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thousand dollars of the yearly wage during so much of the five-year period as the workman remains alive.
2. Or if there be such loss or such disfigurement as not to come within the last subsection, and to amount to a loss of one of any of such organs, or to the loss of one and other injuries, then fifteen per cent of the first two thousand dollars of the annual wage during so much of the five-year period as the workman remains alive.
3. If the body be otherwise maimed or disfigured not sufficiently to come within either of the above subsections, then such percentage of the first two thousand dollars of the annual wage during the continuance of the injury, not exceeding the five-year period or the life of the workman, as would bear a just proportion to the percentages under the foregoing subsections.
4. In addition to such percentages for maiming and disfigurement, there shall be the compensation for total or partial disability as provided in and only according to the provisions of sections 4, 5, 6, 7, 8 and paragraph (a) of section 9 hereof, except that the percentages therefor under this subsection shall be figured only on the balance of the first two thousand dollars of the annual wage after allowing the percentages for maiming and disfigurement under the foregoing subsections, but this whole section shall apply during the life of the injured only, and upon his death, as a result of such injuries within the five-year period, then the percentages specified in sections 7, 8 and par. (a) of 9 shall thereafter be applicable.
Sec. 10. (a) The amounts payable periodically under the foregoing sections may be commuted on a fair basis to one or more lump sum payments by the board of arbitration, with the consent of the employer and workman or his dependents, at any time after six months if special circumstances be found which in the judgment of the board require the same.
(b) The board of arbitration may at any time by award allow any employer or any insurer of such employer with the consent of the workman or his dependent to compromise and settle any award by the transfer of property or the settlement of any annuity or other form of benefits, if special circumstances be found which in the judgment of the board require the same.
11. (a) When the workman is employed at the time of the injury in a regular capacity at a fixed and reasonable wage which remains unaltered and continuous substantially throughout the year either in his own case or in the case of persons engaged in the like employment, the wage taken as the basis of compensation under the foregoing sections shall mean the wage so paid, reckoned on such yearly basis.
(b) Where the workman is at the time of the injury employed other than as above provided, the wage so taken shall be an average or fair wage which the particular workman ought to receive on a reasonable basis, considering the rate he has been getting, his ability and willingness to work, the nature of the service he was performing, and all of the other circumstances of the case. Sec. 12. (a) If the employer shall
clearly establish that the injuries, death, or disability were due in whole or in part to the workman's previous injuries, sickness, disease, physical or mental ailments or deficiencies, age, or infirmity, then and to that extent only the compensation herein allowed shall be correspondingly reduced.
(b) If the workman or a beneficiary under this code shall clearly establish that the injured was a minor or apprentice of such age and experience or of such physical condition when injured that under natural conditions he would be expected to increase in wages, these facts may be considered in arriving at his reasonable wage, to conform to the spirit of this code.
(c) If the employer shall clearly establish that the injured was a person of such old age or physical condition at the time of the injury that under natural conditions he would not be expected to continue to earn full wages during the whole five-year period, these facts may be considered in arriving at his reasonable wage and his probable length of earning capacity at the time of the injury:
(d) The compensation or other rights or remedies provided or awarded or the defenses thereto shall never be vested except subject to such changes as the provisions of this code allow.
Sec. 13. If it be found as a fact by the board in its award that the employer had notice or knowledge of the occurrence of the injury, and also that such injury was severe enough to immediately and completely disable the workman from continuing his work then and in such case the notice under section 14 shall not be essential.
SEC. 14. (a) Unless the employer shall have the notice or knowledge provided in section 13, or unless the workman or some one on his behalf, or some of the dependents or some one on their behalf or some other person, shall give notice thereof to the employer within fourteen days or be relieved therefrom according to this code, then no compensation shall accrue until such notice is given.
(b) If the notice is given within thirty days, no want, failure, or inaccuracy of a notice shall be a bar to obtaining compensation, unless the employer shall show that he was prejudiced by such want, defect, or inaccuracy, and then only to the extent such prejudice is shown.
(6) If the notice is given within ninety days, and if the workman or other beneficiary shall show that his failure to give prior notice was due to his mistake, inadvertence, ignorance of fact or law, or inability, or to the fraud, misrepresentation, or deceit of another person connected with, or acting for the employer or to any other reasonable cause or excuse, then compensation may be allowed, but reduced to the extent only that the employer shall show that he was prejudiced by failure to receive such notice.
(d) Unless and until such notice be given within ninety days of the injury if the service can be made within the State or relief granted under section 37 or excepted under section 23 hereof, no compensation shall be allowed.
