KEIY YOrh. STATE INüUSTAIAL CO ISSION
THE NE'-.'/ YOAi'I JO.j-.jIEN'S CO: ■ P:'. T S aTI^/N Lái'
\ ^
NEW YORK STATE INDUSTRIAL COMMISSION
Bureau of Statistics and Information
Albany, N. Y.
THE NEW YORK
WORKMEN'S COMPENSATION LAW
[Chapter 816 of the Laws of 1913, as re-enacted and amended by chapter 41
of the Laws of 1914, and as amended tip to January 1, 1917, constituting
chapter 67 of the Consolidated Laws. The constitutionality of this Work¬
men's Compensation Law has been upheld in Jensen v. Southern Pacific
Co., 215 N, y. 514; Bums v. Southern Pacific Co., 215 Y. Y. 120; and
Walker v. Clyde Steamship Co., 215 Y. Y. 529. These cases have been
appealed to the Supreme Court of the United States. They have been
argued there and await decision. An older, voluntary plan of reorkmen's
Compensation is embodied in Labor Law, §§ 204^-212, still upon the
statute hooks. The Workmen's Compensation Law should be construed
broadly and liberally: Matter of Petrie, 215 N. Y. 335; Costello v.
Taylor, 217 N. Y. 179; Winfield v. Y. Y. C. <£ H. R. R. Co., 168 App.
Div. 351, 216 N. Y. 284; Moore v. Lehigh Valley R. R. Co., 169 App.
IHv. 177; 217 N. Y. 27; Rheinvcald v. Builders' Brick <& Supply Co.,
168 App. Div. 425; McQueeney v. Sutphen d Myer, 167 App. Div. 528.]
Article 1. Short title, application, definitions (§§ 1-3).
2. Compensation (§§ 10-34).
3. Security for compensation (§§ 50-54).
4. State workmen's compensation commission (§§ 60-77).
5. State insurance fund (§| 90-106).
6. Miscellaneous provisions (§§ 110-119).
7. Laws repealed; when to take effect (§§ 130-131).
ARTICLE I
snobt Title; Application; Definitions
Section 1. Short title.
2. Application.
3. Definitions.
Section 1. Short title.— This chapter shall be known as the "workmen's
compensation law."
§ 2. Application.— Compensation provided for in this chapter shall be pay¬
able for injuries sustained or death incurred by employees engaged in the
following hazardous employments:*
• Compare the notes to the several subdivisions under § 3. For the Commission's
power to rearrange the groups of § 2, compare § 95.
2
(iroup 1. The operation, including construction and repair, of railways
operated by steam, electric or other motive power, street railways, and
incline railways, but not their construction when constructed by any person
other than the company which owns or operates the railway, including work
of express, sleeping, parlor and dining car employees on railway trains.
Compare § 114, Interstate commerce.
Group 2. Construction, repair and operation of railways not included in
group 1. [Group 2 am'd hy L. 1916, ch. 622.]
Compare § 114, Interstate commerce.
Group 3. The operation, including construction and repair, of car shops,
machine shops, steam and power plants, and other works for the purposes of
any such railway, or used or to he used in connection with it when operated,
constructed or repaired hy the company which owns or operates the railway.
Compare § 114, Interstate commerce.
Group 4. The operation, including construction and repair of car shops,
machine shops, steam and power plants, not included in group three.
Compare § 114, Interstate commerce.
Gioup 5. The operation, including construction and repair, of telephone
lines and wires for the purposes of the business of a telephone company, or
used or to he used in connection with its business, when constructed or
operated hy the company.
Compare § 114, Interstate commerce.
Group 6. The operation, including construction and repair, of telegraph
lines and wires for the purposes of the business of a telegraph company, or
used or to be used in connection with its business, when constructed or
operated hy the company.
Compare § 114, Interstate commerce.
Group 7. Construction or repair of telegraph and telephone lines not
included in groups five and six. [Group 7 am'd by L. 1916, ch. 622.]
Compare § 114, Interstate commerce.
Group 8. The operation, within or without the state, including repair, of
vessels other than vessels of other states or countries used in interstate or
foreign commerce, when operated or repaired hy the company; marine wreck¬
ing. [Group 8 am'd by L. 1916, ch. 622.]
Compare § 114, Interstate Commerce, and group 10, below, note on longshore
work.
" Operation " includes loading and unloading ; when the employer and owner
is a New York corporation, the presumption is that the vessel is not one of another
State or country : Edwardsen v. Jarvis Lighterage Co., 168 App. Div. 368.
