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Sec. 11. For the purposes of the provisions of this article relating to "earnings” and “average weekly earnings" of a workman, the following rules shall be observed:
(a) “Average weekly earnings" shall be computed in such manner as is best calculated to give the average rate per week at which the workman was being remunerated: Provided, That where by reason of the shortness of the time during which the workman has been in the employment of his employer, or the casual nature or the terms of the employment, it is impracticable to compute the rate of remuneration, regard may be had to the average weekly amount which, during the twelve months previous to the accident, was being earned by a person in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person in the same grade employed in the same class of employment and in the same district;
(b) Where the workman had entered into concurrent contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer, his "earnings” and his "average weekly earnings” shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident;
(c) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the workman was employed at the time of the accident, uninterrupted by his absence from work due to illness or any other unavoidable cause:
(d) Where the employer has been accustomed to pay to the workman a sum to cover any special expenses entailed on him by the nature of his employment, the sum so paid shall not be reckoned as part of the earnings.
(e) In fixing the amount of the weekly payment, allowance shall be made for any payment or benefit which the workman may receive from the employer during the period of his incapacity.
(f) In the case of partial incapacity the weekly payment shall be computed to equal, as closely as possible, 50 per cent of the difference between the amount of the "average weekly earnings of the workman before the accident, to be computed as herein provided, and the average weekly amount which he is most probably able to earn in some suitable employment or business after the accident, subject, however, to the limitations hereinbefore provided.
Sec. 12. The commissioner of labor) shall prescribe reasonable regulations governing the time, place, and manner in which weekly payments shall be made within this State, having regard to the security and convenience of the employer and the welfare of the workman; but a (justice of the court), upon the application of either party, may modify such regulations in a particular case, as to him may seem just. If a workman receiving a weekly payment cease to reside in the State (or in his residence at the time of the accident in an adjoining State) his right to weekly payments shall cease; but he shall be entitled to receive monthly or quarterly as may be agreed upon or as the — court, upon application, having regard to the welfare of the workman and the convenience of the employer, may determine, the sum of the weekly payments accruing during the preceding month or quarter, so long as he proves in such manner and at such intervals as may be prescribed by the rules of the court, his identity and the continuance of the incapacity in respect of which the weekly payment is payable.
Sec. 13. 'Where death results from the injury and the dependents of the deceased workman, as herein defined, have agreed to accept compensation, and the amount of such compensation and the apportionment thereof between them has been agreed to or otherwise determined, the employer may pay such compensation to them accordingly (or to an administrator if one be appointed), and thereupon be discharged from all further liability for the injury. Where only the apportionment of the agreed compensation between the dependents is not agreed to, the employer may pay the amount into (court), or to (the administrator) of the deceased workman, with the same effect. Where the compensation has been so paid into (court) or to an (administrator), (the proper probate court), upon the petition of such (administrator) or of any of such dependents, and upon such notice and proof as its rules may provide, shall determine (and decree) the distribution thereof among such dependents. (Where there are no dependents, medical and funeral expenses may be paid and distributed in like manner).
Sec. 14. (Persons entitled to compensation to be given the highest practicable preference in case of insolvency of employer. The right to compensation to be unassignable and to be given the broadest exemptions from attachment, execution, etc.; but to be extinguished by the death of the person entitled thereto).
SEC. 15. (Employers affected by this act to report annually to the commissioner of labor such reasonable particulars in regard thereto as he may require, including particulars as to all releases of liability under this act and any other law. The penalty for failure to report or for false report might be to invalidate the settlement.).
Sec. 16. An injured workman shall submit himself to examination by a dúly qualified medical practitioner provided and paid by the employer, as soon after the accident as demanded, and from time to time thereafter during the pendency of his claim for compensation or during the receipt by him of payments under this act; but he shall not be required to so submit himself otherwise than in accordance with regulations made by (the commissioner of labor), nor at more frequent intervals than prescribed by those regulations.
