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Sec. 11. Where any weekly payment has been continued for not less than six months, the liability therefor may on application by or on behalf of the employer or employee, respectively, be redeemed by payment of a lump sum, but if the incapacity is permanent or total, the sum shall not exceed the purchase price of an annuity yielding seventy-five per cent of the weekly payments calculated under the American Experience Table of Mortality at four per cent per annum.
Sec. 12. If an employee receiving a weekly payment ceases to reside in the United States, he shall thereupon cease to be entitled to receive any weekly payment.
SEC. 13. In default of agreement between the parties interested, the following questions shall be settled by arbitration under this act, subject to judicial procedure as hereinafter provided: All questions as to the employer’s liability to pay compensation and the amount payable, and as to the duration, review or redemption by a lump sum of any weekly payment; any question as to whether the employee is one to whom the act applies, and whether he has dependents, and if so the amounts payable to them; all questions as to the liability of an independent contractor, and of any third party by consent, under section five.
Arbitration proceedings shall be as follows: First. The employer and his employees may choose a committee, whose unanimous adjudication of a matter within three months shall be final and binding on both parties, unless either objects in writing before it is considered.
Second. On failure of such unanimous adjudication the matter shall be investigated and settled by a single arbitrator agreed on by the parties, and in the absence of such agreement a statement of the facts shall be filed in court in such form as may be prescribed by the rules of said court, and unless within thirty days thereafter a written application for a jury trial is also filed, a jury trial shall be deemed to have been waived, and the matter shall then be determined by the judge of the said court, or þy a referee appointed by the said court under such procedure as may be prescribed by rules of court, and such referee shall for the purposes of this act have full power to procure witnesses and all evidence which he may regard as necessary to his decision, and his fees shall be fixed by the commission and paid out of the appropriation for this act. Said court may compel the attendance of witnesses and the production of evidence before said referee in the same manner and under the same penalties as apply to the attendance of witnesses and the production of evidence before said court.
Any question of law may be submitted for the opinion of the State's attorney for the jurisdiction where the accident happens by any committee, arbitrator or referee, and an appeal shall lie from them to such judge, on a question of law only, and his decision shall be final. Unless reversed on appeal taken in accordance with appellate practice of the courts of the State.
The services of a medical referee may be utilized in all arbitration proceedings under regulations made by the commission.
The cost of arbitration proceedings shall be in the discretion of the committee, the arbitrator or the referee, respectively; they shall not exceed, however, the taxable costs for similar services allowed by the rules of court for
Sec. 14. Any sum awarded as compensation under this act shall be paid on receipt of the person to whom it is payable under any agreement or award; and in case of the death of the person injured the same shall be payable, as the court may determine, to the members of his family dependent upon the injured at the time of his injury, namely, the widow or husband as the case may be, and the children, or if no widow or husband or children, the parents or grandparents, or if no parents or grandparents, the grandchildren, or if no grandchildren, the brothers and sisters.
SEC. 15. All proceedings for compensation under this act shall take place in the judicial district where all the parties reside, unless otherwise prescribed by order or regulation of the commission.
Sec. 16. Whenever the amount of compensation under this act has been ascertained, or any weekly payment varied, or redeemed, or any other matter decided, by any referee, committee or arbitrator, or by agreement, à memorandum thereof, shall be sent by said referee, committee, or arbitrator, or by any party interested, to the clerk of the said court in the jurisdiction in which such decision was rendered, in the form and manner prescribed by such court. The said clerk shall forth with send notice thereof to the parties interested, and shall seven days after the sending of such notice file such memorandum and register it without fee as the judgment of said court. Such memorandum shall thereafter for all purposes have the same force and effect as the judgment of said court: Provided, That the judge may at any time, on evidence proving to his satisfaction that any agreement as to the redemption of a weekly payment by a lump sum, or as to the amount of compensation payable to a person under legal disability, or to dependents, was inadequate, or was obtained by 85048°-Bull. 92–11
fraud or undue influence or other improper means, order that the memorandum be not recorded, and if recorded, he may order the record to be erased within six months after it has been so recorded, and he may hear such evidence, take such proceedings, and make such order as will effectuate the purpose of this act.
Sec. 17. An agreement as to the redemption of a weekly payment by a lump sum, or as to the amount of compensation to be paid to a person under a legal disability or to dependents, if not registered in accordance with this act, shall not, nor shall any payment under such agreement, exempt the person by whom the compensation is payable, from liability to pay compensation, unless he prove that the failure to register was not due to any neglect or default on his part.
