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U N IT E D S T A T E S D E P A R T M E N T O F L A B O R
Frances P erk in s, Secretary
B U R E A U O F L A B O R S T A T IS T IC S
Isador L u b in , Commissioner
+
Occupational-Disease Legislation
in the U n ited States, 1936
Prepared by
L A B O R L A W IN F O R M A T IO N SERVICE
C H A R L E S F. S H A R K E Y , Chief
Bulletin 7\[o. 625
U N IT E D S T A T E S
G O V E R N M E N T P R I N T I N G O FFICE
W A S H IN G T O N : 1937
F or sale b y th e S u p erin ten d en t o f D ocu m en ts, W ash in g ton , D . C.
-
-
P rice 10 cen ts
CONTENTS
Page
Introduction___________________________________________________________
States, Territories, etc:
California______________________________________
Connecticut----------------------------------------------------------------------------------District of Columbia___________________________
Hawaii____________________________________________________________
Illinois_______________________________________
Kentucky_____________________________________
Massachusetts________________________________
Minnesota-------------------------Missouri_________________________ _____ ______- _____________ _____
Nebraska--------------------------------- ----------------- -------------------------_
New Jersey_ _________________
New Y ork.---------------------------------------------------- .... - ________________
North Carolina---------------------North Dakota_____________________________________________________
Ohio____________________________________ _____ _____________- _____
Philippine Islands_________________________- _ ------------------ ----------Puerto R ico_______________ - _ _ ________________ ___________________
Rhode Island_____________________
West Virginia__________________________
_______________
Wisconsin_____________________________________
United States:
Federal Employees’ Compensation A ct_________________________
Longshoremen’s and Harbor Workers’ Compensation Act__.___
in
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57
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58
PREFACE
One of the most serious flaws of accident compensation systems
in the United States is the failure of most State legislation to in
clude injuries due to occupational diseases. A t present, the systems
in operation in 16 States, as well as those of the Federal Government
and of Hawaii, Puerto Rico, and the Phillippine Islands, compensate
for at least some types of occupational disease. A few make the cov
erage complete. The other 30 States having accident compensation
systems make no such provisions. Their laws, as applied, distinguish
between injuries due to sudden physical violence and those resulting
from the slow ravage of disease. Thus, a miner crushed by falling
rock receives compensation, but a miner who becomes a hopeless
invalid because of the gradual filling o f his lungs with coal dust
and rock dust is excluded from compensation benefits. This is illogi
cal and unfair. The arguments usually made for such a distinction
are that in practice the inclusion of occupational diseases under
workmen’s compensation would involve difficulties of diagnosis and
might add unreasonably to the cost of the system. The experience
of those States which have actually taken the step of making all
types o f industrial injuries subject to compensation benefits is evi
dence that these objections are not very serious, or at least are not
insurmountable. The subject has been discussed by experts at the
national conferences on labor legislation called by the Secretary of
Labor. Each o f these conferences recommended that compensation
acts should cover injuries due to occupational disease as well as
those of a traumatic character.
Silicosis and asbestosis— diseases
resulting from dust inhalation— have been given particular con
sideration, a special conference on this subject having been held by
the Secretary of Labor in A p ril 1936.
This report deals with the history and development of occupa
tional-disease legislation in the United States. I t gives the pro
visions of existing laws for those jurisdictions where such laws
exist, and it is to be hoped that this information will be of service
to legislators and to all others who are concerned with the drafting
of legislation on this subject.
I
sa d o r
L
u b in
,
Commissioner of Labor Statistics.
D
e c e m b e r
2, 1936.
v
Bulletin ?{o. 625 of the
United States Bureau of Labor Statistics
Occupational-Disease Legislation in the
United States, 1936
Introduction
The establishment of the principle of compensation for occupa
tional diseases has found much slower acceptance in this country
than has that of compensation for industrial accidents. A t the
present time workmen’s compensation laws are in operation in 46 of
the 48 States, but of this number only 16 States 1 compensate for
occupational diseases. Coverage for occupational diseases is also ex
tended, however, to employees under the workmen’s compensation
laws of the District of Columbia, Hawaii, Puerto Eico, and the P h il
ippine Islands, and to employees covered by the Federal Employees’
Compensation A ct and the Longshoremen’s and Harbor W orkers’
Act. Thus, while the subject was little considered in the workmen’s
compensation laws as first adopted in the United States, by a better
understanding of the subject the laws have gradually been liberalized,
so that now 22 jurisdictions by one method or another compensate
for occupational diseases. In the remainder of the jurisdictions,
occupational diseases are excluded from compensation by express
language of the act, by interpretation o f the courts, or otherwise.
Mention should perhaps be made of the courts’ interpretation by
which a disease contracted gradually is classed as an accidental injury
and compensation is awarded accordingly, as has occurred in the
State o f Maryland.
T ren d s in Legislation
The attention given to the general subject o f compensation for
occupational diseases, and especially to the specific disease of silicosis,
has been widespread among the States in the past 2 years.
In Kentucky the law provided that personal injury should not
include diseases (except where the disease is the natural and direct
1
California, Connecticut, Illinois, Kentucky, Massachusetts, Minnesota, Missouri,
Nebraska, New Jersey, New York, North Carolina, North Dakota, Ohio, Rhode Island,
W est Virginia, Wisconsin.
1
2
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result of a traumatic injury by accident) nor the results o f a pre
existing disease, but should include injuries or death due to inhalation
in mines o f noxious gases or smoke and also injuries or death due to
the inhalation of any kind of gas. The law was enlarged in 1934
(ch. 89) to provide that any employers and their employees engaged
in the operation of glass-manufacturing plants, quarries, and sand
mines, or in the manufacture, treating, or handling of sand, may vol
untarily subject themselves to the law, as regards the disease of
silicosis caused by the inhalation of silica dust.
W est Virginia, by a special act passed in 1935 (ch. 7 9 ), provides for
payment of compensation to employees within the State who contract
silicosis. A special workmen’s compensation fund is set up from the
premiums and other funds paid by employers electing to come under
the provisions of the article. Employers who elect to make individual
and direct compensation to their employees having silicosis, or the
dependents o f such employees, do so subject to the regulations issued
by the compensation commissioner. A n employee is entitled to com
pensation when the disease is due to the nature o f an occupation or
process in which he was employed at any time within 1 year previous
to such disease, and when claim therefor has been made within 1 year
after the last exposure to silicon dioxide dust in harm ful quantities,
provided, however, that the exposure shall have been over a period o f
not less than 2 years in the same employment in the State. A sili
cosis medical board, to be appointed by the commissioner, and to
consist o f three physicians having special knowledge o f pulmonary
diseases, is provided for.
Silicosis and asbestosis were included in the schedule list o f com
pensable disease in North Carolina by an act o f 1935 (ch. 123). The
act provides that an employer shall not be liable for any compensa
tion for asbestosis, silicosis, or lead poisoning, unless disablement or
death results within 3 years after the last exposure to such disease, or,
in case o f death, unless death follows continuous disability from such
disease, commencing within the period o f 3 years. For the other
occupational diseases on the schedule, claims must be filed within 1
year from disablement or death. The law provides for the com
pulsory examination o f employees engaged or to be engaged in an
occupation which exposes them to the hazards o f asbestosis or sili
cosis. Compensation for disability or death from silicosis or asbes
tosis is not payable unless the employee has been exposed to the inha
lation of dust o f silica or silicates or asbestos in employment for at
least 2 years, and no part o f the 2-year period may have been more
than 10 years prior to the last exposure.
In 1936 the New Y ork Legislature enacted special legislation pro
viding compensation for and looking toward the prevention o f sili
cosis and other dust diseases (ch. 887). The law provides that there
shall be added to the industrial code effective regulations governing
the installation, operation, and maintenance of dust-removal systems
in all industries and operations in which silica dust or other harmful
dust hazard is present, and that such other regulations as will effec
tively control the incidence o f silicosis and similar diseases shall be
promulgated. Compensation will not be payable for partial disa
bility due to silicosis or other dust diseases, but will be payable for
temporary or permanent total disability or for death. A n employer
INTRODUCTIOK
3
is liable for the payment of compensation for these diseases when the
disability results within 1 year after the last injurious exposure, or,
in case o f death, within 5 years following continuous disability from
this cause. In enacting the article relating to the prevention o f sili
cosis and other dust diseases, it was declared to be the policy of the
legislature to prohibit, through any law ful means available, any re
quirement as a prerequisite o f employment which compels an appli
cant for employment m any occupation coming within the purview of
the article to undergo a medical examination. Special provision was
also made for the prevention of dust hazard in the construction o f
public works.
The Nebraska workmen’s compensation law was extended in 1935
(ch. 57) to cover occupational diseases contracted in the smelting or
metal-refining industries. It is specifically provided that only dis
eases peculiar to these industries are covered, and that the disability
must commence during the period of employment or 2 years from the
termination o f such employment. The law may not be construed
to include contagious or infectious disease contracted during the
course o f employment, or death due to natural causes which occurs
during working time.
A new and enlarged occupational-disease law was enacted by
Illinois in 1936. Prior to that time only employees engaged in certain
dangerous processes and employments had been afforded protection.
B y the terms o f the 1936 law, the coverage is for “ injury to health
or death by reason o f a disease contracted or sustained in the course
o f the employment and proximately caused by the negligence o f the
employer.” The employer may elect whether or not he will come
under its provision, but if he fails to do so, certain rights accrue to
the employee.
The employer may choose between two courses:
(1) Liability for damage by suit, limited to those cases o f disease
proximately caused by the employer’s own negligence; or (2) liability
for compensation payments and medical benefits in all cases o f true
occupational disease actually attributed to the employment. Com
pensation for silicosis and asbestosis is especially considered under
the new law. Disablement, as defined in the legislation, is com
pensable if it occurs within 1 year after the last day o f exposure, for
any occupational disease except those resulting from inhalation of
silica dust or asbestos d ust; in the latter cases the period is extended
to 3 years from the last day of exposure.
Rhode Island’s occupational-disease law adopted in 1936 (chs.
2290, 2358) extends the coverage for compensation beyond the dis
eases ordinarily designated, under such legislation. For example,
hernia, as well as disability arising from frostbite, is listed as an
occupational disease.
Method of Coverage
There are three usual methods o f covering occupational diseases
in the workmen’s compensation acts: First, by naming the specific
occupational diseases which are compensable; second, by the inclusion
o f all occupational diseases by blanket provisions; and, third, by using
the word “ injury” instead o f “accident” in the law.
The first method is that used in the workmen’s compensation laws
o f several European countries, particularly England, Germany, and
104266°—37-----2
4
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 19 3 6
Switzerland. In the United States six jurisdictions (Minnesota,
New Jersey, North Carolina, Ohio, Rhode Island, and Puerto Rico)
list the specific occupational diseases compensable. O f these juris
dictions, Minnesota lists 23 diseases; New Jersey, 10; North Carolina,
2 5 ; Ohio, 2 1 ; Rhode Island, 3 1 ; Puerto Rico, 15; while New Y ork ,
which formerly compensated 27 specific diseases, retained the schedule
in the legislation but amended the law in 1935 (ch. 254) to provide
a general coverage o f “any and all occupational diseases.” In three
States (Kentucky, Nebraska, and W est V irginia) coverage is limited
to one or two diseases contracted in certain employments.
Some jurisdictions, 10 in all,2 follow the second method o f allow
ing for compensation; that is, incorporation o f blanket provisions
in the laws to cover occupational disease. Exem plifying this kind
o f legislation is the act o f Connecticut, which defines occupational
disease as “ a disease peculiar to the occupation in which the employee
was engaged and due to causes in excess o f the ordinary hazards o f
employment as such.” Illinois makes blanket provision for compen
sation for industrial diseases, fixes amounts o f compensation for dis
ability, injury, or death from occupational diseases, and specifies that
the industrial commission shall administer the terms o f the occupa
tional-disease act separately from that covering workmen’s compen
sation due to injury.
The third method is o f special interest in the consideration o f the
general subject o f occupational diseases— the use o f the word “ injury”
instead o f “ accident” in the law. California and Wisconsin specify
that the word “injury” is to include occupational disease. The Massa
chusetts Legislature adopted the word “injury” in lieu o f the term
“ accident” , and the courts have held that an injury may be anything
that disables a man for work. In the case o f H. P. Hood dk Sons v.
Maryland Casualty Co. (92 N . E . 329) the court declared that an
infection which a stableman had received from glanders was as much
a bodily injury as though he had received a broken leg or arm by the
kick o f a horse. The Massachusetts court in another case (Johnson v.
London Guarantee < Accident Co., 104 N. E . 735) held that a claim
&
for lead poisoning would be allowed as for personal injuries.
From an examination of the printed reports of the proceedings of
the annual conventions o f the International Association o f Industrial
Accident Boards and Commissions it is apparent that the adminis
trators o f workmen’s compensation laws are in agreement that the
complete coverage o f all occupational diseases is far better than the
“schedule” coverage plan. In 1929,3 at the Buffalo, N. Y ., meeting o f
the association, the follow ing resolution %
was adopted:
W h e r e a s th e e x p e rie n c e o f se v e ra l S ta te s, in c lu d in g e s p e c ia lly th e S ta te s o f
C a lifo r n ia , C o n n e c tic u t, N o r th D a k o ta , a n d W is c o n s in , r e lia b ly in d ic a te s th a t
th e co st o f in c lu d in g a ll o c c u p a tio n a l in ju r ie s a n d d is a b ilitie s is in sig n ific a n t
a n d w o u ld a d d n o t e x c e e d in g a p p r o x im a te ly 1 p e rce n t to th e p re se n t in s u r a n c e
co st o f a c c id e n t d i s a b i li t i e s : T h e r e fo r e be it
Resolved , T h a t th is a s so c ia tio n h e re b y re c o m m e n d s to th e s e v e ra l S ta te s a n d
P ro v in c e s th e in c lu sio n o f a ll o c c u p a tio n a l in ju r ie s a n d d is a b ilitie s in th e ir
co m p e n sa tio n la w s , a n d it d o e s h e re b y p la ce it s e lf on re co rd a s f a v o r in g su ch
le g isla tio n .
2 Connecticut, District of Columbia, Hawaii, Illinois, Missouri, New York North Dakota.
Philippine Islands, the Federal Employees’ Compensation Act, and the Longshoremen’s
and Harbor Workers’ Compensation Act.
3 See Bureau of Labor Statistics Bull. No. 511, p. 325.
INTRODUCTION
5
The legislative committee of this association, at the meeting at
Asheville, N . C., in 1935, presented a draft o f two provisions covering
the compensation o f occupational diseases. The association accepted
the report o f the committee with the direction that it be sent to the
various States for their study and consideration.
Consideration was given to occupational diseases by a group o f
experts who gathered in W ashington, D . C., on February 14 and 15,
1934, at the conference on labor legislation called by the Secretary o f
Labor.4 The committee on workmen’s compensation recommended
that the term “injuries” should include occupational diseases. I t was
also a part o f the recommended report that a “blanket” coverage o f
occupational diseases was preferable to the “ schedule” coverage. A
second conference was called by the Secretary o f Labor in 1935 5 at
Asheville, N. C., and a third in W ashington, D. C., in 1936.6 A t
these sessions the subject of workmen’s compensation was considered,
and the recommendations o f the first conference on the subject of
occupational diseases were approved.
A t the conference on silicosis, which met in W ashington on Feb
ruary 26, 1936, it was decided that a larger representation was neces
sary, so the Secretary of Labor called a national conference for A p ril
14, 1936. Representatives o f labor and industry gathered at this
meeting to discuss the problems incident to the prevention and control
o f silicosis and other occupational dust hazards. Committees were
named to study and analyze the hazard in industry and present recom
mendatory measures. These committees included the committee on
prevention o f silicosis through medicine and engineering control;
committee on economic, legal, and insurance features; and the
committee on the regulatory and administrative aspect o f the problem.
More and more attention has been directed by legislators in recent
years to this vital matter. In addition to the active consideration
o f the subject in the form o f statutory legislation, a noticeable in
terest has been displayed by several States in the appointment of
committees to study the general field of occupational diseases, and
in particular silicosis. In 1 year— 1935— M aryland, Michigan, and
New Hampshire created investigative commissions to consider the
subject in general, while California appointed a committee to con
sider silicosis. Each of these bodies was directed to report its find
ings to the legislature and recommend appropriate legislation. From
present indications it would appear that renewed interest in the field
o f occupational diseases will be shown in the legislative assemblies
meeting in 1937, when all but four o f the States will hold regular
sessions.7
O f special interest in the consideration o f the subject o f occupa
tional diseases is the existence in 21 States o f a provision requiring
the reporting of occupational diseases. These States are Alabama,
Arizona, Connecticut, Georgia, Illinois, Kansas, Maine, M aryland,
Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New
Jersey, New Mexico, New Y ork , Ohio, Oregon, Pennsylvania, Rhode
Island, and Wisconsin.
4 See Monthly Labor Review, April 1934, p. 781.
6 See Monthly Labor Review, November 1935, p. 1261.
6 See Monthly Labor Review, December 1936, p. 1438.
7 For additional data see Women’s Bureau (U. S. Department
of Labor) Bulletin No. 147:
Summary of State Reports of Occupational Diseases With a Survey of Preventive Legisla
tion, 1932 to 1934.
(The text of the laws has been punctuated and capitalized in accordance with
the rules laid down by the Government Printing Office for Government publica
tions and does not follow in all cases the official State editions.)
C A L IF O R N IA
DEERING’S GENERAL LAWS, 1931
ACT 4749
S e c t io n 3. D e f i n i t i o n s .— * * *
(4) The term “ injury” , as used in this act,
shall include any injury or disease arising out of the employment including
injuries to artificial members. In case of aggravation of any disease existing
prior to such injury, compensation shall be allowed only for such proportion
of the disability due to the aggravation of such prior disease as may reasonably
be attributed to the injury.
C O N N E C T IC U T
GENERAL STATUTES, 1930
S e c t i o n 5223. D e f i n i t i o n s .— * * * The words “personal injury” or “ injury” ,
as the same are used in this chapter, shall be construed to include only acciden
tal injury which may be definitely located as to the time when and the place
where the accident occurred, and occupational disease as herein defined. The
words “ occupational disease” shall mean a disease peculiar to the occupation in
which the employee was engaged and due to causes in excess of the ordinary
hazards of employment as such. The words “ arising out of and in the course
of his employment” , as used in this chapter, shall mean an accidental injury
happening to an employee or an occupational disease of such employee origi
nating while he shall have been engaged in the line of his duty in the business
or affairs of the employer upon the employer’s premises, or while so engaged
elsewhere upon the employer’s business or affairs by the direction, express or
implied, of the employer. A personal injury shall not be deemed to arise out
of the employment unless causally traceable to the employment other than
through weakened resistance or lowered vitality. * * *
S e c . 5234. C o m p e n s a t i o n f o r d e a t h .— Compensation shall be paid on account
of death resulting from accident or an occupational disease within 2 years from
the date of the accident or the first manifestation of a symptom of the occupa
tional disease, as the case may be, * * *.
i
S e c . 5245. N o t i c e r e q u i r e d .—No proceedings for compensation under the pro
visions of this chapter shall be maintained unless a written notice of claim for
compensation shall be given within one year from the date of the accident or
from the first manifestation of a symptom of the occupational disease, as the
case may be, which caused the personal injury, provided, if death shall have
resulted within two years from the date of the accident or first manifestation
of a symptom of the occupational disease, a dependent or dependents may make
claim for compensation within said two-year period, and provided no claim on
account of an occupational disease shall be made by an employee or his depend
ents against the employer in whose employ the disease is claimed to have origi
nated, except while the employee is still in such employ or within three years
after leaving such employ. Such notice shall state in simple language the date
and place of the accident and the nature of the injury resulting therefrom, or
the date of the first manifestation of a symptom of the occupational disease and
the nature of such disease, as the case may be, the name and address of the
employee and of the person in whose interest compensation is claimed. In case
of a fatal injury, notice may be given by any one of the dependents under the
6
O C C U P A T IO N A L -D IS E A S E
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7
provisions of this chapter or by the legal representative of the deceased em
ployee. If there shall have been a hearing or a written request for a hearing or
an assignment for a hearing, within one year from the date of the accident, or
from the first manifestation of a symptom of the occupational disease, as the
case may be, or in the event that a voluntary agreement shall have been sub
mitted within said period of one year, no want of such notice of claim shall be
a bar to the maintenance of proceedings; * *
*.
D IS T R IC T OF C O L U M B IA
UNITED STATES CODE, 1934
TITLE 33
S e c t i o n 902. D e f i n i t i o n s . — When used in this chapter * * * (2) The term
“injury” means accidental injury or death arising out of and in the course of
employment, and such occupational disease or infection as arises naturally out
of such employment or as naturally or unavoidably results from such accidental
injury, and includes an injury caused by the willful act of a third person
directed against an employee because of his employment.
H A W A II
REVISED LAWS, 1935
S e c t i o n 7480. E m p l o y m e n t s c o v e r e d — * * * If a workman receive personal
injury by accident arising out of and in the course of the employment or by
disease proximately caused by the employment, or resulting from the nature
of the employment, his employer or the insurance carrier shall pay compensa
tion in the amounts and to the person or persons hereinafter specified.
ILLINOIS
ACTS OF 1936
(Third Special Session)
h ouse
b il l
no.
10
S e c t io n 1. T i t l e . —This Act shall be known and may be cited as the “Work
men’s Occupational Diseases Act” .
S e c . 2. L i a b i l i t y o f e m p l o y e r . —There shall be no liability of any employer for
compensation or damages for or on account of any injury to health, disease, or
death therefrom, other than for the compensation herein provided or for dam
ages as provided in section 3 of this A ct: P r o v i d e d , That this section shall not
affect any right to compensation under the “Workmen’s Compensation Act” .
S ec . 3. R i g h t s o f e m p l o y e e s i n c a s e e m p l o y e r h a s n o t e l e c t e d t o c o m e u n d e r
t h e a c t . —Where an employee in this State sustains injury to health or death
by reason of a disease contracted or sustained in the course of the employment
and proximately caused by the negligence of the employer, unless such employer
shall have elected to provide and pay compensation as provided in section 4 of
this Act, a right of action shall accrue to the employee whose health has been
so injured for any damages sustained thereby; and in case of death, a right of
action shall accrue to the widow of such deceased person, his lineal heirs or
adopted children, or to any person or persons who were, before such loss of life,
dependent for support upon such deceased person, for a like recovery of damages
for the injury sustained by reason of such death not to exceed the sum of ten
thousand dollars ($10,000.00) : P r o v i d e d , That violation by any employer of any
effective rule or rules made by the industrial commission pursuant to the Health
and Safety Act, enacted by the Fifty-ninth General Assembly at the third
special session, or violation by the employer of any statute of this State, intended
for the protection of the health of employees, shall be and constitute negligence
of the employer within the meaning of this section; P r o v i d e d f u r t h e r , That
every such action for damage for injury to the health shall be commenced within
three (3) years after the last day of the last exposure to the hazards of the
disease and that every such action for damages in case of death shall be com-
8
O C C U P A T IO N A L -D IS E A S E
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menced within one (1) year after the death of such employee and within five
(5) years after the last day of the last exposure to the hazards of the disease:
P r o v i d e d f u r t h e r , That ip any action to recover damages under this section, it
shall not be a defense that the employee either expressly or impliedly assumed
the risk of the employment, or that the contraction or sustaining of the disease
or death was caused in whole or in part by the negligence of a fellow servant or
fellow servants, or that the contraction or sustaining of the disease or death
resulting was caused in whole or in part by the contributory negligence of the
employee, where such contributory negligence was not wilful.
S ec . 4. E l e c t i o n b y e m p l o y e r .— ( a ) Any employer in this State may elect to
provide and pay compensation according to the provisions of this Act, for dis
ability or death resulting from occupational diseases, and such election, when
effective, shall apply to all cases in which the last day of the last exposure as
defined in this Act to the hazards of the occupational disease claimed upon shall
have occurred on or after the effective date of such election, and shall relieve
such employer of all liability under section 3 of this Act and all other liability
with respect to injury to health or death therefrom by reason of any disease
contracted or sustained in the course of the employment.
( b ) Election by any employer, pursuant to paragraph ( a ) of this section,
shall be made by filing notice of such election with the industrial commission.
Such employer shall either furnish to his employees personally or post in a
conspicuous place in the place of employment, a copy of such notice o f his
election.
(c) Every employer who has elected pursuant to paragraphs ( a ) and ( b )
of this section to provide and pay compensation shall, from and after the effec
tive date of such election be, remain and operate under all provisions of this Act
except section 3 hereof, with respect to all his employees except those who
have rejected in due time as provided in paragraph (d) : P r o v i d e d , h o w e v e r ,
that on October 1, 1937, and on each October first for four years thereafter, any
employer who shall have elected pursuant to paragraphs (a) and ( b ) of this
section to provide and pay compensation under this Act, may elect not to pro
vide and pay compensation under this Act by filing notice of such election not
to provide and pay compensation under this Act with the industrial commis
sion at least sixty days prior to the October first upon which such election is
to be effective and by either giving to his employees personally or posting in
a conspicuous place in the place of employment a copy of such notice of such
election not to provide and pay compensation at least sixty days prior to such
October first; and such election not to provide and pay compensation shall ap
ply to all cases in which the last day of the last exposure, as defined in this
Act, to the hazards of the disease claimed upon shall have occurred on or after
the October first on which such election shall have become effective: P r o v i d e d
f u r t h e r , That any employer having elected, pursuant to this paragraph not to
provide and pay compensation may at any time thereafter again elect pursuant
to paragraphs ( a ) and ( b ) to provide and pay compensation, but having thus
elected for the second time to provide and pay compensation such employer
shall, from and after the effective date of such last said election, be, remain
and operate under all provisions of this Act, except section 3 hereof, with re
spect to all employees except those who have rejected in due time as provided in
paragraph ( d ) of this section, and such employer may not again withdraw.
