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SEC. 23. Compensation due under this act may be settled by agree Agreements. ment. Every such agreement, other than a release, shall be in the form hereinafter provided.
Sec. 24. If compensation be not so settled by agreement: (a) If any Settlement of committee representative of the employer and the workman exists, disputes. organized for the purpose of settling disputes under this act, the matter shall, unless either party objects by notice in writing delivered or sent by registered mail to the other party before the committee meets to consider the matter, be settled in accordance with its rules by such committee or by an arbitrator selected by it. (b) If either party so objects, or there is no such committee, or the committee or the arbitrator to whom it refers the matter fails to settle it within sixty days from the date of the claim, the matter may be settled by a single arbitrator agreed on by the parties, or appointed by any judge of a court where an action might be maintained. The consent to arbitration shall be in writing and signed by the parties and may limit the fees of the arbitrator and the time within which the award must be made. And unless such consent and the order of appointment expressly refers other questions, only the question of the amount of compensation shall be deemed to be an issue.
SEC, 25. The arbitrator shall not be bound by technical rules of pro- Award. cedure or evidence, but shall give the parties reasonable opportunity to be heard and act reasonably and without partiality. He shall make and file his award, with the consent to arbitration attached in the office of the clerk of the proper district court within the time limited in the consent, or if no time limit is fixed therein, within sixty days after his selection, and shall give notice of such filing to the parties by mail.
Sec. 26. The arbitrator's fee shall be fixed by the consent to arbitra- Fees. tion or be agreed to by the parties before the arbitration, and if not so fixed or agreed to, they shall not exceed $10.00 per day, for not to exceed ten days, and disbursements for expense. The arbitrator shall tax or apportion the costs of such fees in his discretion and shall add the amount taxed or apportioned against the employer to the first payment made under the award, and he shall note the amount of his fees on the award and shall have a lien therefor on the first payments due under the award.
SEC. 27. Every agreement for compensation and every award shall be Agreements, in writing, signed and acknowledged by the parties or by the arbitrator etc. to be in
fr. writing. or secretary of the committee hereinbefore referred to, and shall specify the amount due and unpaid by the employer to the workman up to the date of the agreement or award, and if any, the amount of the payments thereafter to be paid by the employer to the workman and the length of time such payments shall continue.
Sec. 28. It shall be the duty of the employer to file or cause to Filing. be filed every release of liability hereunder, every agreement for or award of compensation, or modifying an agreement for or award of compensation, under this act, if not filed by the committee or arbitrator, to which he is a party, or a sworn copy thereof, in the office of the district court in the county in which the accident occurred within sixty days after it is made, otherwise it shall be void as against the workman. The said clerk shall accept, receipt for, and file any such release, agreement or award, without fee, and record and index it in the book kept for that purpose. Nothing herein shall be construed to prevent the workman from filing such agreement or award.
Sec. 29. At any time within one year after an agreement or award Cancella has been so filed, a judge of a district court having jurisdiction may, upon the application of either party, cancel such agreement or award, upon such terms as may be just, if it be shown to his satisfaction that the workman has returned to work and is earning approximately the same or higher wages as or than he did before the accident, or that the agreement or award has been obtained by fraud or undue influence, or that the committee or arbitrator making the award acted without authority or was guilty of serious misconduct, or that the award is grossly inadequate or grossly excessive, or if the employee absents himself so that a reasonable examination of his condition can not be made, or has departed beyond the boundaries of the United States or Canada.
Stay of pro- Sec. 30. At any time after the filing of an agreement or award and ceedings,
before judgment has been granted thereon, the employer may stay proceedings thereon by filing in the office of the clerk of the district court wherein such agreements or award is filed: (a) A proper certificate of a qualified insurance company that the amount of the compensation to the workman is insured by it: (b) A proper bond undertaking to secure the payment of the compensation. Such certificate or bond
shall first be approved by a judge of the said district court. Lump-sum pay. Sec. 31. At any time after an agreement or award has been filed, the ments.