Sec. 15. The notice may be served personally upon the employer, or upon any agent of the employer, or authority upon whom a summons may be served in a civil action, or by sending it by registered mail to the employer at the last known residence or business place thereof, and may be, and when the requirement is reasonable shall be, in substantially the following form:
"Notice to employer of personal injury received: You are hereby notified that an injury was received' by (name) who was in your employ at (place) --- at the job of (kind of work) on or about the day of ...... 19. ., and who is now located at (give town, street and number) that so far as now known the nature of the injury was and that compensation may be claimed therefor.
(Giving address.) But if the employer receives a notice sent within time and improper in form, he must immediately return the same to the last known address he has for such workman and point out in writing the deficiency of such notice, or be bound as having sufficient knowledge; and if such notice is so returned an immediate new notice may be given by the workman.
Sec. 16. (a) After an injury and during the period of disability, the workman, if so requested by his employer or ordered by the board must submit himself for examination at reasonable times to a physician selected by the employer authorized to practice under the laws of the State.
(b) If the workman requests, he shall be entitled to have a physician of his own selection at
reasonable times to participate in such examinations. (d) Except as provided in this code, there shall be no other disqualification or privilege preventing the testimony of a physician who actually makes an examination.
(e) Unless there has been a reasonable opportunity thereafter, for such physician selected by the workman to participate in an examination in the presence of the physician selected by the employer, the physician selected by the employer shall not be permitted afterwards to give evidence of the condition of the workman in a dispute as to the injury.
Sec. 17. The board of arbitration shall have the power to employ a neutral physician of good standing and ability who shall, at the expense of the county, make such examination or examinations as the board may request either of its own motion or on the petition of either or both the employer and workman or dependents, and in case of death the board may require an autopsy to be held,
Sec. 18. If the employer or the workman has a physician make such an examination and no reasonable opportunity is given to the other party to have his physician make examination, then in case of a dispute as to the injury, the physician of the party making such examination shall not give evidence before the board, unless a neutral physician of the board of arbitration either has examined or then does examine the injured workman and gives testimony regarding the injuries.
SEC. 19. If the workman shall refuse examination at such reasonable time or times as the board shall order, by physicians selected by the employer, in the presence of a physician of his own selection, or an examination by the physician of the board of arbitration, he shall have no right to compensation during the period from such refusal until he or some one on his behalf notifies the employer or board of arbitration that he is willing to have such examination.
(a) If the neutral physician make an examination, he shall file with the board a certificate under oath as to the condition of the workman, and such certificate shall be competent evidence of that condition.
(b) The physician and hospital shall immediately give written notice of the injury to the employer if they know or can reasonably obtain his name and address; if either fails to comply herewith such one shall not be entitled to collect compensation or expenses for treating the injured.
Sec. 20. (a) All settlements and releases made in which the workman is given the full benefit of this code shall be binding upon all parties, except that no settlement where the workman is entitled to receive payments longer than a period of ninety days from the injury, and no lump sum settlement, shall be binding upon the workman, unless and until the same be approved by the board.
(b) If the employer and the workman, or the legal representatives of either, or both, are able to reach an agreement in regard to compensation or any other matter under this code, a memorandum of such agreement may be filed with the board; and if approved by it as conforming to this code, an award shall be entered thereon in conformity therewith and be of the same force and effect as awards entered upon a hearing; but the board shall have the power to investigate the matter before approved sufficiently to determine whether it is a fair settlement.
(c) The board may at any time require from the employer or insurer thereof a copy or report of any settlement or release or class of settlements or releases made with the injured workman.
Sec. 21. The right of compensation granted by this code shall have the same preference for the whole thereof against the assets of the employer as is allowed by law for a priority claim for unpaid wages for labor.
Sec. 22. Claims or payments due under this code shall not be assignable, and shall be exempt from all claims of creditors and from levy, execution, or attachment; but this shall not relieve the injured from his legal duties of support as between himself and family.
Sec. 23. (a) As a condition precedent to recovery upon a claim for compensation, in case of dispute over, or failure to agree upon a claim for compensation, the workman or the dependents or others entitled to the benefits hereof as the case may be shall submit the claim for compensation hereunder both as to the fact and nature of the injuries and the amount of compensation therefor, to a board of arbitration as hereinafter specified, in substantial compliance with this code, and shall be and remain bound by the award and such modifications thereof as shall be made under the provisions of this code.