Group 9. 8hiphuilding, including construction and repair in a ship-yard
or elsewhere, not included in group eight.
Group 10. Longshore work, including the loading or unloading of cargoes
or parts of cargoes of grain, coal, ore, freight, general merchandise, lumber
3
or other products or materials, or moving or handling the same on any dock,
platform or place, or in any warehouse or other place of storage."
Compare § 114, Interstate commerce.
The specific enumeration of longshore work in this group excludes such work
from group 8 : Jensen v. Southern Pacific Co., 210 N. Y. 519, 520.
Rag picking in a refuse dump on the shore is not longshore work : Tomassi v.
Christensen, 171 App. Div. 284.
Group 11. Dredging, subaqueous or caisson construction or repair, and
pile driving. [Group 11 am'd by L. 1916, ch. 622.]
Driving sheeting for a jetty to protect baths on a water front is pile driving :
Mazzarisl v. Ward & Tully, S. D. R.,* vol. 4, p. 443; 170 App. .Div. 868.
Group 12. Construction, installation, repair or operation of electric light
and electric power lines, dynamos, or appliances, and power transmission
lines. [Group 12 am'd by L. 1916, ch. 622.]
Group 13. Paving; road building, curb and sidewalk construction or
repair; sewer and subway construction or repair, work under compressed
air, excavation, tunneling and shaft sinking, well digging, laying and repair
of underground pipes, cables and wires, not included in other groups; street
cleaning, ashes, garbage or snow removal; operation of waterworks. [Group
13 am'd by L. 1916, ch. 622.]
Group 14. Lumbering; logging, river-driving, rafting, booming, saw mills,
bark mills; shingle mills, lath mills, lumber yards; manufacture of veneer
and of excelsior; manufacture of barrels, kegs, vats, tubs, staves, spokes, or
headings. [Group 14 am'd by L. 1916, ch. 622.]
Group 15. Pulp and paper mills.
Group 16. Manufacture of furniture, interior woodwork, organs, pianos,
piano actions, canoes, small boats, coffins, wicker and rattan ware; upholster¬
ing; manufacture of mattresses or bed springs.
Group 17. Planing mills, sash and door factories, manufacture of wooden
and corrugated paper boxes, cheese boxes, mouldings, window and door
screens, window shades, carpet sweepers, wooden toys, wooden articles and
wares or baskets; cork cutting. [Group 17 am'd by L. 1916, ch. 622.]
Group 18. Mining; reduction of ores and smelting; preparation of metals
or minerals; oil and gas wells. [Group 18 am'd by L. 1916, ch. 622.]
Group 19. Quarries; sand, shale, clay or gravel pits, lime kilns; manufac¬
ture of brick, tile, terra-cotta, asbestos, fire-proofing, or paving blocks, manu¬
facture of calcium carbide, cement, asphalt or paving material; stone crush¬
ing or grinding. [Group 19 am'd by L. 1916, ch. 622.]
Group 20. Manufacture of glass, glass products, glassware, porcelain or
pottery.
Group. 21. Iron, steel or metal foundries; rolling mills; manufacture of
castings, forgings, heavy engines, locomotives, machinery, safes, anchors,
• " S. D. R." is an abbreviation for State Department Reports.
4
cables, rails, shafting, ■ wires, tubing, pipes, sheet metal, boilers, furnaces,
stoves, structural steel, iron or metal ; machine shops including repairs.
IGrowp 21 am'd hy L. 1916, ch. 622.]
Group 22. Operation and repair of stationary engines and boilers, freight
and passenger elevators, not included in other groups; window cleaning;
leating and lighting. [Group 22 am'd hy L. 1916, ch. 622.]
In connection with the addition of elevators to group 22 by L. 1Ö16. ch. 022.
compare note under group 41.
Group 23. Manufacture of small castings or forgings, metal wares, instru¬
ments, utensils and articles, hardware, nails, wire goods, screws, bolts, metal
beds, sanitary, water, gas or electric fixtures, light machines, typewriters,
cash registers, adding machines, carriage mountings, bicycles, metal toys,
tools, cutlery, instruments, photographic cameras and supplies, sheet metal
products, buttons; jewelry; gold, silver and plated ware; articles of bone,
ivory and shell. [Group 23 am'd by L. 1916, ch. 622.]
Group 24. Manufacture of agricultural implements, threshing machines,
traction engines, wagons, carriages, sleighs, vehicles, automobiles, motor
trucks, toy wagons, sleighs or baby carriages; blacksmiths; horse-shoers.