workman may apply to the said district court for judgment against the employer for a lump sum equal to eighty per cent of the amount of payments due and unpaid and prospectively due under the agreement or award; and, unless the agreement or award be stayed, modified or canceled, or the liability thereunder be redeemed or otherwise discharged, the court shall examine the workman under oath, and if satisfied that the application is made because of doubt as to the security of his compensation, shall compute the sum and direct judgment accordingly, as if in an action: Provided, That if the employer shall give a good and sufficient bond, approved by the court, no execution shall issue on such judgment so long as the employer continues to make payments in accordance with the original agreement or award undimin
ished by the discount. Review, etc.' Sec. 32. An agreement or award may be modified at any time by a
subsequent agreement; or, at any time after one year from the date of filing; it may be reviewed, upon the application of either party on the ground that the incapacity of the workman has subsequently increased or diminished. Such application shall be made to the said district court; and, unless the parties consent to arbitration, the court may appoint a medical practitioner to examine the workman and report to it; and upon his report and after hearing the evidence of the parties, the court may modify such agreement or award, as may be just, by ending, increasing or diminishing the compensation, subject to the limitations
hereinbefore provided. L 11 m P - sum Sec. 33. Where any payment has been continued for not less than payments after Six months.
alter six months the liability therefor may be redeemed by the employer by
the payment to the workman of a lump sum of an amount equal to eighty per cent of the payments which may become due according to the award, such amount to be determined by agreement, or, in default thereof, upon application, to a judge of a district court having jurisdiction. Upon paying such amount the employer shall be discharged from all further liability on account of the injury, and be entitled to a duly executed release, upon filing which or other due proof of payment,
the liability upon any agreement or award shall be discharged of record. Insurer's SEC. 34. Where the payment of compensation to the workman is ri'hts and duties,
insured, by a policy or policies, at the expense of the employer, the insurer shall be subrogated to the rights and duties under this act of the
employer, so far as appropriate. Courts.
SEC. 35. All reierences hereinbefore to a district court of the State of Kansas having jurisdiction of a civil action between the parties shall be construed as relating to the then existing Code of Civil Procedure. Such court shall make all rules necessary and appropriate to carry out
the provisions of this act. Legal enforce- Sec. 36. A workman's right to compensation under this act, may, in ment.
default of agreement or arbitration, be determined and enforced by action in any court of competent jurisdiction. In every such action the right to trial by jury shall be deemed waived and the case tried by the court without a jury, unless either party, with his notice of trial, or when the case is placed upon the calendar-demand a jury trial. The judgment in the action, if in favor of the plaintiff, shall be for a lump sum equal to the amount of the payments then due and prospectively due under this act, with interest on the payments overdue, or, in the discretion of the trial judge, for periodical payments as in an award, Where death results from injury, the action shall be brought by the dependent or dependents entitled to the compensation or by the legal representative of the deceased for the benefit of the dependents as herein defined; and in such action the judgment may provide for the proportion of the award to be distributed to or between the several dependents; otherwise such proportions shall be determined by the proper probate court. An action to set aside a release or other discharge of liability on the ground of fraud or mental incompetency may be joined with an artion for compensation under this act. No action or proceeding provided for in this act shall be brought or maintained outside of the State of Kansas, and notice thereof may be given by publication against nonresidents of the State in the manner now provided by article 7 of chapter 95, General Statutes of Kansas of 1909 so far as the same may be applicable, and by personal service of a true copy of the first publication within twenty-one days after the date of the said first publication unless exçused by the court upon proper showing that such service can not be made.
SEC. 37. The cause of action shall be deemed in every case, includ- Rights accrue, ing a case where death results from the injury to have accrued to the w injured workman at the time of the accident; and the time limited in which to commence an action for compensation therefor shall run as against him, his legal representatives and dependents from that date.
Sec. 38. Contingent fees of attorneys for services and proceedings Attorneys' fees. under this act shall in every case be subject to approval by the court. SEC. 39. If the superintendent of insurance by and with the advice Schemes may
be substituted. and written approval of the attorney general certifies that any scheme of compensation, benefit or insurance for the workman of an employer in any employment to which this act applies, whether or not such scheme includes other employers and their workmen, provides scales of compensation not less favorable to the workmen and their dependents than the corresponding scales contained in this act, and that, where the scheme provides for contributions by the workman, the scheme confers benefits at least equivalent to those contributions, in addition to the benefits to which the workmen would have been entitled under this act or their equivalents, the employer, may, while the certificate is in force, contract with any of his workmen that the provisions of the scheme shall be substituted for the provisions of this act; and thereupon the employer shall be liable only in accordance with that scheme; but, save as aforesaid, this act shall not apply notwithstanding any contract to the contrary made after this act becomes a law.