Sec. 18. The fees of any attorney or other representative of the person to whom any payment is made under this act shall be determined by the commission.
Šec. 19. No payment under this act shall be assigned or subject to attachment or liable in any way for any debts.
Sec. 20. If any employer becomes bankrupt or insolvent and has any insurance against his liability under this act to any employee killed or injured, such employee, or his beneficiaries hereunder shall thereupon be subrogated to such employer's rights and remedies therefor under such insurance; and if the employer has no such insurance, or such insurance is insufficient, any amount then due such employees or such beneficiaries shall have priority over all other claims against the bankrupt or insolvent estate.
Sec. 21. If the commission certifies in writing that any scheme of compensation, benefit,
or insurance provides scales of compensation not less favorable to the employees and their dependents specified in this act than the corresponding scales contained in this act, or is on the whole not less favorable to such employees and their dependents than are the provisions of this act and that where the scheme provides for contribution by the employees, the scheme confers benefits at least equivalent to those contributions in addition to the benefits, or the equivalent thereof under this act, the employer may agree with any of his employees 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 the scheme, but save as aforesaid this act shall apply, notwithstanding any contract to the contrary made after the passage of this act. No scheme shall be certified which contains an obligation upon the employees to agree to it as a condition of their hiring, or which does not contain provisions enabling an employee to withdraw from the scheme. Such agreement or withdrawal shall be in writing and signed by the employee. If the commission shall at any time find that the scheme no longer fulfills
the requirements of this section, or other reasonable cause exists for so doing, they shall revoke the certificate. When a certificate is revoked or expires any moneys or securities held for the purpose of the scheme shall, after due provision has been made to discharge the liabilities already accrued, be distributed as may be arranged between the employer and his employees, or as may be determined by the commission in the event of a difference of opinion.
The commission may make regulations for the purpose of carrying this section into effect.
SEC. 22. Nothing in this act shall effect any proceeding for the recovery of penalties under safety appliance and other enactments relating to the safety of employees, except that hereafter, in the discretion of the judge before whom the penalty is enforced, such penalties shall be payable in whole or in part to any employees injured as a direct result of the absence of the appliance for which such proceedings were brought, or for the benefit of the family of any employee killed.
Sec. 23. There is hereby created for the purposes of this act a commission of arbi. tration and award, which shall be composed of three commissioners, who shall be appointed by the governor by and with the advice and consent of the senate. The commissioners first appointed under this act for the purpose thereof shall continue in office for the term of two, four and six years, respectively, from the first day of July, 1910; the terms of each to be designated by the
governor; but their successors shall be appointed for terms of six years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired time of the commissioner whom he shall succeed. Any commissioner may be removed by the governor for inefficiency, neg, lect of duty, or malfeasance in office. Not more than two of the commissioners shall be appointed for (from) the same political party. No vacancy in the commission shall impair the right of the remaining commissioners to exercise all the powers of the commission.
The commission is hereby authorized to exercise any and all lawful powers necessary to perform the duties imposed upon it by this act, and to make all such rules and regulations not otherwise provided for as they may consider necessary to carry into effect the purposes thereof.
The commission shall have full power and authority to investigate accidents to which this act applies, to administer oaths, and require the attendance and testimony of witnesses and the production of any evidence, relating to such accidents and to employ agents who shall have like power or authority. It shall be the duty of the commission to include in its annual report a list of all accidents and a full report in detail of each accident investigated, to require from employers at stated intervals returns showing amounts of compensation paid, to ascertain the means adopted for the prevention and treatment of accidents to employees covered by this act, and to make recommendations relative thereto, and to appoint such properly qualified medical practitioners as are necossary, to be medical referees for the purposes of this act, to remove them, and to determine their fees.
Sec. 24. This act shall not apply to accidents happening to seamen employed on vessels of the United States engaged in navigation.
TENTATIVE DRAFT OF A BILL BY THE NATIONAL CIVIC FEDERATION.
Section 1. If, in any employment to which this act applies, personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall
, subject as hereinafter mentioned, be liable to pay compensation to the workman in accordance with this act. Save as herein provided no such employer shall be liable for any injury for which compensation is recoverable under this act:
(a) The employer shall not be liable under this act in respect of any injury which does not disable the workman for a period of at least two weeks from earning full wages at the work at which he is employed.
(b) If it is proved that the injury to the workman results from his deliberate intention to cause such an injury, or from his willful failure to use a guard or protection against accident required pursuant to any statute and provided for him, or solely from his deliberate breach of statutory regulations affecting safety of life or limb, or from his intoxication, any compensation in respect of that injury shall be disallowed.
