efits of the retirement act or the benefits of the Compensation Act, whichever he may consider more advantageous in his particular case. A few of the older employees have preferred the benefits of the retirement act to those of the compensation law. Usually, however, in case of serious permanent disability employees have preferred the benefits of the Compensation Act, because of the slightly higher rate of money compensation and the fact that it provides for medical and hospital treatment for the results of injury in case of need, which the Retirement. Act does not do. 5. Third Party Liability Under the provisions of sections 26 and 27 of the Compensation Act, whenever an injury is sustained or death is caused under circumstances creating a liability on some person other than the United States to pay damages therefor, it is provided that the commission may require a beneficiary either to assign his right of action to the United States or to prosecute the action in his own name. When a settlement is made or a judgment collected under these provisions of the act, the amount of money expended by the commission for compensation, including expenditures on account of medical and hospital treatment, is deducted and any surplus is paid to the beneficiary and is credited against future payments of compensation by the commission on account of the same injury. 6. Injuries as Distinguished from Accidents The commission early took the view that the term "personal injuries" used in the act covers, not only accidents as ordinarily defined, but also any bodily injury or disease due to the performance of duties and causing incapacity for work. In this respect the commission was following the precedent established by the Department of Labor in its interpretation of the act of 1908, the Massachusetts Industrial Accident Board, and the Massachusetts Supreme Court in their interpretation of the term "personal injury" in the Massachusetts Compensation Act, and the state of California, which by an amendment to its Compensation Act effective August 8, 1915, had deliberately enlarged the scope of its act by substituting throughout the word "injury" in place of the word "accident." More recently Connecticut, Hawaii, North Dakota, and Wisconsin have amended their Compensation Acts to cover personal injuries in substantially the above sense. The Comptroller General, in decisions of July 5 and September 23, 1922, held that under the law compensation could be paid "for such injuries only as are of an accidental nature, or at least that payment shall be confined to injuries which are referable to some particular event capable of being fixed in point of time." 4 4 Citing Stewart v. Bloom, 11 Wall. 493, 20 L. Ed. 176; Bechtel v. U. S., 101 U. S. 597, 25 L. Ed. 1019; In re Hurle, 217 Mass. 223, 104 N. E. 336, L. R. A. 1916A, 279, Ann. Cas. 1915C, 919; In re Johnson, 217 Mass. 388, 104 N. E. 735; Mulvey v. Boston, 197 Mass. 178, 83 N. E. 402, 14 Ann. Cas. 349: McDonald v. Brown, 23 R. I. 546, 51 A. 213, 58 L. R. A. 768, 91 Am. St. Rep. 659; Jefferson Fertilizer Co. v. Rich, 182 Ala. 633, 62 So. 40; Sharkey v. Skilton, 83 Conn. 503, 77 A. 950; Larson v. Boston Elevated Ry., 212 Mass. 267, 98 N. E. 1048; Hunt v. Lowell Gaslight Co., 8 Allen (Mass.) 169, 85 Am. Dec. 697; Hood & Sons v. Maryland Casualty Co., 206 Mass. 223, 92 N. E. 329, 30 L. R. A. (N. The commission brought the matter to the attention of the President, who thereupon requested an opinion of the Attorney General upon the commission's construction of the term "personal injury" to include occupational diseases. The opinion of the Attorney General supported the commission's construction of the law, and further held that the commission had the power by virtue of the act to construe the terms of the act and that any construction so rendered is final. The commission, after the receipt of this opinion of the Attorney General, brought the matter to the attention of Congress. The result was the amendment of June 5, 1924. In accordance with the interpretation which has been given by the commission to the term "personal injury," and consistent with the law as now amended, the commission has awarded compensation for a variety of occupational poisonings and diseases which probably would not have been subject to compensation under a simple accident compensation act. Injuries in this class in which awards. have been made include numerous cases of lead poisoning, tetryl poisoning, T. N. T. poisoning, dermatitis due to acids, benzine and gasoline, carbolineum, cement, copper, fulminate of mercury, machine oils, paints containing coal-tar products, potash, soda, tetryl, T. N. T., and ivy and weed poisoning, brass chills due to fumes from molten brass, bursitis of elbow, due to work where the injured employee (a chipper and calker) was compelled to work for a long period with his elbow resting upon a steel surface, eye strain, anthrax, typhus, typhoid due to water furnished at the place of work, Rocky Mountain tick fever, deer fly fever, pneumoconiosis due to the prolonged inhalation of metal dust, rheumatism resulting from work for a long period in a room where the injured employee was compelled to stand upon a dirt floor "damp from oiling and daily sprinkling," pneumonia due to exposure and exhaustion, where the employee worked for a period of 26 hours, during most of the time in a temperature near zero, and influenza and tuberculosis of the lungs contracted by nurses employed in caring for influenza and tuberculous patients. On the other hand, the commission has refused to allow compensation in many cases of a somewhat similar character, where the evidence did not show a causal connection with a reasonable degree of clearness between the work of the employee and the injury which was alleged to have caused disability. Such cases disallowed by the commission include, among others, dermatitis of a postal clerk, alleged to be due to the handling of heavily inked papers; bronchitis, conjunctivitis, and paralysis of postal clerks, alleged to be due to infections contracted in the handling of dirty money; chorea, affecting the arms, shoulder, and neck of a letter carrier, alleged to be due to overwork; bronchitis and rheumatism of a painter alleged to be due to gas and sulphur fumes and heat from forges; hernia and appendicitis, alleged to be due to the jarring of the wagon or truck in riding over unusually rough roads; numerous colds and cases of pneumonia, alleged to S.) 1192, 138 Am. St. Rep. 379; United States v. Moore, 95 U. S. 760, 24 L. Ed. 588; United States v. Johnston, 124 U. S. 236, 8 S. Ct. 446, 31 L. Ed. 389; Hearings before Commission on Judiciary, H. of R., 64th Cong., 1st Sess., Serial 16, pt. 2, Jan. 28, 1916, pp. 27, 29, 30; Hearings before Commission on Judiciary, H. of R., 63d Cong., 2d Sess., Serial 16, pts. 1 and 2, March 31, 1914, p. 20; H. of R. 64th Cong., 1st Sess., Report No. 679, p. 7. be due to drafts and exposure; and of tuberculosis, alleged to be due to exposure and other conditions of labor. 