« ForrigeFortsett »
stay or pro- gEC. 30. At any time after the filing of an agreement or award and
rewimga. 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
merits. 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 satislied 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 undiminished 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-su m sEC. 33. Where any payment has been continued for not less than
Ik months. a "i* 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 lurther 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. .} " " "rd8 s Sec. 34. Where the payment of compensation to the workman is
n-Ms and duties. ingure(j) jjy a p0jiCy 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 references 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 rulea necessary and appropriate to carry out the provisions of this act. i.esai enforce- Sec. 3G. A workman's right to compensation under this act, may, in
mfnt" default of agreement or arbitration, he 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 bv 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 action 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 excused 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 wheninjured 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 8ch1eTM.l's "J18? and written approval of the attorney general certifies that any scheme substituted, 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- Cettific£Ae ments of this article, or is not fairly administered, or other valid and may rt'v«ked. 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, P'°yersshall 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, Acta of 1913). Every employee Bv 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, suits tor sEC. 48. jn any action to recover damages for a personal injury sus
damages. 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 anv 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 wBole or in part t>y 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 sus
lowed, 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 casesj 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.
Chapter 837.—Compensation of workmen for injuries—Cooperative
Agreements to Section. 1. It shall be lawful for any employer to make a contract accept law. jn wrjtmg wjth 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
Kffect on lia- <>f acts or omissions by reason of which he would without such contract
'become liable toward such employee or toward the legal representa
tive, widow, widower, or next of km of such employee.
who may write gEC. 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
Kstabllshment than fifteen hundred (1,500) employees may establish an insurance iund 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 inviolably appropriated as a trust fund for the purpose of such insurance and shall not be invested 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- Disoontinutained by him, or if ho discontinues his business without transferring anoesthe 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 De 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 fart 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 reasonable expenses of his su pervision, 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 Boope oi inaccident arising out of and in course of the employment resulting in 8Unmoedeath, 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 inpart 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, pavable under such insurance shall he 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
Notice of accidents.
Reductions from wages.
burial expenses not less than seventy-five dollars nor more than one hundred dollars.
And the contract or policy therein referred to may provide for the payment, instead of a lump sum, of a weekly sum which, in the case of persons wholly dependent, Bhall not be less than the weekly payment in case ot total disability hereinafter provided for, and which, in case of persons partly dependent, shall not be less tlian the weekly payment in case of total disability, less the amounts earned by the persons partly dependent, and which sum may be divided between the dependent in such a manner as such contract or policy may provide or as may otherwise be agreed upon; or such contract or policy may provide for a combination of lump sums, weekly payment, or for the substitute of one for the other. in- (II) In case of injury not resulting in death, when total disability results from the injury, a weekly payment during the period of such disability shall be paid to the insured, which shall not be less than fifty per cent of his average weekly wages during the previous twelve months, if ho has been so long employed by the contracting employer; if not, then a weekly benefit during such shorter period as he has been in the employment of said employer.
(Til) In case of injury not resulting in death, where partial disability results, such weekly payments snail be made during the period of such partial disability as is equal to the difference between the weekly benefit payment, during the period of total disability and the average amount which the injured person is able to earn after the accident.
Loss by actual separation at or above the wrist or ankles of both 1 lands or both feet, or of one hand and one foot, or the irrevocable loss of both eyes, shall be deemed to be equal to total disability.
The loss by actual separation at or above the wri^t or ankle of one hand or foot shall be equal to one-half of total disability, and the loss of one eye shall be equal to one-fifth of total disability. Total disability shall be deemed to mean inability to carry on any gainful occupation.
The contract or policy herein referred to may provide that no benefits shall be paid in case of any injury which does not incapacitate the employee for a period of at least one week from earning full wages at the work at which ho was employed at the time of the accident.
Sec. 6. Any contract in order to satisfy the requirements of this act shall prorido that the employer shall contribute not less than fifty per cent of the insurance premiums and the employees shall contribute the remainder of the premiums.
In case the employer provides any insurance fund out of contributions made by himself and his own employees as above provided, such employer shall pay the whole of the expenses of the management of such, fund, and all contributions shall be paid into such fund without any deduction by reason of such expense.
Sec. 7. The contract may provide that upon penalty of forfeiture of the benefits of the insurances, the employee shall give reasonable and timely notice to his employer, to be fixed by tho terms of this contract, of any accident which may entitle him to the benefit of such insurance; and that he shall submit himself to medical examination as required by the employer at the employer's expense.
Sec 8. The contract may provide that the premium payable by the employees shall be deducted from their wages.
An employer who shall willfully and feloniously appropriate the amounts so deducted from the wages to any use other than the payment of insurance premium as stipulated in the contract, shall be guilty of embezzlement and shall be punished accordingly.
Sec 9. The contract between the employer and employee may provide that the insurance premiums shall be paid into the hands of a treasurer to be elected or appointed by the employees or by the employer and the employees in such manner and under such voting arrangement as the contract may specify.
The payment of the premiums to the treasurer shall relieve the employer, and the penalty above prescribed for misappropriation of the funds required to be applied to insurance shall apply to such treasurer.