It shall be the duty of the employer to cause such an examination to be made of the injured workman immediately after the accident, and to serve a copy of the report by his medical practitioner of such examination upon the workman within six days after the accident. If no such examination be made and report furnished by the employer within that time, the workman shall be examined by his own medical practitioner, and shall furnish a report thereof by his medical practitioner to the employer, for which he shall be entitled to recover ($1) from the employer, which amount may be added to the compensation. Upon the receipt by either party of such a report from the other party, the party receiving it, if he disputes such report or any statement therein, shall notify the other party of that fact within six days, otherwise such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this act.
If thereafter a dispute exists as to the condition of the workman, the- - court, upon application of either party, shall order an examination of the workman to be made by a medical examiner appointed by it. The fees of such examiner shall be fixed by the court at not to exceed ($10), and shall be paid in advance by the applicant. Such medical examiner shall report his conclusions from such examination, in duplicate, to each party, and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this act.
Sec. 17. If an arbitrator has been selected or appointed pursuant to the provisions of this act, the workman shall submit himself for examination by such arbitrator or by a medical practitioner selected by him, whenever, wherever and under such conditions as such arbitrator in the exercise of a reasonable discretion may order.
Sec. 18. If the workman refuses to submit himself to an examination hereinbefore provided for or in any wise obstructs the same, his right to compensation and to take or prosecute any further proceedings under this act shall be suspended until such examination take place. And, when a right to compensation is suspended, no compensation shall be payable in respect of the period of suspension.
Sec. 19. Proceedings for the recovery of compensation under this act shall not be maintainable, unless written notice of the accident, stating the time, place and particulars thereof, and the name and address of the person injured, has been given within (7). days after the accident; and unless a claim for compensation has been made within six months after the accident, or, in case of death, within six months from the date of death. (Such notice shall be delivered by registered letter. The want of or any defect in such notice or in its service shall not be a bar unless the employer proves that he has in fact been thereby prejudiced, or if such want or defect was occasioned by mistake, physical or mental incapacity or other reasonable cause. And the failure to make a claim within the period above specified shall not be a bar, if such failure was occasioned by mistake, physical or mental incapacity or other reasonable cause).
Sec. 20. Compensation due under this act may be settled by agreement. Every such agreement, other than a release, shall be in the form hereinafter provided.
Sec. 21. If compensation be not so settled by agreement:
(a) If any committee, representative of the employer and the workman exists, organized for the purpose of settling disputes under this act, the matter shall, unless either party objects by notice in writing delivered or sent by registered mail to the other party (before the committee meets to consider the matter), be settled (in accordance with its rules) by such committee or by an arbitrator selected by it.
(b) If either party so objects, or there is no such committee, or the committee or the arbitrator to whom it refers the matter fails to settle it within ninety days from the date of the claim, the matter may be settled by a single arbitrator agreed on by the parties or selected by any person or persons or judge of court agreed on by the parties. The consent to arbitration shall be in writing and signed by the parties, and may limit the fees of the arbitrator and the time within which the award must be made. And unless such consent expressly refers other questions, only the question of the amount of compensation shall be deemed to be in issue.
SEC. 22. (The arbitrator shall not be bound by any technical rules as to procedure or evidence, but shall give the parties reasonable opportunity to be heard and act reasonably and without partiality: He shall make and file his award, with the consent to arbitration attached, in the proper county clerk's office, within the time limited in the consent, or if no time limit is fixed therein, within ninety days after his selection, and shall give notice of such filing to the parties by mail.).
Sec. 23. Únless the arbitrator's fees be fixed by the consent to arbitration or be agreed to by the parties before the arbitration they shall be taxed by a justice of the
court, upon notice, (at not to exceed $ per day and disbursements or in any event $25 in all). The arbitrator shall apportion the cost of such fees in his discretion between the employer and workman (but not more than two-thirds against either one), and shall add the amount apportioned against the employer to the first payment to be made under the award. And he shall note the amount of his fees on the award, and shall have a lien therefor on the first payments due under the award.
