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have caused the injury or death, notice in writing, stating the name and address of the person injured, the time and place where the accident occurred, and the nature of the injury, and signed by the person injured or by some one on his behalf, or in case of his death, by a dependent or some one on his behalf, shall be served upon the employer, either by delivering to and leaving with him a copy of such notice, or by mailing to him by registered mail a copy thereof in a sealed and postpaid envelope addressed to him at his last known place of business or residence.“ Such mailing shall constitute completed service: Provided, however, That any payment of compensation under this act, in whole or in part, made by the employer before the expiration of said thirty days, shall be equivalent to the notice herein required: And provided further, That the failure to give any such notice, or any defect or inaccuracy therein, shall not be a bar to recovery under this act if it is found as a fact in the proceedings for collection of the claim that there was no intention to mislead the employer, and that he was not in fact misled thereby: And provided further, That if no such notice is given and no payment of compensation made, within two years from the date of the accident, the right to compensation therefor shall be wholly barred.
Sec. 2394–12. Wherever in case of injury the right to compensation under this act would exist in favor of any employee, he shall, upon the written request of his employer, submit from time to time to examination
by a regular practicing physician, who shali be provided and paid for by the employer, and shall likewise submit to examination from time to time by any regular physician selected by said industrial accident board, or a member or examiner thereof. The employee shall be entitled to have a physician, provided and paid for by himself, present at any such examination. So long as the employee, after such written request of the employer, shall refuse to submit to such examination, or shall in any way obstruct the same, his right to begin or maintain any proceeding for the collection of compensation shall be suspended; and if he shall refuse to submit to such examination after direction by the board, or any member or examiner thereof, or shall in any way obstruct the same, his right to the weekly indemnity which shall accrue and become payable during the period of such refusal or obstruction, shall be barred. Any physician who shall make or be present at any such examination may be required to testify as to the results thereof.
Sec. 2394—13. There is hereby created a board which shall be known as the industrial accident board. The commissioner of labor and industrial statistics shall be ex officio a member of such board. He may, however, authorize the deputy commissioner to act in his place. Within thirty days after the passage of this act, the governor, by and with the advice and consent of the senate, shall appoint a member who shall serve two years, and another who shall serve four years. Thereafter such two members shall be appointed and confirmed for terms of four years each. Vacancies shall be filled in the same manner for the unexpired term. Each member of the board, before entering upon the duties of his office, shall take the oath prescribed by the constitution. A majority of the board shall constitute a quorum for the exercise of any of the powers or authority conferred by this act, and an award by a majority shall be valid. In case of a vacancy, the remaining two members of the board shall exercise all the powers and authority of the board until such vacancy is filled. Each member of the board, including the said commissioner, shall receive an annual salary of $5,000. This salary shall, as to the commissioner of labor and industrial statistics, be in full for his services as such commissioner of labor and industrial statistics.
Sec. 2394—14. The board shall organize by choosing one of its members as chairman. Subject to the provisions of this act, it may adopt its own rules of procedure and may change the same from time to time in its discretion. The board, when it shall deem it necessary to expedite its business, may from time to time employ one or more expert examiners for such length of time as may be required, such examiners to be exempt from the operation of chapter 363 of the laws of 1905, and amendatory acts. It may also appoint a secretary, who shall be similarly exempt, and such clerical help as it may deem necessary. It shall fix the compensation of all assistants so appointed. It shall provide itself with a seal for the authentication of its orders, awards, and proceedings, upon which shall be inscribed the words “Industrial Accident Board-Wisconsin-Seal." It shall keep its office at the capitol, and shall be provided by the superintendent of public property with a suitable room or rooms, necessary office furniture, stationery, and other supplies. The members of the board and its assistants shall be entitled to receive from the State their actual and necessary expenses while traveling on the business of the board; but such expenses shall be sworn to by the person who incurred the same, and be approved by the chairman of the board, before payment is made. All salaries and expenses authorized by this act shall be audited and paid out of the general funds of the State, the same as other general State expenses are audited and paid.
Sec. 2394—15. Any dispute or controversy concerning compensation under this act, including any in which the State may be a party, shall be submitted to said industrial accident board in the manner and with the effect provided in this act. Every compromise of any claim for compensation under this act shall be subject to be reviewed by, and set aside, modified, or confirmed by the beard upon application made within one year from the time of such compromise.