Sec. 2. Where the injury was proximately caused by the individual (personal) negligence either commission or omission of the employer, (including such negligence of the directors or of any officer if such employer is a corporation, or of any of the partners if such employer is a partnership, or of any member if such employer is an association, but excluding the negligence of competent employees in the performance of their duties or of the employer's duty delegated to them), the existing liability of the employer shall not be affected by this act, but in such case the injured workman, or if death results from such injury, his dependents as herein defined if they unanimously agree, otherwise (his legal representative, (with the approval of the probate court), may elect between any right of action against the employer upon such liabilty and the right to compensation under this act.
SEC. 3. Nothing in this act shall affect the liability of the employer to a fine or penalty under any other statute.
Sec. 4. (a) Where any person (in this section referred to as the principal) undertakes to execute any work which is part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then, in the application of this act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed:
(b) Where the principal is liable to pay compensation under this section, he shall be entitled to indemnity from any person who would have been liable to pay compensation to the workman independently of this section, and shall have a cause of action therefor.
(c) Nothing in this section shall be construed as preventing a workman from recovering compensation under this act from the contractor instead of the principal.
(d) This section shall not apply in any case where the accident occurred elsewhere than on, or in, or about premises on which the principal has undertaken to execute work or which are otherwise under his control or management.
(It is suggested that provisions be added to this section as follows: (e) Giving an injured workman a lien on the money due and unpaid on the contract.
(1) Giving expressly to the principal contractor who pays compensation voluntarily to a workman of a subcontractor the right to recover over against the subcontractor.
(g) Giving to a principal contractor when sued by a workman of a subcontractor a right to call in the subcontractor as codefendant.)
Sec. 5. Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof -
(a) The workman may take proceedings both against that person to recover damages and against any person liable to pay compensation under this act for such compensation, but shall not be entitled to recover both damages and compensation; and
(b) If the workman has recovered compensation under this act, the person by whom the compensation was paid, or any person who has been called on to indemnify him under the section of this act relating to subcontracting, shall be entitled to indemnity from the person so liable to pay damages as aforesaid, and shall be subrogated to the rights of the workman to recover damages therefor.
Sec. 6. This act shall apply only to employment in the course of the employer's trade or business on, in, or about a railway, factory, mine or quarry, electric, building or engineering work, or in certain other hazardous employments, as hereinafter defined. And it shall not apply in any case where the accident occurred or the contract of employment was made before this act takes effect.
Sec. 7. In this act, unless the context otherwise requires:
(a) “Railway” means (all kinds of railways, including private railways, logging roads, etc., excluding only horse-car roads); and "employment on railways" (includes work in depots, power houses, roundhouses, and other appurtenances, and in private yards, switches, etc., and work on railways for express companies). (Limit to intrastate commerce.)
(b) "Factory" means any premises wherein (mechanical) power is used in manufacturing, making, altering, adapting, ornamenting, finishing, repairing or renovating any article or articles for the purposes of trade or gain or of the business carried on therein, (including expressly any laundry or bakery whatsoever wherein power machinery is used); and includes also any shipyard, marble cutters' and polishers' yard, brickyard, meat packing house, foundry, forge, smelter, blast furnace, coke-burning plant, lime-burning plant, phosphate works, steam-heating plant, electric-lighting plant, electric-power plant and water-power plant; and any premises where ice is harvested and stored, or wherein a process requiring the use of any dangerous explosive or extra-hazardous inflammable material is carried on, which is conducted for the purpose of business, trade or gain.
A workman employed in a factory which is a shipbuilding yard shall not be excluded from the benefit of this act by reason only that the accident occurred outside the yard, in the course of his work upon a vessel in any dock, pier or tidal water near the yard.
(e) "Mine" means any (opening in the earth) for the purpose of extracting any mineral or minerals, and all underground workings, slopes, shafts, galleries and tunnels, and other ways, cuts and openings connected therewith, including those in the course of being opened, sunk or driven; and includes also the appurtenant structures at or about the openings of a mine and any adjoining (adjacent) work place where the material from a mine is prepared for use or shipment.
(d) “Quarry" means any place, not a mine, (including a bank or pit) where stone, slate, clay, sand, gravel or other solid material is dug or otherwise extracted from the earth or ground for the purposes of trade or barter or of the employer's trade or business.
(e) “Electrical work” means any kind of work in or directly connected with the construction, installation, operation, alteration, removal or repair of wires, cables, switchboards or apparatus charged with electric currents.
(f) “Building work” means any work in any of “the building trades”) in the erection, construction, extension, decoration, alteration, repair or demolition of any building (or structural appurtenance).