[Group 24 am'd hy L. 1916, ch. 622.]
Group 25. Manufacture of explosives and dangerous chemicals, corrosive
acids or salts, ammonia, gasoline, petroleum, petroleum products, celluloid,
gas, charcoal, artificial ice, gun powder or ammunition; ice harvesting, ice
storage and ice distribution. [Group 25 am'd hy L. 1916, ch. 622.]
The addition of the ice industry to this group by L. 1916, ch. 622, may be con¬
sidered in connection with Aylesworth v. Phoenix Cheese Co., ITO App. Div. 34.
Group 26. Manufacture of paint, color, varnish, oil, japans, turpentine,
printing and other ink, printers' rollers, tar, tarred, pitched or asphalted
paper. [Group 26 am'd hy L. 1916, ch. 622.]
Group 27. Distilleries, breweries; manufacture of spirituous or malt*
liquors, alcohol, wine, mineral water or soda waters; bottling. [Group 27
am'd by L. 1916, eh. 622.]
Group 28. Manufacture of drugs and chemicals, not specified in group
twenty-five, medicines, dyes, extracts, pharmaceutical or toilet preparations,
soaps, candles, perfumes, non-corrosive acids or chemical preparations, fer¬
tilizers, including garbage or sewerage disposal plants; shoe blacking or
polish. [Group 28 am'd hy L. 1916, ch. 622.]
This group covers a general utility man accidentally killed while building a
shelf in a wholesale drug establishment : Larsen v. Paine Drug Co., 169 App. Div.
838 ; affirmed by Court of Appeals, May 12, 1916.
A mere refuse dump is not a garbage disposal plant : Tomassi v. Christensen,
171 App. Div. 284.
Group 29. Milling; manufacture of cereals or cattle foods, warehousing;
storage of all kinds and storage for hire; operation of grain elevators.
[Group 29 am'd hy L. 1916, ch. 622.1
The amendment of 1916, inserting the words " of all kinds and storage for
hire " appears to cover private as well as public storage and so to offset Mihm ^.
Hussey, 169 App, Div. 742, as a precedent.
5
Injury to an employee of a storage company by the overturning of an automobile
while he Is buying fruit for his employer is not compensatable : Sickles v. Ballston
R. S. Co., 171 App. Div. 108.
Group 30. Packing houses, meat markets, abattoirs, manufacture or prepa¬
ration of meats or meat products or glue, gelatine, paste or wax. [Group 30
am'd hy L. 1916, ch. 622.]
In connection with the words " meat markets " inserted by L. 1916, ch. bz2,
compare Kohler v. Frohmann, 167 App. Div. 533, and Newman v. Newman, 169
App. Div. 745, affirmed by the Court of Appeals, June 6, 1916.
This group does not cover the ordinary preparation of meat for cooking pur¬
poses : De La Gardelle v. Hampton Co., 167 App. Div. 617.
Group 31. Tanneries.
Group 32. Furriers; manufacture of leather goods and products, belting,
saddlery, harness, trunks, valises, boots, shoes, gloves, umbrellas, rubber
goods, rubber shoes, tubing, tires or hose. [Group 32 am'd hy L. 1916, ch.
622.]
Group 33. Canning or preparation of fruit, vegetables, fish or food stuffs;
pickle factories and sugar refineries; manufacture of dairy products. [Group
33 am'd by L. 1916, ch. 622.]
This group does not cover the ordinary preparation of food stuffs for cooking
purposes : De La Gardelle v. Hampton Co., 157 App. Div. 617.
Group 34. Bakeries, including manufacture of crackers and biscuits, manu¬
facture of confectionery, spices or condiments.
Group 35. Manufacture of tobacco, cigars, cigarettes or tobacco products.
Group 36. Manufacture of cordage, ropes, fibre, brooms or brushes;
manilla or hemp products.
Group 37. Flax mills; manufacture of textiles or fabrics, spinning, weav¬
ing and knitting manufactories; manufacture of yarn, thread, hosiery, cloth,
blankets, carpets, canvas, bags, shoddy or felt.
Group 38. Manufacture of men's or women's clothing, white wear, shirts,
collars, corsets, hats, caps, furs or robes, or other articles from textiles or
fabrics. [Group 38 am'd by L. 1916, ch. 62i2.]
Group 39. Power laundries; dyeing, cleaning or bleaching.
Group 40. Printing, engraving, photo-engraving, stereotyping, electrotyp-
ing, lithographing, embossing; manufacture of moving picture machines and
films; manufacture of stationery, paper, cardboard boxes, bags, or wall¬
paper; and bookbinding. [Group 40 am'd by L. 1916, ch. 622.]