(d) If any employer elects, pursuant to paragraphs ( a ) and ( b ) of this
section, then every employee of such employer, who may be employed at the
time of such election by such employer, shall be deemed to have accepted all
the compensation provisions of this Act and shall be bound thereby unless
within thirty (30) days after such election, he shall file a notice to the contrary
with the industrial commission, whose duty it shall be immediately to notify the
employer, and until such notice is given to the employer, the measure of lia
bility of such employer shall be determined according to the compensation pro
visions of this A c t; and every employee of such employer, hired after such em
ployer’s election, as a part of his contract of hiring shall be deemed to have
accepted all of the compensation provisions of this Act, and shall have no right
of rejection.
( e ) The compensation herein provided for shall be the full, complete and
only measure of the liability of the employer bound by election under this Act
and such employer’s liability for compensation and medical benefits under this
Act shall be exclusive and in place of any and all other civil liability whatso
ever, at common law or otherwise, to any employee or his legal representative
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on account of damage, disability or death caused or contributed to by any
disease contracted or sustained in the course of the employment.
S eo. 5. D e f i n i t i o n s . — For the purposes of this A ct:
The term “ employer” as used in this Act shall be construed to be:
F i r s t —The State and each county, city, town, township, incorporated village,
school district, body politic, or municipal corporation therein.
S e c o n d —Every person, firm, public or private corporation, including hospitals,
public service, eleemosynary, religious or charitable corporations or associations
who has any person in service or under any contract for hire, express or implied,
oral or written: P r o v i d e d , Nothing contained herein shall be construed to apply
to any work, employment or operations done, had or conducted by farmers and
others engaged in farming, tillage of the soil, or stock raising, or to those who
rent, demise or lease land for any such purposes, or to any one in their employ
or to any work done on a farm or country place, no matter what kind of work
or service is being done or rendered.
The term “ employee” as used in this Act, shall be construed to mean:
F i r s t —Every person in the service of the State, county, city, town, township,
incorporated village or school district, body politic or municipal corporation
therein, under appointment or contract of hire, express or implied, oral or writ
ten, except any totally blind person, any official of the State, or of any county,
city, town, township, incorporated village, school district, body politic or munici
pal corporation therein and except any duly appointed member of the fire
department in any city whose population exceeds five hundred thousand accord
ing to the last Federal or State census, and except any member of a fire insur
ance patrol maintained by a board of underwriters in this State. H o w e v e r , any
employee, his personal representative, widow, children, beneficiaries or heirs,
who is, are or shall be entitled to receive a pension or benefit for or on account
of disability or death arising out of or in the course of his employment from a
pension or benefit fund to which the State or any county, town, township, in
corporated village, school district, body politic, underwriters’ fire patrol or mu
nicipal corporation therein is a contributor, in whole or in part, shall be entitled
to receive only such part of such pension or benefit as is in excess of the amount
of compensation recovered and received by such employee, his personal repre
sentative, widow, children, beneficiaries or heirs under this Act. A n d , p r o v i d e d
f u r t h e r , That one employed by a contractor who has contracted with the State,
or a county, city, town, township, incorporated village, school district, body
politic or municipal corporation therein, through its representatives, shall not
be considered as an employee of the State, county, city, town, township, incor
porated village, school district, body politic or municipal corporation which
made the contract.
S e c o n d —Every person in the service of another under any contract of hire,
express or implied, oral or written, including aliens, and minors who, for the
purpose of this Act, except section 3 hereof, shall be considered the same and
have the same power to contract, receive payments and give quittances there
for, as adult employees, but not including any totally blind person or any per
son who is not engaged in the usual course of the trade, business, profession
or occupation of his employer.
“Disablement” means the event of becoming disabled from earning full
wages at the work in which the employee was engaged when last exposed to
the hazards of the occupational disease by the employer from whom he claims
compensation, or equal wages in other suitable employment; and “ disability”
means the state of being so incapacitated.
No compensation shall be payable for or on account of any occupational
disease unless disablement, as herein defined, occurs within one (1) year after
the last day of the last exposure to the hazards of the disease, except in cases
of occupational disease caused by the inhalation of silica dust or asbestos dust
and, in such cases, within three (3) years after the last day of the last exposure
to the hazards of such disease.
S ec. 6 . D e f i n i t i o n o f o c c u p a t i o n a l d i s e a s e . — In this Act the term “ occupational
disease” means a disease arising out of and in the course of the employment.
Ordinary diseases of life to which the general public is exposed outside of the
employment shall not be compensable, except where the said diseases follow
as an incident of an occupational disease as defined in this section.
A disease shall be deemed to arise out of the employment, only if there is
apparent to the rational mind upon consideration of all the circumstances, a
direct causal connection between the conditions under which the work is per
formed and the occupational disease, and which can be seen to have followed
10
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as a natural incident of the work as a result of the exposure occasioned by the
nature of the employment and which can be fairly traced to the employment
as the proximate cause, and which does not come from a hazard to which work
men would have been equally exposed outside of the employment. The disease
must be incidental to the character of the business and not independent of the
relation of employer and employee. The disease need not to have been fore
seen or expected but after its contraction it must appear to have had its origin
in a risk connected with the employment and to have flowed from that source
as a rational consequence.
S ec . 7. C o m p e n s a t i o n p a y a b l e i n c a s e o f d e a t h .—The amount of compensation
which shall be paid for an occupational disease sustained by the employee
resulting in death shall b e :
( a ) If the employee leaves any widow, child or children whom he was under
legal obligations to support at the time of his disablement, a sum equal to
four times the average annual earnings of the employee, but not less in any
event than two thousand five hundred dollars and not more in any event than
four thousand dollars. P r o v i d e d , That when an award has been made under
this paragraph, where the deceased left at the time of his death a widow
and one child under sixteen years of age him surviving, the compensation pay
ments and death benefits to the extent the same were increased because of the
existence of said child, insofar as same have not been paid, shall cease and
become extinguished when said child arrives at the age of eighteen years, if
said child is physically and mentally competent at that time.
Any right to receive compensation hereunder shall be extinguished by the
remarriage of a widow, if the deceased did not leave him surviving any child
or children whom he was under legal obligations to support at the time of said
disablement.
Any compensation payments other than necessary medical, surgical or hos
pital fees or services shall be deducted in ascertaining the amount payable on
death.
{ b ) If no amount is payable under paragraph (a) of this section and the
employee leaves any parent, husband, child or children who at the time of
disablement were totally dependent upon the earnings of the employee, then
a sum equal to four times the average annual earnings of the employee, but
not less in any event than two thousand five hundred dollars, and not more in
any event than four thousand dollars. Any compensation payments other than
necessary medical, surgical or hospital fees or services shall be deducted in
ascertaining the amount payable on death.
(c) If no amount is payable under paragraph ( a ) or (5) of this section
and the employee leaves any parent or parents, child or children, who at the
time of disablement were partially dependent upon the earnings of the em
ployee, then such proportion of a sum equal to four times the average annual
earnings of the employee as such dependency bears to total dependency, but
not less in any event than one thousand dollars and not more in any event than
three thousand seven hundred fifty dollars. Any compensation payments other
than necessary medical, surgical or hospital fees or services shall be deducted
in ascertaining the amounts payable on death.
( d ) If no amount is payable under paragraphs (a), (&), or (o) of this section
and the employee leaves any grandparent, grandchild or grandchildren or col
lateral heirs dependent at the time of the disablement to the employee upon his
earnings to the extent of fifty percentum or more of total dependency, then
such proportion of a sum equal to four times the average annual earnings of
the employee as such dependency bears to total dependency, but not more in any
event than three thousand seven hundred fifty dollars. Any compensation
payments other than necessary medical, surgical or hospital fees or services
shall be deducted in ascertaining the amounts payable on death.
( e ) If no amount is payable under paragraphs (a), (h), (c) or ( d ) of this
section, a sum not to exceed one hundred and fifty dollars for burial expenses
to be paid by the employer to the undertaker or to the person or persons in
curring the expense of burial, and the further sum of three hundred dollars,
which shall be paid within sixty days into a special fund, of which the state
treasurer shall be ex-officio custodian, such special fund to be held and disbursed
for the purposes hereinafter stated in paragraph ( f ) of section 8, either upon
the order of the industrial commission or of a competent court. Said special
fund shall be deposited the same as are state funds and any interest accruing
thereon shall be added thereto every six months. It shall be subject to audit
O C C U P A T IO N A L -D IS E A S E
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the same as state funds and accounts and shall be protected by the general
bond given by the state treasurer. It shall be considered always appropriated
for the purposes of disbursements as provided in section 8, paragraph (f), of
this Act, and shall be paid out and disbursed as therein provided and shall not
at any time be appropriated or diverted to any other use or purpose: P r o v i d e d ,
That whenever any sum is paid into the said fund and subsequently it develops
that compensation is payable under paragraphs (a), (&), (c) or ( d ) of this sec
tion, the industrial commission shall order the refund of any sum paid into the
said fund, and the state treasurer as custodian of said fund shall immediately
refund the sum paid to him in accordance with the order of the industrial com
mission upon receipt by him of a certified copy of said order.
The industrial commission shall, within ten days after the rendition of any
award providing for payments into said special fund provided for in para
graph (e) of this section, mail a certified copy thereof to the state treasurer.
If said award be not paid within thirty days after the date said award has
become final, the state treasurer shall proceed to take judgment thereon in his
own name as ex-officio custodian of said fund as is provided for other awards
by this Act and take the necessary steps to collect said award. The industrial
commission shall immediately, upon learning of any death because of which
payments into said fund may become due under paragraph (e) of this section,
notify the state treasurer thereof and the state treasurer, if payments be not
made into said fund within sixty days following said death on account of
which it may be due, shall within sixty days after the receipt of said notice
institute proceedings in his own name before the industrial commission for
the collection thereof, and in said proceedings the industrial commission may
order the burial fund provided for in this Act paid to the person, corporation
or organization who has paid or become liable for the payment of same. In
all such proceedings so instituted by the state treasurer it shall not be a de
fense that notice of the disablement was not given the employer as provided
in this Act or that the demand for payment was not made within six months
or that written claim for compensation Was not filed with the industrial
commission within one year. Any person, corporation or organization who
has paid or become liable for the payment of burial expenses of said deceased
employee may in his or its own name institute proceedings before the industrial
commission for the collection thereof. P r o v i d e d f u r t h e r , That at no time shall
there be paid into said special fund on account of any one death a sum to
exceed three hundred dollars.
{ f ) All compensation, except for burial expenses provided in this section
to be paid in case occupational disease results in death, shall be paid in in
stallments equal to the percentage of the average earning as provided for in
section 8 of this Act, at the same intervals at which the wages or earnings
of the employees were paid; or if this shall not be feasible, then installments
shall be paid weekly: P r o v i d e d , Such compensation may be paid in a lump
sum upon petition as provided in section 9 of this Act.
(g )
The compensation to be paid for occupational disease which results
in death, as provided in this section, shall be paid to the persons who form
the basis for determining the amount of compensation to be paid by the em
ployer, the respective shares to be in the proportion of their respective de
pendency at the time of the disablement on the earnings of the deceased:
P r o v i d e d , That the industrial commission or an arbitrator thereof may, in its
or his discretion, order or award the payment to the parent or grandparent
of a child for the latter’s support the amount of compensation which but for
such order or award would have been paid to such child as its share of the
compensation payable, which order or award may be modified from time to
time by the commission in its discretion with respect to the person to whom
shall be paid the amount of said order or award remaining unpaid at the
time of said modification.
The payments of compensation by the employer in accordance with the order
or award of the industrial commission shall discharge such employer from
all further obligation as to such compensation.
In a case where any of the persons who would be entitled to compensation
is living at any place outside of the United States, then payment shall be made
to the personal representative of the deceased employee. The distribution by
such personal representative to the persons entitled shall be made to such per
sons and in such manner as the commission shall order.
1 04 2 6 6°— 37------ 3
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OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 19 36
( h ) 1. Whenever in paragraph ( a ) of this section a minimum of two thou
sand five hundred dollars is provided, such minimum shall be increased in the
following cases to the following amounts:
Three thousand dollars in case of one child under the age of 16 years at the
time of the death of employee.
Three thousand one hundred dollars in case of two children under the age of
16 years at the time of the death of employee.
Three thousand two hundred dollars in case of three or more children under
the age of 16 years at the time of the death of the employee.
2. Whenever four times the average annual earnings of the deceased em
ployee as provided in paragraph (a) of this section amounts to more than two
thousand five hundred dollars and to less than four thousand dollars, the
amount so payable under said paragraph shall be increased as follow s:
In case such employee left surviving him one child under the age of sixteen
years tne amount so payable shall be increased three hundred fifty dollars.
In case such employee left surviving him two children under the age of six
teen years the amount so payable shall be increased four hundred fifty dollars.
In case such employee left surviving him three or more children under the
age of sixteen years the amount so payable shall be increased six hundred
dollars.
3. Whenever in paragraph ( a ) of this section a maximum of four thousand
dollars is provided, such maximum shall be increased in the following cases to
the following amounts:
Four thousand four hundred fifty dollars in case of one child under the age
of sixteen years at the time of the death of the employee.
Four thousand eight hundred dollars in case of two children under the age
of sixteen years at the time of the death of the employee.
Five thousand five hundred dollars in case of three or more children under the
age of sixteen years at the time of the death of the employee.
4. Whenever four times the average annual earnings of the deceased employee
as provided in paragraph ( a ) of tliis section amounts to four thousand dollars
and not more than four thousand four hundred dollars and the deceased em
ployee left surviving him one child under the age of sixteen years the amount
payable shall be four thousand four hundred dollars.
Whenever four times the average annual earnings of the deceased employee
as provided in paragraph (a) of this section amounts to four thousand dollars
and not more than four thousand seven hundred dollars and the deceased em
ployee left surviving him two children under the age of sixteen years the amount
payable shall be four thousand seven hundred dollars.
Whenever four times the average annual earnings of the deceased employee
as provided in paragraph ( a ) of this section amounts to four thousand dollars
and not more than five thousand dollars and the deceased employee left surviv
ing him three or more children under the age of sixteen years the amount payable
shall be five thousand dollars.
(i) In case the employee is under sixteen years of age at the time of the
last day of the last exposure and is then illegally employed, the amount of
compensation payable under paragraphs (a), (&), (c), ( d ) and (e) of this sec
tion shall be increased fifty percentum. P r o v i d e d , h o w e v e r , That nothing herein
contained shall be construed to repeal or amend the provisions of an Act con
cerning child labor, approved June 26, 1917, as subsequently amended relating
to the employment of minors under the age of sixteen years.
( j ) Whenever the dependents of a deceased employee are aliens not residing
in the United States or Canada, the amount of compensation payable shall be
limited to the beneficiaries described in paragraphs (a), ( b ) and (c) of this
section and shall be fifty percentum of the compensation provided in paragraphs
(a), (6) and (c) of this section except as otherwise provided by treaty.
Seo. 8. C o m p e n s a t i o n p a y a b l e i n c a s e o f d i s a b i l i t y .—The amount of compensa
tion which shall be paid to the employee for disability from an occupational
disease not resulting in death shall b e :
{ a ) In cases of silicosis, or silicosis complicated with tuberculosis, or asbestosis, or asbestosis complicated with tuberculosis, the employer shall provide
the necessary first aid, medical and surgical services, and all necessary medical,
surgical and hospital services thereafter, limited, however to that which is rea
sonably required to cure or relieve from the effects of said diseases for a period
not exceeding six months from date of disablement.
In all other cases, the employer shall provide the necessary first aid, medical
and surgical services, and all necessary medical, surgical and hospital services
O C C U P A T IO N A L -D IS E A S E
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thereafter, limited, however to that which is reasonably required to effect a
cure from the effects of the disease. The employee may in any case elect to
secure his own physician, surgeon and hospital services at his own expense.
Any occupational disease resulting in the amputation of an arm, hand, leg or
foot, or the enucleation of any eye, the employer shall furnish an artificial of
any such member lost by occupational disease arising out of and in the course
of the employment, and shall also furnish the necessary braces in all proper and
necessary cases, provided, the furnishing by the employer of any such services
or appliances shall not be construed to admit liability on the part of the
employer to pay compensation, and the furnishing of any such services or appli
ances by the employer shall not be construed as the payment of compensation.
(6) If the period of temporary total incapacity for work lasts more than six
working days, compensation equal to fifty percentum of the earnings, but not less
than $7.50 nor more than $15.00 per week, beginning on the eighth day of such
temporary total incapacity and continuing as long as the temporary total inca
pacity lasts, but not after the amount of compensation paid equals the amount
which would have been payable as a death benefit under paragraph ( a ) , section 7,
if the employee had died as a result of the occupational disease, leaving heirs
surviving as provided in said paragraph ( a ) , section 7: P r o v i d e d , That in the
case where the temporary total incapacity for work continues for a period of
more than thirty days from the day of the disablement, then compensation
shall commence on the day after the disablement.
(c) For any serious and permanent disfigurement to the hand, head, face or
neck, the employee shall be entitled to compensation for such disfigurement, the
amount fixed by agreement or by arbitration in accordance with the provisions
of this Act, which amount shall not exceed one-quarter of the amount of the
compensation which would have been payable as a death benefit under para
graph (a), section 7, if the employee had died as a result of the occupational
disease, leaving heirs surviving, as provided in said paragraph (a), section 7:
P r o v i d e d , That no compensation shall be payable under this paragraph where
compensation is payable under paragraphs ( d ) , (e) or ( f ) of this section: A n d
p r o v i d e d f u r t h e r , That when the disfigurement is to the hand, head, face or
neck as a result of any occupational disease for which compensation is not
payable under paragraphs (d), ( e ) or ( f ) of this section, compensation for such
disfigurement may be had under this paragraph.
( d ) If, after the disablement has been sustained, the employee as a result
thereof becomes partially incapacitated from pursuing his usual and customary
line of employment, he shall, except in the cases covered by the specific schedule
set forth in paragraph (e) of this section, receive compensation, subject to the
limitations as to time and maximum amounts fixed in paragraphs (&) and ( h )
of this section, equal to fifty percentum of the differences between the average
amount which he earned before the last day of the last exposure and the
average amount which he is earning or is able to earn in some suitable employ
ment or business after the disablement.
( e ) For disabilities in the following schedule, the employee shall receive com
pensation for the period of temporary total incapacity for work resulting from
such occupational disease, in accordance with the provisions of paragraphs ( a )
and (&) of this section, for a period not to exceed sixty-four weeks, and shall
receive in addition thereto compensation for a further period subject to limita
tions as to amounts as in this section provided, for the specific loss herein men
tioned, as follows, but shall not receive any compensation for such disabilities
under any other provision of this Act.
1. For the loss of a thumb, or the permanent and complete loss of its use,
fifty percentum of the average weekly wage during seventy weeks.
2. For the loss of a first finger, commonly called the index finger, or the per
manent and complete loss of its use, fifty percentum of the average weekly wage
during forty weeks.
3. For the loss of a second finger, or the permanent and complete loss of its
use, fifty percentum of the average weekly wage during thirty-five weeks.
4. For the loss of a third finger, or the permanent and complete loss of its
use, fifty percentum of the average weekly wage during twenty-five weeks.
5. For the loss o£ a fourth finger, commonly called the little finger, or the
permanent and complete loss of its use, fifty percentum of the average weekly
wage during twenty weeks.
6. The loss of the first phalange of the thumb or of any finger, shall be con
sidered to be equal to the loss of one-half of such thumb or finger and compen
sation shall be one-half of the amount above specified.
14
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 193 6
7. The loss of more than one phalange shall be considered as the loss of the
entire finger or thumb: P r o v i d e d , h o w e v e r , That in no case shall the amount
received for more than one finger exceed the amount provided in this schedule
for the loss of a hand.
8. For the loss of a great toe, or for the permanent and complete loss of its
use, fifty percentum of the average weekly wage during thirty-five weeks.
9. For the loss of each toe other than the great toe, or for the permanent and
complete loss of its use, fifty percentum of the average weekly wage during
twelve weeks.
10. The loss of the first phalange of any toe shall be considered to be the equal
to the loss of one-half of such toe, and compensation shall be one-half of the
amount above specified.
11. The loss of more than one phalange shall be considered as the loss of the
entire toe.
12. For the loss of a hand, or the permanent and complete loss of its use, fifty
percentum of the average weekly wage during one hundred and seventy weeks.
13. For the loss of an arm, or the permanent and complete loss of its use, fifty
percentum of the average weekly wage during two hundred and twenty-five
weeks.
14. For the loss of a foot or the permanent and complete loss of its use, fifty
percentum of the average weekly wage during one hundred and thirty-five weeks.
15. For the loss of a leg, or the permanent and complete loss of its use, fifty
percentum of the average weekly wage during one hundred and ninety weeks.
16. For the loss of the sight of an eye, or for the permanent and complete loss
of its use, fifty percentum of the average weekly wage during one hundred and
twenty weeks.
16%. For the total and permanent loss of the hearing of one ear, fifty per
centum of the average weekly wage during fifty weeks and for the total and
permanent loss of hearing of both ears, fifty percentum of the average weekly
wage during one hundred twenty-five weeks.
16%. For the loss of a testicle, fifty percentum of the average weekly wage
during fifty weeks, and for the loss of both testicles, fifty percentum of the
average weekly wage during one hundred fifty weeks.
17. For the permanent partial loss of use of a member or sight of an eye, but
not including the hearing of an ear, fifty percentum of the average weekly wage
during that proportion of the number of weeks in the foregoing schedule pro
vided for the loss of such member or sight of an eye which the partial loss of use
thereof bears to the total loss of use of such member or sight of eye.
17%. In computing the compensation to be paid to any employee who, before
the disablement for which he claims compensation, had before that time sus
tained the loss by amputation or partial loss by amputation of any member,
including hand, arm, thumb or finger, leg, feet, or any toes, such loss or partial
loss of any such member shall be deducted from any award made for the subse
quent disablement, and for the permanent total loss of use or the permanent
partial loss of use of any such member or the sight of an eye for which com
pensation has been paid then such loss shall be taken into consideration and
deducted from any award for the subsequent disablement.
18. The specific case of loss of both hands, or both arms, or both feet, or both
legs, or both eyes, or of any two thereof, suffered by occupational disease, or
the permanent and complete loss of use thereof, suffered by occupational disease,
shall constitute total and permanent disability, to be compensated according to
the compensation fixed by paragraph ( f ) of this section: P r o v i d e d , That these
specific cases of total and permanent disability shall not be construed as exclud
ing other cases: P r o v i d e d f u r t h e r , That any employee who has previously in any
manner suffered the loss or permanent and complete loss of the use of any of
said members, and in a subsequent independent disablement loses another or
suffers the permanent and complete loss of the use of any one of said members,
the employer for whom the disabled employee was working at the time of the
last day of the last exposure shall be liable to pay compensation only for the
loss or permanent and complete loss of the use of the member occasioned by said
last independent disablement.
19. In a case of specific loss under the provisions of this paragraph and the
amount of which loss has been determined under the provisions of this Act, and
the subsequent death of such employee from other causes than such occupa
tional disease, leaving a widow and/or lineal dependents surviving before pay
ment in full for such specific loss, then and in that event the balance remaining
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 193 6
15
due for such specific loss shall be payable to such dependents, in the proportion
which such dependency bears to total dependency.
(f)
In case of complete disability, which renders the employee wholly and
permanently incapable of work, compensation equal to fifty percentum of his
earnings but not less than $7.50 nor more than $15.00 per week, commencing on
the day after the disablement, and continuing until the amount paid equals the
amount which would have been payable as a death benefit under paragraph (a),
section 7, if the employee had died as a result of the occupational disease, leav
ing heirs surviving as provided in said paragraph (a), section 7, and thereafter
a pension during life annually, in the specific case of total and permanent dis
ability equal to 12 percentum, and in other cases of total and permanent disabil
ity equal to 8 percentum, of the amount which would have been payable as a
death benefit under paragraph ( a ) , section 7, if the employee had died as a re
sult of the occupational disease, leaving heirs surviving, as provided in said
paragraph (a), section 7. Such pension shall be paid monthly. P r o v i d e d , Any
employee who receives an award under this paragraph and afterwards returns
to work or is able to do so, and who earns or is able to earn as much as before
the last day of the last exposure, payments under such award shall cease; if
such employee returns to work, or is able to do so, and earns or is able to earn
part but not as much as before the last day of the last exposure, such award
shall be modified so as to conform to an award under paragraph ( d ) of this
section: P r o v i d e d , f u r t h e r , That if such award is terminated or reduced under
the provisions of this paragraph, such employee shall have the right at any time
within one year after the date of such termination or reduction to file a petition
with the commission for the purpose of determining whether any disability ex
ists as a result of the occupational disease and the extent thereof: P r o v i d e d ,
f u r t h e r , That disability as enumerated in subdivision 18, paragraph ( e ) of this
section shall be considered complete disability. If an employee who had pre
viously in any manner incurred loss or the permanent and complete loss of use
of one member, through the loss or the permanent and complete loss of the use
of one hand, one arm, one foot, one leg, or one eye, incurs permanent and com
plete disability through the loss or the permanent and complete loss of the use
of another member, he shall receive, in addition to the compensation payable by
the employer and after such payments have ceased, an amount from the special
fund provided for in paragraph (e) of section 7, which together with the com
pensation payable from the employer in whose employ he was on the last day
of the last exposure, will equal the amount payable for permanent and complete
disability as provided in this paragraph of this section.