Sec. 2394–16. Upon the filing with the board by any party in interest of an application in writing stating the general nature of any claim as to which any dispute or controversy may have arisen, it shall fix a time for the hearing thereof, which shall not be more than forty days after the filing of such application. The board shall cause notice of such hearing, embracing a general statement of such claim, to be given to each party interested, by service of such notice on him personally or by mailing a copy thereof to him at his last known postoffice address at least ten day before such hearing: Such hearing may be adjourned from time to time in the discretion of the board, and hearings may be held at such places as the board shall designate. Either party shall have the right to be present at any hearing, in person or by attorney, or any other agent, and to present such testimony as may be pertinent to the controversy before the board; but the board may, with or without notice to either party, cause testimony to be taken, or an inspection of the premises where the injury occurred to be had, or the time books and pay roll of the employer to be examined by any member of the board or any examiner appointed by it, and may from time to time direct any employee claiming compensation to be examined by a regular physician; the testimony so taken, and the results of any such inspection or examination, to be reported to the board for its consideration upon final hearing. The board, or any member thereof, or any examiner appointed thereby, shall have power and authority to issue subpænas, to compel the attendance of witnesses or parties, and the production of books, papers, or records, and to administer oaths. Obedience to such subpænas shall be enforced by the circuit court of any county:
Sec. 2394—17. After final hearing by said board, it shall make and file (1) its findings upon all the facts involved in the controversy, and (2) its award, which shall state its determination as to the rights of the parties. Pending the hearing and determination of any controversy before it, the board shall have power to order the payment of such, or any part, of the compensation, which is or may fall due, as to which the party from whom the same is claimed does not deny liability in good faith within ten days after the giving of notice of hearing provided for in the preceding section; and if the same shall not be paid as required by such order, the facts with respect to the liability therefor, and the determination of the board as to the rights of the parties, shall be embraced in, and constitute a part of, its finding and award; and the board shall have the power to include in its award, as a penalty for noncompliance with any such order, not exceeding twenty-five per cent of each amount which shall not have been paid as directed thereby.
Sec. 2394-18. Either party may present a certified copy of the award to the circuit court for any county, whereupon said court shall, without notice, render a judgment in accordance therewith; which judgment, until and unless set aside as hereinafter provided, shall have the same effect as though duly rendered in an action duly tried and determined by said court, and shall, with like effect, be entered and docketed.
Sec. 2394—19. The findings of fact made by the board acting within its powers shall, in the absence of fraud, be conclusive; and the award, whether judgment has been rendered thereon or not, shall be subject to review only in the manner and upon the grounds following: Within twenty days from the date of the award, any party aggrieved thereby may commence, in the circuit court of Dane County, an action against the board for the review of such award, in which action the adverse party shall also be made defendant. In such action a complaint, which shall state the grounds upon which a review is sought, shall be served with the summons. Service upon the secretary of the board, or any member of the board, shall be deemed completed service. The board shall serve its answer within twenty days after the service of the complaint, and, within the like time, such adverse party shall, if he so desires, serve his answer to said complaint. With its answer, the board shall make return to said court of all documents and papers on file in the matter, and of all testimony which may have been taken therein, and of its findings and award. Said action may thereupon be brought on for hearing before said court upon such record by either party on ten days' notice to the other; subject, however, to the provisions of law for a change of the place of trial or the calling in of another judge. Upon such hearing, the court may confirm or set aside such award;
and any judgment which may theretofore have been rendered thereon; but the same shall be set aside only upon the following grounds:
1. That the board acted without or in excess of its power.
Sec. 2394–20. Upon the setting aside of any award the court may recommit the controversy and remand the record in the case to the board, for further hearing or proceedings; or it may enter the proper judgment upon the findings, as the nature of the case shall demand. An abstract of the judgment entered by the trial court upon the review of any award shall be made by the clerk thereof upon the docket entry of any judgment which may theretofore have been rendered upon such award, and transcripts of such abstract may thereupon be obtained for like entry upon the dockets of the courts of other counties.
Sec. 2394—21. Said board, or any party aggrieved by a judgment entered upon the review of any award, may appeal therefrom within the time and in the manner provided for an appeal from the orders of the circuit court; but all such appeals shall be placed on the calendar of the supreme court and brought to a hearing in the same manner as state causes on such calendar.
Sec. 2394—22. No fees shall be charged by the clerk of any court for the performance of any official service required by this act, except for the docketing of judgments and for certified copies of transcripts thereof. In proceedings to review an award, costs as between the parties shall be allowed or not in the discretion of the court, but no costs shall be taxed against said board. In any action for the review of an award, and upon any appeal therein to the supreme court, it shall be the duty of the attorney general, personally, or by an assistant, to appear on behalf of the board, whether any other party defendant shall have appeared or be represented in the action or not. Unless previously authorized by the board, no lien shall be allowed, nor any contract be enforceable, for any contingent attorney's fee for the enforcement or collection of any claim for compensation where such contingent fee, inclusive of all taxable attorneys' fees paid or agreed to be paid for the enforcement or collection of such claim, exceeds ten per cent of the amount at which such claim shall be compromised, or of the amount awarded, adjudged, or collected.