7. Occupational Accident or Disease Many claims are made on account of disability alleged to be due to an occupational accident or disease, where an examination of the medical evidence discloses no evidence of any causal relation between the disability and any occupational condition. Often a serious condition of disease is noticed following some minor injury, and the claimant assumes that the disease is the direct result of an occupational injury, and claim for compensation is made. It is not sufficiently realized that, when compensation is claimed for a disability, the evidence must show at least a reasonable probability that the disability is due to some definite injury or to some well-defined adverse occupational influence. It is not sufficient to show that the disability is merely a possible result of the injury alleged. A just determination in many of these cases is a matter of great difficulty, and the commission must depend very largely on the character of the medical evidence furnished, and the medical advice which it is able to command. 8. Pre-existing Physical Defects Aggravated by Injury This class of claims presents serious difficulty to the commission, which has adopted the following: A disability for work resulting from the material aggravation of a previously existing defective physical condition is compensable when the aggravation is clearly due to injury sustained while in the performance of the claimant's duty. However, compensation shall be paid only for the period of disability due to the injury. If the results of the injury do not cause disability for work, but require medical, surgical, or hospital services or supplies not previously required, the injured employees shall be entitled to reasonable medical, surgical, or hospital services. 9. Injuries While in the Performance of Duty The federal Compensation Act, in requiring that personal injuries to an employee, in order to be compensable, must be sustained "while in the performance of his duty," uses terms of definition slightly different from those found in any other American or foreign compensation act. Most American acts define the accidents entitled to compensation as those "arising out of and in the course of the employment," although several states limit the accidents covered to those occurring in the course of the employment, omitting the words "arising out of." The construction which the commission has given to the term "while in the performance of duty" has not differed greatly from the construction given under the British Workmen's Compensation Act and under most American state acts to the term "arising out of and in the course of employment." Numerous examples of the commission's construction of "while in the performance of duty" may be found in decisions on specific cases, which are reproduced in the Seconds and Third Annual Reports. 5 See Second Annual Report, p. 241. 10. Simple Negligence Not Willful Misconduct That simple contributory negligence on the part of an injured employee is not such willful misconduct as under the terms of the act bars a claim for compensation was the decision of the commission in numerous cases. However, as specifically required by the Compensation Act, compensation has been denied in cases where the injury was due to willful misconduct (fighting), intoxication, and intention to injure himself (suicide). 11. Employee or Officer Under the federal Compensation Act compensation is payable only to civil employees of the government. Under this limitation it has been held that an officer of the government when injured was not entitled to compensation. In claims that have arisen it has been held that a commissioned officer of the Public Health Service and an Assistant District Attorney were officers and not employees, in the sense entitling them to compensation under the Compensation Act. On the other hand, it has been held that a deputy collector of internal revenue, a post office inspector, a veterinary inspector, and a superintendent of an Indian school were employees, within the meaning of the Compensation Act. 12. Notice and Claim within One Year The Compensation Act requires, in order that the benefits of the act may be allowed, that the notice of the fact of the injury must be given to the official superior, or he must have actual knowledge of the injury, within one year. Another requirement, which is also mandatory upon the commission, is that the original claim for compensation must be made within one year. Unless such requirement is complied with by the making of a claim in some formal or informal way, it is the evident intention that the claim shall be barred. The commission has been disposed to construe this requirement as liberally as possible, and to accept an informal claim as complying with the law. 13. Waiver of Right to Compensation of No Effect In a few cases officials in government establishments have secured from injured employees waivers of right to compensation, apparently under the impression that such a waiver would serve as a bar to any later claim to compensation. Usually such waivers have been taken when the official was of the opinion that the cause of the injury was the employee's own negligence or the infraction of some rule. The commission has uniformly held that such waivers are of no effect, and entirely inconsistent with the purposes of the Compensation Act. 14. Refusal of Medical Examination or Surgical Operation The Compensation Act provides (section 21) that an employee claiming compensation must submit to medical examination upon the request of the commission, and in case of refusal that compensation shall be suspended until such refusal ceases. Under this provision of the law, compensation has been suspended or terminated in a number of cases. The action is justified, because without such examination the commission cannot protect itself against erroneous or fraudulent claims. In a few cases also the question has arisen whether compensation shall be paid in case an injured employee declines to submit to a surgical operation which gives promise of terminating or greatly relieving the disability which otherwise might be permanent or of long duration. In these cases the commission has held that if the operation was without serious danger in the opinion of experienced surgeons, and gave promise of terminating or greatly reducing the disability, a refusal to accept surgical treatment was sufficient ground for suspending or terminating compensation. The disabled employee is permitted to withdraw his refusal and accept the operation within a reasonable time and thereby revive his right to compensation. Refusal of operation is not considered ground for suspension of compensation if the operation is attended with serious danger or is of doubtful benefit. |