SEC. 40. No scheme shall be so certified which does not contain Provisions to suitable provisions for the equitable distribution of any moneys or be equitable. securities held for the purpose of the scheme, after due provision has been made to discharge the liabilities already accrued, if and when such certificate is revoked or the scheme otherwise terminated. SEC. 41. If at any time the scheme no longer fulfills the require- Certificate
may be revoked. ments of this article, or is not fairly administered, or other valid and may substantial reasons therefor exist, the superintendent of insurance by and with the attorney general shall revoke the certificate and the . scheme shall thereby be terminated.
SEC. 42. Where a certified scheme is in effect the employer shall Reports. answer all such inquiries and furnish all such accounts in regard thereto as may be required by the superintendent,
Sec. 43. The superintendent of insurance may make all rules and Rules. regulations necessary to carry out the purposes of the four preceding sections.
SEC. 44 (as amended by Chapter 216, Acts of 1913). All employers Election by emas defined by and entitled to come within the provisions of this act, Ployers shall be presumed to have done so unless such employer shall file with the secretary of state at Topeka, Kansas, a written statement that he elects not to accept thereunder, and thereafter any such employer desiring to change his election shall only do so by filing a written declaration thereof with the secretary of state. Notice of such election shall be forthwith posted by such employer in conspicuous places in and about his place of business.
Sec. 45 (as amended by Chapter 216, Acts of 1913). Every employee By employees. entitled to come within the provisions of this act, shall be presumed to have done so unless such employee, shall file with the secretary of state, before injury, a written declaration that he elects not to accept thereunder and thereafter any such employee desiring to change his election shall only do so by filing a written declaration thereof with the secretary of state. Any contract wherein an employer requires of an
employee as a condition of employment that he shall elect not to come
within the provisions of this act shall be void.
for SEC. 46. In any action to recover damages for a personal injury susdamages.
tained within this State by an employee (entitled to come within the provisions of this act) while engaged in the line of his duty as such or for death resulting from personal injury so sustained, in which recovery is sought upon the ground of want of due care of the employer or of any officer, agent or servant of the employer, where such employer is within the provisions hereof, it shall not be a defense to any employer
(as herein in this act defined) who shall not have elected, as hereinDefenses abro- before provided, to come within the provisions of this act; (a) That the gated, when.
employee either expressly or impliedly assumed the risk of the hazard complained of; (b) that the injury or death was caused in whole or in part by the want of due care of a fellow servant; (c) that such employee was guilty of contributory negligence but such contributory negligence of said employee shall be considered by the jury in assessing the
amount of recovery. Defenses al- SEC. 47. In an action to recover damages for a personal injury suslowed, when.
tained within this State by an employee (entitled to come within the provisions of this act) while engaged in the line of his duty as such or for death resulting from personal injury so sustained in which recovery is sought upon the ground of want of due care of the employer or of any officer, agent or servant of the employer, and where such employer has elected to come and is within the provisions of this act as hereinbefore provided, it shall be a defense for such employer in all cases where said employee has elected not to come within the provisions of this act; (a) That the employee either expressly or impliedly assumed the risk of the hazard complained of; (b) that the injury or death was caused in whole or in part by the want of due care of a fellow servant; (c) that said employee was guilty of contributory negligence: Provided, however, That none of these defenses shall be available where the injury was caused by the willful or gross negligence of such employer, or of any managing officer, or managing agent of said employer or where under the law existing at the time of the death or
injury such defenses are not available. Construction SEC. 48. Nothing in this act shall be construed to amend or repeal of statute.
section 6999 of the General Statutes of Kansas of 909, or House bill No. 240 of the Session of 1911, the same being "An act relating to the liability of common carriers by railroads to their employees in certain cases, and repealing all acts and parts of acts so far as the same are in
conflict herewith." In effect, when. Sec. 49. This act shall take effect and be in force from and after its
publication in the statute book, and the first day of January, 1912.