Group 41. The operation, otherwise than on tracks, on streets, highways,
or elsewhere of cars, trucks, wagons or other vehicles, and rollers and engines,
propelled by steam, gas, gasoline, electric, mechanical or other power or
drawn by horses or mules; public garages, livery, boarding or sales stables;
movers of all kinds. [Group 41 am'd by L. 1910, ch. 622.]
6
The business of operating vehicles Is covered by this group ; so that accidents to
the following employees are compensatable : a stableman who does no driving :
Costello V. Taylor, 217 N. Y. 179; a driver putting his horse In Its stall: Smith
V. Price, 168 App. Dlv. 421 ; a helper on an automobile truck chasing mischievous
boys : Hendricks v. Seeman Bros., 170 .4pp. Dlv. 133, and a driver of a florist's
wagon adjusting a customer's window box : Glatel v. Stump, S. D. K., vol. 6,
p. 397. Compare note to S 3, subd. 1.
Elevators are not vehicles within the purview of this group : Wilson v. Dor-
fllnger & Sons, 218 X. Y. 84, but are covered by the amendment to group 22 effected
by L. 1916, ch. 622.
A driver who had put up his horse several hours before and was injured while
making deliveries afoot was denied compensation : Newman v. Newman, 169 .4pp.
Dlv. 745, affirmed by the Court of .4ppcals, June 6, 1916; compare note to § 2,
group 30.
Group 42. Stone cutting or dressing; marble works; manufacture of arti¬
ficial stone; steel building and bridge construction or repair; installation or
repair of elevators, fire escapes, boilers, engines or heavy machinery; brick¬
laying, tile-laying, mason work, stone-setting, concrete work, plastering; and
manufacture of concrete blocks; structural carpentry; painting, papering,
picture hanging, glazing, decorating or renovating; sheet metal work; roofing;
construction, repair and demolition of buildings, bridges and other structures;
salvage of buildings or contents; plumbing, sanitary lighting or heating
installation or repair; installation and covering of pipes or boilers; junk
dealers. [Group 42 am'd by L. 1916, ch. 622.]
A macaroni company casually employing a carpenter to put in a partition Is not
carrying on the carpenter business for proflt and Is not, therefore, liable for com¬
pensation when the carpenter meets with an accident : Bargey v. Massaro Macaroni
Co., 170 .4pp. Dlv. 103 ; affirmed by the Court of Appeals, June 16, 1916.
Group 43. Any employment enumerated in the foregoing groups and car¬
ried on by the state or a municipal corporation or other subdivision thereof,
notwithstanding the definition of the term " employment " in subdivision five
of section three of this chapter. [Group 43 added by L. 1916, ch. 622.]
Compare S 3, subds. 3, 5.
Contracts for public work must " contain a stipulation that the same shall be
void and of no effect unless the person or corporation making or performing the
same shall secure compensation for the benefit of, and keep insured during the life
of said contract, such employees, in compliance with the provisions of said law."
L. 1916, ch. 478.
Any employer not carrying on one of the employments enumerated in this
section, or who carrying on one of such employments has in his employ an
employee not included within the term " employee " as defined by section
three of this chapter, and the employees of any such employer may, by their
joint election, elect to become subject to the provisions of this chapter in the
manner hereinafter provided. Such election on the part of the employer
shall he made by posting notices thereof about the place where the workmen
are employed, in a manner to be prescribed by rules to be adopted by the
commission, and by filing with the commission a written statement, in a
form to be prescribed by the commission, to the effect that he accepts the
provisions of this chapter and that he adopts subject to the approval of the
commission one of the methods of securing compensation to his employees
prescribed in section fifty of this chapter which, when so filed with and
approved by the commission as to form and method of securing compensation
7
shall operate to subject him to the provisions of this chapter and of all acts
amendatory thereof for the period of one year from the date of such approval,
and thereafter without further act on his part for successive terms of one
year each, unless such employer shall, at least sixty days prior to the expira¬
tion of such first or any succeeding year, file with the commission a notice in
writing that he withdraws his election.
Any employee in the service of any such employer shall be deemed to have
accepted, and shall he subject to the provisions of this chapter and any act
amendatory thereof, if, at the time of the accident for which liability is
claimed, the employer charged with such liability has not withdrawn his
election and the employee shall not at the time of entering into his contract
of hire have given to his employer notice in writing that he elects not to he
subject to the provisions of this chapter and filed a copy thereof with the
commission" or in the event that such contract for hire was made in advance
of the election of the employer, such employee shall not have given to his
employer and filed with the commission within twenty days after such elec¬
tion notice in writing that he elects not to he subject to such provisions.