(b) If the employer or any other interested persons appear in any proceeding herein to contest the merits thereof or to get or accept or carry out the benefits of the provisions of this code, such person shall be deemed to have appeared generally and joined in a submission of such matter to the decision of the board and the conditions of this code.
(c) The board shall acquire and have jurisdiction of the employer and all other persons interested in said proceeding by the service of the notice upon them according to sections 30, 31 and 32 of this code, or by their general appearance, or by reference from the district court.
(d) When the board obtains jurisdiction of any party or matter, then it shall retain the same so long as may be necessary to carry out the purposes of this code whether the parties do or do not remain within the State; provided that while any portion of said matter be before the district court or supreme court for determination or other purposes, the jurisdiction of this board for that matter shall be suspended.
(e) No workman or dependent or other person interested in such compensation shall be entitled to commence or maintain any action at law or suit in equity for such compensation until the amount thereof shall have been determined as herein provided, and then only for the amount so awarded and according to the terms and conditions of the award and the benefits of this code; provided this whole section shall not prevent the obtaining of jurisdiction in so far as it can be done pursuant to the fundamental laws, under the next subsection hereof.
(f) In any case where service can not be made within this State to acquire jurisdiction before this board as herein otherwise provided, the usual procedure shall be had before the board to the extent of serving the notice outside of the jurisdiction of the State in the same method as it would be served within the jurisdiction of the State, and the person upon whom it shall be served shall have the regular time to appear in said proceeding before said board.
If he does not appear generally therein, then the person making the application shall have the right to institute a suit in equity in the district court of the county, setting forth the facts; and if jurisdiction can be acquired in said court by attachment or otherwise, as provided by the practice and procolvre in this State in said court, then upon the joining of issue, said court shall refer the querdong of fact for determination to a board of arbitration to hear, try and determine and make its award conformable to this code and report such award back to the said dietrict court, which shall, if it approves the same on the notice specified for entering judgment upon other awards as against the objection herein provided for such other awards, then enter a judgment thereon, and the judgment when entered shall have the same force and effect and be subject to all the other provisions of this code as if the award had been made by appearance before the regular board and judgment had been entered thereon; if its disapproval of the same requires a further finding upon any question of fact, it shall refer that question or the whole matter back to a board as it would in any case coming through the regular channels; provided that this code shall not be construed as covering cases where jurisdiction can not be properly acquired within this State, upon diligent efforts.
Sec. 24. (a) There is hereby created a board of arbitration for each county in this State, consisting of three competent members, who shall be appointed by the district court for such counties and hold their offices subject to the will and discretion of the district court by which they are appointed.
(b) The court may from time to time appoint additional boards to act for such length of time as it deems necessary for the expeditious dispatch of the business of the district.
(c) In judicial districts containing more than one county, and not having sufficient business to occupy one board's complete time in the county of original appointment, the court shall appoint a board to act in one county and then enter an order in such other county or counties as the said board can fairly cover authorizing and directing such board to act in such other county or counties hearing the matters arising therein as the board for that county. The members need not necessarily reside in the same county.
(d) "The court may fill all vacancies whether temporary or permanent occurring at any time in the board.
(e) During a single vacancy the remaining two members shall exercise all the power and authority of the board until such vacancy is filled.
Sec. 25. (a) No person shall sit as an arbitrator in either a case where he is related to either party by marriage or blood within the third degree, or who has any personal interest in the matter in dispute; provided that objection to any arbitrator, if the facts be then known, must be made in writing and filed with the board before hearing; and if the matter be not otherwise disposed of, it shall be heard and determined by the district court on motion, and its determination thereof shall be final.
(b) The board shall organize by choosing one of its members as chairman.
(c) A majority of the board shall be a quorum for the hearing and decision of any matter, and the decision of any two thereof shall be the decision of the board. In case the board shall be equally divided as to any matter, the same shall be tried de novo, before a full board of three members.
(d) No person shall be appointed to, or be eligible for, the position of arbitrator, clerk, assistant, expert or any other office or position hereunder, who is either a relative of any member of the court appointing him or of any of the arbitrators acting within the county, or who has been active in the election or appointment of any member of the court appointing him or active in the appointment of any member of the board or superior employer hereunder, or who has solicited his own appointment either directly or indirectly.
(e) The district court shall have the same power to punish for contempt of the board that it has for a similar contempt of its own powers.
Sec. 26. (a) The district court may appoint a clerk of the board or require the clerk of said court to act and the board may employ experts and such other clerical help as it may deem necessary, but all subject to the power of said court to disapprove same.