Approved March 14, 1911.
ACTS OF 1912.
insurance. Agreements to SECTION. 1. It shall be lawful for any employer to make a contract accept law.
in writing with any employee whereby the parties may agree that (the employee shall become insured against accident occurring in the course of employment which results in personal injury or death, in accordance with the provisions of this act, and that in consideration of
such insurance the employer shall be relieved from the consequences Effect on lia- of acts or omissions by reason of which he would without such contract bility.
become liable toward such employee or toward the legal representa
tive, widow, widower, or next of kin of such employee. Who may write Sec. 2. Such insurance shall be effected in some casualty company insurance
organized under the laws of the State of Maryland or admitted to do
business in this State, provided that any employer employing not less Establishment than fifteen hundred (1,500) emplovees may establish an insurance funds.
fund from sums contributed by himself and his employees upon condition that he undertake and agree to make up any deficiency in
insurance benefits that may arise out of the inadequacy of such fund. Such fund shall be in violably appropriated as a trust fund for the purpose of such insurance and shall not be in vested otherwise. Provision shall be made for the election by the insured employees of an advisory committee, which shall be kept informed regarding the state of the insurance fund, and shall have the right to examine the books kept in connection therewith. Such books shall also be subject to the inspection of the insurance commissioner of this State in the same manner as books of insurance companies doing business in this State.
Upon the request of the employer or upon the request of the advisory committee, the insurance commissioner shall act as depository of the securities in which such funds may be invested.
If any employer desires to discontinue an insurance fund main- Discontinutained by him, or if he discontinues his business without transferring ances. the same to a successor or assign, taking over and agreeing to maintain such fund, he shall notify the insurance commissioner of his purpose, who shall thereupon supervise tho disposition of the insurance fund. Such fund shall be distributed among those equitably entitled to it according to their contribution (not taking into consideration expenses of the management), and where those entitled to any part of the fund can not be discovered or ascertained the money remaining unclaimed shall be paid into the insurance department, to be held and disposed of as may be provided by law.
The insurance commissioner shall be entitled to be paid out of such fund the reasonableexpenses of his supervision, including a compensation not to exceed ten dollars per day for the time of any person or persons (other than a salaried employee of his office) employed by him for the purpose of such supervision necessarily spent in connection therewith.
Sec. 3. Such insurance shall cover the risk of personal injury by Scope of inaccident arising out of and in course of the employment resulting in death, provided death occur within twelve months from the time of such injury, or resulting in disability, whether the same be total or partial, permanent or temporary. But no one shall be entitled to any benefit hereunder where the injury is the result of the employee's intoxication, or willful and deliberate act or deliberate intention to produce such injury:
Sec. 4. The insurance in case of death shall be for the benefit of such Beneficiaries. persons being the widow, widower, father, mother, son or daughter, as are dependent wholly or in part for their support upon the earnings of such employee all of which persons are hereinafter designated as dependents of such employee), or of such of them as may be named in the contract or policy to which it refers and the person for whose benefit such insurance is made should be bound by the agreement authorized by the first section of this act.
Sec. 5. In order to satisfy the requirements of this act, the benefits Benefits. payable under such insurance shall be at least as follows:
(I) In case of death:
(a) If the employee insures for the benefit of any dependent wholly Death. dependent upon his wages at the time of his death, a sum equal to his wages in the employment of said employer during a period of three years next preceding the accident, but not less in any case than the sum of one thousand dollars: Provided, That the amount of any weekly payment made under such insurance or any lump sum paid in redemption thereof, may be deducted from such sum; and if the period of the employee's employment by said employer has been less than said three years, then the amount of his earnings during said three years shall be deemed to be one hundred and fifty-six times his average weekly earnings during the period of his actual employment by said employer.
(b) If the employee insures for the benefit only of persons partly dependent upon his wages at the time of his death, then a sum equal to the payment provided for the benefit of persons wholly dependent, less six times the average annual earnings; or if employed for less than a year, then less three hundred times the average weekly earnings of said dependent person or persons partly dependent on his wages.
(c) If the employee leaves no dependents, then the reasonable expenses of his medical attendance shall be paid, and in addition