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1913




THE LIBRARY

OF

THE UNIVERSITY
OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW

Gift of
Eenoer-Moss Co.



A TREATISE



ON



THE LAW OF

COMPENSATION
FOR INJURIES TO WORKMEN

UNDER MODERN, INDUSTRIAL
STATUTES



BY
JAMES HARRINGTON BOYD, A.M.,Sc.D. (Princeton)

Chairman of the Ohio Employers' Liability Commission
and Member of the Toledo Bar



IN TWO VOLUMES

VOL.1



INDIANAPOLIS

THE BOBBS- MERRILL COMPANY
PUBLISHERS




\9I3



PREFACE



During the last four years Workmen's Compensa-
tion and Industrial Insurance Laws, creating the
new and fundamental principle of compensation and
insurance for injuries to workmen, have been enacted
into statutes by the United States, with special relation
to Federal employes, and by many of the states of the
Union. Special commissions to investigate the subject
and report recommendations have been appointed by
many of the state legislatures and it seems not un-
reasonable to predict and it is to be hoped that within a
decade the principle will have been accepted by all the
states.

The principle of compensation is of German origin
and is an evolution of the thought and purposes of the
philosophers, economists and statesmen of that great
nation. Its merits have been established by more than
thirty years of practical and successful operation on a
large scale in that country. Substantially all the civilized
nations of the world have followed the German plan.

It is the purpose of the author to point out and dis-
tinguish the characteristics of the different remedies for
the relief of injured workmen the Common Law Rem-
edy, Employers' Liability Laws, Workmen's Compen-
sation and Insurance Acts ; to show the economic effects
of the operation of such laws from an ethical, social and
political point of view; to trace the historical evolution
of these laws; to analyze their constituent elements
and point out the fundamental legal principles upon

iii



67071 8



IV PREFACE.

which these laws must be founded under our constitu
tional limitations and finally to give a complete account
of the schemes of procedure and administration em-
ployed in the practical operation of these laws in our
country. If permanency is to be assured legal principles
must be based upon sound economic conclusions.

It is both a duty and a pleasure to acknowledge the
indebtedness of the author to the various officials and
boards charged with the administration of the law in
the various states and the officials of the Department of
Commerce and Labor, for many courtesies and substan-
tial help in the preparation of this work. These services
have been freely rendered and have largely consisted
in the careful and painstaking reading of the proof of
the chapters relating to their respective jurisdictions, in
the tender of the useful sets of forms with which these
chapters are enriched, and many valuable suggestions
as to the presentation of the subject-matter of the work.

The author likewise acknowledges his indebtedness
to the Department of Commerce and Labor for the use
he has been able to make of the material assembled by
the department in its fourth special report written and
edited by the scholarly John Graham Brooks. He is
under similar obligations to R. J. Gary for his Brief on
the Power of Congress in Respect to Industrial Insur-
ance, and to the writings of Charles R. Henderson on
Industrial Insurance.

Space will not permit the citation of a complete bibli-
ography of sources of information. Aside from the foot-
notes a fairly comprehensive bibliography will be found
in the 24th Annual Report of the Department of Com-
merce and Labor and in Frankel and Dawson's book
on Industrial Insurance in Europe.

The subject of Workmen's Compensation and In-
surance has largely engrossed the attention of the author
for some twenty years, during which time he has spent



PREFACE. V

two years in Europe where he first familiarized him-
self with the practical operation of the systems in the
countries of their origin. He submits the results of these
years of study and labor to students of modern industrial
economics and to the bar of this country, which is large-
ly charged with the administration and interpretation
of the laws, confident that these pages have vindicated
the enactment of these laws, that their scope is better
understood and that an adequate administrative pro-
cedure in the light of the present state of the subject
has been developed.

JAMES HARRINGTON BOYD.
Toledo, December 2, 1912.



TABLE OF CONTENTS



VOLUME ONE.



CHAPTER I.