Sec. 2394—23. No claim for compensation under this act shall be assignable before payment, but this provision shall not affect the survival thereof; nor shall any claim for compensation, or compensation awarded, adjudged, or paid, be subject to be taken for the debts of the party entitled thereto.
Sec. 2394—24. The whole claim for compensation for the injury or death of any employee or any award or judgment thereon, shall be entitled to a preference over the unsecured debts of the employer hereafter contracted, but this section shall not impair the lien of any judgment entered upon any award.
Sec. 2394—25. The making of a lawful claim against an employer for compensation under this act
for the injury or death of his employee shall operate as an assignment of any cause of action in tort which the employee or his personal representative may have against any other party for such injury or death; and such employer may enforce in his own name the liability of such other party.
Sec. 2394—26. Nothing in this act shall affect the organization of any mutual or other insurance company, or any existing contract for insurance of employers' liability, nor the right of the employer to insure in mutual or other companies, in whole or in part, against such liability, or against the liability for the compensation provided for by this act, or to provide by mutual or other insurance, or by arrangement with his employees, or otherwise, for the payment to such employees, their families, dependents, or representatives, of sick, accident, or death benefits in addition to the compensation provided for by this act. But liability for compensation under this act shall not be reduced or affected by any insurance, contribution, or other benefit whatsoever, due to or received by the person entitled to such compensation, and the person so entitled shall, irrespective of any insurance or other contract, have the right to recover the same directly from the employer; and in addition thereto, the right to enforce in his own name, in the manner provided in this act, the liability of any insurance company which may, in whole or in part, have insured the liability for such compensation: Provided, however, That payment in whole or in part of such compensation by either the employer or the insurance company, shall, to the extent thereof, be a bar to recovery against the other of the amount so paid: And prorided further, That as between the employer and the insurance company, payment by either directly to the employee, or to the person entitled to compensation, shall be subject to the conditions of the insurance contract between them.
Sec. 2394—27. Every contract for the insurance of the compensation herein provided for, or against liability therefor, shall be deemed to be made subject to the provisions of this act, and provisions thereof inconsistent with this act shall be void. No company shall enter into any such contract of insurance unless such company shall have been approved by the commissioner of insurance, as provided by law. For the purposes of this act, each employee shall constitute a separate risk within the meaning of section 1898d of the statutes.
Sec. 2394—28. Any employer against whom liability may exist for compensation under this act may, with the approval of the industrial accident board, be relieved therefrom by:
1. Depositing the present value of the total unpaid compensation for which such liability exists, assuming interest at three per centum per annum, with such trust company of this State as shall be designated by the employee (or by his dependents, in case of his death, and such liability exists in their favor), or in default of such designation by him (or them) after ten days' notice in writing from the employer, with such trust company of this state as shall be designated by the board; or
2. By the purchase of an annuity, within the limitations provided by law, in any insurance company granting annuities and licensed in this state, which may be designated by the employee, or his dependents, or the board, as provided in subsection l of this section.
Sec. 2394—29. The board shall cause to be printed and furnished free of charge to any employer or employee such blank forms as it shall deem requisite to facilitate or promote the efficient administration of this act; it shall provide a proper record book in which shall be entered and indexed the name of every employer who shall file a statement of election under this act, and the date of the filing thereof, and a separate book in which shall be entered and indexed the name of every employer who shall file his notice of withdrawal of such election, and the date of the filing thereof; and books in which shall be recorded all orders and awards made by the board; and such other books or records as it shall deem required by the proper and efficient administration of this act: all such records to be kept in the office of the board. Upon the filing of a statement of election by an employer to become subject to the provisions of this act, the board shall forth with cause notice of the fact to be given to his employees, by posting such notice thereof in several conspicuous places in the office, shop, or place of business of the employer, or by publishing, or in such other manner as the board shall deem most effective; and the board shall likewise cause notice to be given of the filing of any withdrawal of such election; but notwithstanding the failure to give, or the insufficiency of, any such notice, knowledge of all filed statements of election and notices of withdrawal of election, and of the time of the filing of the same, shall conclusively be imputed to all employees.
Sec. 2394—30. A sum sufficient to carry out the provisions of this act is hereby appropriated out of any money in the treasury not otherwise appropriated.
Sec. 2394—31. All acts or parts of acts inconsistent with this act are to be deemed replaced by this act, and to that end are hereby repealed.
Sec. 2394—32. The legislature intends the contingency in subdivision 2 of section 2394—1 of this act to be a separable part thereof, and the subdivison likewise separable from the rest of the act, and that part of said section 2394—1 that follows subdivison 2, likewise separable from the rest of the act; so that any part of said subdivision, or the whole, or that part which follows said subdivison 2, may fail without affecting any other part of the act.
ŠEC. 2. Sections 2394—3 to 2394—32, inclusive, shall take effect and be in force from and after the passage and publication of this act, and the entire act shall be in force from and after September 1st, 1911. Approved May 3, 1911. TEXT OF BILLS PREPARED BY COMMISSIONS.