The custodian of said special fund provided for in paragraph ( e ) of section
7 shall be joined with the employer as a party respondent in the application for
adjustment of claim. Said application for adjustment of claim shall state
briefly and in general terms the approximate time and place and manner of the
loss of the first member. The industrial commission shall mail a copy of said
application to the custodian of said special fund and shall mail to said cus
todian all notices of hearing that are mailed to the employer and employee.
In its award the commission or the arbitrator shall specifically find the
amount the employee shall be weekly paid, the number of weeks’ compensation
which shall be paid by the employer, the date upon which payments shall be
gin out of the fund provided for in paragraph (e) section 7 of this Act, the
length of time said weekly payments shall continue, the date upon which the
pension payments shall commence and the monthly amount of said payments. A
certified copy of said award and the judgment of any court of competent juris
diction affirming same shall be, by the industrial commission, sent to the state
treasurer by registered mail. It shall be the duty of the said state treasurer,
thirty days after the date upon which payments out of said fund shall be com
menced as provided in said award, and every month thereafter, to mail to the
said employee direct, or at the option of said treasurer, to some bank in the
county in which he resides for delivery to him, a check or draft payable out
of said special fund, for all compensation accrued to that date at the rate fixed
in said award. Said check or draft on the back thereof shall designate the style
and docket number of the cause and the period of time for which it pays, and
shall be accompanied by a duplicate receipt, on a form to be supplied by the
industrial commission, which receipt shall be executed in duplicate by the em
ployee and returned to the treasurer, who shall retain one thereof and shall mail
one to the said industrial commission. Said draft, check or receipts shall be a
full and complete acquittance to the said State treasurer for the payment out
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OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 19 3 6
of said fund, and no other appropriation or warrant except the certified copy
of said award and judgment of said court shall be necessary to warrant payment
out of said fund. The said fund shall be always considered as appropriated for
the purpose of making payments according to the terms of said awards.
( f f) In case death occurs as a result of occupational disease before the
total of the payments made equals the amount payable as a death benefit, then
in case the employee leaves any widow, child or children, parents, grandparents,
or other lineal heirs, entitled to compensation under section 7, the difference
between the compensation for death and the sum of the payments made to the
employee, shall be paid to the beneficiaries of the deceased employee, and dis
tributed as provided in paragraph ( f ) of section 7, but in no case shall the
amount payable under this paragraph be less than $500.00.
( h ) In no event shall the compensation to be paid exceed fifty percentum of
the average weekly wage, or exceed $15.00 per week in amount; nor, except in
case of complete disability, as defined above, shall any payments extend over a
period of more than eight years from the date of the disablement In case an
employee shall be mentally incompetent at the time when any right or privilege
accrues to him under the provisions of this Act, a conservator or guardian may
be appointed pursuant to law, and may, on behalf of such mental incompetent,
claim and exercise any such right or privilege with the same force and effect as
if the employee himself had been mentally competent and had claimed or exer
cised said right or privilege; and no limitations of time by this Act provided
shall run so long as said mentally incompetent employee is without a conservator
or guardian.
( i ) 1. All compensation provided for in paragraphs (&), (c), (d), ( e ) and ( / )
of this section, other than in case of pension for life, shall be paid in installments
at the same intervals at which the wages or earnings of the employee were paid
at the time of the last exposure, or if this shall not be feasible, then the install
ments shall be paid weekly; all payments of compensation to be made not later
than two weeks after the interval for which compensation is payable.
2. P r o v i d e d , That any payments of compensation by the employer to an
employee shall not be construed against the employer as admitting liability to
pay compensation; and
3. P r o v i d e d f u r t h e r , That all compensation payments named and provided for
in paragraphs (&), (c), (d), ( e ) and ( / ) of this section, shall mean and be
defined to be for only such occupational diseases and disabilities therefrom as
are proven by competent evidence, of which there are or have been objective con
ditions or symptoms proven, not within the physical or mental control of the
employee himself.
(/) 1. Wherever in this section there is a provision for fifty percentum such
percentum shall be increased five percentum for each child of the employee,
including children who have been legally adopted, under 16 years of age at the
time of the disablement to the employee until such percentum shall reach a
maximum of sixty-five percentum.
2. Wherever in this section a weekly minimum of $7.50 is provided, such mini
mum shall be increased in the following cases to the following amounts:
$11.00 in the case of an employee having one child under the age of 16 years
at the time of the disablement of the employee ;
$12.00 in case of an employee having two children under the age of 16 years
at the time of the disablement of the employee;
$13.00 in case of an employee having three children under the age of 16 years
at the time of the disablement of the employee;
$14.00 in case of an employee having four or more children under the age of
16 years at the time of the disablement of the employee.
3. Wherever in this section a weekly maximum of $15.00 is provided, such
maximum shall be increased in the following cases to the following amounts:
$16.00 in case of an employee with two children under the age of 16 years at
the time of the disablement of the employee.
$18.00 in case of an employee with three children under the age of 16 years at
the time of the disablement of the employee.
$20.00 in case of an employee with four or more children under the age of 16
years at the time of the disablement of the employee.
(k )
In case the employee is under sixteen years of age at the time of the last
day of the last exposure and is illegally employed, the amount of compensation
payable under paragraphs (&), (c), (d), (e) and ( f ) of this section shall be
increased fifty percentum. P r o v i d e d , h o w e v e r , That nothing herein contained
shall be construed to repeal or amend the provisions of an Act concerning child
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 1936
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labor, approved June 26, 1917, as subsequently amended relating to the employ
ment of minors under tbe age of sixteen years.
Sbo. 9. L u m p - s u m p a y m e n t .—Any employer or employee or beneficiary who
shall desire to have such compensation, or any unpaid part thereof, paid in a
lump sum, may petition the commission, asking that such compensation be
so paid, and if, upon proper notice to the interested parties and a proper show
ing made before such commission or any member thereof, it appears to the
best interest of the parties that such compensation be so paid, the commission
may order the commutation of the compensation to an equivalent lump sum,
which commutation shall be an amount which will equal the total sum of the
probable future payments capitalized at their present value upon the basis of
interest calculated at three per centum per annum with annual rests: P r o
v i d e d , That in cases indicating complete disability no petition for a commuta
tion to a lump sum basis shall be entertained by the commission until after
the expiration of six months from the date of the disablement, and where neces
sary, upon proper application being made, a guardian, conservator or admin
istrator, as the case may be, may be appointed for any person under disability
who may be entitled to any such compensation, and an employer bound by the
terms of this Act and liable to pay such compensation, may petition for the
appointment of the public administrator, or a conservator, or guardian, where
no legal representative has been appointed or is acting for such party or parties
under disability.
Subject to the provisions herein above in this paragraph contained, where no
dispute exists as to the fact that the occupational disease arose out of and in
the course of the employment and where such disease results in death or in
the amputation of any member or in the enucleation of an eye, then and in such
case the arbitrator or commission may, upon the petition of either the employer
or employee, enter an award providing for the payment of compensation
for such death or disability in accordance with the provisions of section 7 or
paragraph ( e ) of section 8 of this Act.
S e c . 10. B a s i s o f c o m p u t a t i o n .—The basis for computing the compensation
provided for in sections 7 and 8 of this Act shall be as follow s:
(a )
The compensation shall be computed on the basis of the annual earnings
which the disabled person received as salary, wages or earnings if in the em
ployment of the same employer continuously during the year next preceding
the last day of the last exposure.
(&) Employment by the same employer shall be taken to mean employment
by the same employer in the grade in which the employee was employed at the
time of the last day of the last exposure uninterrupted by absence from work
due to illness or any other unavoidable cause.
(c) If such person has not been engaged in the employment of the same
employer for the full year immediately preceding the last day of the last
exposure, the compensation shall be computed according to the annual earnings
which persons of the same class in the same employment and same location,
(or if that be impracticable, of neighboring employments of the same kind)
have earned during such period.
{ d ) As to employees in employments in which it is the custom to operate
throughout the working days of the year, the annual earnings, if not otherewise
determinable, shall be regarded as 300 times the average daily earnings in such
computation.
(e) As to employees in employments in which it is the custom to operate
for a part of the whole number of working days in each year, such number, if
the annual earnings are not otherwise determinable, shall be used instead of
300 as a basis for computing the annual earnings: P r o v i d e d , The minimum
number of days which shall be so used for the basis of the year’s work shall be
not less than 200.
( f ) In the case of employees who earn either no wage or less than the earn
ings of adult day laborers in the same line of employment in that locality, the
yearly wage shall be reckoned according to the average annual earnings of
adults of the same class in the same (or if that is impracticable then of
neighboring) employments.
( g ) Earnings, for the purpose of this section, shall be based on the earnings
for the number of hours commonly regarded as a day’s work for that employ
ment, and shall exclude overtime earnings. The earnings shall not include any
sum which the employer has been accustomed to pay the employee to cover any
special expense entailed on him by the nature of his employment.
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(h )
In computing the compensation to be paid to any employee, who, before
the disablement for which he claims compensation, was disabled and drawing
compensation under the terms of this Act, the compensation for each subsequent
disablement shall be apportioned according to the proportion of incapacity and
disability caused by the respective disablements which he has suffered.
(t) To determine the amount of compensation for each installment period, the
amount per annum shall be ascertained pursuant hereto, and such amount
divided by the number of installment periods per annum.
Sec . 11. A u t o p s y a u t h o r i z e d .— ( a ) Whenever, after the death of an employee,
any party in interest files an Application for Adjustment of Claim under this
Act, aftd it appears that an autopsy may disclose material evidence as to whether
or not such death was due to the inhalation of silica or asbestos dust, the indus
trial commission, upon petition o f either party, may order an autopsy at the
expense of the party requesting same, and if such autopsy is so ordered, the
commission shall designate a competent pathologist to perform the same, and
shall give the parties in interest such reasonable notice of the time and place
thereof as will afford a reasonable opportunity to witness such autopsy in person
or by a representative.
It shall be the duty of such pathologist to perform such autopsy as, in his best
judgment, is required to ascertain the cause of death. Such pathologist shall
make a complete written report of all his findings to the industrial commission
(including laboratory results described as such, if any). The said report of the
pathologist shall contain his findings on post-mortem examination and said
report shall not contain any conclusion of the said pathologist based upon the
findings so reported.
Said report shall be placed on file with the industrial commission, and shall be
a public record. Said report, or a certified copy thereof, may be introduced by
either party on any hearing as evidence of the findings therein stated, but shall
not be conclusive evidence of such findings, and either party may rebut any part
thereof.
(b)
Where an autopsy has been performed at any time with the express or
implied consent of any interested party, and without some opposing party, if
known or reasonably ascertainable, having reasonable notice of and reasonable
opportunity of witnessing the same, all evidence obtained by such autopsy shall
be barred upon objection at any hearing: P r o v i d e d , That this paragraph shall
not apply to autopsies by a coroner’s physician in the discharge of his official
duties.
S ec. 12. M e d i c a l e x a m i n a t i o n . —An employee entitled to receive disability
payments shall be required, if requested by the employer, to submit himself, at
the expense of the employer, for examination to a duly qualified medical prac
titioner or surgeon selected by the employer, at any time and place reasonably
convenient for the employee, either within or without the State of Illinois, for
the purpose of determining the nature, extent and probable duration of the
occupational disease and the disability therefrom suffered by the employee,
and for the purpose of ascertaining the amount of compensation which may be
due the employee from time to time for disability according to the provisions
of this A ct: P r o v i d e d , An employer requesting such an examination, of an
employee residing within the State of Illinois, shall pay in advance of the
time fixed for the examination sufficient money to defray the necessary expenses
of travel by the most convenient means to and from the place of examination,
and the costs of meals necessary during the trip, and if the examination or
travel to and from the place of examination causes any loss of working time
on the part of the employee, the employer shall reimburse him for such loss of
wages upon the basis of his average daily wage. P r o v i d e d , h o w e v e r , That such
examination shall be made in the presence of a duly qualified medical prac
titioner or surgeon provided and paid for by the employee, if such employee so
desires.
In all cases where the examination is made by a physician or surgeon engaged
by the employer, and the employee has no physician or surgeon present at such
examination, it shall be the duty of the physician or surgeon making the exami
nation at the instance of the employer to deliver to the employee, or his rep
resentative, a statement in writing of the examination and findings to the
same extent that said physician or surgeon reports to the employer and the
same shall be an exact copy of that furnished to the employer, said copy to be
furnished the employee, or his representative, as soon as practicable but not
later than the time the case is set for hearing. Such delivery shall be made
in person either to the employee or his representative, or by registered mail
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to either, and the receipt of either shall be proof of such delivery. If such
physician or surgeon refuses to furnish the employee with such statement to
the same extent as that furnished the employer, said physician or surgeon shall
not be permitted to testify at the hearing next following said examination.
I f the employee refuses so to submit himself to examination or unnecessarily
obstructs the same, his right to compensation payments shall be temporarily
suspended until such examination shall have taken place, and no compensation
shall be payable under this Act for such period. It shall be the duty of physi
cians or surgeons treating an employee who is likely to die, and treating him
at the instance of the employer, to have called in another physician or surgeon
to be designated and paid for by either the employee or by the person or
persons who would become his beneficiary or beneficiaries, to make an examina
tion before the death of such employee.
In all cases where the examination is made by a physician or surgeon engaged
by the employee, and the employer has no physician or surgeon present at such
examination, it shall be the duty of the physician or surgeon making the exami
nation at the instance of the employee, to deliver to the employer, or his rep
resentative, a statement in writing of the examination and findings to the same
exent that said physician or surgeon reports to the employee and the same
shall be an exact copy of that furnished to the employee, said copy to be fur
nished the employer, or his representative, as soon as practicable but not later
than the time the case is set for hearing. Such delivery shall be made in per
son either to the employer, or his representative, or by registered mail to either,
and the receipt of either shall be proof of such delivery. If such physician or
surgeon refuses to furnish the employer with such statement to the same extent
as that furnished the employee, said physician, or surgeon shall not be permit
ted to testify at the hearing next following said examination.
S e c . 1 3 . C o m p e n s a t i o n , w h e n d e n i e d . —No compensation shall be payable under
this Act for any condition of physical or mental ill-being, disability, disable
ment, or death for which compensation is recoverable on account of accidental
injury under the “Workmen’s Compensation Act” .
S e c . 1 4 . T r a v e l e x p e n s e s ; d u t i e s o f c e r t a i n e m p l o y e e s o f c o m m i s s i o n . —The
members of the industrial commission, arbitrators and other employees whose
duties require them to travel, shall have reimbursed to them their actual travel
ing expenses and disbursements made or incurred by them in the discharge of
their official duties while away from their place of residence in the performance
of their duties under this Act.
The secretary, or assistant secretary, of the commission shall furnish certified
copies, under the seal of the commission, of any such records, files, orders, pro
ceedings, decisions, awards and other documents on file with the commission as
may be required. Certified copies so furnished by the secretary or assistant
secretary shall be received in evidence before the commission or any arbitrator
thereof, and in all courts, provided that the original of such certified copy is
otherwise competent and admissible in evidence. The secretary or assistant sec
retary shall perform such other duties as may be prescribed from time to time
by the commission.
The security supervisor, under the direction of the industrial commission, shall
perform such duties as may be prescribed from time to time by the commission.
S ec. 1 5 . A d m i n i s t r a t i o n o f a c t . —The industrial commission shall have juris
diction over the operation and administration of the compensation provisions of
this Act, and said commission shall perform all the duties imposed upon it by
this Act, and such further duties as may hereafter be imposed by law and the
rules of the industrial commission not inconsistent therewith.
S e c . 1 6 . P o w e r s o f i n d u s t r i a l c o m m i s s i o n . —The industrial commission shall
make and publish rules and orders for carrying out the duties imposed upon it
by law, which rules and orders shall be deemed prima facie reasonable and
valid; and the process and procedure before the commission shall be as simple
and summary as reasonably may be. The commission upon application of either
party may issue d e d i m u s p o t e s t a t e m directed to a commissioner, notary public,
justice of the peace or any other officer authorized by law to administer oath[s],
to take the depositions of such witness or witnesses as may be necessary in the
judgment of such applicant. Such d e d i m u s p o t e s t a t e m may issue to any of the
officers aforesaid in any state or territory of the United States. When the
deposition of any witness resident of a foreign country is desired to be taken,
the d e d i m u s shall be directed to and the deposition taken before a consul,
vice consul or other authorized representative of the government of the United
States of America, whose station is in the country where the witness whose
1 04 2 6 6 °— 37------ 4
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OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 19 36
deposition is to be taken resides: P r o v i d e d , That in countries where the gov
ernment of the United States has no consul or other diplomatic representative,
then depositions in such case shall be taken through the appropriate judicial
authority of that country; or where treaties provide for other methods of taking
depositions, then the same may be taken as in such treaties provided. The
commission shall have the power to adopt necessary rules to govern the issue
of such d e d i m u s p o t e s t a t e m . The commission, or any member thereof, or any
arbitrator designated by said commission shall have the power to administer
oath[s], subpoena and examine witnesses, to issue subpoenas d u c e s t e c u m , re
quiring the production of such books, papers, records and documents as may be
evidence of any matter under inquiry, and to examine and inspect the same and
such places or premises as may relate to the question in dispute. Said commis
sion, or any member thereof, or any arbitrator designated by said commission,
shall on written request of either party to the dispute, issue subpoenas for the
attendance of such witnesses and production of such books, papers, records and
documents as shall be designated in said applications, providing, however, that
the parties applying for such subpoena shall advance the officer and witness
fees provided for in suits pending in the Circuit Court. Service of such sub
poenas shall be made by any sheriff or constable or other person. In case any
person refuses to comply with an order of the commission or subpoenas issued
by it or by any member thereof, or any arbitrator designated by said commis
sion or to permit an inspection of places or premises, or to produce any books,
papers, records, or documents, or any witness refuses to testify to any matters
regarding which he may be lawfully interrogated, the County Court of the
county in which said hearing or matter is pending, on application of any mem
ber of the commission or any arbitrator designated by the commission, shall
compel obedience by attachment proceedings, as for contempt, as in a case of
disobedience of the requirements of a subpoena from such court or refusal to
testify therein.
The records kept by a hospital, certified to as true and correct by the super
intendent or other officer in charge, showing the medical and surgical treatment
given an employee in such hospital, shall be admissible without any further
proof as evidence of the medical and surgical matters stated therein, but shall
not be conclusive proof of such matters.
The commission at its expense shall provide a stenographer to take the testi
mony and record of proceedings at the hearings before an arbitrator, commit
tee of arbitration, or the commission and said stenographer shall furnish a
transcript of such testimony or proceedings to either party requesting it, upon
payment to him therefor of ten cents per one hundred words for the original
and eight cents per one hundred words for each copy of such transcript.
The commission shall have the power to determine the reasonableness and fix
the amount of any fee of compensation charged by any person, including attor
neys, physicians, surgeons and hospitals, for any service performed in connection
with this Act, or for which payment is to be made under this Act or rendered
in securing any right under this Act.
S e o . 17. D u t i e s o f i n d u s t r i a l c o m m i s s i o n .—The commission shall cause to be
printed and shall furnish free of charge upon request by any employer or em
ployee such blank forms as it shall deem requisite to facilitate or promote the
efficient administration of this Act, and the performance of the duties of the
commission; it shall provide a proper record in which shall be entered and
indexed the name of any employer who shall file a notice of election under this
Act, and the date of the filing thereof; and a proper record in which shall be
entered and indexed the name of any employee who shall file a notice of election,
and the date of the filing thereof; and such other notices as may be required
by this A ct; and records in which shall be recorded all proceedings, orders and
awards had or made by the commission, or by the arbitration committees, and
such other books or records as it shall deem necessary, all such records to be
kept in the office of the commission. The commission, in its discretion, may
destroy all papers and documents except notices of election and waivers which
have been on file for more than five years where there is no claim for compen
sation pending, or where more than two years have elapsed since the termina
tion of the compensation period.
Seo. 18. Q u e s t i o n s d e t e r m i n e d t y c o m m i s s i o n .—All questions arising under
this Act, if not settled by agreement of the parties interested therein, shall,
except as otherwise provided, be determined by the industrial commission.
Seo. 19. D i s p u t e d q u e s t i o n s ; h o w d e c i d e d .—Any disputed questions of law or
fact shall be determined as herein provided.
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(a) It shall be the duty of the industrial commission upon notification that
the parties have failed to reach an agreement, to designate an arbitrator: P r o
v i d e d , That if the compensation claimed is for a partial permanent or total per
manent incapacity or for death, then the dispute may, at the election of any
party, be determined by a committee of arbitration consisting of three members,
which election for determination by a committee shall be made by any peti
tioner filing with the commission his election in writing with the petition or by
any other party filing with the commission his election in writing within five
days of notice to him of the filing of the petition, and thereupon it shall be the
duty of the industrial commission upon any of the parties having filed such elec
tion for a committee of arbitration as above provided, to notify the parties to
appoint their respective representatives on the committee of arbitration. The
commission shall designate an arbitrator to act ns chairman, and if either side,
whether by mere omission or because of disagreement among parties on that
side, fails to appoint its member on the committee within seven days after notifi
cation as above provided, the commission shall appoint a person to fill the
vacancy and notify the parties to that effect. The party filing his election for a
committee of arbitration shall with his election deposit with the commission the
sum of twenty dollars, to be paid by the commission to the arbitrators selected
by the parties as compensation for their services as arbitrators and upon a fail
ure to deposit as aforesaid, the election shall be void and the determination shall
be by an arbitrator designated by the commission. The members of the com
mittee of arbitration appointed by either side or one appointed by the commis
sion to fill a vacancy by reason of the failure of one of the parties to appoint,
shall not be a member of the commission or an employee thereof.
(1) The application for adjustment of claim filed with the industrial com
mission shall state:
( a ) The approximate date of the last day of the last exposure and the
approximate date of the disablement.
(&) The general nature and character of the illness or disease claimed.
(c) The name and address of the employer by whom employed on the last
day of the last exposure and if employed by any other employer after such last
exposure and before disablement the name and address of such other employer
or employers.
( d ) In case of death, the date and place of death.
( e ) Amendments to applications for adjustment of claim which relate to
the same disablement or disablement resulting in death originally claimed upon
may be allowed by the industrial commission or an arbitrator thereof, in their
discretion, and in the exercise of such discretion, they may in proper cases order
a trial d e n o v o ; such amendment shall relate back to the date of the filing of the
original application so amended.
( f ) Whenever any claimant misconceives his remedy and files an application
for adjustment of claim under this Act and it is subsequently discovered, at
any time before final disposition of such cause, that the claim for disability or
death which was the basis for such application should properly have been made
under the Workmen’s Compensation Act, then the provisions of section 19 para
graph (a-1) of the Workmen’s Compensation Act having reference to such appli
cation shall apply.
Whenever any claimant misconceives his remedy and files an application for
adjustment of claim under the Workmen’s Compensation Act and it is sub
sequently discovered, at any time before final disposition of such cause that
the claim for injury or death which was the basis for such application should
properly have been made under this Act, then the application so filed under
the Workmen’s Compensation Act may be amended in form, substance or both
to assert claim for such disability or death under this Act and it shall be
deemed to have been so filed as amended on the date of the original filing
thereof, and such compensation may be awarded as is warranted by the whole
evidence pursuant to the provisions of this Act. When such amendment is
submitted, further or additional evidence may be heard by the arbitrator or
industrial commission when deemed necessary: P r o v i d e d , That nothing in this
section contained shall be construed to be or permit a waiver of any pro
visions of this Act with reference to notice or demand, but notice or demand
if given shall be deemed to be a notice or a demand under the provisions of
this Act if given within the time required herein.
(&) The arbitrator or committee of arbitration shall make such inquiries and
investigations as he or they shall deem necessary and may examine and in
spect all books, papers, records, places, or premises relating to the questions
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in dispute and hear such proper evidence as the parties may submit. The
hearings before the arbitrator or committee of arbitration shall be held in the
vicinity where the last exposure occurred, after ten days’ notice of the time
and place of such hearing shall have been given to each of the parties or
their attorneys of record. The arbitrator or committee of arbitration may
find that the disabling condition is temporary and has not yet reached a per
manent condition and may order the payment of compensation up to the date
of the hearing, which award shall be reviewable and enforceable in the same
manner as other awards, and in no instance be a bar to a further hearing and
determination of a further amount of temporary total compensation or of a
compensation for permanent disability, but shall be conclusive as to all other
questions except the nature and extent of said disability. The decision of the
arbitrator or committee of arbitration shall be filed with the industrial com
mission, which commission shall immediately send to each party or his attor
ney a copy of such decision, together with a notification of the time when it
was filed, and unless a petition for review is filed by either party within
fifteen days after the receipt by said party of the copy of said decision and
notification of time when filed, and unless such party petitioning for a review
shall within twenty days after the receipt by him of the copy of said decision,
file with the commission either an agreed statement of the facts appearing
upon the hearing before the arbitrator or committee of arbitration or if such
party shall so elect, a correct transcript of evidence of the proceedings at
such hearings, then the decision shall become the decision of the industrial
commission and in the absence of fraud shall be conclusive: P r o v i d e d , That
such industrial commission or any member thereof may grant further time not
exceeding thirty days, in which to petition for such review or to file such
agreed statement or transcript of evidence. Such agreed statement of facts
or correct transcript of evidence, as the case may be, shall be authenticated by
the signatures of the parties or their attorneys, and in the event they do not
agree as to the correctness of the transcript of evidence it shall be authenti
cated by the signature of the arbitrator designated by the commission.
(c) The industrial commission may appoint, at its own expense, a duly
qualified, impartial physician to examine the employee and report to the com
mission. The fee for this service shall not exceed five dollars and traveling
expenses but the commission may allow additional reasonable amounts in
extraordinary cases.