(g) “Engineering work” means any work in the construction, alteration, extension, repair or demolition of a railway (as hereinbefore defined but including also a horsecar railway,) bridge, harbor, jetiy, dike, breakwater, dam, pier, dock, (including drydock and floating dock), reservoir, canal, aqueduct, tunnel, underground conduit, sewer, well, oil tank, gas tank, water tower or waterworks (including connected standpipesor mains),any caisson work or work in artificiallycompressed air, any work in dredging, pile driving, asphalt paving (or other paving with molten material), moving buildings, moving safes, or in laying, repairing or removing underground gas pipes and connections, or in millwrighting or the erection, installing, repairing or removing of boilers, furnaces, engines and power machinery (including belting and other connections), and
any work in grading or excavating where shoring is necessary or power machinery or blasting powder, dynamite or other high explosive is in use (excluding mining and quarrying).
(h) The other hazardous employments” to which this act applies mean any work in a general or terminal warehouse, in a grain elevator, in a malt house, in a coal yard, in a lumberyard, in a stockyard, in a building-material yard, as a shipwright or rigger, or in loading or unloading the cargo of any vessel at dock in a port of this State.
(i), "Employer” includes any body of persons, corporate or unincorporated, and the (legal representative) of a deceased employer.
(1) "Workman" means any person who has entered into the employment of or works under contract of service or apprenticeship with an employer; but does not include a person (whose employment is of a casual nature or) who is employed otherwise than for the purpose of the employer's trade or business. Any reference to a workman who has been injured, shall, where the workman is dead, include a reference to (his dependents, as hereinafter defined, or to his legal representative) or, where he is a minor or incompetent, to his committee or guardian.
(k) “Dependents” mean such members of the workman's family as were wholly or in part dependent upon the workman at the time of the accident. And "members of a family" for the purposes of this act mean only widow or husband, as the case may be, and children; or if no widow, husband or children, then parents and grandparents; or if no parents or grandparents, then grandchildren; or if no grandchildren, then brothers and sisters. In the meaning of this section parents include step-parents, children and grandchildren include step-children and step-grandchildren, and brothers and sisters include stepbrothers and stepsisters.
(1) “Accident” and “injury” in this act mean only such an accident and injury as cause the injured workman to be absent at least five consecutive hours or an entire half-day's time from his work; and “injury” includes an injury resulting in death.
Sec. 8. In case an injured workman is mentally incompetent or a minor, (or where death results from the injury, in case any of his dependents as herein defined is mentally incompetent or a minor), at the time when any right, privilege or election accrues to him under this act, his committee or guardian may, in his behalf, claim and exercise such right, privilege or election; and no limitation of time, in this act provided for, shall run, so long as such incompetent or minor has no committee or guardian.
Sec. 9. Saving clause. (Deemed inadvisable.)
(1) If the workman leaves any dependents wholly dependent upon his earnings, a sum equal to his earnings in the employment of the same employer during the three years next preceding the injury, but not exceeding in any case ($3,000): Provided, That the amount of any weekly payments made under this act shall be deducted from such sum; and, if the period of the workman's employment by the said employer has been less than the said three years, then the amount of his earnings during the said three years shall be deemed to be 156 times his average weekly earnings during the period of his actual employment under said employer: And provided, however, That if the workman does not leave any dependents, residing at the time of the accident in the United States or the Dominion of Canada, the amount of compensation shall not exceed in any case ($1,000).
(2) If the workman does not leave any such dependents, but leaves any dependents in part dependent upon his earnings, such proportion of the amount payable under the foregoing provisions of this section, as may be agreed upon or determined to be proportionate to the injury to the said dependents; and
(3) If he leaves no dependents, the reasonable expense of his medical attendance and burial, not exceeding.($100).
(b) Where total or partial incapacity for work results from the injury, a weekly payment during the incapacity, commencing at the end of the second week, equal to, in the case of total incapacity, and not exceeding, in the case of partial incapacity, 50 per cent of his average weekly earnings during the previous twelve months, if he has been so long employed, but if not, then for any less period during which he has been in the employment of the same employer: Provided, however, That if the workman is under twenty-one years of age at the date of the accident and his average weekly earnings are less than $10, his compensation shall be a weekly payment not exceeding his full average earnings:
Provided further, however, That:
(2) No such weekly payment shall extend over a period exceeding (10) years, nor continue after the workman has reached the age of (60) years, unless at the date of the injury he was over (55) years of age, in which case it may continue for a period of (5) years after such date.