A minor employee shall be deemed sui juris for the purpose of making
such an election.
The rights and remedies, benefits and liabilities of an employer or employee
so electing to become subject to the provisions of this chapter shall there¬
upon become the same as they would have been had they been engaged in
one of the occupations or employments enumerated herein and the words
employer or employee wherever they appear in this chapter shall be construed
as including an employer or employee who has so elected to become subject
vo its provisions. [Section 2 am'd hy L. 1916, ch. 622.]
»3 3. Definitions.—As used in this chapter, 1. " Hazardous employment "
means a work or occupation described in section two of this chapter.
The courts have held the coverage of the hazardous employments hroad enough
to Include work and occupations Incidental to them. See note to § 2, group 41,
for Illustrative cases. See also Larsen v. Paine Drug Co., 169 App., Div. 138 ;
affirmed by the Court of Appeals, May 12, 1916 ; McQueeney v. Sutphen & Myer,
167 App. Dlv. 528 ; Kohler v. Frohmaun, 167 App. Dlv. 533. Such incidentalness
has been declared not evident in Newman v. Newman, 169 App. Div. 745, and
Gleisner v. Gross & Herbener, 170 App. Div. 37. Compare also Aylesworth v.
Phoenix Cheese Co., 170 App. Div. 34, and Sickles v. Ballston R. S. Co., 171 App,
Dlv. 108. The Gleisner case draws the distinction between Incidentalness and non-
incldentalness. This Incidental coverage has been broadened further by the amend¬
ment of L. 1916, ch. 622, inserting the phrase " principal business " in § 3, subd. 4,
below.
2. " Commission " means the state industrial commission, as constituted
by this chapter. [Suhd. 2 am'd by L. 1916, ch. 622.]
3. " Employer,*" except when otherwise expressly stated, means a person,
partnership, association, corporation, and the legal representatives of a de¬
ceased employer, or the receiver or trustee of a person, partnership, associa¬
tion or corporation, employing workmen in hazardous employments including
the state and a municipal corporation or other political subdivision thereof,
[fifwhd. 3 am'd by L, 1914, oh. 316.]
Compare i 2, group 43 ; { 8, subds. 4, 5 ; i S4, subd. 6.
8
A number of accidents have Involved a doubt as to which of two employers
ought to pay the compensation. In the leading case of Dale v. Saunders Bros.,
171 App. Dlv. 528 ; 218 N. Y. 59, the Appellate Division held that the fact that
the special employer might be liable for compensation did not absolve the general
employer and the Court of Appeals held that the question whose employee the
Injured person was belonged under § 20 solely to the Commission as a matter of
fact, the courts not having jurisdiction. For other cases consult S. D. R., vol.
2, pp. 475, 480 ; vol. 4, p. 337 ; vol. 6, pp. 310, 386 ; no. 37, p. 102.
4. " Employee " means a person engaged in one of the occupations enume¬
rated in section two or who is in the service of an employer whose principal
business is that of carrying on or conducting a hazardous employment upon
the premises or at the plant, or in the course of his employment away from
the plant of his employer; and shall not include farm laborers or domestic
servants. [Suhd. 4 am'd hy L. 1916, ch. 622.]
The word " engaged " has been Interpreted In the case of an employee Injured
Immediately after quitting work: De Voe v. N. Y. State Railways, 169 App. Dlv.
472, affirmed by the Court of Appeals, June 6, 1916. Commission rulings In
similar cases of coming to or leaving work may be consulted In S. D. R., vol. 1,
pp. 424, 429 : vol. 5, p. 438 ; vol. 6, pp. 308, 339, 403.
For distinction between an Independent contractor and an employee see Rhelu-
wald V. Builders' Brick & Supply Co., S. D. R., vol. 1, p. 417 ; 168 App. Dlv. 425 ;
and Powley v. Vivian & Co., S. D. R., vol. 3, p. 366 ; 169 App. Dlv. 170. The
Commission has made a new ruling In the Rheinwald case, S. D. R., no. 40, p. 67,
Feb. 16, 1916, from which appeal has been taken to the courts.
