed in sec
tion three of said Part B. Withdrawal of Sec. 3. Acceptance of Part B of this act may be withdrawn by written acceptance.
or printed notice from either employer or employee to the other party and to the compensation commissioner of the district in which the employee is employed. Notice of withdrawal may be served by personal presentation or by registered letter addressed to the person on whom it is to be served at his last known residence or place of business;
and such notice shall become effective thirty days after service. Either Renewals.
employer or employee who has withdrawn acceptance may renew the same by the same notice and procedure as is prescribed for withdrawals. Notices in behalf of a minor shall be given by his parent or guardian, or,
if there be no parent or guardian, then by such minor. Failure to elect
Sec. 4. Every employer not accepting Part B of this actshall be liable to action for damages on account of personal injury to his employees in accordance with the provisions of Part A of this act, and every employee not accepting Part B of this act shall lose all rights and benefits of Part A of this act with reference to any employer who continues to accept
said Part B. Contractors and Sec. 5. When any principal employer procures any work to be done, sul contractors.
wholly or in part for him, by a contractor, orthrough him by a subcontractor, and the work so procured to be done is a part or process in the trade or business of such principal employer, and is performed in, on, or about premises under his control, then such principal emplover shall be liable to pay all compensation under this act to the same extent as if the work were done without the intervention of such contractor or sub
contractor. Liability of Sec. 6. When any injury for which compensation is payable under third persons.
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 under this act or proceed at law against such other person to recover damages; and, if compensation is claimed and paid under this act, any employer having paid the compensation shall be subrogated to the rights of the injured employee to recover against that person: Provided, If the employer shall recover from such other person damages in excess of the compensation already paid, or awarded to be paid under this act, then any such excess shall be paid to the injured employee, less
the employer's expenses and costs of action. Medical and Sec. 7. The employershall provide a competent physician or surgeon surgical care.
to attend any injured employee during the thirty days immediately following the injury, as such injury may require, and in addition shall furnish such medical and surgical aid or hospital service, during such thirty days, as such physician or surgeon shall deem reasonable or necessary. In the event of the failure of the employer promptly to provide such physician or surgeon or such medical or surgical or hospital service, during any portion of such thirty days, the injured employee may provide such physician or surgeon or medical or surgical or hospital service at the expense of the employer. Or, at his option, the injured employee may refuse the medical, surgical, and hospital service provided by his employer and provide the same at his own expense. If it shall appear to the commissioner that an injured employee has refused to accept and failed to provide such reasonable medical, surgical, or hospital care, all rights of compensation under this act shall be suspended during such refusal and failure. The pecuniary liability of the employer for the medical, surgical, and hospital service herein required shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living when such treatment is paid for by the injured persons.
SEC. 8. No compensation shall be payable under this act on account Waiting timo. of any injury which does not incapacitate the injured employee for a period of more than two weeks from earning full wages at his customary employment; but if incapacity extends beyond a period of two weeks compensation shall begin on the fifteenth day after the injury. Sec. 9. Compensation shall be paid on account of death resulting from Compensation
'or death. injuries within two years from date of injury as follows: (a) For burial expenses one hundred dollars; (b) to those totally dependent upon the deceased employee at the time of his injury a weekly compensation equal to half of the average weekly earnings of the deceased at the time of his injury; (c) in case there is no one totally dependent upon the deceased employee then to those partially dependent upon the deceased employee at the time of his injury a weekly compensation not exceeding that payable to total dependents and of such proportionate sum as may be determined according to the measure of dependence; (d) in case there are no dependents of the deceased employee the sum of seven hundred and fifty dollars to be paid to the state treasurer and by him set apart as a fund to be used for the payment of lawful expenses of the com- • missioners; but the compensation payable on account of death resulting from injuries shall in no case be more than ten dollars or less than five dollars weekly, and such compensation shall not continue longer than three hundred and twelve weeks after death. The compensation on account of death payable under this act to a widow or widower of a deceased employee shall not cease with the death of such widow or widower, but upon her or his death within the period during which such compensation is payable it shall continue to be paid for the remainder of such period to her or his dependents as defined in section forty-three.