SEC. 24. Every agreement for compensation and every award shall be in writing, signed and acknowledged by the parties or by the arbitrator or secretary of the committee hereinbefore referred to, and shall specify the amount due and unpaid by the employer to the workman up to the date of the agreement or award, and, if any, the amount of the weekly payments thereafter to be paid by the employer to the work? man, and the length of time such weekly payments shall continue.
Sec. 25. It shall be the duty of the employer to file or cause to be filed every release of liability hereunder, every agreement for or award of compensation, or modifying an agreement for or award of compensation, under this act (if not filed by the committee or arbitrator), to which he is a party, (or a sworn copy thereof), in the county clerk's office of the county in which the accident occurred), within (60) days after it is made, otherwise it shall be (void as against the workman). (The county clerk shall accept, receipt for and file any such release, agreement or award, without fee, and record or index it, etc.) Nothing herein shall be construed to prevent the workman from so filing such agreement or award.
Sec. 26. At any time within (one year) after an agreement or award has been so filed, a justice of the court, may, upon the application of either party, cancel such agreement or award, upon such terms as may be just, if it be shown to his satisfaction, that the workman has returned to work and is earning the same or higher wages as or than he did before the accident, or that the agreement or award has been obtained by fraud or undue influence, or that the committee or arbitrator making the award acted without authority or was guilty of serious misconduct.
Sec. 27. At any time after the filing of an agreement or award and before judgment has been granted thereon, the employer may stay further proceedings thereon by filing in the county clerk's office wherein such agreement or award is filed: (a) (Ă proper certificate of a qualified insurance company that the payment of the compensation to the workman is insured by it); or (b) (a proper bond, undertaking to secure the payment of the compensation.) (Such certificate or bond to be approved by a justice of the court as to form and sufficiency, etc.)
Sec. 28. At any time after an agreement or award has been filed, the workman may apply to the court, for judgment against the employer for a lump sum equal to (90 per cent) of the amount of payments due and unpaid and prospectively dúe 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, unless sati-fied that the application is made for other reasons than doubt as to the security of his compensation, shall compute the sum and direct judgment accordingly, as if in an action.
Sec. 29. 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
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. (The fees of the arbitrator, or the fees of the medical examiner, to be fixed by the court at not to exceed ($10), shall be paid in advance by the party applying. If the compensation be increased, a prior stay shall not be effective, unless the employer file a further certificate or bond to secure the increased compensation).
Sec. 30. Where any, weekly payment has been continued for not less than (six months) the liability therefor may be redeemed by the employer by the payment to the workman of a lump sum of an amount equal to 75 per cent of the sum of the weekly payments which may become due according to the award, such amount to be determined by agreement, or, in default thereof, upon application, by a justice of the court. Inon paying such amount the employer to be discharged from all further liability on account of the injury, and to be entitled to a duly executed release, upon filing which or other due proof of payment, the liability upon any agreement or award to be discharged of record.)
Sec. 31. (Where the payment of compensation to the workman is insured, the insurer shall be subrogated to the rights and duties of the employer under this act, so far as appropriate.)
SEC. 32. All references hereinbefore to the court or to a justice of such court, shall mean (such court, etc., in and for the county or district in which such accident occurred, but the objection that proceedings are in the wrong county or district may be waived). Such court shall make all rules necessary and appropriate to carry out the provisions of this act.
SEC. 33. A workman's right to compensation under this act, may, in default of agree ment or arbitration, be determined and enforced by action in (any court of competent jurisdiction). In every such action the right to trial by jury shall be deemed waived and the case tried by the court without a jury, unless either party (with his notice of trial-or-when the case is placed upon the calendar, demand a jury trial and pay the fees of such a 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 the injury, the action shall be brought by (the legal representative) of the deceased for the benefit of the dependents as herein defined; and in such action the judgment may provide the
proportions of the award to be distributed to or between the several dependents; otherwise such proportions shall be determined by the proper (probate) court as hereinbefore provided. 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.