DISTINCTIONS BETWEEN THE COMMON LAW, EMPLOYER'S
LIABILITY LAWS, WORKMEN'S INDUSTRIAL INSURANCE
LAWS, AND WORKMEN'S COMPENSATION LAWS AS REM-
EDIES FOR COMPENSATING WORKMEN INJURED IN THE
DUE COURSE OF THEIR EMPLOYMENT.



Sec.

1. The common-law system of

employer's liability prior
to the employer's liability
and workmen's compensa-
tion and insurance laws.

2. The system of employer's

liability prior to the work-
men's insurance and com-
pensation acts.



Sec.

3. The distinguishing charac-

teristics of employer's lia-
bility laws.

4. The modern conception of

the employer's liability.

6. The distinguishing charac-
teristics of workmen's com-
pensation acts.

6. The distinguishing charac-
teristics of workmen's in-
dustrial insurance laws.



CHAPTER II.

HISTORICAL SKETCH OF DEVELOPMENT OF WORKMEN'S
INDUSTRIAL INSURANCE AND WORKMEN'S COMPENSA-
TION LAWS IN THE UNITED STATES.



Sec.

7. Inception of movement for

these laws.

8. Previous investigation of

the problem.

9. The Chicago conference of

employer's liability and
workmen's compensation
commissions.
10. Subjects discussed.



Sec.

11. Conclusions of the Chicago

conference.

12. The work of the State com-

missions.

13. Executive recommendations.

14. The Federal employer's lia-

bility and workmen's com-
pensation commission.



Vll



Vlll TABLE OF CONTENTS

CHAPTER III.

BRIEF HISTORICAL REVIEW OF THE GERMAN PLAN OF
INSURANCE OF WORKMEN AGAINST ACCIDENTS, THE
BRITISH COMPENSATION ACT, AND THE OPERATION OF
THE SYSTEMS OF EMPLOYERS' LIABILITY IN GREAT
BRITAIN AND THE UNITED STATES.

Sec. Sec.

15. Chronological development 18. British compensation legisla-

of the subject. tion.

16. The insurance message of 19. Some characteristics of Ger-

Emperor William I. man insurance legislation.

17. German industrial insurance

acts.

CHAPTER IV.

THE ORIGIN AND DEVELOPMENT OF COMPULSORY INDUS-
TRIAL INSURANCE FOR WORKMEN IN THE GERMAN
STATES-SICK INSURANCE, ACCIDENT INSURANCE, AND
INVALIDITY AND OLD-AGE PENSIONS.

Sec. Sec.

20. Conditions in Germany 27. Basis of compulsory insur-

which induced considera- ance.

tion of the subject. 28. German system described.

21. Influence of Fichte and 29. The relation of the German

Hegel. industrial insurance law to

22. Views of Sismondi. Socialism.

23. Views of Winkelblech. 30. Development of the insur-

24. Views of Schaeffle, father of ance idea from the early

compulsory state insur- guilds.

ance. 31. Miners' societies (Knapp-

25. Views of Wagner. schaf tskassen) .

26. State insurance a matter of 32. Ethical basis of system.

German origin.

CHAPTER V.

THE ECONOMIC BASIS OF COMPULSORY INDUSTRIAL INSUR-
ANCE AND COMPENSATION LAWS FOR INJURED WORK-
MEN.

Sec. Sec.

33. Statement of problem from 35. Statistical experience under

the economic standpoint. compulsory state insurance

34. Statistical studies exhibiting in Germany.

effects of old and new sys-
tems of compensation.



TABLE OF CONTENTS.



IX



Sec.

36. The question of fault and

prevention of accidents
compensation German sta-
tistics.

37. Experience in New York.

38. The Pittsburgh survey.

39. The Wisconsin bureau of

statistics.

40. The report of the Illinois

commission.

41. Ohio statistics.

42. Average amount received in

settlement in Ohio under
old system.

43. Attorney fees under old sys-

tem in Ohio.

44. Social and economic results

of accidents.

45. Liability insurance statistics

in Ohio.



Sec.

46. German statistics ana-

lyzed.

47. Classification of causes of

accidents in Germany.

48. Miscellaneous data.

49. Statistical results of the per

cent, of workingmen who
receive compensation un-
der the common law and
liability laws.