SEC. 10. The following persons shall be conclusively presumed to be who are detotally dependent for support upon a deceased employee: (a) A wife pender upon a husband with whom she lives at the time of his injury or from whom she receives support regularly; (b) a husband upon a wife with whom he lives at the time of her injury or from whom he receives support regularly; (c) a child or children under the age of eighteen years, or over said age, but physically or mentally incapacitated from earning, upon the parent with whom he is or they are living or from whom he is or they are receiving support regularly at the time of the injury of such parent, there being no surviving dependent parent. In case there is more than one child thus dependent the death benefit shall be divided equally among them. In all other cases questions of dependency, total or partial, shall be determined in accordance with the fact, as the fact may be at the time of the injury. In such other cases, if there is more than one person totally dependent, the death benefit shall be divided equally among them, and persons partially dependent, if any, shall receive no part thereof. If there is no person totally dependent and more than one person partially dependent, the death benefit shall be divided among them according to the relative degrees of their dependence. For the purposes of this act the dependence of a widow or widower of a deceased employee shall be construed to terminate with remarriage and the dependence of a child, except a child physically or mentally incapacitated from earning, with the attainment of eighteen years. Compensation under this section shall be paid to alien dependents in half the amounts indicated in this section unless such alien dependents are residents of the United States, or its dependencies, or Canada.
Total disability. Sec. 11. In case the injury results in total incapacity to perform work
of any character, there shall be paid to the injured employee a weekly compensation equal to half of his average weekly earnings at the time of the injury; but the compensation shall in no case be more than ten dollars or less than five dollars weekly; and such compensation shall not continue longer than the period of total incapacity, or in any event longer than five hundred and twenty weeks. The following injuries of any person shall be considered as causing total incapacity and compensation shall be paid accordingly: (a) Total and permanent loss of sight in both eyes; (b) the loss of both feet at or above the ankle; (c) the loss of both hands at or above the wrist; (d) the loss of one foot at or above the ankle and one hand at or above the wrist; (e) any injury resulting in permanent and complete paralysis of the legs or arms or of one leg and one arm; (f) any injury resulting in incurable imbe
cility or insanity. Partial
Sec. 12. In case the injury results in partial incapacity, there shall bility.
be paid to the injured employee a weekly compensation equal to half the difference between his average weekly earnings before the injury and what he is able to earn thereafter. This compensation shall in no case be more than ten dollars weekly and shall continue during the period of partial in capacity, but not longer than three hundred and twelve weeks. If the employer procures for an injured employee employment suitable to his capacity the wages offered in such employment shall be taken as the earning capacity of the injured employee. In case of the following injuries the compensation, in lieu of all other payments, shall be half of the previous average weekly earnings of the injured employee for the terms respectively indicated: (a) for the loss of one arm at or above the elbow, or the complete and permanent loss of the use of one arm, two hundred and eight weeks; (b) for the loss of one hand at or above the wrist, or the complete and permanent loss of the use of one hand, one hundred and fifty-six weeks; (c) for the loss of one leg at or above the knee, or the complete and permanent loss of the use of one leg, one hundred and eighty-two weeks; (d) for the loss of one foot at or above the ankle, or the complete and permanent loss of the use of one foot, one hundred and thirty weeks; (e) for the complete and permanent loss of hearing in both ears, one hundred and fifty-six weeks; (f) for the complete and permanent loss of hearing in one ear, fifty-two weeks; (g) for the complete and permanent loss of sight of one eye, one hundred and four weeks; (h) for the loss of a thumb, thirty-eight weeks; (i) for the loss of a first finger or a great toe, thirty-eight weeks; (j) for the loss of a second finger, thirty weeks; a third finger, twenty-five weeks; a fourth finger, twenty weeks; (k) for the loss of any toe except the great toe, thirteen weeks. The loss of one phalange of a thumb or two phalanges of a finger shall be considered half the loss of a thumb or finger respectively, and shall be compen
sated accordingly. Computation of Sec. 13. For the purpose of this act, the average weekly wage shall earnings.
be ascertained by dividing the total wages received by the injured workman from the employer in whose service he is injured during the twenty-six calendar weeks immediately preceding that during which he was injured, by the number of said calendar weeks during which, or any portion of which, said workman was actually employed by said employer, provided in making such computation absence for seven consecutive calendar days, although not in the same calendar week, shall be considered as absence for a calendar week. Where the employment commenced other than at the beginning of a calendar week, such calendar week and the wages earned during such week, shall be excluded in making the above computation. Where the employment previous to injury as provided above is computed to be less than a net period of two calendar weeks, then his weekly wage shall be considered to be equivalent to the average weekly wage prevailing in the
same or similar employment in the same locality at the time of injury. Advance pay- SEC. 14. In fixing the amount of any compensation under this act
due allowance shall be made for any sum which the employer may have paid to any injured employee or to his dependents on account of the injury, except such sums as the employer may have expended or directed to be expended for medical, surgical, or hospital service.