An accident to an employee occurring without the State Is compensatable : Post
V. Burger & Gohlke, 216 N. Y. 544 ; Spratt v. Sweeney & Gray Co., 168 App. Dlv.
403 ; affirmed, 216 N. Y. 763 ; but compare Garner v. Horseheads Construction Co.,
171 App. Dlv. 66, where the Injured employee's contract of employment related
solely to work to be performed outside the State, and Lloyd v. Power Specialty
Co., S. D. R., no. 38, p. 78. where the Injured employee neither resided In, nor was
Injured In New York State, though his contract of employment had been made there.
An Injured employee may have compensation, though he has made false state¬
ments In obtaining his employment : Kenny v. Union Railway Co., 166 App. Dlv.
497 ; and though he Is also an officer or stockholder, or both, of his employer com¬
pany : Cantor v. Rubin Muslcant Co., S. D. R., vol. 3, p. 392 ; Kennedy v. Kennedy
Manufacturing & Engineering Co., S. D. R.„ no. 37, p. 107. Compare Beckmann v.
Oelerlch, argued In App. Dlv., May 3, 1916. The amendment by L. 1916, ch. 622.
adding § 54, subd. 6, below. Is In line with the opinions cited In this second instance.
5. " Employment " includes employment only in a trade, business or occu¬
pation carried on by the employer for pecuniary gain, except where the
employer and his employees have by their joint election elected to become
subject to the provisions of this chapter as provided in section two. [iSahd.
5 am'd hy L. 1916, ch. 622.]
Another exception added by L. 1916, ch. 622, as new group 43 of § 2, extends
the right of compensation to state and municipal employees In hazardous employ¬
ments not conducted for pecuniary gain.
In Mlhm v. Hussey, 169 App. Dlv. 742, the case of a wholesale merchant storing
his own goods, the court held that storage other than for hire was not carried on
for pecuniary gain. The effect of this decision as a precedent appears to be met
by the amendment of 1916 to § 2, group 29, which see.
A macaroni company casually employing a carpenter to put In a partition Is not
carrying on the carpentry business for profit and, therefore, an accident to the
carpenter Is not compensatable ; Bargey v. Massaro Macaroni Co., 170 App. Dlv.
103 ; affirmed by the Court of Appeals, June 16, 1916.
6. " Compensation " means the money allowance payable to an employee
or to Mb dependents as provided for in this chapter, and includes funeral
benefits provided therein.
9
7. " Injury " and " personal injury " mean only accidental injuries arising
out of and in the course of employment and such disease or infection as may
naturally and unavoidably result therefrom.
On the ground that they arose out of and In the course of employment the courts
have held the following injuries compensatable : Injury while seeking shelter from
storm ; Moore v. Lehigh Valley R. R. Co., 169 App. Dlv. 177 ; Injury from contact
with poison Ivy : Plass v. Central Xcw England Ry, Co., 169 App. Dlv. 826 ;
Injury by the employee's own motor cycle used by him for going to and from his
employer's jobs : Klngsley v. Donovan, 169 App. Dlv. 828 ; Injury due to assault
connected with dispute about employment, methods of work, etc. ; Yume v. Knick¬
erbocker Portland Cement Co., S. D. R., vol. 3, p. 358 ; 169 App. Dlv. 905 ; 216
N. Y. 653 ; Harnett v. Steen Building Co., 169 App. Dlv. 905 ; 216 N. Y. 101 ;
Hcltz V. Ruppert Brewery Co., Court of Appeals, May 2, 1916 ; James v. Wltherbee-
Sherman & Co., S. D. R., vol. 2, p. 483 ; Injury while going to rescue of another
workman : Waters v. Taylor Co., Court of Appeals, May 12, 1916 ; Martuccl v.
Hills Bros. Co., 171 App. Dlv. 370. Injuries due to sportive acts or horseplay
between employees are not compensatable : De Flllppls v. Falkenburg, 170 App.
Dlv. 153. The Court of Appeals, June 16, 1916, reversed an order of the Appellate
Division and dismissed a compensation claim for injury due to taking poison by
mistake for medicine : O'Ncll v. Carley Heater Co., S. D. R., vol. 6, p. 314.
The subtle connections of accidental Injury with ensuing infection or disease
would seem to offer a wide and varied field for controversy as to facts. Compare
note on evidence under § 68. The Commission has awarded compensation for dis¬
ability of a hoist runner who jumped into a river to escape being struck by a
broken timber and thereby contracted a cold that developed into pulmonary tuber¬
culosis, S. D. R., vol. 5, p. 381 (Rist v. Larkin & Sangster, aflirmed, 171 App.