50. Fundamental economic con-

clusions.

51. Remedies proposed German

and English plans.

52. Specific provision against

the economic insecurity of
workingmen in the United
States.

53. Argument for joint contribu-

tion by employer and em-
ploye".



CHAPTER VI.

THE NEW YORK WORKMEN'S COMPENSATION ACT.



Sec.

54. New York law first con-

strued.

55. Nature and scope of the

New York act.

56. Text of the New York stat-

ute Labor Law art. 14a.

57. Construction of the law by

the court of appeals.



Sec.

58. Argument for constitution-

ality of act.

59. Reasons for upholding view

of court.

59a. New York General Liability.
Law with compensation
features.



CHAPTER VII.

THE MONTANA WORKMEN'S INSURANCE ACT.



Sec.

60. Its nature and construction
by the Supreme Court.

61. Questions presented to the
court.



Sec.

62. The constitutionality of the
act.

63. The effect of the decision.

64. Text of the Montana Insur-
ance Act.



TABLE OF CONTENTS.



CHAPTER VIII.

AN ANALYSIS OF THE PRINCIPLES OF THE LEGAL BASIS
OF COMPULSORY INSURANCE AND COMPENSATION LAWS.



Sec. Sec

65. Introductory. 83.

66. The nature and remedial pro-

visions of insurance laws.

67. Nature of the obligation im-

posed. 84.

68. Nature of the obligation im- 85.

posed German view.

69. The relationship between em-

ployer and employe under 86.
common-law and liability
acts. 87.

70. The relationship between em-

ployer and employe under 88.
insurance and compensa-
tion acts. 89.

71. Validity as to employer

Deprivation of defenses. 90.

72. Validity as to employe.

73. Validity as to employe-

Vested rights in remedies 91.
withdrawn.

74. Validity as to the State-

Public interest.

75. The problem of industrial in- 92.

surance.

76. Whether these laws infringe

constitutional limitations. 93.

77. Insurance acts sustainable

against constitutional ob-
jections under analogous 94.
decisions.

78. Analogous decisions Appli-

cation to insurance acts.

79. Analogous decisions Bank

depositors' guarantee acts. 95.

80. Analogous decisions Sheep-

dog fund cases.

81. Analogous decisions Whis- 96.

ky cure cases.

82. Analogous decisions Farm-

er's fund cases.



These laws an exercise of
taxing power Attributes
and limitations of taxing
power.

Subjects of taxation.

Similarity of attributes of
general taxation and emi-
nent domain.

Necessity that purpose of tax
be a public purpose.

The public purpose for which
taxes may be levied.

Public purpose determined
by Legislature.

Necessity of benefit as condi-
tion to right to tax.

Necessity of return of benefit
to one paying to special
fund.

Whether conditions of equal-
ity and uniformity are sat-
isfied in insurance and
compensation acts.

Whether contract clauses of
constitutions are violated
Uniform operation of laws.

Insurance and compensation
laws a proper exercise of
police powers.

Whether laws open to objec-
tion of lack of uniformity
of operation and equality
of protection Classifica-
tion.

Legislature in its enactments
limited only by State Fed-
eral constitutions.

Nature of administration of
compensation acts.



TABLE OF CONTENTS.



XI



Sec.

97. Nature of administration of
compensation acts wheth-
er executive or judicial
Due process.



Sec.

98. Deprivation of right to trial

by jury.

99. Whether act may be optional.



CHAPTER IX.

SUMMARY OF FOREIGN COMPENSATION LAWS.



Sec.

100. Outline of foreign work-

men's compensation laws.

101. Austrian schedule.

102. Belgian schedule.

103. British Columbia schedule.

104. Cape of Good Hope sched-

ule.

105. Denmark schedule.

106. Finland schedule.

107. French schedule.

108. German schedule of com-

pensation and scope of act.

109. Great Britain schedule.

110. Greek schedule of compen-

sation and scope of act.

111. Hungarian schedule.

112. Italian schedule.



Sec.