(d) If any employee shall persist in insanitary or injurious practices which
tend either to imperil or retard his recovery or shall refuse to submit to such
medical surgical or hospital treatment as is reasonably essential to promote
his recovery the commission may in its discretion, reduce or suspend the
compensation of any such employee.
(e) If a petition for review and agreed statement of facts or transcript of
evidence is filed, as provided herein, the industrial commission shall promptly
review the decision of the arbitrator or committee of arbitration and all ques
tions of law or fact which appear from the said statement of facts or transcript
of evidence, and such additional evidence as the parties may submit. After
such hearing upon review, the commission shall file in its office its decision
thereon, and shall immediately send to each party or his attorney a copy of
such decision and a notification of the time when it was filed.
Such review and hearing may be held in its office or elsewhere as the com
mission may deem advisable: P r o v i d e d , That the taking of testimony on such
hearing may be had before any member of the commission and in the event
either of the parties may desire an argument before others of the commission,
such argument may be had upon written demand therefor filed with the com
mission at least five days before the date of the hearing, in which event such
argument shall be had before not less than a majority of the commission: P r o
v i d e d , That the commission shall give ten days’ notice to the parties or their
attorneys of the time and place of such taking of testimony and of such argu
ment.
In any case the commission in its decision may in its discretion find specially
upon any question or questions of law or fact which shall be submitted in
writing by either party, whether ultimate or otherwise. Any party may, within
twenty days after receipt of notice of the commission’s decision, or within
such further time not exceeding thirty days, as the commission may grant,
file with the commission either an agreed statement of the facts appearing
upon the hearing, or, if such party shall so elect, a correct transcript of evi-
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 193 6
23
dence of the additional proceedings presented before the commission, in which
report the party may embody a correct statement of such other proceedings
in the case as such party may desire to have reviewed, such statement of facts
or transcript of evidence to be authenticated by the signature of the parties
or their attorneys, and in the event that they do not agree, then the authentica
tion of such transcript of evidence shall be by the signature of any member
of the commission. If a reporter does not for any reason furnish a transcript
of the proceedings before the arbitrator in any case for use on a hearing for
review before the industrial commission, within the limitations of time as
fixed in this section, the industrial commission may, in its discretion, order
a trial d e n o v o before the industrial commission in such case upon application
of either party. The applications for adjustment of claim and other documents
in the nature of pleadings filed by either party, together with the decisions
of the arbitrator and of the industrial commission and the statement of
facts or transcripts of evidence herein provided for shall be the record of the
proceedings of said commission, and shall be subject to review as hereinafter
provided.
(f)
The decision of the industrial commission acting within its powers
according to the provisions of paragraph (e) of this section shall, in the ab
sence of fraud, be conclusive unless reviewed as in this paragraph hereinafter
provided: P r o v i d e d , h o w e v e r , That the arbitrator or the commission may on his
or its own motion, or on the motion of either party, correct any clerical error or
errors in computation within fifteen days after the date of any award by such
arbitrator or any decision on review of the commission, and shall have the
power to recall the original award on arbitration or decision on review, and
issue in lieu thereof such corrected award or decision. Where such correction
is made the time for appeal or review herein specified shall begin to run from
the date of the receipt of the corrected award or decision.
1.
The Circuit Court of the county where any of the parties defendant may
be found, except in such cases as arise in a proceeding in which, under para
graph (&) of this section, the decision of the arbitrator or committee of arbitra
tion has become the decision of the industrial commission, shall by writ of cer
tiorari to the industrial commission have power to review all questions of law
and fact presented by such record; provided no additional evidence shall be
heard in the Circuit Court. Such suit by writ of certiorari shall be commenced
within twenty days of the receipt of notice of the decision of the commission.
Such writ of certiorari and writ of s c i r e f a c i a s shall be issued by the clerk of
such court upon praecipe returnable on a designated return day, not less than
ten or more than sixty days from the date of issuance thereof, and the praecipe
shall contain the last known address of other parties in interest and their attor
neys of record who are to be served by s c i r e f a c i a s . Service upon any member
of the industrial commission or the secretary or the assistant secretary thereof
shall be service upon the commission, and service upon other parties in interest
and their attorneys of record shall be by s c i r e f a c i a s , and such service shall be
made upon said commission and other parties in interest by mailing notices of
the commencement of the proceedings and the return day of the writ to the office
of the said commission and to the last known place of residence of other parties
in interest or their attorney or attorneys of record. The clerk of the court
issuing the writ of s c i r e f a c i a s shall on the day of issue mail notice of the com
mencement of the proceedings which shall be done by mailing a copy of the
writ of certiorari to the office of the industrial commission, and a copy of the
writ of s c i r e f a c i a s to the other parties in interest or their attorney or attorneys
of record, and the clerk of said court shall make certificate that he has so sent
said notices in pursuance of this section, which shall be evidence of service on
the commission and other parties in interest.
The industrial commission shall not be required to certify the record of their
proceedings to the Circuit Court, unless the party commencing the proceedings
for review in the Circuit Court as above provided, shall pay to the commission
the sum of ten cents per one hundred words of testimony taken before said
commission and six cents per one hundred words of all other matters contained
in such record, and it shall be the duty of the commission, upon such payment,
to prepare a true and correct typewritten copy of such testimony and a true and
correct copy of all other matters contained in such record, and certified to by the
secretary or assistant secretary thereof.
In its decision on review the industrial commission shall determine in each
particular case the amount of the probable cost of the record to be filed as a
24
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 19 3 6
return to the writ of certiorari in that case and no praecipe for a writ of cer
tiorari may be filed and no writ of certiorari shall issue unless the party seeking
to review the decision of the industrial commission shall exhibit to the clerk of
the said Circuit Court a receipt showing payment of the sums so determined to
the industrial commission.
2.
No such writ of certiorari shall issue unless the one against whom the
industrial commission shall have rendered an award for the payment of money
shall upon the filing of his praecipe for such writ file with the clerk of said
court a bond conditioned that if he shall not successfully prosecute said writ, he
will pay the said award and the costs of the proceedings in said court. The
amount of the bond shall be fixed by any member of the industrial commission
and the surety or sureties of said bond shall be approved by the clerk of said
court.
The State and every county, city, town, township, incorporated village, school
district, body politic or municipal corporation having a population of five hun
dred thousand or more against whom the industrial commission shall have
rendered an award for the payment of money shall not be required to file a
bond to secure the payment of said award and the costs of the proceedings in
said court to authorize said court to issue such writ of certiorari.
The court may confirm or set aside the decision of the industrial commission.
If the decision is set aside and the facts found in the proceedings before the
commission are sufficient, the court may enter such decision as is justified by
law, or may remand the cause to the industrial commission for further proceed
ings and may state the questions requiring further hearing, and give such other
instructions as may be proper.
Judgments and orders of the Circuit Court under this Act shall be reviewed
only by the Supreme Court upon a writ of error which the Supreme Court in its
discretion may order to issue, if applied for within thirty days after the rendi
tion of the Circuit Court judgment or order sought to be reviewed. The writ
of error when issued shall operate as a supercedeas.
The bond filed with the praecipe for the writ of certiorari as provided in this
paragraph shall operate as a stay of judgment or order of the Circuit Court
until the time shall have passed within which an application for a writ of error
can be made, and until the Supreme Court has acted upon the application for
a writ of error, if such application is made.
It shall be the duty of the clerk of any court rendering a decision affecting or
affirming an award of the commission promptly to furnish the commission with
a copy of such decision, without charge.
The decision of a majority of the members of the committee of arbitration
or of the industrial commission, shall be considered the decision of such com
mittee or commission, respectively.
( g ) Either party may present a certified copy of the award of the arbitrator,
or a certified copy of the decision of the industrial commission when the same
has become final, when no proceedings for review are pending, providing for the
payment of compensation according to this Act, to the Circuit Court of the
county where the last exposure occurred or either of the parties are residents,
whereupon said court shall render a judgment in accordance therewith; and in
case where the employer refuses to pay compensation according to such final
award or such final decision upon which such judgment is entered, the court
shall in entering judgment thereon, tax as costs against him the reasonable costs
and attorney fees in the arbitration proceedings and in the court entering the
judgment for the person in whose favor the judgment is entered, which judg
ment and costs taxed as herein provided shall, until and unless set aside, 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. The Circuit
Court shall have power at any time upon application to make any such judg
ment conform to any modification required by any subsequent decision of the
Supreme Court upon appeal, or as the result of any subsequent proceedings for
review, as provided in this Act.
Judgment shall not be entered until fifteen days’ notice of the time and place
of the application for the entry of judgment shall be served upon the employer
by filing such notice with the industrial commission, which commission shall,
in case it has on file the address of the employer or the name and address of
its agent upon whom notices may be served, immediately send a copy of the
notice to the employer or such designated agent.
( h ) An agreement or award under this Act providing for compensation
in installments, may at any time within eighteen months after such agreement
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 1936
25
or award be reviewed by the industrial commission at the request of either the
employer or the employee, on the ground that the disability of the employee
has subsequently recurred, increased, diminished or ended; and on such review
compensation payments may be reestablished, increased, diminished or ended:
P r o v i d e d , That the commission shall give fifteen days’ notice to the parties of
the hearing for review: A n d , p r o v i d e d , f u r t h e r , Any employee, upon any peti
tion for such review being filed by the employer, shall be entitled to one day’s
notice for each one hundred miles necessary to be traveled by him in attend
ing the hearing of the commission upon said petition, and three days in addi
tion thereto, and such employee shall, at the discretion of the commission, also
be entitled to five cents per mile necessarily traveled by him within the State of
Illinois in attending such hearing, not to exceed a distance of 300 miles, to be
taxed by the commission as costs and deposited with the petition of the em
ployer : P r o v i d e d , f u r t h e r , That when compensation which is payable in ac
cordance with an award or settlement contract approved by the industrial com
mission, is ordered paid in a lump sum by the commission, no review shall be
had as in this paragraph mentioned.
(i )
Each party, upon taking any proceedings or steps whatsoever before
any arbitrator, committee of arbritration, industrial commission or court, shall
file with the industrial commission his address, or the name and' address of
any agent upon whom all notices to be given to such party shall be served,
either personally or by registered mail, addressed to such party or agent at
the last address so filed with the industrial commission: P r o v i d e d , That in the
event such party has not filed his address, or the name and address of an agent,
as above provided, service of any notice may be had by filing such notice with
the industrial commission.
O') Whenever in any proceeding testimony has been taken or a final de
cision has been rendered, and after the taking of such testimony or after such
decision has become final, the employee dies, then in any subsequent proceeding
brought by the personal representative or beneficiaries of the deceased empoyee, such testimony in the former proceeding may be introduced with the same
force and effect as though the witness having so testified were present in per
son in such subsequent proceedings and such final decision, if any, shall be taken
as final adjudication of any of the issues which are the same in both proceed
ings.
(fc) In any cases where there has been any unreasonable or vexatious delay
of payment or intentional underpayment of compensation, or proceedings have
been instituted or carried on by the one liable to pay the compensation, which
do not present a real controversy, but are merely frivolous or for delay, then
the commission may award compensation additional to that otherwise payable
under this Act equal to fifty per centum of the amount payable at the time
of such award. Failure to pay compensation in accordance with the provisions
of section 8, paragraph (i) of this Act, shall be considered unreasonable delay.
S ec . 20. R e p o r t o f c o m m i s s i o n . —The industrial commission shall report in
writing to the Governor on the 30th day of June, annually, the details and
results of its administration of this Act, in accordance with the terms of this
Act, and may prepare and issue such special bulletins and reports from time
to time as in the opinion of the commission seems advisable.
S ec. 21. A s s i g n m e n t . —No payment, claim, award or decision under this Act shall
be assignable or subject to any lien, attachment or garnishment, or be held
liable in any way for any lien, debt, penalty or damages. And the compensation
allowed by any award or decision of the commission shall be entitled to a prefer
ence over the unsecured debts of the employer, wages excepted, contracted after
the date of the disablement of an employee. A decision or award of the indus
trial commission against an employer for compensation under this Act, or a
written agreement by an employer to pay such compensation shall, upon the
filing of a certified copy of the decision or said agreement, as the case may be,
with the recorder of deeds of the county, constitute a lien upon all property of
the employer within said county, paramount to all other claims or liens, except
mortgages, trust deeds, or for wages or taxes, and such liens may be enforced in
the manner provided for the foreclosure of mortgages under the laws of this
State. Any right to receive compensation hereunder shall be extinguished by
the death of the person or persons entitled thereto, subject to the provisions of
this Act relative to compensation for death received in the course of
employment, and subject to the provisions of paragraph (e) of section 8 o f this
Act relative to specific loss: P r o v i d e d , That upon the death of a beneficiary, who
is receiving compensation provided for in section 7, leaving surviving a parent,
26
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 19 36
sister, or brother of the deceased employee, at the time of his death dependent
upon him for support, who were receiving from such beneficiary a contribution
to support, then that proportion of the compensation of the beneficiary which
would have been paid but for the death of the beneficiary, but in no event ex
ceeding said unpaid compensation, which the contribution of the beneficiary to
the dependent’s support within one year prior to the death of the beneficiary
bears to the compensation of the beneficiary within that year, shall be continued
for the benefit of such dependents, notwithstanding the death of the beneficiary.
S eo. 22. F r a u d u l e n t c o n t r a c t s .—Any contract or agreement made by any em
ployer or his agent or attorney with any employee or any other beneficiary of any
claim under the provisions of this Act within seven days after the disablement
shall be presumed to be fraudulent.
S ec. 23. W a i v e r o f c o m p e n s a t i o n .—No employee, personal representative, or
beneficiary shall have power to waive any of the provisions of this Act in regard
to the amount of compensation which may be payable to such employee, per
sonal representative, or beneficiary hereunder except after approval by the
industrial commission: P r o v i d e d , h o w e v e r , That any employee who prior to the
taking effect of this Act has contracted silicosis or asbestosis but is not disabled
therefrom, may within sixty days after the taking effect of this Act, file with the
industrial commission a request for permission to waive full compensation on
account of disability or death resulting from silicosis or asbestosis, or any direct
result thereof, supported by medical evidence satisfactory to the industrial com
mission, that he has actually contracted silicosis or asbestosis but is not disabled
therefrom, and if the industrial commission shall approve such waiver, the com
pensation payable, for such resulting disability or death of such employee, after
further exposure in the employment of any employer who has elected pursuant
to paragraphs (a) and (&) of section 4 of this Act, shall be fifty percentum of
the compensation which but for such waiver would have been payable by any
such employer.
S eo. 24. N o t i c e t o t h e e m p l o y e r . —No proceedings for compensation under this
Act shall be maintained unless notice has been given to the employer of disable
ment arising from an occupational disease as soon as practicable after the date
of the disablement.
In case of mental incapacity of the employee or any dependents of a deceased
employee who may be entitled to compensation, under the provisions of this
Act, the limitations of time in this section of this Act provided shall not begin
to run against said mental incompetents until a conservator or guardian has
been appointed. No defect or inaccuracy of such notice shall be a bar to the
maintenance of proceedings on arbitration or otherwise by the employee unless
the employer proves that he is unduly prejudiced in such proceedings by such
defect or inaccuracy. Notice of the disabling disease may be given orally or in
writing: P r o v i d e d , No proceedings for compensation under this Act shall be
maintained unless claim for compensation has been made within six (6) months
after the occurrence of the disablement from the occupational disease: P r o v i d e d
f u r t h e r , that in any case, unless application for compensation is filed with the
industrial commission within one (1) year after the date of the disablement, or
within one (1) year after the date of the last payment of compensation, if any
has been paid, the right to file such application shall be barred.
S eo. 25. P r e s u m p t i o n o f e x p o s u r e . —An employee shall be conclusively deemed
to have been exposed to the hazards of an occupational disease when for any
length of time however short, he is employed in an occupation or process in
which the hazard of the disease exists.
The employer liable for the compensation in this Act provided shall be the
employer in whose employment the employee was last exposed to the hazard of
the occupational disease claimed upon regardless of the length of time of such
last exposure: P r o v i d e d , That in cases of silicosis or asbestosis, the only em
ployer liable shall be the last employer in whose employment the employee was
last exposed during a period of sixty (60) days or more after the effective date
of this Act, to the hazard of such occupational disease, and, in such cases, an
exposure during a period of less than sixty (60) days, after the effective date
of this Act, shall not be deemed a last exposure.
The insurance carrier liable shall be the carrier whose policy was in effect
covering the employer liable on the last day of the exposure rendering such
employer liable in accordance with the provisions of this Act.
S e o . 26. D u t i e s o f e l e c t i n g e m p l o y e r . — (a) Any employer electing to provide
and pay the compensation provided for in this Act shall:
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 193 6
27
(1) File with the commission a sworn statement showing his financial ability
to pay the compensation provided for in this Act, the affidavit to which state
ment shall be signed and sworn to by the president or vice president and secre
tary or assistant secretary of said employer if it be a corporation, or by all of
the partners if it be a co-partnership, or by the owner if it be neither a co
partnership nor a corporation, or if any such employer fails to file such a sworn
statement, or if the sworn statement of any such employer does not satisfy the
commission of the financial ability of the employer who has filed it, the commis
sion shall require such employer to,
(2) Furnish security, indemnity or a bond guaranteeing the payment by the
employer of the compensation provided for in this Act, or
(3) Insure his entire liability to pay such compensation in some insurance
carrier authorized, licensed, or permitted to do such insurance business in this
State: P r o v i d e d , All policies of such insurance carriers insuring the payment
of compensation under thfs Act shall cover all the employees and all such em
ployer’s compensation liability in all cases in which the last day of the last
exposure to the occupational disease involved is within the effective period of
the policy, anything to the contrary in said policy notwithstanding: P r o v i d i n g ,
f u r t h e r , That no policy of insurance in effect at the time of the enactment of
this Act, covering the liability of an employer for workmen’s compensation,
shall be construed to cover the liability of such employer under this Act for any
occupational disease unless such liability is expressly accepted by the insurance
carrier issuing such policy and is endorsed thereon; the insurance or security in
force to cover compensation liability under this Act shall be separate and dis
tinct from the insurance or security under the “ Workmen’s Compensation Act”
and any insurance contract covering liability under either Act need not cover
any liability under the other; nothing herein contained shall apply to policies of
excess liability carriage secured by employers who have qualified under subparagraphs 1 or 2 of paragraph ( a ) of this section, or
(4) Make some other provision, satisfactory to the industrial commission, for
the securing of the payment of compensation provided for in this Act, and
(5) Upon becoming subject to this Act and thereafter as often as the com
mission may in writing demand, file with the commission in form prescribed by
it evidence of his compliance with the provisions of this section.
(6) The sworn statement of financal ability, or security, indemnity or bond,
or amount of insurance, or other provisions, filed, furnished, carried, or made
by the employer, as the case may be, shall be subject to the approval of the
commission, upon the approval of which, the commission shall send to the
employer written notice of its approval thereof. A certificate of compliance
with the provisions of subparagraphs 2 and 3 of paragraph ( a ) of this section
shall within five days after the effective date of said policy be delivered by the
insurance carrier to the industrial commission. Said policy shall remain in
full force and effect until thirty days after receipt by the industrial com
mission of notice of its cancellation or expiration and shall cover all com
pensation liability occurring during said time.
(c)
Whenever the industrial commission shall find that any corporation,
company, association, aggregation of individuals, reciprocal or inter insurers
exchange, or other insurer effecting workmen’s compensation insurance in this
State shall be insolvent, financially unsound, or unable fully to meet all pay
ments and liabilities assumed or to be assumed for compensation insurance in
this State, or shall practice a policy of delay or unfairness toward employees in
the adjustment, settlement, or payment of benefits due such employees, the said
industrial commission may after reasonable notice and hearing order and direct
that such corporation, company, association, aggregation of individuals, recipro
cal or interinsurers exchange, or insurer, shall from and after a date fixed in
such order discontinue the writing of any such workmen’s compensation insur
ance in this State. Subject to such modification of said order as the commis
sion may later make on review of said order, as herein provided, it shall there
upon be unlawful for any such corporation, company, association, aggregation
of individuals, reciprocal or interinsurers exchange, or insurer to effect any
workmen’s compensation insurance in this State. All orders made by the in
dustrial commission under this section shall be subject to review by the courts,
said review to be taken in the same manner and within the same time as
provided by section 19 of this Act for review of awards and decisions of the
industrial commission, upon the party seeking said review filing with the clerk
28
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 1936
o f the court to which said review is taken a bond in an amount to be fixed
and approved by the judge of the court to which said review is taken, con
ditioned upon the payment of all compensation awarded against said person
taking said review pending a decision thereof: P r o v i d e d , That upon said review
the circuit court shall have power to review all questions of fact as well
as of law.
(d )
The failure or neglect of an employer to comply with any o f the provisions
of paragraph (a ) of this section or the failure or refusal of an insurance carrier
to comply with any order of the industrial commission pursuant to paragraph
(c) of this section, shall be deemed a misdemeanor punishable by a fine of not
less than one hundred dollars nor more than five hundred dollars, for each day
of such refusal or neglect until the same ceases. Each day of such refusal or
neglect shall constitute a separate offense. P r o v i d e d , That the penalty provided
for in this paragraph shall not attach and shall not begin to run until the final
determination of the order of the commission.
In all prosecutions under this section the venue may be in any county wherein
said employer or insurance carrier has property or maintains a principal office.
Upon the failure or refusal of any employer or insurance carrier to comply with
the orders of the industrial commission under this section, or the order of the
court on review after final adjudication, it shall be the duty of the industrial
commission immediately to report said failure or refusal to the Attorney General
and it shall be the duty of said Attorney General within thirty days after
receipt of said notice, to institute prosecutions and promptly prosecute all
reported violations of this section.
S ec . 27. B e n e f i t a s s o c i a t i o n s n o t a f f e c t e d .— (a) This Act shall not affect or dis
turb the continuance of any existing insurance, mutual aid, benefit, or relief
association or department, whether maintained in whole or in part by the em
ployer or whether maintained by the employees, the payment of benefits of such
association or department being guaranteed by the employer or by some per
son, firm or corporation for him: P r o v i d e d , The employer contributes to such
association or department an amount not less than the full compensation herein
provided, exclusive of the cost of the maintenance of such association or depart
ment and without any expense to the employee. This Act shall not prevent the
organization and maintaining under the insurance laws of this State of any
benefit or insurance company for the purpose of insuring against the compen
sation provided for in this Act, the expense of which is maintained by the
employer. This Act shall not prevent the organization or maintaining under
the insurance laws of this State of any voluntary mutual aid, benefit or relief
association among employees for the payment of additional accident or sick
benefits.
( b ) No existing insurance, mutual aid, benefit or relief association or depart
ment shall, by reason of anything herein contained, be authorized to discontinue
its operation without first discharging its obligations to any and all persons
carrying insurance in the same or entitled to relief or benefits therein.
(c) Any contract, oral, written or implied, of employment providing for relief
benefit, or insurance or any other device whereby the employee is required to
pay any premium or premiums for insurance against the compensation provided
for in this Act shall be null and void, and any employer withholding from the
wages of any employee any amount for the purpose of paying any such premium
shall be guilty of a misdemeanor and punishable by a fine of not less than ten
dollars nor more than one thousand dollars, or imprisonment in the county jail
for not more than six months, or both, in the discretion of the court.
Sec . 28. L i a b i l i t y o f i n s u r e r . — In the event the employer does not pay the
compensation for which he is liable, then an insurance company, association or
insurer which may have insured such employer against such liability shall be
come primarily liable to pay to the employee, his personal representative or bene
ficiary the compensation required by the provisions of this Act to be paid by
such employer. The insurance carrier may be made a party to the proceedings
to which the employer is a party and an award may be entered jointly against
the employer and the insurance carrier.
S ec . 29. D i s a b l e m e n t c a u s e d b y t h i r d p e r s o n . —Where a disablement or death
for which compensation is payable by the employer under this Act was not
proximately caused by the negligence of the employer or his employees, and was
caused under circumstances creating a legal liability for damages in some person
other than the employer to pay damages, such other person having also elected
to provide and pay compensation under this Act, the right of the emnloyee
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 19 3 6
29
or personal representative to recover against such other person shall be trans
ferred to his employer and such employer may bring legal proceedings against
such other person to recover the damages sustained, in an amount not exceeding
the aggregate amount of compensation payable under this Act, by reason of the
disablement or death of such employee.
Where the disablement or death for which compensation is payable under this
Act was not proximately caused by the negligence of the employer or his em
ployees and was caused under circumstances creating a legal liability for dam
ages on the part of some person other than the employer to pay damages, such
other person not having elected to provide and pay compensation under this
Act, then legal proceedings may be taken against such other person to recover
damages notwithstanding such employer’s payment of or liability to pay com
pensation under this Act. In such case, however, if the action against such
other person is brought by the disabled employee or his personal representative
and judgment is obtained and paid, or settlement is made with such other per
son, either with or without suit, then from the amount received by such em
ployee or personal representative there shall be paid to the employer the
amount of compensation paid or to be paid by him to such employee or per
sonal representative.
If the disabled employee or his personal representative shall agree to receive
compensation from the employer or accept from the employer any payment on
account of such compensation, or to institute proceedings to recover the same,
the said employer may have or claim a lien upon any award, judgment or
fund out of which such employee might be compensated from such third party.
In such action brought by the employee or his personal representative, he
shall forthwith notify his employer by personal service or registered mail, of
such fact and of the name of the court in which such suit is brought, filing
proof thereof in such action. The employer may, at any time thereafter join
in said action upon his motion so that all orders of court after hearing and
judgment shall be made for his protection. No release or settlement of claim
for damages by reason of such disability or death, and no satisfaction of judg
ment in such proceedings, shall be valid without the written consent of both
employer and employee or his personal representative, except in the case of the
employers, such consent shall not be required where said employer has been
fully indemnified or protected by court order.