Div. 71) ; for deaths from delirium tremens, 169 App. Dlv. 450; S. D. R., vol. 5,
p. 380 ; vol. 6, p. 401, no. 39, p. 62 ; for death of an electrotype finisher from
angina pectoris due to exhaustion from prolonged over-exertion, S. D. R., vol, 3, p.
395 ; for insanity of an elevated railway motorman caused by the shock of a
collision, S. D. R., vol. 5, pp. 371, 374 ; for infection in the finger of a cloak model
due to the prick of a pin while she was trying on an unfinished garment, S. D. R.,
vol. 5, p. 385 ; for infection in a laceration on the head of n, subway worker caused
by the falling of a beam, S. D. R., vol. 6, p. 394 ; for anthrax contracted by a
trimmer of skins in a tannery through an accidental abrasion in his cheek, S. D. R.,
vol. 6, p. 388 ; for death of a street railway process server from gangrenous
diabetes resultant from a fellow passenger treading upon his toes while he was
returning to the office on one of his employer's cars, S. D. R., no. 37, p. 97 ; no. 39,
p. 59 ; and for death of a driver from tetanus as the result of a wound in the foot
by a rusty nail, S. D. R., vol. 6, p. 355 ; no. 38, p. 76.
The Commission, on ground of the lack of evidence, has denied benefits to widows
for the deaths of their husbands from the following diseases : blood poisoning
claimed to have been due to rupture of the mucus membrane inside of the nose,
permitting the entrance of germs, the rupture having been caused by an accidental
blow from a container, S. D. R., vol. 6, p. 336 ; tubercular trouble claimed to have
been hastened by the fracture of a leg, S. D. R., vol. 6, p. 349 ; intestinal ulcers
claimed to have been caused by crushing of the body against a truck, S. D. R.,
vol. 6, p. 304 ; lobar pneumonia claimed to have been due to weakness caused by
the amputation of a finger, S. D. R., vol. 6, p. 383 ; and a paralytic stroke or an
embolism claimed to have resulted from severe vibration of a compressed air drill,
S. D. R., no. 37, p. 100.
8. " Death " when mentioned as a basis for the right to compensation
means only death resulting from such injury.
9. " Wages " means the money rate at which the service rendered is recom¬
pensed under the contract of hiring in force at the time of the accident, in¬
cluding the reasonable value of boa¡rd, rent, housing, lodging or similar advan¬
tage received from the employer.
For the use of wages as the basis of compensation, see §§ 14, 15, 101, 102, 113.
10
10. " State fund " means the state insurance fund provided for in article
five of this chapter.
11. "Child"' shall include a posthumous child and a child legally adopted
prior to the injury of the employee; and a stepchild dependent upon the
deceased. [Subd. 11 am'd by L. 1916, ch. 622.]
12. " Insurance carrier"~shall include the state fund, stock corporations
or mutual associations with which employers have insured, and employers
permitted to pay compensation directly under the provisions of subdivision
three of section fifty.
13. " Manufacture," " construction," " operation " and " installation " shall
include " repair," " demolition " and " alteration." [Subd. 13 added by L.
1916, ch. 622.]
ARTICLE 2
Compensation
Section 10. Inability for compensation.
11. Alternative remedy.
12. Compensation not allowed for first two weeks.
13. Treatment and care of Injured employees.
14. Weekly wages basis of compensation.
15. Schedule In case of disability.
16. Death benefits.
17. Aliens.
18. Notice of Injary.
19. Medical examination.
20. Determination of claims for compensation.
21. Presumptions.
22. Modification of award.
23. Appeals from the commission.
24. Costs and fees.
25. Compensation, how payable.
26. Enforcement of payment In default.
27. Depositing future payments.
28. Limitation of right to compensation.
29. Subrogation to remedies of employee,
30. Revenues or benefits from other sources not to affect compensation.
31. Agreement for contribution by employee void.
32. Waiver agreements void.
33. Assignments ; exemptions.
34. Preferences.
§ 10. Liability for compensation.— Every employer subject to the pro¬
visions of this chapter shall pay or provide as required by this chapter com¬
pensation according to the schedules of this article for the disability or death
of his employee resulting from an accidental personal injury sustained by
the employee arising out of and in the course of his employment, without
regard to fault as a cause of such injury, except where the injury is occa¬
sioned by the willful intention of the injured employee to bring about the
injury or death of himself or of another, or where the injury results solely
from the intoxication of the injured employee while on duty. Where the
injury is occasioned by the willful intention of the injured employee to bring
about the injury or death of himself or of another, or where the injury
results solely from the intoxication of the injured employee while on duty,
neither the injured employee nor any dependent of such employee shall
receive compensation under this chapter.