113. Luxenburg schedule.

114. Netherlands schedule.

115. New Zealand schedule.

116. Norwegian schedule of

compensation and scope of
act.

117. Queensland schedule of

compensation and scope
of act.

118. Russian schedule.

119. South Australian schedule.

120. Swedish schedule.

121. Spanish schedule.

122. West Australia schedule of

compensation and scope of
act



CHAPTER X.

THE WASHINGTON WORKMEN'S INSURANCE ACT.



Sec.

123. The nature and scope of

the Washington industrial
insurance act.

124. The workmen's insurance

act with its construction
by the board.

125. Proposed amendment.

126. Constitutionality of the act.

127. Opinion of the court.

128. Rules and directions.

129. Rules and directions for

employers.

130. Rules and directions for

workmen.



Sec.

131. Form of general directions

to employe's to be posted
on all floors of plant.

132. Formal procedure List of

forms.

133. Form of report of actual

payroll, (a)

134. Form of contractor's state-

ment of wages, (b)

135. Form of monthly statement

of city, (c)

136. Form of notice of assess-

ment, (d)



XI 1



TABLE OF CONTENTS.



Sec. Sec.

137. Form of elective adoption 154.

of the provisions of act.
(e)

138. Form of demand for first

quarterly payment re- 155.
quired by act. (f)

139. Form of monthly statement. 156.

(g)

140. Alphabetical list of indus-

tries with rates and classi-
fication, (h)

141. Form of instructions to cit-

ies, counties, school, port, 157.
waterway, drainage, or
other municipal corpora-
tion, (i)

142. Form of letter of instruc- 158.

tions to the employers and
employes, (j)

143. Form of employer's report 159.

of accident to employe with
chart, (k)

144. Workmen's claim for com- 160.

pensation. (1)

145. Form of instructions to in-

jured workman. (1) 161.

146. Form of report of attending

physician with charts, (m) 162.

147. Form of surgical discharge

report, (n)

148. Form of report of witnesses.

(o)

149. Surgeon's special report 163.

with charts, (p)

150. Form of proof of death by

physician, (q)

151. Form of proof of death by 164.

undertaker, (r)

152. Form of dependent's claim 165.

for compensation, (s)

153. Affidavit to foregoing form. 166.



Form of affidavit of claim-
ant for compensation
Survivors of deceased
workmen, (t)

Form of summary and
award, (u)

Form of partial payment
voucher Permanent par-
tial disability Full pay-
ment Total temporary
disability Partial pay-
ment, (v)

Form of partial payment
voucher Total temporary
disability Monthly al-
lowance, (vv)

Form of pension voucher
Permanent total disabil-
ity, (w)

Form of pension voucher
Survivors of deceased
workman, (ww)

Form of burial expense
voucher Account of de-
ceased workman, (x)

Form of final settlement
voucher, (y)

Form of election to receive
compensation and assign-
ment of claim Injuries
by defaulting employer.
(z)

Election to receive com-
pensation and assignment
of claim Injury by other
than employer, (zz)

Statistical reports on the
operation of the act.

Review of the first eight
months' operation of act.

Official state safety bulle-
tin.



TABLE OF CONTENTS.



Xlll



CHAPTER XL

THE OHIO WORKMEN'S INSURANCE ACT.



Sec. Sec.

167. The nature of the Ohio 184.

Workmen's Insurance act.

168. Ohio act an insurance act. 185.

169. Ohio act an indirectly com-

pulsory act.

170. Employer's liability under

the act.

171. The statute and its inter- 186.

pretation by the board and
the attorney-general.

172. The decision of the Su-

preme Court of Ohio sus-
taining the law. 187.

173. Workshop and factory in-

spection and regulation 188.
act.

174. Rules of procedure before 189.

the state liability board of
awards. 190.

175. Procedure as to employers.

176. Forms of applications and 191.

notices to be used by em-
ployers covered by the
act.

177. Form of application for

classification of industry 192.
and for premium.

178. Form of supplementary re-

port Accident experience.

179. Form of notice of employer

to employe's. 193.

180. A comparison of premium

rates under the Ohio law 194.
with liability insurance
rates under compensation 195.
laws.