In the event the said employee or his personal representative shall fail to
institute a proceeding against such third person at any time prior to three
months before said action would be barred at law said employer may in his own
name, or in the name of the employee, or his personal representative, com
mence a proceeding against such other person for the recovery of damages on
account of such disability or death to the employee, and out of any amount
recovered the employer shall pay over to the injured employee or his personal
representative all sums collected from such other person by judgment or other
wise in excess of the amount of such compensation paid or to be paid under
this Act, and costs, attorney’s fees and reasonable expenses as may be incurred
by such employer in making such collection or in enforcing such liability.
S ec . 30. R e p o r t s J)y e m p l o y e r t o c o m m i s s i o n .— It shall be the duty of every
employer within the compensation provisions of this Act to send to the indus
trial commission in writing an immediate report of all occupational diseases
arising out of and in the course of the employment and resulting in death;
it shall also be the duty of every such employer to report between the 15th
and the 25th of each month to the industrial commission all occupational
diseases for which compensation has been paid under this Act, which entail a
loss to the employee of more than one week’s time, and in case the occupational
disease results in permanent disability, a further report shall be made as soon
as it is determined that such permanent disability has resulted or will result
therefrom. All reports shall state the date of the disablement, the nature of
the employer’s business, the name, address, the age, sex, conjugal condition of
the person, the specific occupation of the person, the nature and character of the
occupational disease, the length of disability, and, in case of death, the length
of disability before death, the wages of the employee, whether compensation has
been paid, to the employee, or to his legal representatives or his heirs or next
of kin, the amount of compensation paid, the amount paid for physicians’, sur
geons’ and hospital bills, and by whom paid, and the amount paid for funeral
or burial expenses, if known. The making of reports as provided herein shall
relieve the employer from making such reports to any other officer of the State.
30
O C C U P A T IO N A L -D IS E A S E
L E G IS L A T IO N
IN
U N IT E D
STATES,
1936
Seo. 31. E m p l o y e r r e q u i r e d t o p o s t n o t i c e s . —Every employer operating under
the compensation provisions of this Act shall, under the rules and regulations
prescribed by the industrial commission, post printed notices in their respective
places of employment in such number and at such places as may be determined
by the commission, containing such information relative to this Act as in the
judgment of the commission may be necessary to aid employees to safeguard
their rights under this Act.
S e c . 32. V i o l a t i o n s . —Any wilful neglect, refusal or failure to do the things
required to be done by any section, clause, or provision of. this Act, on the part
of the persons herein required to do them, or any violation of any of the provi
sions or requirements hereof, or any attempt to obstruct or interfere with any
court officer, or any other person charged with the duty of administering or
enforcing the provisions of this Act, shall be deemed a misdemeanor, punishable
by a fine of not less than $10.00 nor more than $500.00, at the discretion of the
court.
S e c . 33. R e p e a l o f p r e v i o u s a c t s . — “An Act to promote public health by pro
tecting certain employees in this State from dangers of occupational diseases,
and providing for the enforcement thereof,” approved May 26, 1911, as amended,
and section 4 of “An Act in relation to employments creating poisonous fumes
or dusts in harmful quantities, and to provide for the enforcement thereof,”
approved June 29, 1915, are hereby repealed.
S e c . 34. E f f e c t o f r e p e a l . —No repeal of any act or part thereof herein con
tained shall extinguish or in any way affect any right of action thereunder
existing at the time this Act takes effect; and no employer shall be liable for
compensation or damages under this Act in any case in which the disablement
on which claim is predicated shall have occurred prior to the date this Act
becomes effective; P r o v i d e d , That nothing in this section shall affect any case
in which exposure as defined in this Act shall have taken place after the
effective date of this Act.
S e c . 35. E f f e c t i v e d a t e . —This Act shall take effect on October 1, 1936.
KENTUCKY
CARROLL’S STATUTES, 1930
4880 (as amended 1934, ch. 89). A c c i d e n t s ; d i s e a s e s .— * * * It
shall affect the liability of the employers subject thereto to their employees for
personal injuries sustained by the employee by accident arising out of and in
the course of his employment, or for death resulting from such accidental in
ju ry : P r o v i d e d , h o w e v e r , That personal injury by accident as herein defined
shall not include diseases except where the disease is the natural and direct
result of a traumatic injury by accident, nor shall they include the results of a
preexisting disease but shall include injuries or death due to inhalation in
mines of noxious gases or smoke, commonly known as “bad air” , and also shall
include the injuries or death due to the inhalation of any kind of gas. * * *
and any employers and their employees engaged in the operation of glass manu
facturing plants, quarries, sand mines or in the manufacture, treating, or
handling of sand may, with respect to the disease of silicosis caused by the
inhalation of silica dust, in like manner voluntarily subject themselves thereto
as to such disease.
S ec. 4882 (as amended 1934, ch. 89). W i l f u l m i s c o n d u c t o f t h e e m p l o y e e .—
* * * Notwithstanding anything hereinafter or hereafter contained, no em
ployee or dependent of any employee shall be entitled to receive compensation
on account of any injury to or death of an employee caused by a wilful selfinflicted injury, wilful misconduct or intoxication of such employee. The words
“ wilful misconduct” as used in this section, when relating to the disease of sili
cosis caused by the inhalation of silica dust, shall include (1) failure or omis
sion on the part of an employee to observe such rules and recommendations as
may be adopted by the employer and approved by the workmen’s compensation
board and which rules and recommendations have been and are kept posted in a
conspicuous place in and about the plant, (2) failure or omission on the part of
an employee truthfully to state to the best of his knowledge in answer to inquiry
made by the employer the place, duration, and nature of previous employment,
(3) failure and omission on the part of an employee truthfully to furnish to
the best of his knowledge in answer to an inquiry made by the employer full
Information about the previous status of his health, habits, and medical attenS e c t io n
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 19 36
31
tion that he or his blood relatives may have heretofore received, and (4) failure
or refusal to submit to medical examination to determine his physical condition
with reference to the disease of silicosis whenever such examination is ordered by
the board, or to evade or obstruct such examination.
M A SSA C H U SE T T S
GENERAL
LAWS, 1932
C hapter
152
S e c t i o n 26. C o v e r a g e . — If an employee * * * receives a personal injury
arising out of and in the course of his employment * * * he shall be paid
compensation by the insurer, * * *.
*
*
*
*
*
*
*
9B (as added 1935, ch. 424). I n d u s t r i a l d i s e a s e r e f e r e e s . —The board
of registration in medicine shall, as soon as this section takes effect, prepare
and transmit to the department a list of registered physicians. In the event of
any employee, or in case of his death his legal representative or dependents,
making a claim for compensation alleging that his injury is due to an industrial
disease, the industrial accident board shall submit the claim to 3 physicians
selected by it from said list, who shall be impartial. Such 3 physicians shall be
known as industrial disease referees. They may make such examinations of the
employee and cause to be made such inspections of the place or places of em
ployment as they deem necessary, and shall report their diagnosis to the de
partment. The insurer shall reimburse the department for the fees and other
expenses of such referees, subject to the approval of the industrial accident
board. The diagnosis shall be made by a majority vote of the referees, and shall
be included in the decision of the single member and in the decision of the re
viewing board, and such diagnosis shall be binding on the parties. The reviewing
board, if a claim for review is filed, may refer the matter back to the industrial
disease referees for further diagnosis. The board of registration in medicine
from time to time may, and on request of the industrial accident board shall,
revise the list of physicians from which industrial disease referees may be
appointed, and shall notify the department in writing of such revision.
S ec.
M IN N E S O T A
STATUTES, 1927
4327. O c c u p a t i o n a l d i s e a s e s — H o w r e g a r d e d — C o m p e n s a t i o n f o r — D e f i
(1) The disablement of an employe resulting from an occupational
disease^ described in subsection (9) of this section, except where specifically
otherwise provided, shall be treated as the happening of an accident within the
meaning of part 2 of this act and the procedure and practice provided in such
part 2 shall apply to all proceedings under this section, except where specifically
otherwise provided herein. Whenever used in this section, “ disability” means*
the state of being disabled from earning full wages at the work at which the
employee was last employed, and “disablement” means the act of becoming so
disabled.
(2) If an employee is disabled or dies and his disability or death is caused by
one of the diseases mentioned in subsection (9) of this section, and the disease
is due to the nature of the corresponding employment as described in such sub
section in which such employe was engaged and was contracted therein, he or
his dependents shall be entitled to compensation for his death, or for the dura
tion of his disability according to the provisions of part 2 of this act, except as
otherwise provided in this section: P r o v i d e d , h o w e v e r , That if it shall be deter
mined that such employe is able to earn wages at another occupation which
shall be neither unhealthful nor injurious, and such wages do not equal his full
wages prior to the date of his disablement, the compensation payable shall be
a percentage of full compensation proportionate to the reduction in his earning
capacity.
(3) Neither the employe nor his dependents shall be entitled to compensa
tion for disability or death resulting from disease unless the disease is due to
the nature of his employment and contracted therein within the 12 months
previous to the date of disablement, whether under one or more employers.
S e c t io n
n i t io n s o f .—
32
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 19 36
(4) If an employe, at the time of his employment, wilfully and falsely
represents in writing that he has not previously suffered from the disease which
is the cause of disability or death, no compensation shall be payable.
(5) The total compensation due shall be recoverable from the employer who
last employed the employe in the employment to the nature of which the
disease was due and in which it was contracted. If, however, such disease was
contracted while such employe was in the employment of a prior employer,
the employer who is made liable for the total compensation as provided by this
subsection, may appeal to the commission for an apportionment of such com
pensation among the several employers who since the contraction of such disease
shall have employed such employe in the employment to the nature of which
the disease was due. Such apportionment shall be proportioned to the time
such employe vras employed in the service of such employers, and shall be
determined only after a hearing, notice of the time and place of which shall
have been given to every employer alleged to be liable for any portion of such
compensation. If the commission find that any portion of such compensation
is payable by an employer prior to the employer who is made liable to the total
compensation as provided by this subsection, it shall make an award accordingly
in favor of the last employer, and such award may be enforced in the same
manner as an award for compensation.
(6) The employer to whom notice of death or disability is to be given, or
against whom claim is to be made by the employer shall be the employer who
last employed the employe during the said 12 months in the employment to
the nature of which the disease was due and in which it was contracted, and
such notice and claim shall be deemed seasonable as against prior employers.
(7) The employe or his dependents, if so requested, shall furnish the last
employer or the commission with such information as to the names and ad
dresses of all his other employers during the said 12 months, as he or they may
possess; and if such information is not furnished, or is not sufficient to enable
such last employer to take proceedings against a prior employer under sub
section (5) of this section, unless it be established that the disease actually
was contracted while the employe was in his employment, such last employer
shall not be liable to pay compensation, or, if such information is not furnished
or is not sufficient to enable such last employer to take proceedings against
other employers under subsection (5) such last employer shall be liable only
for such part of the total compensation as under the particular circumstances
the commission may deem ju s t; but a false statement in the information fur
nished as aforesaid shall not impair the employe’s rights unless the last
employer is prejudiced thereby.
(8) If the employe, at or immediately before the date of disablement, was
employed in any process mentioned in the second column of the schedule of
diseases in subsection (9) of this section, and his disease is the disease in the
first column of such schedule set opposite the description of the process, the
disease presumptively shall be deemed to have been due to the nature of that
employment.
(9) For the purposes of this act only the diseases enumerated in column 1,
following, shall be deemed to be occupational diseases:
C
olum n
1
DESCRIPTION OF DISEASE
C
olum n
2
DESCRIPTION OF PROCESS
1. Anthrax__________________________ Handling of wool, hair, bristles, hides, or
skins.
2. Lead poisoning or its sequelae______ Any process involving the use of lead or
its preparations or compounds.
3. Mercury poisoning or its sequelae_ Any process involving the use of mer
_
cury or its preparations or compounds.
4. Phosphorous poisoning or its se Any process involving the use of phos
quelae.
phorous or its preparations or com
pounds.
5. Arsenic poisoning or its sequelae___ Any process involving the use of arsenic
or its preparations or compounds.
6. Poisoning by wood alcohol________ Any process involving the use of wood
alcohol or any preparation containing
wood alcohol.
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 193 6
Co l u m n 1
33
Colum n 2
DESCRIPTION OF DISEASES
DESCRIPTION OF PROCESS
7. Poisoning by nitro- and amido-
Any process involving the use of a nitroor amido-derivative of benzine or its
preparations or compounds.
derivatives of benzine (dinitrobenzol, anilin and others), or
its sequelae.
8. Poisoning by carbon bisulphide or
its sequelae.
9. Poisoning by nitrous fumes or its
sequelae.
10. Poisoning by nickel carbonyl or its
sequelae.
11. Dope poisoning (poisoning by tetrachlor-methane or any substance
used as or in conjunction with a
solvent for acetate of cellulose
or its sequelae.)
12. Poisoning by gonioma kamassi
(African boxwood) or its sequelae.
Any process involving the use of carbon
bisulphide or its preparations or
compounds.
Any process in which nitrous fumes are
evolved.
Any process in which nickel carbonyl gas
is evolved.
Any process involving the use of any
substance used as or in conjunction
with a solvent for acetate of cellulose.
Any process in the manufacture of
articles from gonioma kamassi (Afri
can boxwood).
13. Chrome ulceration or its sequelae__ Any process involving the use of
chromic acid or bichromate of am
monium potassium, or sodium, or
their preparations.
14. Epitheliomatous cancer or ulcera Handling or use of tar, pitch, bitumen,
tion of the skin or of the corneal
mineral oil, or paraffin, or any com
pound, product, or residue of any of
surface of the eye, due to tar,
pitch, bitumen, mineral oil,- or
these substances.
paraffin, or any compound, prod
uct, or residue of any of these
substances.
15. Glanders_________________________ Care or handling of any equine animal,
or the carcass of any such animal.
16. Compressed-air illness or its se Any process carried on in compressed
air.
quelae.
17. Ankylostomiasis__________________ Mining.
18. Miners’ nystagmus_______________ M ining.
19. Subcutaneous cellulitis of the hand Mining.
(beat hand).
20. Subcutaneous cellulitis over the Mining.
patella (miner’s beat knee).
21. Acute bursitis over the elbow (min Mining.
er’s beat elbow).
22. Inflammation of the synovial lining Mining.
of the wrist joint and tendon
sheaths.
23. Cataract in glass workers_________ Processes in the manufacture of glass
involving exposure to the glare of
molten glass.
(10) Nothing in this section shall affect the rights of an employee to recover
compensation in respect to a disease to which this section does not apply if the
disease is an accidental personal injury within the meaning of t i e other provisions
of part 2 of this act.
(11) The provisions of this section shall not apply to disability or death result
ing from a disease contracted prior to the date on which this act takes effect.
M ISSOURI
REVISED STATUTES, 1929
S e c t io n 3305 (as amended 1931, p. 382).
D e f i n i t i o n s .— *
* * The said
terms [“injury” and “personal injuries” ] shall in no case except as hereinafter
provided be construed to include occupational disease in any form * * *:
P r o v i d e d , That nothing in this chapter contained shall be construed to de-
34
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 1936
prive employees of their rights under the laws of this State pertaining to occu
pational diseases, unless the employer shall file with the commission a written
notice that he elects to bring himself with respect to occupational disease
within the provisions of this act and by keeping posted in a conspicuous place
on his premises a notice thereof to be furnished by the commission, and any
employee entering the services of such employer and any employee remaining
in such service 30 days after the posting of such notice shall be conclusively
presumed to have elected to accept this section unless he shall have filed
with the commission and his employer a written notice that he elects to reject
this act. * * *
NEBRASKA
COMPILED STATUTES, 1929
S ection 48-152 (as amended 1935, ch. 57). D e f i n i t i o n s .— * * * ( b ) * * *
The term “ injury” and “personal injuries” shall mean only violence to the physi
cal structure of the body and such disease or infection as naturally results there
from. The said terms shall in no case be construed to include occupational
disease in any form except occupational diseases which arise out of and during
the course of employment and are peculiar to the smelting or metal refining
industries and which are contracted by workmen employed in said industries,
and disability commencing during the period of employment or disability com
mencing within two years subsequent to the termination of said employment,
and shall not be construed to include any contagious or infectious disease con
tracted during the course of employment, or death due to natural causes, but
occurring while the workman is at work. * * *
N E W JERSEY
CUMULATIVE SUPPLEMENT TO COMPILED STATUTES (1911-24)
Section **236-26. C o m p e n s a t i o n f o r d ea th , o r i n j u r y .—22 (a ). When employer
and employee have accepted the provisions of section II as aforesaid, compensa
tion for personal injuries to or for death of such employee by any of the com
pensable occupational diseases hereinafter defined arising out of and in the
course of his employment shall be made by the employer to the extent herein
after set forth and without regard to the negligence of the employer.
S ec . **236-28. A m o u n t o f c o m p e n s a t i o n .—22 (c ). The compensation pay
able for death or disability total in character and permanent in quality result
ing from an occupational disease shall be the same in amount and duration
and shall be payable in the same manner and to the same persons as would
have been entitled thereto had the death or disability been caused by an
accident arising out of and in the course of the employment.
(A ) In determining the duration of temporary and/or permanent partial dis
ability, and the duration of payment for the disability due to occupational
diseases, the same rules and regulations as are now applicable to accident or
injury occurring under section II of the act to which this act is an amendment
or supplement shall apply.
S ec . **236-29. E m p l o y e r s h a l l h a v e k n o w l e d g e o f c o n t r a c t e d d i s e a s e .—22 ( d ) .
Unless the employer during the continuance of the employment shall have
actual knowledge that the employee has contracted a compensable occupational
disease, or unless the employee or some one on his behalf, or some of his
dependents, or some one on their behalf, shall give the employer written notice
or claim that the employee has contracted one of said compensable occupational
diseases, which notice to be effective must be given within a period of 5 months
after the date when said employee shall have ceased to be subject to exposure
to such occupational disease, no compensation shall be payable on account of
the death or disability by occupational disease of such employee.
Sec. **236-30. B a r r i n g c l a i m s .—22 (e). All claims for compensation for com
pensable occupational disease shall be forever barred unless a petition is filed
in duplicate with the secretary of the workmen’s compensation bureau, at the
State House in Trenton, within 1 year after date on which the employee ceased
to be exposed in the course of employment with the employer to such occupa
tional disease as hereinabove defined, or in case an agreement of compensation
for compensable occupational disease has been made between such employer
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 193 6
35
and such claimant, then without [within] 1 year after the failure of the em
ployer to make payment pursuant to the terms of such agreement; or in case a
part of the compensation has been paid by such employer, then within 1 year
after the last payment of compensation.
S ec. **236-31. P r o v i s i o n s a p p l i c a b l e t o o c c u p a t i o n a l d i s e a s e . —22 ( f ). All pro
visions of section II and section III applicable to claims for injury or death
by accident shall apply to injury or death by compensable occupational disease,
except to the extent that they are inconsistent with the provisions contained in
paragraphs 2 2 (a ) to 2 2 ( f ) , both inclusive. The provisions in paragraphs
22 (a) to 22 ( f ), both inclusive, shall not apply to any claim for compensation
for injury resulting from accident.
SUPPLEMENT (1925-30) TO COMPILED STATUTES
Seo. * * * 236-27 (as amended 1931, ch. 33). D e f i n i t i o n s . —22 (b ).
When applicable in this act to occupational diseases the following words and
phrases shall be construed to have the following meanings:
A. Compensable occupational diseases shall not include any other than those
scheduled below and shall include those so scheduled only when the exposure
stated in connection therewith has occurred during the employment and the
disability has commenced within 5 months after the termination of such
exposure.
Occupational diseases: Anthrax; lead poisoning; mercury poisoning; arsenic
poisoning; phosphorus poisoning; benzene, and its homologues, and all deriva
tives thereof; wood-alcohol poisoning; chrome poisoning; caisson disease;
mesothorium or radium poisoning.
B. Willful self-exposure to occupational diseases shall include (1) failure or
omission to observe such rules and regulations as may be promulgated by said
Department of Labor and posted in the plant by the employer, tending to the
prevention of occupational diseases, and (2) failure or omission to truthfully
state to the best of the employee’s knowledge, in answer to inquiry made by the
employer, the location, duration, and nature of previous employment of the
employee in which he was exposed to any occupational disease as herein listed.
NEW Y O R K
CAHILL’S CONSOLIDATED LAWS, 1930
C h apter 66
Section 3. C o v e r a g e .— * * *
2.
O c c u p a t i o n a l d i s e a s e s . — Compensation shall be payable for disabilities
sustained or death incurred by an employee resulting from the following
occupational diseases:
C o lu m n 1
C o lu m n 2
DESCRIPTION OP DISEASES
DESCRIPTION OF PROCESS
1. Anthrax____ <_____________________
2. Lead poisoning or its sequelae______
3. Zinc poisoning or its sequelae______
4.
Mercury poisoning or its sequelae_
_
5. Phosphorus poisoning or its sequelae.
6. Arsenic poisoning or its sequelae___
Handling of wool, hair, bristles, hides or
skins.
Any process involving the use of or di
rect contact with lead or its prepara
tions or compounds.
Any process involving the use of or di
rect contact with zinc or its prepara
tions or compounds or alloys.
Any process involving the use of or di
rect contact with mercury or its prepa
rations or compounds.
Any process involving the use of or di
rect contact with phosphorus or its
preparations or compounds.
Any process involving the use of or di
rect contact with arsenic or its prepa
rations or compounds.
36
O C C U P A T IO N A L -D IS E A S E
L E G IS L A T IO N
C olum n 1
DESCRIPTION OF DISEASES
7. Poisoning by wood alcohoL.
8. Poisoning by benzol or nitro-,hydro-,
hydroxy-, and amido- derivatives
of benzene (dinitro-benzol, anilin, and others), or its sequelae.
9. Poisoning by carbon bisulphide or
•
its sequelae, or any sulphide.
10. Poisoning by nitrous fumes or its
sequelae.
11. Poisoning by nickel carbonyl or its
sequelae.
12. Dope poisoning (poisoning by tetrachlor-methane or any substance
used as or in conjunction with a
solvent for acetate of cellulose or
nitro cellulose), or its sequelae.
13. Poisoning by formaldehyde and
its preparations.
14. Chrome ulceration or its sequelae
or chrome poisoning.
15. Epitheliomatous cancer or ulcera
tion of the skin or of the corneal
surface of the eye, due to tar,
pitch, bitumen, mineral oil or
paraffin, or any compound, prod
uct or residue of any of these
substances.
16. Glanders_________________________
17. Compressed air illness or its se
quelae.
18. Miners' diseases, including only
cellulitis, bursitis, ankylosto
miasis, tenosynovitis and nystag
mus.
19. Cataract in glassworkers__________
20. Radium poisoning or disability due
to radio-active properties of sub
stances or to Roentgen rays (Xrays).
21. Methyl chloride poisoning________
22. Carbon monoxide poisoning
23. Poisoning by sulphuric, hydro
chloric or hydro-fluoric acid.
IN
U N IT E D
STATES,
19 3 6
C olum n 2
DESCRIPTION OF PROCESS
Any process involving the use of wood
alcohol or any preparation containing
wood alcohol.
Any process involving the use of or di
rect contact with benzol or nitro-,
hydro-, hydroxy-, or amido- derivatives
of benzene or its preparations or com
pounds.
Any process involving the use of or di
rect contact with carbon bisulphide or
its preparations or compounds, or any
sulphide.
Any process in which nitrous fumes are
evolved.
Any process in which nickel carbonyl is
evolved.
Any process involving the use of or di
rect contact with any substance used
as or in conjunction with a solvent for
acetate of cellulose or nitro cellulose.
Any process involving the use of or di
rect contact with formaldehyde and
its preparations.
Any process involving the use of or di
rect contact with chromic acid or bi
chromate of ammonium, potassium,
or sodium or their preparations.
Handling or use of tar, pitch, bitumen,
mineral oil, or paraffin or any com
pound, product or residue of any of
these substances.
Care or handling of any equine animal
or the carcass of any such animal.
Any process carried on in compressed
air.
Any process involving mining.
Processes in the manufacture of glass
involving exposure to the glare of
molten glass.
Any process involving the use of or
direct contact with radium or radio
active substance or the use of or
direct exposure to Roentgen rays
(X-rays).
Any process involving the use of or
direct contact with methyl chloride
or its preparations or compounds.
Any process involving direct exposure
to carbon monoxide in buildings,
sheds or enclosed places.
Any process involving the use of or
direct contact with sulphuric, hydro
chloric or hydrofluoric acids or their
fumes.
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 1936
C olu m n 1
DESCRIPTION OF DISEASES
24. Respiratory, gastrointestinal or
physiological nerve and eye dis
orders due to contact with petro
leum products and their fumes.
25. Disability arising from blisters or
abrasions.
37
C o lum n 2
DESCRIPTION OF PROCESS
Any process involving the use of or
direct contact with petroleum or
petroleum products and their fumes.
Any process involving continuous fric
tion, rubbing or vibration causing
blisters or abrasions.
26. Disability arising from bursitis or Any process involving continuous rub
synovitis.
bing, pressure or vibration of the
parts affected.
27. Dermatitis (venenata)__________
Any process involving the use of or
direct contact with acids, alkalies,
acids or oil, or with brick, cement, lime,
concrete, or mortar capable of causing
dermatitis (venenata). (As amended
1934, ch. 743.)
28. Any and all occupational diseases. _ Any and all employments enumerated in
subdivision one of section three of this
chapter. (Added by acts of 1935, ch.
254.)
Nothing in paragraph 28 of this subdivision shall be construed to apply to
any case of occupational disease in which the last injurious exposure to the
hazards of the disease occurred prior to September 1, 1935; nor to any dis
ability or death due to any disease described in article 4a of this chapter.