ILLINOIS COMMISSION BILL. SECTION 1. Any employer in this State may elect to provide and pay compensation for injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this act, and thereby relieve himself from liability for the recovery of damages except as herein provided. If, however, any such employer shall elect not to provide and pay the compensation according to the provisions of this act he shall not escape liability for injuries sustained by his employees arising out of and in the course of their employment by alleging or proving in any action brought against such employer:
1. That the employee either expressly or implicitly assumed the risk of the hazard complained of, or,
2. That the injury or death was caused in whole or in part by the negligence of a fellow servant.
Every such employer is presumed to have elected to provide and pay the compensation according to the provisions of this act unless and until notice in writing of an election to the contrary is filed with the State bureau of labor statistics. Such employer, however, shall not be entitled to any of the privileges or advantages specified herein until a notice in writing of an election to provide such compensation has been filed with the State bureau of labor statistics on blanks furnished by it for such purpose. Sec. 2. The filing of notice of an election to provide such compensation as aforesaid shall constitute an acceptance of all the provisions of this act, and such employer shall be bound thereby as to all his employees for a term of one year and for terms of each year thereafter unless a notice to the contrary shall have been given to the bureau of labor statistics and to all employees in said employment by posting in the plant, shop, office or place of work at least sixty days prior to the expiration of any such annual term: Provided, That when an injury to an employee is due to the serious and willful misconduct of that employee, any compensation claimed in respect of that injury shall be disallowed.
Sec. 3. In the event that any employer elects to provide and pay the compensation provided in this act and files notice of such election with the bureau of labor statistics, and thereby becomes bound to provide and pay such compensation according to the provisions of this act, then every employee of such employer, as a part of his contract of hiring, shall be deemed to have accepted all the provisions of this act and shall be bound thereby unless after thirty days and prior to forty-five days after such hiring he shall notify his employer in writing to the contrary: Provided, however, That before any such employee shall be so bound by the provisions of this act his employer shall either furnish to such employee, personally, at the time of his hiring or post in a conspicuous place in the room or place where such employee is to be employed, a statement in a language which such employee is able to understand of the compensation provisions of this act, if such employer has accepted the provisions of this act as herein provided, which notice shall also include a notice to the employee that the employer has accepted the provisions hereof. Every employee whose contract of hiring is in force at the time his employer elects to pay the compensation, and who continues to work for such employer, shall be deemed thereby to have accepted the provisions of this act, and shall be bound thereby unless he files a notice in writing to the contrary with his employer after thirty days and prior to forty-five days thereafter: Providing such employer furnishes or posts the statement of the compensation provisions of this act and his notice of acceptance thereof as herein provided.
SEC. 4. No common law or statutory right to recover damages for injuries or death sustained by an employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employeewho has accepted, according to section 3, the provisions of this act, or to any one wholly or partially dependent upon him or legally responsible for his estate: Provided, That when the injury to the employee was caused by the willful failure of the employer to comply with statutory safety regulations, nothing in this act shall affect the present civil liability of the employer.
Sec. 5. The amount of compensation which the employer shall pay if he elects the provisions of this act, as provided in sections one (1) and two (2) for injury to the employee which results in death shall be:
(a) İf the employee leaves any widow, child or children, or parents, or other lineal heirs to whose support he had contributed within five years previous to the time of his death, a sum equal to three times the average annual earnings of the employee, but not less in any event, than one thousand five hundred dollars, and not more in any event than three thousand dollars. Any weekly payments other than necessary medical or surgical fees shall be deducted in ascertaining such amount payable on death.
(b) If the employee leaves collateral heirs dependent upon his earnings, such a percentage of the sum provided in section A (par. (a)] as the contributions which deceased made to the support of these dependents bore to his earnings at the time of his death.
(c) If the employee leaves no widow, child or children, parents or lineal or collateral heirs dependent upon his earnings, a sum not to exceed one hundred fifty dollars ($150) to be paid to his personal representative.
All compensation provided for in this section to be paid in case the injury results in death shall be paid for the first six months in installments at the same intervals and in the same amounts that the wages or earnings of employee were paid while he was living, and after the expiration of such period of six months the balance of the compensation then due shall be paid either in installments as aforesaid or in a lump sum, at the option of the person entitled to such compensation: Provided, That if such compensation is paid in installments as herein provided and it shall not be feasible to pay the same at the same intervals as wages or earnings were paid, then the installments shall be paid weekly.
Sec. 6. The amount of compensation which the employer shall provide and pay for injury to the employee resulting in disability shall be:
(a) Necessary medical and surgical treatment in all cases at the time of the accident and as long thereafter as necessary, but not to exceed ninety (90) days, including medicine and other means of treatment and all reasonable facilities, such as the first