181. Procedure as to injured em- 196.

ploye"s.

182. Form of procedure on no- 197.

tices in general.

183. Form of first notice of in- 198.

Jury, (a)



Form of first notice of
death, (b)

Formal procedure for pro-
curing medical, nurse, and
hospital services and med-
icines, without compensa-
tion.

Form of application for
money to pay for medical,
nurse and hospital serv-
ices and medicines, with-
out compensation, (a)

Form of physician's fee
bill, (b)

Form of druggist's cost
bill, (c)

Form of employer's certifi-
cate and oath, (d)

Form of certificate and
oath of lay witness, (e)

Formal procedure to obtain
money to pay for medical,
nurse and hospital serv-
ices and medicines, with
compensation.

Form of application for
money to pay for medical,
nurse and hospital serv-
ices and medicines, with
compensation, (a)

Form of employer's certifi-
cate and oath, (b)

Form of physician's fee
bill, (c)

Form of druggist's cost
bill, (d)

Form of medical fee bill
and hospital charges, (e)

Form of certificate and
oath of lay witness, (f)

Formal procedure to obtain
compensation in case of
permanent total disability.



XIV



TABLE OF CONTENTS.



Sec.
199.



200.
201.
202.
203.
204.
205.

206.



207.
208.

209.
210.
211.



Sec.

Form of application for 212.
money to pay for medical,
nurse and hospital serv- 213.
ices and medicines, with
compensation, (a) 214.

Form of employer's certifi-
cate and oath, (b) 215.

Form of physician's fee
bill, (c)

Form of druggist's cost
bill, (d)

Form of medical fee bill 216.
and hospital charges, (e)

Form of certificate and oath
of lay witness, (f)

Forms to obtain money to
pay for medical, hospital 217.
and funeral expenses on-
ly. 218.

Form of application for
money paid for medical,
nurse and hospital serv- 219.
ices and medicines and
for funeral expenses, with-
out award, (a) 220.

Form of undertaker's certi-
ficate of death and cost 221.
bill, (b)

Form of lay witness's cer- 222.
tificate in proof of death,
(c) 223.

Form of physician's certifi-
cate in proof of death, (d) 224.

Form of employer's certifi-
cate and oath, (e) 225.

Form of physician's fee
bill, (f)



Form of druggist's cost
bill, (g)

Form of medical fee bill
and hospital charges, (h)

Form of certificate and oath
of lay witness, (i)

Form of procedure to ob-
tain compensation and
money to pay for medi-
cal, hospital and funeral
expenses.

Form of application for
money paid for medical,
nurse and hospital serv-
ices and medicines and for
funeral expenses, (a)

Form of proof of depend-
ents, (b)

Form of undertaker's certi-
ficate of death and cost
bill, (c)

Form of lay witness's cer-
tificate in proof of death,
(d)

Form of physician's certifi-
cate in proof of death, (e)

Form of employer's certifi-
cate and oath, (f)

Form of physician's fee
bill, (g)

Form of druggist's cost
bill, (h)

Form of medical fee bill and
hospital charges, (i)

Form of certificate and
oath of lay witness, (j)



CHAPTER XII.

THE WISCONSIN WORKMEN'S COMPENSATION ACT.



Sec.

226. Nature and scope of Wis-

consin act.

227. Text of Wisconsin work-

men's compensation act
with construction of its
provisions.



Sec.

228. The opinion of the Supreme
Court of Wisconsin sus-
taining constitutionality
of act.



TABLE OF CONTENTS.



XV



Sec. Sec.

229. Decisions of commission

Construction of word "em-
ployment."

230. Decisions of commission 241.

Powers of commission
Review of awards Con-
struction of word "em-
ployment." 242.

231. Decisions of commission

Construction of "wilful 243.
misconduct."

232. Decisions of commission 244,

Construction of word
"support." 245.

233. Decisions of commission

Construction of "casual
employment" and time of
serving "notice." 246.

234. Decisions of commission

Meaning of "support" "de-
pendents."

235. Procedure under the act 247.

Rules of practice.