(Amended 1935, ch. 254; 1936, ch. 887.)
S ec. 38. D i s a b l e m e n t t r e a t e d a s a c c i d e n t .: —The disablement of an employee
resulting from an occupational disease described in subdivision 2 of section 3
shall be treated as the happening of an accident within the meaning of this
chapter and the procedure and practice provided in this chapter shall apply to
all proceedings under this article, except where specifically otherwise provided
herein.
Sec, 39. R i g h t t o c o m p e n s a t i o n . — If an employee is disabled or dies and his
disability or death is caused by one of the diseases mentioned in subdivision 2 of
section 3, and the disease is due to the nature of the corresponding employment
as described in such subdivision in which such employee was engaged and was
contracted therein, he or his dependents shall be entitled to compensation for his
death or for the duration of his disablement in accordance with the provisions of
article two, except as hereinafter stated: P r o v i d e d , h o w e v e r , That if it shall be
determined that such employee is able to earn wages at another occupation which
shall be neither unhealthful nor injurious, and such wages do not equal his full
wages prior to the date of his disablement, the compensation payable shall be
a percentage of the full compensation proportionate to the reduction in his earn
ing capacity.
Sec . 40 (as amended 1931, ch. 344). T i m e l i m i t . — Neither the employee nor
his dependents shall be entitled to compensation for disability or death resulting
from disease unless the disease is due to the nature of his employment and con
tracted therein, or in a continuous employment similar to the one in which he was
engaged at the time of his disablement, within the 12 months previous to the date
of disablement, whether under one or more employers. The time limit for con
traction of the disease prescribed by this section shall not bar compensation in
the case of an employee who contracted the disease in the same employment with
the same employer by whom he was employed at the time of his disablement and
who had continued in the same employment with the same employer from the
time of contracting the disease up to the time of his disablement thereby.
Sec . 41. E x a m i n i n g p h y s i c i a n . —The industrial commissioner shall appoint one
or more physicians whose duty it shall be to examine any claimant under this
article and to make a report in such form as the commissioner may require.
Sec . 42. D a t e o f d i s a b l e m e n t . — For the purposes of this article the date of dis
ablement shall be such date as the board may determine on the hearing on the
claim.
38
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 1936
S ec . 43. F a l s e r e p r e s e n t a t i o n . — If an employee, at the time of his employ
ment, willfully and falsely represents in writing that he has not pre
viously suffered from the disease which is the cause of disability or death, no
compensation shall be payable.
Sec . 44. L i a b i l i t y o f e m p l o y e r . —The total compensation due shall be recov
erable from the employer who last employed the employee in the employment to
the nature of which the disease was due and in which it was contracted. If,
however, such disease was contracted while such employee was in the employ
ment of a prior employer, the employer who is made liable for the total com
pensation as provided by this section, may appeal to the board for an apportion
ment of such compensation among the several employers who since the contrac
tion of such disease shall have employed such employee in the employment to
the nature of which the disease was due. Such apportionment shall be propor
tioned to the time such employee was employed in the service of such employ
ers, and shall be determined only after a hearing, notice of the time and place
of which shall have been given to every employer alleged to be liable for any
portion of such compensation. If the board find that any portion of such
compensation is payable by an employer prior to the employer who is made
liable to the total compensation as provided by this section, it shall make an
award accordingly in favor of the last employer, and such award may be
enforced in the same manner as an award for compensation.
S eo. 45. N o t i c e t o e m p l o y e r s . —The employer to whom notice of death or dis
ability is to be given, or against whom claim is to be made by the employee,
shall be the employer who last employed the employee during the said 12 months
in the employment to the nature of which the disease was due and such notice
and claim shall be deemed seasonable as against prior employers. The require
ments as to notice as to occupational disease and death resulting therefrom
shall be the same as required in section 18 of this chapter, except that the
notice shall be given to the commissioner and the employer within 90 days after
the disablement.
S ec . 46. F u r n i s h i n g o f i n f o r m a t i o n ; p e n a l t y . —The employee or his depend
ents, if so requested, shall furnish the last employer or the board with such
information as to the names and addresses of all his other employers during the
said 12 months, as he or they may possess; and if such information is not fur
nished, or is not sufficient to enable such last employer to take proceedings
against a prior employer under section 44, unless it be established that the dis
ease actually was contracted while the employee was in his employment, such
last employer shall not be liable to pay compensation, or, if such information is
not furnished or is not sufficient to enable such last employer to take proceed
ings against other employers under section 44, such last employer shall be liable
only for such part of the total compensation as under the particular circum
stances the board may deem ju s t; but a false statement in the information fur
nished as aforesaid shall not impair the workman’s rights unless the last
employer is prejudiced thereby.
S ec. 47. P r e s u m p t i o n a s t o d i s e a s e . — If the employee, at or immediately
before the date of disablement, was employed in any process mentioned
in the second column of the schedule of diseases in subdivision 2 of section 3,
and his disease is the disease in the first column of such schedule set opposite
the description of the process, the disease presumptively shall be deemed to have
been due to the nature of that employment.
S ec . 48. E m p l o y e e ’ s r i g h t s , e x c l u s i v e n e s s . —Nothing in this article shall affect
the rights of an employee to recover compensation in respect to a disease to
which this article does not apply if the disease is an accidental personal injury
within the meaning of subdivision 7 of section 2 of this chapter.
ARTICLE 4A
S ec . 65 (as added 1936, ch. 887). P r e v e n t i o n o f d u s t d i s e a s e s . — 1 . It is
hereby declared to be the policy of the legislature of this State, in enacting
this article, to prohibit through every lawful means available, any requirement
as a prerequisite to employment which compels an applicant for employment
in any occupation coming within the purview of this article to undergo a
medical examination.
2.
The industrial commissioner and the industrial board are hereby required
t o add to the industrial code, as provided in sections 28 and 29 of the labor
law, effective rules and regulations governing the installation, maintenance and
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 1936
39
effective operation in all industries and operations wherein silica dust or other
harmful dust hazard is present, of approved devices designed to eliminate such
harmful dusts and to promulgate such other regulations as will effectively
control the incidence of silicosis and similar diseases.
S ec. 66 (as added 1936, ch. 887). C o m p e n s a t i o n p a y a b l e f o r d i s a b i l i t y o r
d e a t h . —Compensation shall not be payable for partial disability due to sili
cosis or other dust disease. In the event of temporary or permanent total
disability or death from silicosis or other dust disease, notwithstanding any
other provision of this chapter, compensation shall be payable under this article
to employees in the employments enumerated in section 3 of this chapter or to
their dependents in the following manner and amounts: If disablement or
death occur during the first calendar month in which this act becomes effective
not exceeding the sum of $500; if disablement or death occur during the second
calendar month after which this act becomes effective not exceeding the sum of
$550; thereafter the total of compensation and benefits payable for disability and
death shall increase at the rate of $50 each calendar month. The aggregate
amount payable shall be determined by the total amount payable in the month
in which disablement or death occurs. In no event shall such compensation
exceed an aggregate total of $3,000. The requirement as to payments into the
special funds provided for in subdivisions 8 and 9 of section 15 for each case
of injury causing death in which there are no persons entitled to compensation
shall not apply to any claim arising under this article.
Compensation payable hereunder shall be paid from the eighth day following
total disablement at the rate of 66% per centum of the average weekly wage to
be computed under section 14 of this chapter; but in no case shall compensation
exceed $25 per week nor in the event of total disability be less than $8 per
week; provided, however, that in the event of death from such disease his
dependents shall receive, in the manner provided by sections 16 and 17 of this
chapter, any balance remaining between the amounts paid for disability and
the total compensation payable under this article.
Notwithstanding the provisions of section 28 of this chapter, all claims for
compensation resulting from inhalation of harmful dust, where the last exposure
occurred between the effective date of this act and September 1, 1935, shall be
barred unless filed within 180 days from the day on which this act takes effect.
S e c . 67 (as added 1936, ch. 887). L i a b i l i t y o f e m p l o y e r . —An employer shall
be liable for the payments prescribed by this article for silicosis or other dust
disease when disability of an employee resulting in loss of earnings shall be
due to an employment in a hazardous occupation in which he was employed, and
such disability results within one year after the last injurious exposure in sucli
employment; or, in case of death resulting from such exposure, if such death
occurs within 5 years following continuous disability from such disease. The
provisions of section 44 of this chapter shall not apply to claims arising under
this article.
The employer in whose employment the employee was last injuriously ex
posed in a hazardous occupation and the insurance carrier, if any, which was
on the risk at the time of the last injurious exposure in such employment, shall
be liable for any payments required by this article; the notice of injury and
claim shall be made to such employer.
S eo. 68 (as added 1936, ch. 887). M e d i c a l t r e a t m e n t a n d c a r e . —Notwithstand
ing any other provisions of this chapter the medical treatment herein provided
for shall be limited in the case of an employee disabled by an occupational
disease due to or resulting from the inhalation of harmful dust to a period of
90 days from the date of such disablement, but the requirement for such medi
cal treatment may be extended for an additional period not to exceed 90 days
upon the order of the industrial board.
S ec . 69 (as added 1936, ch. 887). E m p l o y e e s , w h e n n o t e n t i t l e d t o c o m p e n s a
t i o n . —If an employee, at the time of his employment, falsely represents in writ
ing that he has not previously been disabled from the disease which is the
cause of disability or death or has not received compensation or benefits under
this article, no compensation shall be payable.
S ec. 70 (as added 1936, ch. 887). S p e c i a l m e d i c a l e x a m i n e r s . —The industrial
commissioner shall divide the State into 5 districts and in each district may
appoint 2 or more special medical examiners who shall be licensed physicians
in good professional standing, each of whom shall have had, at the time of his
appointment, and immediately prior thereto, at least 5 years of practice in the
diagnosis, care and treatment of pulmonary diseases. Such examiners shall
40
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 193 6
be employed on a per diem basis as the exigencies of the work may require.
Fees of examiners shall be fixed by the industrial commissioner within the
limits of the appropriation therefor. Each position of special medical examiner
provided herein shall be in the exempt class of civil service.
Whenever a claim is made under this article and an examination of the
claimant by an impartial physician is desired by any party in interest, the
industrial commissioner shall order such medical examiners to make the neces
sary medical and X-ray examination of the claimant in an effort to obtain the
medical facts in an impartial manner.
For the purposes of adjudication under this chapter, the industrial board shall
adopt rules of practice and procedure and shall prescribe methods and standards
under which physical examinations, X-rays and other studies shall be conducted.
Seo. 71 (as added 1936, ch. 887). A p p o i n t m e n t o f c o n s u l t a n t s . —The industrial
commissioner shall appoint as expert consultants on dust diseases 3 licensed
physicians in good professional standing, each of whom shall have had, at the
time of his appointment, and immediately prior thereto, at least 10 years of
practice in the diagnosis, care and treatment of diseases of the pulmonary
tract, along with the interpretation of X-ray films thereof. They shall be paid
at a salary to be fixed by the industrial commissioner not to exceed $7,500 per
year. Each such position of consultant shall be in the exempt class of civil
service.
The industrial commissioner or the industrial board shall on their own
volition or on the application of either an employee, an employer, or an insur
ance carrier, direct such expert consultants to make examinations of claimants,
to review the findings of special medical examiners, to read and review the files
of compensation cases when necessary, and to inform the industrial commis
sioner and the industrial board of their opinion as to their findings in such cases.
S eio. 72 (as added 1936, ch. 887). A l t e r n a t i v e r e m e d y . —The liability of an
employer prescribed by this article shall be exclusive and in place of any other
liability whatsoever, at common law or otherwise, to such employee, his personal
representatives, husband, parents, dependents or next of kin, or anyone otherwise
entitled to recover damages, at common law, or otherwise, on account of any
injury, disability, or death, caused by the inhalation of harmful dust, except
that if an employer fail to secure the payment of compensation for his injured
employees and their dependents as provided in section 50 of this chapter, an
injured employee, or his legal representative in case death results from the
injury or disease, may, at his option, elect to claim compensation under this
chapter, or to maintain an action in the courts for damages on account of such
injury or disease; and in such an action it shall not be necessary to plead or
prove freedom from contributory negligence nor may the defendant plead as a
defense that the injury or disease was caused by the negligence of a fellow
servant or that the employee assumed the risk of his employment, nor that
the injury or disease was due to the contributory negligence of the employee.
N O R T H C A R O L IN A
MICHIE’S CODE, 1935
S e c t io n 8081 (1). O c c u p a t i o n a l d i s e a s e s c o m p e n s a b l e . —Disablement or death
of an employee resulting from an occupational disease described in section
8081 (2) shall be treated as the happening of an injury by accident within the
meaning of the North Carolina Workmen’s Compensation Act and the procedure
and practice and compensation and other benefits provided by said Act shall
apply in all such cases except as hereinafter otherwise provided. The word
“ accident,” as used in the Workmen’s Compensation Act, shall not be construed
to mean a series of events in employment, of a similar or like nature, occurring
regularly, continuously or at frequent intervals in the course of such employ
ment, over extended periods of time, whether such events may or may not be
attributable to fault of the employer, and disease attributable to such causes,
shall be compensable only if culminating in an occupational disease mentioned
in and compensable under this article. P r o v i d e d , h o w e v e r , No compensation
shall be payable for asbestosis and/or silicosis as hereinafter defined if the
employee, at the time of entering into the employment of the employer by whom
compensation would otherwise be payable, falsely represented himself in writing
as not having previously been disabled or laid off because of asbestosis or
silicosis.
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 193 6
41
S e c . 8081 (2). E n u m e r a t i o n o f d i s e a s e s .—The following diseases and condi
tions only shall be deemed to be occupational diseases within the meaning of
this article:
1. Anthrax.
2. Arsenic poisoning.
3. Brass poisoning.
4. Zinc poisoning.
5. Manganese poisoning.
6. Lead poisoning. P r o v i d e d , The employee shall have been exposed to the
hazard of lead poisoning for at least thirty days in the preceding
twelve months’ period: A n d p r o v i d e d f u r t h e r , Only the employer in
whose employment such employee was last injuriously exposed shall
be liable.
7. Mercury poisoning.
8. Phosphorus poisoning.
9. Poisoning by carbon bisulphide, methanol, naphtha, or volatile halogenated hydrocarbons.
10. Chrome ulceration.
11. Compressed-air illness.
12. Poisoning by benzol, or by nitro and amido derivatives of benzol
( dinitrol-benzol, anilin, and others).
13. Infection or inflammation of the skin or eyes or other external contact
surfaces or oral or nasal cavities due to irritating oils, cutting com
pounds, chemical dust, liquids, fumes, gases or vapors.
14. Epitheliomatous cancer or ulceration of the skin or of the corneal sur
face of the eye due to tar, pitch, bitumen, mineral oil, or paraffin, or
any compound, product, or residue of any of these substances.
15. Radium poisoning or injury by X-rays.
16. Blisters due to use of tools or appliances in the employment.
17. Bursitis, of the knee or elbow, due to intermittent pressure in the em
ployment.
18. Miner’s nystagmus.
19. Bone felon due to constant or intermittent pressure in employment.
20. Synovitis, caused by trauma in employment.
21. Tenosynovitis, caused by trauma in employment.
22. Carbon monoxide poisoning.
23. Poisoning by sulphuric, hydrochloric or hydrofluoric acid.
24. Asbestosis.
25. Silicosis.
Occupational diseases caused by chemicals shall be deemed to be due to
exposure of an employee to the chemicals herein mentioned only when as a
part of the employment such employee is exposed to such chemicals in such
form and quantity, and used with such frequency as to cause the occupational
disease mentioned in connection with such chemicals.
S ec . 8081 (3). D i s a b l e m e n t d e f i n e d . —The term “ disablement” as used in this
article as applied to cases of asbestosis and silicosis means the event of be
coming actually incapacitated, because of such occupational disease, from
performing normal labor in the last occupation in which remuneratively em
ployed ; but in all other cases of occupational disease shall be equivalent to
“ disability” as defined in section 8081 (i), paragraph (i).
S ec . 8081 (4). D i s a b i l i t y d e f i n e d . —The term “ disability” as used in this
article means the state of being incapacitated as the term is used in defining
“ disablement” in section 8081 (3).
Sec . 8081 (5). L i m i t a t i o n s . —The provisions of this article shall apply only
to cases of occupational disease in which the last exposure in an occupation
subject to the hazards of such disease occurred on or after the date on which
this article shall have taken effect.
Sec . 8081 (6). P e r s o n s l ia b le . — In any case where compensation is payable
for an occupational disease, the employer in whose employment the employee
was last injuriously exposed to the hazards of such disease, and the insur
ance carrier, if any, which was on the risk when the employee was so last
exposed under such employer, shall be liable.
Sec . 8081 (7). R e s t r i c t i o n s . —An employer shall not be liable for any com
pensation for asbestosis, silicosis or lead poisoning unless disablement or
death results within three years after the last exposure to such disease, or, in
42
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 19 3 6
case of death, unless death follows continuous disability from such disease,
commencing within the period of three years limited herein, and for which
compensation has been paid or awarded or timely claim made as hereinafter
provided and results within seven years after such last exposure. Claims for
all other occupational diseases shall be barred unless claims shall be filed
with the Industrial Commission within one year from the disablement or
death caused by such occupational disease.
S e c . 8081 (8). T r e a t m e n t . —Tn the event of disability from an occupational
disease, the employer shall provide reasonable medical and/or other treatment
for such time as in the judgment of the Industrial Commission will tend to
lessen the period of disability or provide needed relief: P r o v i d e d , h o w e v e r ,
Medical and/or other treatment for asbestosis and/or silicosis shall not exceed
a period of three years nor cost in excess of $334.00 in any one year: A n d ,
p r o v i d e d f u r t h e r , all such treatment shall be first authorized by the Industrial
Commission after consulting with the Advisory Medical Committee.
S e c . 8081 (9). C o m p u l s o r y e x a m i n a t i o n o f e m p l o y e e s . —The compulsory exam
ination of employees and prospective employees as herein provided applies only
to persons engaged or about to engage in an occupation which has been found
by the Industrial Commission to expose them to the hazards of asbestosis
and/or silicosis. The Industrial Commission shall designate by order each
industry found subject to any such hazard and shall notify the employers
therein before such examinations are required. On and after the date on
which this article becomes operative it shall be the duty of every employer,
in the conduct of whose business his employees or any of them are subjected to
the hazards of asbestosis and/or silicosis, to provide prior to employment
necessary examinations of all new employees for the purpose of ascertaining
if any of them are in any degree affected by asbestosis and/or silicosis or
peculiarly susceptible thereto; and every such employer shall from time to
time, as ordered by the Industrial Commission, provide similar examinations
for all of his employees whose employment exposes them to the hazards of
asbestosis and/or silicosis. At least one member of the Advisory Medical Com
mittee or other physician designated by the Industrial Commission shall make
such examinations or be present when any such examination is made. The
refusal of an employee to submit to any such examination shall bar such
employee from compensation or other benefits provided by this article in the
event of disablement and/or death resulting from exposure to the hazards of
asbestosis and/or silicosis subsequent to such refusal. It shall be the duty of
the Industrial Commission to make and/or order inspections of employments
and to keep a record of all employments subjecting employees to the hazards
of asbestosis and/or silicosis, and to notify the employer in any case where
such hazard shall have been found to exist. The unreasonable failure of an
employer to provide for any examination or his unreasonable refusal to permit
any inspection herein authorized shall constitute a misdemeanor and shall be
punishable as such.
S e o . 8081 (10). C o m p e n s a t i o n f o r e m p l o y e e s t e m p o r a r i l y r e m o v e d f r o m h a z
a r d o u s e m p l o y m e n t . —Where an employee, though not actually disabled, is found
by the Industrial Commission to be affected by asbestosis and/or silicosis, and
it is also found by the Industrial Commission that such employee would be
benefited by being taken out of his employment and that such disease with such
employee has progressed to such a degree as to make it hazardous for him to
continue in his employment and is in consequence removed therefrom by order
of the Industrial Commission, he shall be paid compensation as for temporary
total or partial disability, as the case may be, until he can obtain employment
in some other occupation in which there are no hazards of such occupational
disease: P r o v i d e d , h o w e v e r , Compensation in no such case shall be paid for a
longer period than twenty weeks to an employee without dependents, nor for a
longer period than forty weeks to an employee with dependents, and in either
case said period shall begin from the date of removal from the employment,
unless actual disablement from such disease results later and within the time
limited in section 8081 (7 ). When in any such case the forced change of
occupation shall in the opinion of the Industrial Commission require that the
employee be given special training in order to properly readjust himself there
shall be paid for such training and incidental traveling and living expenses an
additional sum which shall not exceed $300.00 in the case of an employee with
out dependents, and which shall not exceed $500.00 in the case of an employee
with dependents, such payment to be made for the benefit of the employee to
such person or persons as the Industrial Commission may direct: P r o v i d e d ,
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 193 6
43
how ever,
No such payment shall be made unless the employee accepts the spe
cial training herein provided, nor shall payment be made for a longer period
of time than the employee shall accept such special training. I f an employee
has been so compensated, and whether or not specially trained for another occu
pation, and he thereafter engages in any occupation which exposes him to haz
ards of silicosis and/or asbestosis without first having obtained the written
approval of the Industrial Commission, neither he, his dependents, personal rep
resentative nor any other person shall be entitled to any compensation for dis
ablement or death from silicosis and/or asbestosis: P r o v i d e d , h o w e v e r , That an
employee so affected, as an alternative to forced change of occupation, may, sub
ject to the approval of the Industrial Commission, waive in writing his right to
compensation for any aggravation of his condition that may result from his con
tinuing in his hazardous occupation; but in the event of total disablement and/or
death as a result of asbestosis and/or silicosis with which the employee was
so affected compensation shall nevertheless be payable, but in no case, whether
for disability or death or both, for a longer period than 100 weeks. Such writ
ten waiver must be filed with the Industrial Commission, and the Commission
shall keep a record of each waiver, which record shall be open to the inspection
of any interested person.
S e c . 8081 (11). “ S i l i c o s i s ” a n d “ a s b e s t o s i s ” d e f i n e d .—The word “ silicosis”
shall mean the characteristic fibrotic condition of the lungs caused by the inhala
tion of dust of silica or silicates. “Asbestosis” shall mean a characteristic
fibrotic condition of the lungs caused by the inhalation of asbestos dust.
S e c . 8081 (12). P e r i o d n e c e s s a r y f o r e m p l o y e e t o h e e x p o s e d .—Compensation
shall not be payable for disability or death due to silicosis and/or asbestosis
unless the employee shall have been exposed to the inhalation of dust of silica
or silicates or asbestos dust in employment for a period of not less than two
years in this State, provided no part of such period of two years shall have been
more than ten years prior to the last exposure.
S ec. 8081
f i t s .—Except
(1 3 ).
W o r k m e n 's
c o m p e n s a tio n
to
c o n tr o l
as
to p a y m e n t
of
ben e
as herein otherwise provided, in case of disablement or death from
silicosis and/or asbestosis, compensation shall be payable in accordance with the
provisions of the North Carolina Workmen’s Compensation Act.
S e c . 8081 (14). R e d u c t i o n o f p a y m e n t s w h e r e t u b e r c u l o s i s d e v e l o p s .— In case
of disablement or death due primarily from silicosis and/or asbestosis and com
plicated with tuberculosis of the lungs compensation shall be payable as herein
before provided, except that the rate of payments may be reduced one-sixth.
S e c . 8081 (15). N o t i c e r e q u i r e d .— Unless written notice of the first distinct
manifestation of an occupational disease shall be given to the employer in whose
employment the employee was last injuriously exposed to the hazards of such
disease or to the Industrial Commission within 30 days after such manifesta
tion, and, in case of death, unless also written notice of such death shall be
given by the beneficiary hereunder to the employer or the Industrial Commis
sion within 90 days after occurrence, and unless claim for disability and/or
death shall be made within 1 year after the disablement or death, respectively,
all rights to compensation for disability or death from an occupational dis
ease shall be forever barred: P r o v i d e d , however, That notice and/or claim shall
be deemed waived in case of disability or death where the employer or insur
ance carrier voluntarily makes compensation payments therefor, or, within the
time above limited, has actual knowledge of the incurrence of the disease or of
the death and its cause, or by his or its conduct misleads the injured employee
or claimant reasonably to believe that notice and/or claim has or have been
waived: A n d p r o v i d e d f u r t h e r , That where compensation payments have been
made and discontinued, and further compensation is claimed, whether for dis
ability or death from asbestosis, silicosis or lead poisoning, the claim for such
further compensation shall be made within two years after the last payment,
but in all other cases of occupational disease claim for further compensation
shall be made within one year after the last payment.
S e c . 8081 (16). P o s t - m o r t e m e x a m i n a t i o n s .— Upon the filing of a claim for
death from an occupational disease where in the opinion of the Industrial Com
mission a post-mortem examination is necessary to accurately ascertain the
cause of death, such examination shall be ordered by the Industrial Commis
sion. A full report of such examination shall be certified to the Industrial Com
mission. The surviving spouse or next kin and the employer or his insur
ance carrier, if their identity and whereabouts can be reasonably ascertained,
shall be given reasonable notice of the time and place of such post-mortem
44
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 193 6
examination and, if present at such examination, shall be given an opportunity
to witness the same. Any such person may be present at and witness such
examination either in person or through a duly authorized representative. If
such examination is not consented to by the surviving husband or wife or next
of kin, all right to compensation shall cease.
S e c . 8081 (17). C o n t r o v e r t e d m e d i c a l q u e s t i o n s . —If on the hearing of a claim
for compensation for asbestosis and/or silicosis, any controverted medical ques
tion or questions shall arise, the Industrial Commission shall reserve its decision
and award until it shall have received a report from the Advisory Medical Com
mittee ; and the Industrial Commission may in its discretion refer to said Com
mittee controverted medical questions arising out of other occupational disease
claims.