Sec. 34. The cause of action shall be deemed in every case, including a case where death results from the injury, to have accrued to the injured workman at the time of the accident; and the time limited in which to commence an action for compensation therefor shall run as against him, his (legal representatives) and dependents from that date. (Amend the statute of limitations, if necessary, to make the short term, applicable to actions in tort, apply; but do not assimilate this action in terms to an action in tort.)
SEC. 35. (Contingent fees of attorneys for services in proceedings under this act shall in every case be subject to approval by the court, and a copy of every agreement for a contingent fee shall be filed within a certain time—with the commissioner of labor.)
SEC: 36. If the (commissioner of insurance) certifies that any scheme of compensation, benefit or insurance for the workmen 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 workmen, the scheme confers benefits at least equaivalent 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 apply notwithstanding any contract to the contrary made after this act becomes a law.
SEC. 37. No scheme shall be so certified which does not contain suitable provisions for the equitable distribution of any moneys or 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. 38. If at any time the scheme no longer fulfills the requirements of this article, or is not fairly administered, or other (valid and substantial) reasons therefor exist, the (commissioner of insurance) shall revoke the certificate and the scheme shall thereby be terminated.
Sec. 39. Where a certified scheme is in effect the employer shall answer all such inquiries and furnish all such accounts in regard thereto as may be required by the (commissioner of insurance).
SEC. 40. The (commissioner of insurance) may make all rules and regulations necessary to carry out the purposes of this article.
RESOLUTIONS OF THE SIXTH DELEGATES' MEETING OF THE
INTERNATIONAL ASSOCIATION FOR LABOR LEGISLATION,
The sixth general meeting of delegates of the International Association for Labor Legislation was held at Lugano, Switzerland, September 26 to 28, 1910. According to the official report of the association, the organization now comprehends national sections in 15 countries: Austria, Belgium, Denmark, France, Germany, Great Britain, Hungary, Italy, Netherlands, Norway, Spain, Sweden, Switzerland, Argentine Republic, and the United States. The association has a membership of about 5,400. The value and official character of its work are recognized by the fact that it is subsidized by the Governments of 13 countries. Over 100 delegates of the national sections and Government representatives were present at the Lugano meeting. The resolutions adopted by the delegates are given in full in the following pages:
I. INTERNATIONAL LABOR CONVENTIONS. 1. The bureau is instructed to petition the Danish and Spanish Governments to ratify at an early date the Berne convention of September 26, 1906, respecting the night work of women.
The bureau is instructed to take appropriate measures to secure the accession of Norway, Russia and Finland, Turkey, East India, the Australian and Canadian colonies, and South Africa to the Berne conventions.
2. The delegates' meeting expresses its most cordial thanks to the French, British, and Dutch Governments for the adhesion of their colonies and protectorates to the Berne convention, to the Australian Commonwealth for prohibiting the use of white phosphorus, to the American section for its efforts in this direction in the United States, and to the Hungarian minister of commerce, who has announced that the prohibition of white phosphorus will most probably be introduced in Hungary at an early date.
The bureau is instructed to persevere in its efforts to procure the adhesion of countries which have not yet joined the convention, and especially Belgium, Norway, Sweden, India, South Africa, and Japan.
II. NEW SECTIONS AND CONSTITUTIONS OF SECTIONS-FINANCES AND
BULLETIN_COOPERATION WITH OTHER INTERNATIONAL ASSOCIATIONS-EXHIBITIONS OF HYGIENE AT DRESDEN AND ROME-PLACE AND DATE OF THE NEXT MEETING:
A. NEW SECTIONS AND CONSTITUTIONS OF SECTIONS.
The constitutions of the Norwegian and Swedish sections are
B. FINANCES AND BULLETIN.
1. The delegates' meeting acknowledges with satisfaction the reports of the bureau, the treasurer, and the International Labor Office, and thanks them heartily for their activity.