236. Circular 1 letter to employ-

ers by the commission in 248.
explanation of its rules of
practice. 249.

237. Formal procedure under

Wisconsin act. 250.

238. Form of employer's written

acceptance, (a) 251.

239. Form of employer's notice 252.

of withdrawal from oper-
ation of act. (b) 253.

240. Form of notice that em-

ployer has filed notice of



election to become sub-
ject to provisions of act.
(c)

Form of notice by employ-
er to the commission of
compliance with the law.
(d)

Form of first report of ac-
cident, (e)

Form of supplementary re-
ports on accident, (f)

Form of answer to appli-
cation, (g)

Form of notice by employe
that he elects to be sub-
ject to provisions of act.
(h)

Form of notice of employe"
upon entering employ-
ment that he elects not to
be subject to act. (i)

Form of notice to employer
of claim for injury under
act.(j)

Form of application for ad-
justment of claim, (k)

Form of accident report of
casualty company. (1)

Form of notice of hearing,
(m)

Form of subpoena, (n)

Form of admission of serv-
ice, (o)

Form of notice of the entry
of findings and award
made by commission, (p)



CHAPTER XIII.

NEW JERSEY COMPENSATION ACT.



Sec.

254. Nature and scope of act.

255. Text of New Jersey work-

men's compensation act.

256. Text of supplementary act

saving existing contracts.



Sec.

257. Text of act creating the
employer's liability com-
mission.



TABLE OF CONTENTS.



Sec.

258. Text of act requiring re-

ports of industrial acci-
dents to be made to the
Department of Labor.

259. Construction of act and

procedure thereunder.



Sec.

260. Form of accident blank for

report by employer.

261. Form of report by insur-

ance company to commis-
sioner of Labor on acci-
dent and compensation
paid.



CHAPTER XIV.

THE CALIFORNIA WORKMEN'S COMPENSATION ACT.



Sec. Sec.

262. The nature and scope of 275.

the act.

263. The California act and its

construction by the board. 276.

264. Reports of industrial acci-

dents. 277.

265. Rules of practice of the in-

dustrial accident board of
California. 278.

266. Th formal procedure un-

der the act.

267. Forms to be used by em- 279.

ployers.

268. Form of employer's writ-

ten acceptance of the pro-
visions of the act. (a) 280.

269. Form of employer's with-

drawal of acceptance of 281.
provisions of the act. (b)

270. Form of notice that em-

ployer has accepted the 282.

compensation provisions

of the act. (c) 283.

271. Form of employer's first

report of accident to em- 284.
ploy 6. (d)

272. Form of employer's supple- 285.

mental report of accident

to employe, (e) 286.

273. Forms for employe's.

274. Form of notice by employe

of election not to be sub- 287.
ject to the provisions of
the act. (f)



Form of notice to employer
of claim for compensation
for injury under act. (g)

Forms for hearings before
board.

Form of notice of filing of
application for adjust-
ment of claim, (h)

Form of notice of hearing
of application for adjust-
ment of claim, (i)

Form of subpoena for wit-
ness to appear before in-
dustrial accident board,
(j)

Forms to be used by physi-
cians.

Form of physician's report
of accident to employe,
(k)

Form of request for report
of accident. (1)

Form of request for fuller
report of accident, (m)

Form of notice to doctor to
file report, (n)

Forms to be used by casual-
ty companies.

Form of first accident re-
port of casualty company,
(o)

Form of supplemental ac-
cident report of casualty
company, (p)



TABLE OF CONTENTS.



XV11



CHAPTER XV.

THE NEVADA WORKMEN'S COMPENSATION ACT.



Sec.

288. Nature and scope of the

act.

289. Procedure Boards of ar-
bitration.



Sec.
290.



Text of the Nevada Work-
men's compensation law.



CHAPTER XVI.

THE KANSAS WORKMEN'S COMPENSATION ACT.



Sec.

291. Nature and scope of the
act.

292. Text of the Kansas com-

pensation act.



Sec.

293. Formal procedure under

the act.

294. Form of election of em-

ployer to come within the
provisions of the act.



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