(b) All persons required to handle monies and other funds under this code shall give such bonds as the district court shall order as being approximately twice the amount of money likely to be in their hands at any time, and the expense of such bonds shall be paid from the county funds; the court may from time to time increase or lower those bonds to comply with the intention of this code.
(c) The court may also provide for depositories of such funds and sufficient bonds therefor.
Sec. 27. (a) All salaries, fees and expenses authorized by this code, except those of the members of the board, including the fees of witnesses within thirty miles, shall be audited and paid out of the general funds, the same as district court expenses; provided that the board shall have power to limit the expense of witnesses to a reasonable amount.
(b) The compensation of the board shall be fixed by the district court, but shall in no case exceed per member five dollars per half day or ten dollars per day for actual and necessary time and the actual cash outlay for necessary expenses of extra travel, and shall be paid in the same manner and from the same funds as other county employee.
(c) The compensation of clerks and other assistants shall be fixed by the board, subject to the approval of the district court.
Sec. 28. (a) The board of arbitration shall have jurisdiction throughout their respective counties to arbitrate all controversies arising within the county and permitted by or growing out of this code, and to make awards consistent herewith.
(b) The board shall also have jurisdiction to arbitrate any such controversies arising within the State outside of their counties, if all parties interested therein shall consent thereto in writing.
(c) Any matter for arbitration commenced in one county may be transferred to another county to be heard by the arbitrators of the county in which the injury occurred or by the board in the county to which it is transferred, if all parties consent thereto in writing.
Sec. 29. (a) The district courts shall make rules of practice and procedure to apply to, but not inconsistent with, this code, and so far as possible uniform throughout the State.
(b) The board may fix the amount of compensation which any attorney of a workman or dependent shall be entitled to receive for services out of the sum awarded as compensation.
(c) There is hereby granted to the board of arbitration and to all the persons vested with rights, powers, or obligations, such further powers and means of their exercise as may be necessary and proper to carry out the purposes of this code, not inconsistent with the fundamental laws.
Sec. 30. (a) Any person in interest desiring a determination by said board of any necessary matter may bring it before the board by a written and signed request, filed with the clerk of the board.
(b) The board of its own motion by notice made and served as provided in sections 31 and 32 hereof may bring any of the parties before it for the purpose of determining whether any matter growing out of any such personal injuries is proceeding according to the spirit of this code.
(c) The request shall be in such form as may be prescribed by the board, with the approval of the district court, and shall furnish so far as possible the data for service of notice.
Sec. 31. Upon the filing of such petition, on request, the clerk shall issue under the name of the board a notice to all of the interested parties so far as known to him, and cause the same to be served in the method prescribed in this code for the service of notice of injuries to the employer; except that service under this provision must be made within the State or in accordance with the method prescribed in subdivision (f) of section 23 hereof; provided that while the board has jurisdiction of any proceeding the notices may be filed and served by registered mail sent to the last address known to the board and a reasonable time to respond allowed.
SEC. 32. The notice shall cover the following things:
(a) The request made, giving the name or names of the person or persons making the same.
(b) The general nature of the matter to be investigated sufficiently describing the same to enable the parties to prepare for hearing.
(c) A summons to appear at a time and place for the hearing and a notice that otherwise he will be awarded in default.
(d) A notice that such other and further relief may be claimed and awarded as will do justice in the
premises. (e) Service may be proven by admission in writing or by certificate of the clerk of the board or in any other manner that proof of service of a summons may be made.
Sec. 33. The time for a hearing upon the merits of a claim for compensation shall not be less than ten days, and upon other matters not less than five days, after notice given, unless as to such other matters the board shall shorten the time by order to show cause.
Sec. 34. No formal or written pleadings shall be required in the hearing of any controversy arising under this code.
Sec. 35. The board shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure, other than as herein provided, but may make the investigation in such manner as in their judgment is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of this code; provided that all parties must have reasonable notice of hearing and fair opportunity to be heard on all investigations, inspections and hearings.
SEC. 36. The board shall have the power(a) To inspect or cause to be inspected the premises where the injury occurred.
(b) To require any books or papers, tools or other movable chattels to be produced or inspected.
(c) To require any workman claiming compensation to be physically examined by a physician appointed by the board or to require an autopsy to be held on the body of any workman for whose injuries compensation may be claimed.
(d) To issue subpænas to compel the attendance of witnesses or parties, and the production of books, papers, records or chattels.
(e) To administer oaths.