and denied in another; a workman contracting anthrax has been granted compensation in a third State and denied compensation in a fourth; and so on. However, while the practices among the several State commissions and courts vary, the legal theories and principles upon which their decisions are based have been remarkably uniform. Compensation for occupational diseases has been usually granted if one or more or all of the following conditions were present: (1) If the disease resulted in violence to the physical structure of the body, i. e., if it was traumatic or produced a lesion; (2) if the injury occurred unexpectedly or not in the usual course of events; (3) if the injury can be traced to a definite time and place in the employment; and (4) if the injury was not due to a known and inherent risk of the occupation; or, even if inherent in the occupation, if the employer had neglected to provide reasonable safeguards which would presumably have prevented the injury. The guiding principle adopted by most of the courts and commissions in occupational disease cases is stated by the Pennsylvania Workmen's Compensation Board in awarding compensation for dermatitis due to the fortuitous presence of poison in hides handled by the employee, as follows: Where injuries received in the course of employment are of untraceable inception and gradual and insidious growth and can not be traced to having been received at some certain time, and in which there is no sudden or violent change in the condition of the physical structure of the body, they must be regarded as the results of an occupational disease. However, if the disease can be traced to some certain time when there was a sudden or violent change in the condition of the physical structure of the body, as, for instance, where poisonous gases were inhaled which damage the physical structure of the body, it is an accident within the workmen's compensation act of 1915, and is compensable.31 The following list shows the various classes of occupational diseases for which compensation has been awarded in the several States. This list is by no means complete nor are the States enumerated the only ones in which the specified occupational diseases have been compensated. ANTHRAX. Anthrax contracted through chaps or cracks on the back of the hands of a workman while handling hides (New York). Anthrax contracted by a wool sorter through an abrasion on his neck (Pennsylvania). ARSENIC POISONING. Acute arsenical poisoning from inhaling fumes from spelter furnace (Illinois). 31 Roller v. Drueding Bros. Pennsylvania Workmen's Compensation Board decisions for 1916, p. 86. GAS, FUMES, AND DUSTS. Gas poisoning resulting in cerebral hemorrhage from close proximity to gas flame (Illinois). Breathing of poisonous gases which had accumulated by reason of insufficient ventilation (New York). Miliary tuberculosis following inhalation of gas fumes due to an explosion (Wisconsin). Infection of throat due to inhalation of dust from dry hides by reason of poor ventilation (Michigan). Involuntary inhalation of gas fumes caused by explosion (Pennsylvania). Inhalation of gas fumes from salamanders used to heat work place (Minnesota). Inhalation of poisonous fumes while heating bucket of paint in an insufficiently ventilated room (Ohio). SKIN DISEASES. Dermatitis due to fortuitous presence of poison in hides handled by workman (Pennsylvania). Abrasion and irritation of skin from acids in handling hides in tannery (Wisconsin). VIBRATIONS OR CONSTANT USE OF PARTICULAR MEMBERS. Traumatic peripheral neuritis due to constant vibration of punch press (Illinois). Housemaid's knee contracted by a plumber (Connecticut). NONOCCUPATIONAL DISEASES. Typhoid fever contracted from impure drinking water furnished by employer (Wisconsin). Erysipelas contracted from frostbitten nose (Connecticut). Pleurisy and pulmonary tuberculosis contracted from wetting received by jumping in river in course of employment (New York). Nephritis and disability contracted by becoming wet from flushing hot pulp from basement of paper mill (Indiana). Ivy poisoning of railroad employee while mowing grass on right of way (New York). It is interesting to note the paradoxical position in which the courts and compensation commissions have placed themselves. Our workmen's compensation laws have been enacted in the vague belief that industrial accidents are inevitable and constitute a permanent and integral part of our industrial life. The one clinching argument constantly used by proponents of compensation laws has been that a large proportion of industrial accidents are due to the inherent risk of the industry, and consequently the employers' liability system based upon negligence is no longer applicable. These same reasons, formerly advanced for accident compensation laws, are now used by the courts and commissions against compensation for occupational diseases. In accordance with their interpretation of the probable legislative intent of the statute, compensation for such diseases is denied if they are naturally inherent in or incidental to the employment and granted if their occurrence is sudden or accidental. In actual practice and as a matter of simple justice, however, commissions and courts undoubtedly feel that an employee who contracts an occupational disease is just as much entitled to compensation as one who sustains the loss of an arm. Consequently in their decisions under the law they have no doubt been influenced by their desire to remedy so far as possible the economic injustice of the statutes. ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT. The next limitation of compensable injuries is the condition under which they occur. No State compensates for all injuries, irrespective of the time and place of their occurrence. In every State a compensable injury must happen in the course of the employment, and in all but six States 32 it must arise out of or result from the employment. A definition of this double clause has been stated by the Massachusetts Supreme Court, as follows: 33 It is not easy nor necessary to the determination of the case at bar to give a comprehensive definition of these words which shall accurately include all cases embraced within the act and with precision exclude those outside its terms. It is sufficient to say that an injury is received "in the course of" the employment when it comes while the workman is doing the duty which he is employed to perform. It arises "out of" the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises "out of" the employment. But it excludes an injury which can not fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood; it must be incident to the character of the business and not independent of the relation of master and servant. It need not to have been foreseen or expected, but after the event it must appear to have had its origin in the risk connected with the employment and to have flowed from that source as a rational consequence. In other words, the injury must result from a hazard of the employment, not merely one of the hazards of existence. The commissions and courts generally have been liberal in their interpretations of this 32 North Dakota, Ohio, Pennsylvania, Texas, Utah, and Washington. 33 McNichol v. Employers' Liability Assurance Association, 215 Mass. 1497. phrase. Granted a causal connection between injury and employment and compensation is usually allowed. Awards have even been granted in the case of a watchman who was shot by a burglar 34 and where an employee was killed by an intoxicated fellow worker. 35 ment. Five States use merely the single phrase "in the course of employment," thus considerably increasing the scope of injuries covered, since such injuries need not result as a consequence of the employFor example, a workman may be injured as a result of a prank played by a fellow employee. Such an injury does not "arise out of" the employment, but it does occur "in the course of" the employment and would be compensated if the provision of the law were limited simply to the latter phrase. In one of these four States, however, the court has ruled that the injury must be caused by, or incidental to, the employment. The Utah law has a still wider scope, compensating both injuries which arise out of the employment, and those which occur in the course of the employment. 36 EXEMPTIONS DUE TO EMPLOYEE'S FAULT. 37 Most of the States do not grant compensation for injuries occasioned in whole or in part through some gross fault of the employee. Three States, however, have not accepted this principle and allow compensation regardless of the employee's negligence. Thirty-six States withhold compensation if the injury was caused by the willful intention of the employee to injure himself or another; 31 deny compensation if injury is due to intoxication; 17 if caused by willful misconduct; and 13 if employee is guilty of violation of safety laws. or removal of safety appliances. Another limitation, though not directly connected with either the employee's or employer's negligence, is the exclusion of injuries which are intentionally inflicted by another. Ten States have exemptions of this character. For more detailed information see Table 11. PENALTY FOR NEGLIGENCE. Seven States,38 while not denying compensation entirely in certain cases of the employee's negligence, nevertheless penalize him by decreasing the amount. Three States reduce the amount of compensation 50 per cent: California, if the injury is due to the employee's willful misconduct except in case the accident results in death or is due to employer's failure to comply with the safety provisions and in cases of minors; Colorado, if the injury is caused by the employee's willful failure to use safety devices or obey reasonable rules, or is the 34 California. 35 Massachusetts. 36 Ohio. 37 Arizona, Illinois, and Montana. 38 California, Colorado, Kentucky, Nevada, New Mexico, Washington, and Wisconsin. result of his intoxication; and New Mexico, if the injury is due to the employee's failure to use safeguards. Kentucky and Wisconsin reduce the amount 15 per cent if the injury is caused by the employee's willful failure to use safety devices or obey reasonable safety rules, and in the case of Wisconsin, if the injury is due to the employee's intoxication. Nevada reduces the amount 25 per cent and Washington 10 per cent, if the injury is caused by the removal of safeguards. On the other hand, in six States 39 the employer is penalized if he has been guilty of negligence. In Kentucky and Wisconsin the employer must pay 15 per cent additional compensation if the injury is caused by his failure to obey safety laws or regulations, and in Wisconsin the amount of compensation is trebled in case of illegal employment of minors. New Mexico and Washington add 50 per cent if injury is caused by violation of safety statutes; in Washington 50 per cent is added in case of illegal employment of minors; in Illinois the commission may increase the award 50 per cent in case of intentional underpayment or unnecessary delay or appeal; while in Massachusetts the compensation is doubled if the injury is due to the serious or willful misconduct of the employer. WAITING PERIOD. As already noted, injuries in order to be compensable must, as a rule, arise out of and in the course of the employment and must not be occasioned by gross negligence on the part of the employee. Another factor restricting a compensable injury is the degree of severity of the injury or the duration of disability caused by it. In most of the States an injury to be compensable must cause disability for a certain length of time, no compensation being paid during this time. This noncompensable preliminary period is known as the “waiting period." In two States (Oregon and Porto Rico) there is no such waiting time, compensation being paid for all injuries producing any disability. The most common provision is that disability must continue for more than one week, this being found in 22 States. Utah and the Federal Government require a waiting period of 3 days, 7 States of 10 days, and 13 of 2 weeks. Qualifications of the general provisions occur in 22 States. In Hawaii there is no waiting period in case of partial disability. In Maryland the waiting time is reduced from 2 weeks to 1 week if the disability is total and permanent. In the other 20 States the waiting period is abolished entirely if the disability continues longer than certain specified periods. In North Dakota no compensation is paid for the first week, but if disability continues for more than 1 week compensation begins from date of injury; in 2 States 40 there is no waiting 39 Illinois, Kentucky, Massachusetts, New Mexico, Washington, and Wisconsin. |