S e o . 8081 (18). H e a r i n g b e f o r e a d v i s o r y m e d i c a l c o m m i t t e e . —The Advisory
Medical Committee, upon reference to it of a case of occupational disease, shall
notify the employee, or, in case he is dead, his dependents or personal repre
sentative, and his employer to appear before the Advisory Medical Committee
at a time and place stated in the notice. If the employee be living, he shall
appear before the Advisory Medical Committee at the time and place specified
then or thereafter and he shall submit to such examinations, including clinical
and X-ray examinations, as the Advisory Medical Committee may require. The
employee, or, if he be dead, the claimant and the employer shall be entitled to
have present at all such examinations, a physician admitted to practice medicine
in the State, who shall be given every reasonable facility for observing every
such examination, whose services shall be paid for by the claimant or by the
employer who engaged his services. If a physician admitted to practice medi
cine in the State shall certify that the employee is physically unable to appear
at the time and place designated by the Advisory Medical Committee, such Com
mittee may, upon the advice of the Industrial Commission, and on notice to the
employer, change the place and/or time of the examination so as to reasonably
facilitate the examination of the employee, and in any such case the employer
shall furnish transportation and provide for other reasonably necessary ex
penses incidental to necessary travel. The claimant and the employer shall pro
duce to the Advisory Medical Committee all reports of medical and X-ray
examinations which may be in their respective possession or control showing the
past or present condition of the employee to assist the Advisory Medical Com
mittee in reaching its conclusions.
S e o . 8081 (19). R e p o r t o f c o m m i t t e e t o i n d u s t r i a l c o m m i s s i o n . — The Advisory
Medical Committee shall, as soon as practicable after it has completed its con
sideration of a case, report to the Industrial Commission its opinion regarding
all medical questions involved in the case. The Advisory Medical Committee
shall include in its report a statement of what, if any, physician or physicians
were present at the examination on behalf of the claimant or employer and
what, if any, medical reports and X-rays were produced by or on behalf of the
claimant or employer.
S e o . 8081 (20). F i l i n g r e p o r t ; r i g h t o f h e a r i n g . —The Advisory Medical Com
mittee shall file its report in triplicate with the Industrial Commission, which
shall send one copy thereof to the claimant and one copy to the employer by
registered mail. Unless within thirty days from receipt of the copy of said
report the claimant and/or employer shall request the Industrial Commission
in writing to set the case for further hearing for the purpose of examining
and/or cross-examining the members of the Advisory Medical Committee re
specting the report of said Committee, said report shall become a part of the
record of the case and shall be accepted by the Industrial Commission as expert
medical testimony to be considered as such in connection with all the evidence
in the case in arriving at its decision.
S e c . 8081 (21). A p p o i n t m e n t o f a d v i s o r y m e d i c a l c o m m i t t e e . —There shall be
an Advisory Medical Committee consisting of three members, who shall be
licensed physicians in good professional standing and peculiarly qualified in the
diagnosis and/or treatment of occupational diseases. They shall be appointed
by the Industrial Commission with the approval of the Governor, and one of
them shall be designated as chairman of the Committee by the Industrial Com
mission. The members of Committee shall be appointed to serve terms as fol
lows : One for a term of two years, one for a term of four years, and one for a
term of six years. Upon the expiration of each term as above mentioned the
Industrial Commission shall appoint a successor for a term of six years; except
that the terms of the members first appointed shall expire June 80, 1936. The
function of the Committee shall be to conduct examinations and make reports
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 193 6
45
as required by sections 8081 (17)-8081 (20), and to assist in any post-mortem
examinations provided for in section 8081 (16) when so directed by the Indus
trial Commission. Members of the Committee shall devote to the duties of the
office so much of their time as may be required in the conducting of examina
tions with reasonable promptness, and they shall attend hearings as scheduled
by the Industrial Commission when their attendance is desired for the purpose
of examining and cross-examining them respecting any report or reports made
by them.
The members of the Advisory Medical Committee shall be paid such salaries
and/or fees and expenses, and in monthly installments or in such other manner
as may be determined by the Governor and approved by the Advisory Budget
Commission.
S e c . 8081 (22). E x p e n s e s o f e x a m i n a t i o n s . —The Industrial Commission shall
establish a schedule of reasonable charges to defray expenses incurred in mak
ing examinations pursuant to sections 8081 (9) and 8081 (16), such charges
to be collected in accordance with rules and regulations which shall be adopted
by the Industrial Commission. Said charges shall be collected from employers
who by order of the Industrial Commission are determined to be subject to the
hazards of asbestosis and/or silicosis.
S e c . 8081 (23). E x p e n s e s o f h e a r i n g s . — In hearings arising out of claims for
disability and/or death resulting from occupational diseases the Industrial
Commission shall tax as a part of the costs in cases in which compensation is
awarded a reasonable allowance for the services of members of the Advisory
Medical Committee attending such hearings and reasonable allowances for the
services of members of the Advisory Medical Committee for making investiga
tions in connection with all claims for compensation on account of occupa
tional diseases, including uncontested cases, as well as contested cases, and
whether or not hearings shall have been conducted in connection therewith.
All such charges, fees and allowances to be collected by the Industrial Com
mission shall be paid into the General Fund of the State Treasury to constitute
a fund out of which to pay the expenses of the Advisory Medical Committee.
S e o . 8081 (24). A s s e s s m e n t u p o n e m p l o y e r s t o p a y e x p e n s e s o f c o m m i t t e e .—In the event the amount appropriated by the General Assembly and the charges,
fees and allowances so assessed and collected and paid into the State Treasury
shall not be sufficient to pay the full cost incurred by the Advisory Medical
Committee in making examinations of employees, and conducting post-mortem
examinations, and in making investigations of claims arising under this article,
and in testifying before the Industrial Commission, the Industrial Commission
shall assess against the employers found by the Industrial Commission to be
subject to the hazards of asbestosis and/or silicosis an amount sufficient to pay
such cost, said amount to be assessed against such employers pro rata on the basis
of annual payroll. The Industrial Commission is authorized to assess and
collect in advance in the beginning of any year from the employers subject to
such hazard an amount estimated as necessary to pay such cost. Said amount
when so assessed shall be paid by such employers within ten days after the
notice of assessment, and when collected by the Industrial Commission shall be
paid into the State Treasury as a part of the fund out of which to pay the
expenses of the Advisory Medical Committee. In the event such amount so
assessed shall be found to be in excess of the cost incurred by such Advisory
Medical Committee in the performance of its duties under this article, such
excess shall be credited against the estimate of the cost to be incurred by said
Committee for the succeeding year. In case the amount so assessed shall be
insufficient to pay such cost the Industrial Commission is authorized to make
an additional assessment to be made at the end of the regular assessment period
and to be collected from the employers subject to the hazards of asbestosis
and/or silicosis.
S e c . 8081 (25). I n s p e c t i o n s . —The Industrial Commission shall make inspec
tions of employments for the purpose of ascertaining whether such employments,
or any of them, are subject to the hazards of asbestosis and/or silicosis, and for
the purpose of making studies and recommendations with a view to reducing
and/or eliminating such hazards. The Industrial Commission, and/or any per
son selected by it, is authorized to enter upon the premises of employers where
employments covered by this article are being carried on to make examinations
and studies as aforesaid. Any employer, or any officer or agent of an employer,
who unreasonably prevents or obstructs any such examinations or study shall
be guilty of a misdemeanor.
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NORTH DAKOTA
SUPPLEMENT (1925) TO COMPILED LAWS, 1913
S e c t io n 396a2. D e f i n i t i o n s .— * * * “ Injury” means only an injury arising
in the course of employment, including an injury caused by the willful act of a
third person directed against an employee because of his employment, but shall
not include injuries caused by the employee’s willful intention to injure himself
or to injure another. The term “injury” includes in addition to an injury by
accident, any disease proximately caused by the employment. If the employer
claims an exemption or forfeiture under this section, the burden of proof shall
be upon him. * * *
OHIO
PAGE’S GENERAL CODE, 1932
S e c t i o n 1465-68a (as amended 1931, p. 26). O c c u p a t i o n a l d i s e a s e s .—Every
employee who is disabled because of the contraction of an occupational disease
as herein defined, or the dependent of an employee whose death is caused by an
occupational disease as herein defined, shall,, on and after July 1, 1921, be en
titled to the compensation provided by sections 1465-78 to 1465-82, inclusive,
and section 1465-89 of the General Code, subject to the modifications hereinafter
mentioned: P r o v i d e d , That no person shall be entitled to such compensation
unless for 90 days next preceding the contraction of the disease the employee
has been a resident of the State of Ohio, or for 90 days next preceding the
contraction of the disease has been employed by an employer required by the
workmen’s compensation law of Ohio to contribute to the occupational disease
fund of Ohio for the benefit of such employee, or to compensate such employee
directly under the provisions of section 1465-69 of the General Code.
The following diseases shall be considered occupational diseases and com
pensable as such, when contracted by an employee in the course of his employ
ment in which such employee was engaged at any time within 12 months
previous to the date of his disablement and due to the nature of any process
described herein:
Schedule
DESCRIPTION OF DISEASE OR INJURY
Handling of wool, hair, bristles, hides
and skins.
Care of any equine animal suffering
Glanders________________________
from glanders; handling carcass of
such animal.
Any industrial process involving the
Lead poisoning
use of lead or its preparation or com
pounds.
Mercury poisoning
Any industrial process involving the use
of mercury or its preparations or
compounds.
Any industrial process involving the use
Phosphorus poisoning.
of phosphorus or its preparations or
compounds.
Any industrial process involving the use
Arsenic poisoning
of arsenic or its preparations or com
pounds.
Poisoning by benzol or by nitro- and Any industrial process involving the
amido-derivatives of benzol (diuse of benzol or nitro- or amido-derivative of benzol or its preparations
nitro-benzol, anilin, and others).
or compounds.
Poisoning by gasoline, benzine, Any industrial process involving the use
of gasoline, benzine, naphtha, or other
naphtha, or other volatile petro
volatile petroleum products.
leum products.
Poisoning by carbon bisulphide____ Any industrial process involving the use
of carbon bisulphide or its prepara
tions or compounds.
1. Anthrax_________________________
2.
3.
4.
5.
6.
7.
8.
9.
DESCRIPTION OF PROCESS
O C C U P A T IO N A L -D IS E A S E
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47
S chedule
DESCRIPTION
of
DISEASE OR INJURY
10. Poisoning by wood alcohol_______
11. Infection or inflammation of the
skin on contact surfaces due to
oils, cutting compounds or lubri
cants, dust, liquids, fumes, gases,
or vapors.
12. Epithelioma cancer or ulceration of
the skin or of the corneal surface
of the eye due to carbon, pitch,
tar, or tarry compounds.
13. Compressed-air illness____________
DESCRIPTION OF PROCESS
Any industrial process involving the use
of wood alcohol or its preparations.
Any industrial process involving the
handling or use of oils, cutting com
pounds or lubricants, or involving
contact with dust, liquids, fumes,
gases, or vapors.
Handling or industrial use of carbon,
pitch, or tarry compounds.
Any industrial process carried on in
compressed air.
14. Carbon dioxide poisoning_________ Any process involving the evolution or
resulting in the escape of carbon di
oxide.
15. Brass or zinc poisoning
Any process involving the manufacture,
founding, or refining of brass or the
melting or smelting of zinc.
Any process involving the grinding or
16. Manganese dioxide poisoning
milling of manganese dioxide or the
escape of manganese dioxide dust.
17. Radium poisoning.
Any industrial process involving the use
of radium and other radio active sub
stances, in luminous paint.
18. Tenosynovitis and pre-patellar Primary tenosynovitis characterized by
bursitis.
a passive effusion or crepitus into the
tendon sheath of the flexor or extensor
muscles of the hand, due to frequently
repetitive motions or vibration, or
pre-patellar bursitis due to continued
pressure.
19. Chrome ulceration of the skin or Any industrial process involving the use
nasal passages.
of or direct contact with chromic acid
or bichromates of ammonium, potas
sium, or sodium or their preparations.
20. Potassium cyanide poisoning
Any industrial process involving the use
of or direct contact with potassium
cyanide.
21. Sulphur dioxide poisoning.
Any industrial process in which sulphur
dioxide gas is evolved by the expan
sion of liquid sulphur dioxide.
S e c . 1465-68b. R i g h t s o f e m p l o y e e s .—Every employee mentioned in the next
preceding section and the dependent or dependents of such employee and the
employer or employers of such employee shall be entitled to all the rights,
benefits and immunities and shall be subject to all the liabilities, penalties and
regulations provided for injured employees and their employers by sections
1465-44 to 1465-108, General Code, inclusive, save and except section 1465-90,
General Code, which shall not apply to any case involving occupational disease,
and also subject to such other modifications or exemptions hereinafter provided.
The industrial commission shall have all of the powers, authority and duties
with respect to the collection, administration and disbursement of the State
occupational disease fund as are provided for in sections 1465-44 to 1465-108,
General Code, inclusive, providing for the collection, administration and dis
bursement of the State insurance fund for the compensation of injured employees.
S e c . 1465-68c. R e s t r i c t i o n s .—No compensation shall be awarded on account
of disability or death from disease suffered by an employee who, at the time of
entering into the employment from which the disease is claimed to have resulted,
shall have wilfully and falsely represented himself as not having previously
suffered from such disease. Compensation shall not be awarded on account of
both injury and disease, except when the disability is caused by such disease
and an injury, in which event the commission may apportion the payment of
48
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compensation provided for in sections 1465-79 to 1465-82, General Code, in
clusive, between the funds as in their judgment seems just and proper. If an
employee is suffering from both occupational disease and an injury, and the
industrial commission of Ohio can determine which is causing his disability, it
shall pay compensation therefor from the proper fund.
Compensation for loss sustained on account of occupational disease by an
employee mentioned in subdivision 1 of section 1465-61, General Code, or the de
pendents of such employee, shall be paid from the fund provided for in sections
1465-62 to 1465-67, General Code, inclusive.
Compensation for loss sustained on account of such disease by an employee
mentioned in subdivision 2 of section 1465-61, General Code, or the dependents
of such employee, shall be paid from the occupational disease fund or by the
employer of such employee, in case such employer has elected to pay such com
pensation directly to his employees.
PHILIPPINE ISLANDS
PUBLIC LAWS, VOLUME 23
A ct N o. 3428, p. 415
S e c t io n 2. G r o u n d s f o r c o m p e n s a t i o n .—When any employee receives a per
sonal injury from any accident due to and in the pursuance of the employment,
or contracts any illness directly caused by such employment or the result of the
nature of such employment, his employer shall pay compensation in the sums
and to the persons hereinafter specified.
P U E R T O R IC O
ACTS OF 1935
No. 45
Section 3. R i g h t s o f l a b o r e r s .—Every workman or employee who suffers an
injury or an occupational disease under the conditions specified in this Act, and
as established in section 2, shall be entitled to—
*
*
*
*
*
*
*
T a b l e o f o c c u p a t i o n a l d i s e a s e s a n d t h e i r c a u s e s .—The
diseases enumerated in
the following table shall be considered as occupational diseases when contracted
by workmen or employees in the course of the occupations therein enumerated,
within the twelve months prior to the date of the disability caused by such
disease due to the nature of any of the processes described in said table:
N am e
of d ise a s e
D e s c r ip t io n
of process
1. Anthrax__________________________ Handling of wool, hair, bristles, hides,
or skins.
2. Glanders_________________________ Care of equine animals suffering from
glanders.
3. Lead poisoning___________________ Any industrial process involving the use
of lead or of its preparations or com
pounds.
4. Mercury poisoning________________Any industrial process involving the use
of mercury or of its preparations or
components.
5. Phosphorus poisoning_____________ Any industrial process involving the use
of phosphorus or of its preparations or
compounds.
6. Arsenic poisoning_________________ Any industrial process involving the use
of arsenic or of its preparations or
compounds.
7. Poisoning by benzol or by niter or Any industrial process involving the use
their derivatives of amide diniof benzol, of niter, of amide and its
trate, anilin and others.
derivatives of benzol or its prepara
tions or compounds.
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 19 36
N am e
D escription
of disease
49
of process
industrial process involving the
8. Poisoning by gasoline, naphtha, or Any
other volatile petroleum product.
use of gasoline, benzine, naphtha, or
other volatile petroleum product.
9. Poisoning by carbon bisulphide____ Any
industrial process involving the
use of carbon bisulphide or of its
preparations or compounds.
10. Poisoning by wood alcohol________ Any industrial process involving the use
of wood alcohol or of its preparations.
11. Infection or inflammation of the Any
industrial process involving the
skin on contact with compound,
handling or use of compound, irritat
irritating or lubricant oils, dust,
ing, or lubricant oils or involving
liquids, smoke, gases or vapors.
contact with dust, liquids, smoke,
gases, or vapors.
12. Ulceration of the skin or of the Handling or industrial use of coal, pitch,
corneal surface of the eye, due to
tar, or their compounds.
coal, pitch, tar, or their com
pounds.
13. Compressed-air poisoning_________ Any industrial process carried on in
compressed air.
14. Carbon dioxide poisoning_________ Any process involving the evolution, or
resulting in the escape, of carbon
dioxide.
Any industrial process involving the
15. Brass or zinc poisoning
manufacture, founding, or refining of
brass or the melting or smelting of
zinc.
R H O D E ISLA N D
GENERAL LAW S,
1923
C hapter 92
A rticle Y III
(as added, by ch. 2358, Acts of 1936).
Section 1.
Occupational Diseases
D e f i n i t i o n s . —Whenever used in this article:
The word “ disability” means the state of being disabled from earning full
wages at the work at which the employee was last employed;
(б) The word “ disablement” means the event of becoming so disabled as
defined in sub-paragraph ( a ) ;
( c ) The term “ occupational disease” means a disease which is due to causes
and conditions which are characteristic of and peculiar to a particular trade,
occupation, process or employment.
Sec. 2. O c c u p a t i o n a l d i s e a s e s .—The disablement of an employee resulting from
an occupational disease or condition described in the following schedule shall
be treated as the happening of a personal injury by accident within the meaning
of this chapter and the procedure and practice provided in this chapter shall
apply to all proceedings under this article, except where specifically otherwise
provided herein:
1. Anthrax.
2. Arsenic poisoning or its sequelae.
3. Brass or zinc poisoning or its sequelae.
4. Lead poisoning or its sequelae.
5. Manganese poisoning.
6. Mercury poisoning or its sequelae.
7. Phosphorus poisoning or its sequelae.
8. Poisoning by wood alcohol.
9. Poisoning by carbon bisulphide, methanol, naphtha, or volatile halogenated hydrocarbons, or any sulphide, or its sequelae.
10. Poisoning by benzol, or nitro-, hydro-, hydroxy- and amido-derivatives of
benzol (dinitro-benzol, anilin, and others), or its sequelae.
11. Poisoning by carbon monoxide.
12. Poisoning by nitrous fumes or its sequelae.
(а )
50
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 193 6
13. Poisoning by nickel carbonyl or its sequelae.
14. Dope poisoning (poisoning by tetrachlormethan or any substance used as
or in conjunction with a solvent for acetate of cellulose or nitro
cellulose or its sequelae).
15. Poisoning by formaldehyde and its preparations.
16. Chrome ulceration or its sequelae or chrome poisoning.
17. Epitheliomatous cancer or ulceration of the skin, or of the corneal sur
face of the eye, due to tar, pitch, bitumen, mineral oil, or paraffin, or
any compound, product or residue of any of these substances.
18. Glanders.
19. Compressed air illness or its sequelae.
20. Miners’ disease, including only cellutitis, bursitis, ankylostomiasis, teno
synovitis and nystagmus.
21. Cataract in glassworkers.
22. Radium poisoning or disability due to radio-active properties of sub
stances or to Roentgen rays (X-rays).
23. Methyl chloride poisoning.
24. Poisoning by sulphuric, hydro-chloric or hydro-fluoric acid.
25. Respiratory, gastrointestinal or physiological nerve and eye disorders
due to contact with petroleum products and their fumes.
26. Disability arising from blisters or abrasions.
27. Hernia, clearly recent in origin and resulting from a strain, arising out
of and in the course of employment and promptly reported to the
employer.
28. Infection or inflammation of the skin or eyes or other external contact
surfaces or oral or nasal cavities due to oils, cutting compounds, or
lubricants, dust, liquids, fumes, gases or vapors.
29. Dermatitis (venenata).
30. Disability arising from bursitis or synovitis.
31. Disability arising from frost bite.
S ec . 3. B e n e f i t s .—If an employee is disabled or dies and his disability or death
is caused by one of the diseases mentioned in the schedule contained in section
two of this article and the disease is due to the nature of the employment in
which such employee was engaged and was contracted therein, he or his depend
ents shall be entitled to compensation for his death or for his disablement, and
he shall be entitled to be furnished with medical and hospital services, all as
provided in article II of this chapter, except as hereinafter stated in this
article: P r o v i d e d , h o w e v e r , That if it shall be determined that such employee is
able to earn wages at another occupation which shall be neither unhealthful nor
injurious and such wages do not equal his full wages prior to the date of his
disablement, the compensation payable shall be a percentage of full compensa
tion proportionate to the reduction in his earning capacity.
S ec . 4. T i m e l i m i t . —Neither the employee nor his dependents shall be entitled
to compensation for disability or death resulting from such occupational disease,
unless such occupational disease is due to the nature of his employment and
was contracted therein, or in a continuous employment similar to the one in
which he was engaged at the time of his disablement, within twenty-four months
previous to the date of disablement, whether under one or more employers. The
time limit for contraction of the occupational disease prescribed by this section
shall not bar compensation in the case of an employee who contracted such
occupational disease in the same employment with the same employer by whom
he was employed at the time of his disablement and who had continued in the
same employment with the same employer from the time of contracting such
occupational disease up to the time of his disablement thereby.
S ec. 5. E x a m i n a t i o n b y p h y s i c i a n . —The director of labor shall appoint one or
more physicians whose duty it shall be to examine any claimant under this
article and to make a report in such form as the director may require.
Sec . 6. D a t e o f d i s a b l e m e n t . —For the purposes of this article the date of dis
ablement shall be such date as the director or the court may determine on the
hearing on the claim.
S ec . 7. F a l s e r e p r e s e n t a t i o n s . —No compensation shall be payable for an occu
pational disease if the employee, at the time of entering into the employment of
the employer by whom the compensation would otherwise be payable, or there-
O C C U P A T IO N A L -D IS E A S E
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51
after, wilfully and falsely represents in writing* that he has not previously
suffered from the disease which is the cause of the disability or death. Where
an occupational disease is aggravated by any other disease or infirmity, not
itself compensable, or where disability or death from any other cause, not
itself compensable, is aggravated, prolonged, accelerated, or in any wise con
tributed to by an occupational disease, the compensation payable shall be such
proportion only of the compensation that would be payable if the occupational
disease were the sole cause of the disability or death as such occupational dis
ease, as a causative factor, bears to all the causes of such disability or death,
such reduction in compensation, to be effected by reducing the number of weekly
payments or the amounts of such payments, as under the circumstances of the
particular case may be for the best interests of the claimant or claimants.
Sec . 8. A p p o r t i o n m e n t o f c o m p e n s a t i o n . —The total compensation due shall
be recoverable from the employer who last employed the employee in the em
ployment to the nature of which the disease was due and in which it was con
tracted. If, however, such disease was contracted while such employee was in
the employment of a prior employer, the employer who is made liable for the
total compensation as provided by this section, may appeal to the director of
labor for an apportionment of such compensation among the several employers
who since the contraction of such disease shall have employed such employee in
the employment to the nature of which the disease was due. Such apportion
ment shall be proportioned to the time such employee was employed in the
service of such employers, and shall be determined only after a hearing, notice
of the time and place of which shall have been given to every employer alleged
to be liable for any portion of such compensation. If the director finds that
any portion of such compensation is payable by an employer prior to the em
ployer who is made liable for the total compensation as provided by this section,
he shall make an award accordingly in favor of the last employer, and such
award may be enforced in the same manner as an award for compensation.
Sec. 9. N o t i c e . —The employer to whom notice of death or disability is to be
given, or against whom claim is to be made by the employee, shall be the em
ployer who last employed the employee during the said twenty-four months in
the employment to the nature of which the disease was due and such notice and
claim shall be deemed seasonable as against prior employers. The requirements
as to notice as to occupational disease and death resulting therefrom and the
requirements as to the bringing of proceedings for compensation for disability
or death resulting from such occupational disease shall be the same as required
in section seventeen of article II of this chapter, except that the notice shall
be given to the employer within ninety days after the disablement.
S eo. 10. A d d i t i o n a l i n f o r m a t i o n f u r n i s h e d . —The employee, or his dependents,
if so requested, shall furnish the last employer or the director of labor with
such information as to the names and addresses of all his other employers dur
ing the said twenty-four months, as he or they may possess; and if such in
formation is not furnished, or is not sufficient to enable such last employer to
take proceedings against a prior employer under section eight of this article,
unless it be established that the occupational disease actually was contracted
while the employee was in his employment, such last employer shall not be
liable to pay compensation, or, if such information is not furnished or is not
sufficient to enable such last employer to take proceedings against other em
ployers under section eight of this article, such last employer shall be liable
only for such part of the total compensation as under the particular circum
stances the director may deem ju s t; but a false statement in the information
furnished as aforesaid shall not impair the employee’s rights unless the last
employer is prejudiced thereby.
Seo. 11. R i g h t s u n d e r o t h e r p r o v i s i o n s . —Nothing in this article shall affect
the rights of an employee, or his dependents, to recover compensation in re
spect to a disease to which this article does not apply, if the disease, apart from
this article, is one for which compensation is payable under the other provi
sions of this chapter.
Sec . 12. E x p o s u r e p r i o r t o S e p t e m b e r 1 5 , 1 9 3 6 . —This article shall not apply to
cases of occupational disease in which the last injurious exposure to the
hazards of such disease occurred prior to the fifteenth day of September, A. D.
1936.
52
O C C U P A T IO N A L -D IS E A S E
L E G IS L A T IO N
IN
U N IT E D
STATES,
19 3 6
W EST V IR G IN IA
CODE, 1931
A rticle 6 (as added by acts of 1935, ch. 79)
S e c t i o n 1. A d m i n i s t r a t i o n . —The provisions of this article shall be adminis
tered by the state compensation commissioner, and the provisions of article one
of this chapter are applicable hereto. All charges and expenses peculiar to
the administration of this article shall in the proportionate amount be charge
able to and paid out of the workmen’s compensation silicosis fund.
Seo. 2. C l a s s i f i c a t i o n o f i n d u s t r i e s ; e l e c t i o n b y e m p l o y e r s .— ( a ) In order that
compensation for the disease of silicosis as herein defined might be paid to all
persons employed within this state in interstate or intrastate work as defined
by section ten, article two of this chapter, and in the service of those em
ployers legally doing or authorized to do business in this state and who elect
to qualify under and subject themselves to the provisions of this article, the
commissioner shall make the necessary separate classifications of the various
industries for those employers who so elect, and the commissioner shall make
such classifications and fix the rate of premiums in the manner provided by
section four of article two of this chapter. Those employers who do not elect
to come within the provisions of this article shall not be subject to the pro
visions of article two of this chapter except as otherwise specifically provided
in this article. The assessments and premiums paid by such employers so
electing shall be kept by the commissioner in a separate fund to be known and
designated as “workmen’s compensation silicosis fund.”
(6) For the purpose of creating the workmen’s compensation silicosis fund,
each employer electing to become subject thereto under the provisions of this
article shall make his election and pay the premiums in the manner provided
by section five of article two of this chapter.
(c) Every employer electing to come under the provisions of this article shall
give the information, and make the necessary reports, to the commissioner as
provided by sections two and three of article two of this chapter.
( d ) Except as otherwise herein specifically provided, all the provisions of
this chapter relating to premiums and assessments paid into, and disbursements
for benefits, compensation, medical and hospital treatment, funeral expenses,
and other charges from, the fund designated as “workmen’s compensation fund,”
and the limitations of the amounts to be thereby expended, shall likewise apply
to the fund designated as “ workmen’s compensation silicosis f u n d a n d the
term “workmen’s compensation fund” as used in this chapter whenever ap
plicable, shall be construed to mean and include the term “ workmen’s com
pensation silicosis fund.”
S eic. 3. N o t i c e b y e m p l o y e r s t o e m p l o y e e s ; e x e m p t i o n f r o m l i a b i l i t y . — Each
employer electing to pay the premiums provided by this article into the work
men’s compensation silicosis fund, or electing to make direct payments of com
pensation as provided by section nine of article two of this chapter, shall post,
and keep posted, in conspicuous places about his place or places of business,
typewritten or printed notices in the form prescribed by the commissioner,
stating the fact that such employer has made such election, and the same when
so posted shall constitute sufficient notice to all his employees, and to the
parents of any minor employees, of the fact that the employer has made such
election; and any employer who makes such election shall not thereafter be
liable to respond in damages at common law or by statute for the disease or
death of any employee because of silicosis during the period in which such
employer shall not be in default in the payment of such premiums and shall
have complied fully with all other provisions of this article.
S ec . 4. S i l i c o s i s f u n d .— ( a ) The commissioner shall establish a fund, to be
known as “workmen’s compensation silicosis fund,” from the premiums and
other funds paid thereto by employers who have elected to pay and have paid
the premiums applicable to such employers under the provisions of this article
relating to silicosis, for the benefit of employees of employers who have paid
the premiums applicable to such employers, and have otherwise complied fully
with the provisions of section five, article two of this chapter, and for the
benefit of the dependents of such employees, and for the payment of the admin
istration expenses of this article, and shall adopt rules and regulations in
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 1936
53
respect to the collection, maintenance and disbursement of such funds not in
conflict with the provisions of this chapter.
( b ) Ten per cent of all that shall hereafter be paid into the workmen’s com
pensation silicosis fund shall be set aside for the creation of a sufficient surplus
fund, within the discretion of the commissioner, not exceeding one hundred
thousand dollars, after which time the sum of five per cent of all the money
paid into such fund shall be credited to such surplus fund until such time as
in the judgment of the commissioner such surplus fund shall be sufficiently
large to cover the catastrophe hazard and all losses not otherwise specifically
provided for in this article.
( c ) Employers electing as provided by this chapter to individually and di
rectly compensate their employees having silicosis, or their dependents, shall
do so in the manner prescribed by the compensation commissioner, and shall
make all reports and execute all blanks, forms and papers as directed by said
commissioner and as herein provided in this chapter.
( d ) The custody, investment and disbursement of the workmen’s compensa
tion silicosis fund shall be in the manner and form prescribed by section two,
article three, of this chapter, and any and all amendments thereto.
Sec. 5. D i s b u r s e m e n t o f s i l i c o s i s f u n d ; d e f i n i t i o n o f “ s i l i c o s i s ” —The com
missioner shall disburse the workmen’s compensation silicosis fund to the em
ployees of such employers as are not delinquent in the payment of premiums for
the last month in which said employees have been exposed to silicon dioxide
dust in harmful quantities and who have otherwise complied fully with the
provisions of this article, and which employees shall have contracted silicosis
in this state in the course of and resulting from their employment, or to the
dependents, if any, of such employees, in case death has ensued, according to the
provisions hereinafter made.
Where an employee suffers from the disease of silicosis as hereinafter defined,
or dies as the result of such disease, and the disease is due to the nature of an
occupation or process in which he was employed at any time within one year
previous to such disease, and claim therefor has been made within one year after
the last exposure of said employee to silicon dioxide dust in harmful quantities,
the employee, or in case of death his dependents, shall be entitled to compensa
tion for silicosis as provided herein: P r o v i d e d , h o w e v e r , That compensation
shall not be payable for the disease of silicosis, or death resulting therefrom,
unless the employee has been exposed to the inhalation of silicon dioxide dust
in harmful quantities over a period of not less than two years in the same
employment in this state.
For the purpose of this article, silicosis is defined as an insidious fibrotic
disease of the lung or lungs due to the prolonged inhalation and accumulation
sustained in the course of and resulting from his employment, of minute par
ticles of dust containing silicon dioxide (S i02) over such a period of time and
in such amounts as result in the substitution of fibrous tissue for normal lung
tissues; and the term “ silicosis” as used herein shall also include silicosis ac
companied by tuberculosis of the lungs evidenced by the presence of tubercle
bacillus in the sputum.
Sec . 6. D i s b u r s e m e n t w h e r e c o n t r a c t e d b y t o i l f u l m i s c o n d u c t , r u l e s a n d s a f e t y
a p p l i a n c e s ; d e l i b e r a t e i n t e n t i o n b y e m p l o y e r ; d e f i n i t i o n s . —Notwithstanding any
thing hereinbefore or hereinafter contained, no employee or dependent of any
employee shall be entitled to receive any sum from the workmen’s compensation
silicosis fund, or to direct compensation from any employer making the election
and receiving the permission mentioned in section nine, article two of this chap
ter, or otherwise under the provisions of this chapter, on account of contracting
the disease of silicosis caused by wilful misconduct, wilful self-exposure as de
fined herein, disobedience to such rules and regulations as may be adopted by
the employer and approved by the commissioner, and which rules and regula
tions have been and are kept posted in conspicuous places in and about the
premises, or the failure of such employee to use or make use of any protective
or safety appliance or appliances prescribed by the commissioner and furnished
by the employer for the use of or applicable to such employee; nor shall any
employee or dependent thereof maintain any action for damages on account of
disability arising from the disease of silicosis contracted through wilful self
exposure as defined herein. For the purposes of this article and to prevent
employees from contracting silicosis, the commissioner may require all employers
to adopt rules which have been approved by him for the protection and safety
of his employees, and keep the same posted in conspicuous places in and about
54
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 193 6
the premises; and the commissioner shall require employers to install, use or
adopt such protective or safety appliance or appliances as in the commissioner’s
opinion are necessary for the protection of the employees. If silicosis or death
therefrom result to any employee from the deliberate intention of his employer
to produce silicosis or death therefrom, the employee, the widow, widower, child
or dependent of the employee, shall have the privilege to take under this article,
and shall also have cause of action against the employer as if this chapter had
not been enacted for any excess of damages over the amount received or receiv
able under this chapter. As used in this section, the term, “ deliberate inten
tion” , shall mean conscious and wilful determination.
As used in this section, the term “willful self-exposure,” causing the con
traction of the disease of silicosis, shall include: (1) Failure or omission on the
part of an employee to observe such rules and regulations as may be adopted by
the employer and approved by the commissioner and which rules and regulations
have been and are kept posted in a conspicuous place in and about the premises;
(2) Failure or omission on the part of an employee truthfully to state to the
best of his knowledge in answer to inquiry made by the employer the place,
duration, and nature of previous employment; (3) Failure or omission on the
part of an employee truthfully to answer to the best of his knowledge in answer
to an inquiry made by the employer full information about the previous status
of his health, habits, and medical attention that he or his blood relatives may
have heretofore received.
Seo. 7. S t a g e s o f s i l i c o s i s ; b e n e f i t s a n d m o d e o f p a y m e n t .—An employee shall,
for the purposes hereof, be deemed to have silicosis: (1) in the first stage when
it is found by the commissioner that the earliest detectable specific signs of
silicosis are present, whether or not capacity for work is or has been impaired by
such silicosis; (2) in the second stage when it is found by the commissioner that
definite and specific physical signs of silicosis are present, and that capacity for
work is or has been impaired by that disease; (3) in the third stage when it is
found by the commissioner that the employee has silicosis accomxjanied by tuber
culosis of the lungs evidenced by the presence of tubercle bacillus in the sputum.
Where compensation for silicosis is due an employee under the provisions
hereof, such compensation shall be provided in the following schedule: ( a ) If
the employee is suffering from silicosis in the first stage, the employee shall
receive the sum of five hundred dollars as compensation in full for said disease
that he has sustained as a result of and in the course of his employment, said
sum to be payable as a lump sum or in periodic installments in the discretion of
the commissioner, and shall be a final payment and operate as a full release by
the employee for compensation and for any claim against the employer that the
employee may thereafter have for silicosis, and irrespective of whether the em
ployee thereafter continues in the same employment, he shall not have the right
to receive any or further compensation or make any claim because of silicosis
either to the compensation commissioner or against his employer, anything to the
contrary in this chapter notwithstanding; (6) if the employee is suffering from
silicosis in the second stage, the employee shall receive the sum of one thousand
dollars as compensation in full for said disease that he has sustained as a
result of and in the course of his employment, said sum to be payable as a lump
sum or in periodic installments in the discretion of the commissioner, and shall
be a final payment and operate as a full release by the employee for compensa
tion and for any claim against the employer that the employee may thereafter
have for silicosis, and irrespective of whether the employee thereafter continues
in the same employment, he shall not have the right to receive any or further
compensation or make any claim because of silicosis either to the commissioner
or against his employer, anything to the contrary in this chapter notwithstand
ing; (c) if the employee is suffering from silicosis in the third stage, the com
pensation shall be paid therefor in the same manner and at the same rate as is
provided for permanent disability under the provisions of subdivisions (c ), ( f )
and ( h ) of section six, article four, of this chapter; ( d ) if the employee dies
from silicosis within one year from the date of the last exposure of the em
ployee to silicon dioxide dust in harmful quantities, the benefits shall be in the
amounts and to the persons provided for in section one, article four of this
chapter; as to such benefits sections eleven to fourteen, inclusive, of article
four of this chapter shall apply.
Sec. 8. P h y s i c a l e x a m i n a t i o n o f c l a i m a n t ; e x p e n s e s .—The commissioner shall
have power, after due notice to the employer, and whenever in his opinion it
shall be necessary, to order a claimant to appear for examination before the
medical board hereinafter provided. Claimant shall be entitled to reasonable
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 193 6
55
traveling and other expenses necessarily incurred by him in obeying such order,
which shall be paid out of the workmen’s compensation silicosis fund within
the amount allowed for medical, surgical and hospital treatment.
S ec. 9. A p p l i c a t i o n f o r b e n e f i t s ; n o n r e s i d e n t a l i e n s . — ( a ) To entitle any em
ployee to compensation for silicosis under the provisions hereof, the application
therefor must be made on a form or forms prescribed by the commissioner and
filed in the oflice of the commissioner within one year from and after the date
of the last injurious exposure to silicon dioxide dust, or in case of death, the
application shall be filed as aforesaid by the dependent of such employee within
one year from and after the date of the last injurious exposure to silicon
dioxide dust.
( b ) Nonresident aliens may be officially represented by the consular officers
of the country of which such aliens may be citizens or subjects: P r o v i d e d , That
nothing herein contained shall be construed as giving such consular officer the
right to make application for compensation in behalf of the nonresident aliens.
S ec . 10. N o t i c e t o e m p l o y e r b y e m p l o y e e o r d e p e n d e n t . —Unless the employer
during the continuance of employment shall have actual knowledge that the
employee has contracted silicosis, or unless the employee or some one on his
behalf or his dependents shall give written notice of a claim that such employee
has contracted silicosis, within a period of one year from the date when said
employee shall have ceased to be a subject to injurious exposure to silicon
dioxide dust in employment with said employer, no compensation shall be
allowed and paid on account of death or disability of such employee by reason
of silicosis.
S ec . 11. H e a r i n g s ; f in d in g s r e q u i r e d o f c o m m i s s i o n e r . — On the hearing of a
claim for compensation for silicosis, the commissioner shall hear, determine and
file findings covering, but not limited thereto, the following nonmedical questions:
( a ) Whether the employee was in fact, within one year prior to the filing of
his claim, in the employ of the employer, and, if so, the duration of such em
ployment and whether or not such employment was subject to the provisions
hereof;
( b ) The occupation or occupations, process or processes in which the em
ployee was engaged during such employment, and the approximate periods of
work in each such occupation or process;
(c) The employments, previous and subsequent to the employment out of
which the claim arose, the duration thereof, and the exposure therein to the
hazard of silicon dioxide dust;
( d ) Whether such employee contracted said disease through wilful self
exposure ;
( e ) The average weekly wages of the employee at the time of his last injurious
exposure to silicon dioxide dust in the employment of the employer;
( f ) The date of the last injurious exposure to silicon dioxide dust in the
employment with the employer, and if the employee is no longer in the service
of the employer, the date upon which said employee ceased so to w ork ; and, if
the employee has died, the date and place of such death and the place of inter
ment of the body.
S eo. 12. S i l i c o s i s m e d i c a l b o a r d ; q u a l i f i c a t i o n s , e t c . —There shall be a medical
board, known as the “silicosis medical board,” which shall consist of three
licensed physicians, who shall be appointed by the commissioner. No person
shall be appointed as a member of said board, or as a consultant thereto, who
has not by special study or experience, or both, acquired special knowledge of
pulmonary diseases. All members of the silicosis medical board shall be phy
sicians of good professional standing, admitted to practice medicine and surgery
in this state, and two of said physicians shall be roentgenologists. One of the
board shall be designated annually as chairman by the commissioner. The
term of office of each member of such board shall be six years, except that the
terms of the members first appointed shall be two, four and six years, respec
tively. The function of such board shall be to determine all medical questions
to cases of compensation for silicosis under the direction .and supervision of the
commissioner. The commissioner, from time to time, shall fix the per diem
salary, computed on the basis of actual time devoted to the discharge of their
duties, to be paid each member of such board, and they shall also be entitled to
reasonable and necessary traveling and other expenses incurred while actually
engaged in the performance of their duties.
S eo. 13. S i l i c o s i s m e d i c a l b o a r d ; p r o c e d u r e ; a u t o p s y . —The silicosis medical
board upon reference to it by the commissioner of a case of silicosis, shall
notify the employee, or in case he is dead the claimant, and the employer, to
56
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 1936
appear before such board at a time and place stated in the notice. If the
employee be living, he shall appear before the board at the time and place
specified and submit to such examinations, including clinical and X-ray ex
aminations, as the board may require. If a physician licensed to practice
medicine in the state shall make affidavit that the employee is physically unable
to appear at the time and place designated by the board, such board shall,
on notice to the proper parties, change the place and time of examination to
such other place and time as may reasonably facilitate the hearing or examina
tion of the employee. The employee or in case he is dead the claimant, and the
employer shall also produce as evidence to the board all reports of medical
and X-ray examinations which may be in their respective possession or control,
showing the past or present condition of the employee. If the employee be
dead, the notice of the board shall further require that the claimant produce
necessary consents and permits so that an autopsy may be performed, if the
board shall so direct. When in the opinion of the board an autopsy is deemed
necessary to accurately and scientifically ascertain and determine the cause of
death, such autopsy examination shall be ordered by the board, which shall
designate a duly licensed physician, a pathologist, or such other specialists
as may be deemed necessary by the board, to make such examination and tests
to determine the cause of death and certify his or their written findings, in
triplicate, with said board, and which findings shall be public records. In the
event that a claimant for compensation for such death refuses to consent and
permit such autopsy to be made, all rights for compensation shall thereupon
be forfeited.
The employee, or if he be dead, the claimant, and the employer, shall be
entitled to be present at all examinations conducted by the board, and to be
represented by attorneys and physicians.
S ec . 14. S i l i c o s i s m e d i c a l b o a r d ; r e p o r t s , fin d in g s , e t c .— The silicosis medical
board, as soon as practicable, after it has completed its investigation, shall
make its written report, in triplicate, to the commissioner of its findings and
conclusions on every medical question in controversy, and the commissioner
shall send one copy thereof to the employee or claimant and one copy to the
employer, and the said board shall also return to and file with the commissioner
all the evidence, as well as all statements under oath, if any, of the persons who
appeared before it on behalf of the employee or claimant, or employer, and also
all medical reports and X-ray examinations produced by or on behalf of the
employee or claimant, or employer.
The findings and conclusions of the said board shall set forth, among other
things, the following:
(a) Whether or not the claimant or the deceased employee has contracted
silicosis, and, if so, the stage thereof;
(Z>) If the claimant or the deceased employee has contracted such disease,
whether or not the exposure in the employment, with said employer, was suffi
cient to have caused silicosis or to have injuriously aggravated an existing
silicosis;
(c)
What, if any, physician appeared before the board on behalf of the
claimant, and what, if any, X-rays wT produced by or on behalf of the claim
ere
ant, and what, if any, physician appeared before the board on behalf of the
employer, and what, if any, X-rays were produced by or on behalf of the
employer.
If either party object to the whole or any part of such findings and conclu
sions of the board, he shall file with the commissioner, within ten days of the
mailing of said copy to him unless for good cause shown the commissioner
extends said time, his objections, in writing, thereto, specifying the particular
statements of the board’s findings and conclusions to which he objects. After
the time has expired for the filing of objections to the findings and conclusions
of the board, the commissioner shall proceed to act as provided in this chapter.
If after the time has expired for the filing of objections to the findings and
conclusions of the board no objections have been filed, the report of a majority
of the board of its findings and conclusions on any medical question shall be
taken to be plenary and conclusive evidence of the findings and conclusions
therein stated. If objection has been filed to the findings and conclusions of
the board, notice thereof shall be given to the board, and the members thereof
joining in such findings and conclusions shall appear at the time fixed by the
commissioner for the hearing to submit to examination and cross-examination
in respect to such findings and conclusions. At such hearing evidence to con
trovert the findings and conclusions of the board shall be limited to examina-
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 19 3 6
57
tion and cross-examination of the members of the board appearing and in addi
tion thereto only the testimony of such physician or physicians as may have
appeared before the board on behalf of the claimant or the employer, or each,
and participated in all of the examinations conducted by such board: P r o v i d e d ,
That if such physician shall have died or is physically unable to attend, after
appearing before said board, the party whom he represented may select any
other duly licensed physician of West Virginia and may introduce his testimony
in addition to that of the one who has so died or is so physically unable to
attend.
Seo. 15. P r o t e c t i o n a g a i n s t e x p o s u r e p r i o r t o e f f e c t i v e d a t e o f s t a t u t e . — The
provisions hereof shall not apply to cases of silicosis in which the last injurious
exposure to silicon dioxide dust in harmful quantities occurred before the pro
visions hereof shall have taken effect: P r o v i d e d , That any employer hereunder
may elect to provide and pay compensation hereunder for silicosis in which the
last injurious exposure to the hazards of such disease occurred before the pro
visions hereof shall have taken effect by filing notice of such election with the
commissioner and posting copies of said notice in conspicuous places on his
premises, and every employee who is employed at the time of posting such
notice shall be deemed to have accepted all the provisions hereof and shall be
bound thereby unless within thirty days after the filing and posting of such
notice such employee shall file a notice to the contrary with the commissioner,
whose duty it shall be to immediately notify the employer: P r o v i d e d , f u r t h e r ,
That any employer and any former employee thereof prior to the date the pro
visions hereof take effect, when such former employee claims to have con
tracted silicosis, may by an agreement in writing elect to accept the provisions
hereof, whereupon such former employee shall file his application with the com
missioner, and the commissioner is hereby authorized to act in such cases, in
which event all charges for administration and other expenses shall be charged
to the particular employer, and if the commissioner finds that compensation
should be paid, he shall determine the total amount and all administration
charges thereof and assess same against the particular employer, who shall at
once make payment of the full amount thereof into the workmen’s compensation
silicosis fund, and such amount so awarded shall be disbursed by the commis
sioner as in any other case arising under the provisions hereof.
S eo. 16. M o d e o f p a y i n g b e n e f i t s ; e x e m p t i o n f r o m l e g a l p r o c e s s . —Compensa
tion shall be paid only to or for the use of such employees, or their dependents,
as herein provided, and shall be exempt from all claims of creditors and from
any attachment, execution or assignment. Payments shall be made in such
periodical installments as may seem best to the commissioner in each case.
Sec. 17. S e e k i n g c o m p e n s a t i o n w r o n g f u l l y ; p e n a l t y .—Any person who shall
knowingly and with fraudulent intent secure or attempt to secure larger com
pensation, or compensation for a longer term than he is entitled to, from the
workmen’s compensation silicosis fund, or knowingly and with like intent
secure or attempt to secure compensation from such fund when he is not
entitled thereto, or shall knowingly and with like intent aid or abet anyone
in the commission of the offenses herein set forth, shall be guilty of a misde
meanor, and upon conviction thereof shall be fined not exceeding five hundred
dollars or imprisoned not exceeding twelve months, or both, in the discretion of
the court, and if the person so convicted is receiving compensation from such
fund, he shall from and after such conviction cease to receive such compensation.
S ec. 18. F i n a l t y o f r u l i n g s ; r e v i e w ; c o n f l i c t i n g a c t s r e p e a l e d ; p r o v i s i o n s o f
a c t s e p a r a b l e .—The provisions of section one, article five of this chapter, pro
viding for the finality of the commissioner’s rulings and the review by the
supreme court of appeals, are applicable to the provisions of this article.
All acts and parts of acts in conflict with this act, or any part thereof, are
hereby repealed. The various provisions of this act shall be construed as
separable and several, and should any of the provisions, sentences, clauses or
parts thereof be construed or held unconstitutional, or for any other reason
invalid, the remaining provisions of this act shall not be thereby affected.
WISCONSIN
STATUTES, 1935
102.01. D e f i n i t i o n s .— * * *
* * “ injury” is mental or physical harm to an employee caused by
accident or disease; * * *
S e c t io n
(2 )
*
58
OCCUPATIONAL-DISEASE LEGISLATION IN UNITED STATES, 193 6
S ec . 102.03.
C o n d i t i o n s o f l i a b i l i t y .— * *
*
(3) In the case of disease intermittent periods of temporary disability shall
create separate claims, and permanent partial disability shall create a claim
separate from a claim for any subsequent disability which latter disability is the
result of an intervening cause.
S ec. 102.18. F i n d i n g s a n d a w a r d .— * * *
(5) If it shall appear to the commission on due hearing that a mistake has
been made in an award of compensation for an injury when in fact the employe
was suffering from an occupational disease, the commission may within 3 years,
set aside such award, and make a new award under this section.
S ec . 102.565. N o n d i s a b l i n g s i l i c o s i s . — (1) When the conditions of liability as
provided in this chapter exist, except as provided in this section, and an em
ployee is discharged from employment because he has a nondisabling silicosis
under circumstances such as to occasion wage loss, the commission may allow
such sum for compensation on account thereof, as it may deem just, not exceed
ing 70 percent of his average annual earnings as defined in section 102.11.
(2) Payment of a benefit under this section to an employee shall estop such
employee from any further recovery under this section.
U N IT E D S T A T E S EMPLOYEES’ C O M P E N SA T IO N A C T
UNITED STATES CODE, 1934
TITLE 5
S e c t i o n 790. D e f i n i t i o n s . — * * * The term “ injury” includes, in addition
to injury by accident, any disease proximately caused by the employ
ment.* * *
U N IT E D S T A T E S L O N G S H O R E M E N ’S A N D H A R B O R
C O M P E N SA T IO N A C T
W ORKERS*
UNITED STATES CODE, 1934
TITLE 33
S e c t io n 902. D e f i n i t i o n s . —When used in this act
* * * (2) The term
“ injury” means accidental injury or death arising out of and in the course of
employment, and such occupational disease or infection as arises naturally out
of such employment or as naturally or unavoidably results from such accidental
injury, and includes an injury caused by the willful act of a third person
directed against an employee because of his employment.
o