11
For decisions interpreting the phrases " arising out of " and " in the course of "
comparé notes to § 3, subd. 7.
§ 11. Alternative remedy.— The liability of an employer prescribed by the
last preceding section shall be exclusive and in place of any other liability
whatsoever, 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 such injury or death, except that
if an employer fail to secure the payment of compensation for his injured
employees and their dependents as provided in section fifty of this chapter,
an injured employee, or his legal representative in case death results from
the injury, 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;
and in such an action it shall not he necessary to plead or prove freedom from
contributory negligence nor may the defendant plead as a defense that the
injury was caused by the negligence of a fellow servant nor that the employee
assumed the risk of his employment, nor that the injury was due to the con¬
tributory negligence of the employee. [As am'd hy L. 1914, ch. 316; and L.
1916, oh. 622.]
L. 1916, ch. 622, harmonizes § 11 with § 52 hy inserting the phrase " or legal
representatives " in § 52. Compare Dearborn v. Peugeot Auto Import Co., 170
App. Div. 93, which holds that the widow of an employee need not qualify as
administratrix or executrix in order to make the election permitted hy § 11.
The amendment of § 11 effected by L. 1916, ch. 622, should be read in the light
of iShinnick v. Clover Farms Co., 169 App. Div. 236, and Shanahan v. Monarch
Engineering Co., 92 Misc. 466. Compare also § 53, and clause relative to dis¬
figurement, added to § 15, suhd. 3, by L. 1916, ch. 622.
For the General Employers' Uahility Law, see article 14 of the Labor Law. See
also §§ 29 and 53 of the Workmen's Compensation Law; Liability of Railway Com¬
panies, Railroad Law, § 64 ; Damages for Injuries Causing Death, Constitution of
New York, Art. 1, § 18 ; and Code of Civil Procedure, § 1902 ; and Criminal Liabil¬
ity for Negligence, Penal Law, §| 1052, 1893.
§ 12. Compensation not allowed for first two weeks.— No compensation
shall be allowed for the first fourteen days of disability, except the benefits
provided for in section thirteen of this chapter.
§ 13. Treatment and care of injured employees.— The employer shall
promptly provide for an injured employee such medical, surgical or other
attendance or treatment, nurse and hospital service, medicines, crutches and
apparatus as may be required or be requested by the employee, during sixty
days after the injury. If the employer feil to provide the same, the injured
employee may do so at the expense of the employer. The employee shall not
be entitled to recover.any amount expended by him for such treatment or
services unless he shall have requested the employer to furnish the same
and the employer shall have refused or neglected to do so. All fees and other
charges for such treatment and services shall be subject to regulation by the
commission as provided in section twenty-four of this chapter, and shall be
limited to such charges as prevail in the same community for similar treat¬
ment of injured persons of a like standard of living.
See also § 24.
In Keigher v. General Electric Co., decided in May, 1916, the Appellate Division
held that the employer was not liable for physician's services because the employee
had rejected the physician selected hy the employer.
12
In Morcy v. Worden, S. D. R., vol. 2, p. 297, the injured employee did not request
treatment within the sixty-day limit, but the employer had notice that treatment
was necessary ; the commission, therefore, awarded the amount expemlcd for
treatment.
§ 14. Weekly wages basis of compensation.— Except as otherwise provided
in this chapter, the average weekly wages of the inj'ured employee at the
time of the injury shall be taken as the basis upon which to compute com¬
pensation or death benefits, and shall be determined as follows:
1. If the injured employee shall have worked in the employment in which
he was working at the time of the accident, whether for the same employer
or not, during substantially the whole of the year immediately preceding his
injury, his average annual earnings shall consist of three hundred times the
average daily wage or salary which he shall have earned ia such employ¬
ment during the days when so employed;
2. If the injured employee shall not have worked in such employment during
substantially the whole of such year, his average annual earnings shall con¬
sist of three hundred times the average daily wage or salary which an
employee of the same class working substantially the whole of such im¬
mediately preceding year in the same or in a similar employment in the same
or a neighboring place shall have earned in such employment during the
days when so employed;
3. If either of the foregoing methods of arriving at the annual average
earnings of an injured employee cannot reasonably and fairly be applied, such
annual earnings shall be such sum as, having regard to the previous earnings
of the injured employee and of other employees of the same or most similar
class, working in the same or most similar employment in the same or
neighboring locality, shall reasonably represent the annual earning capacity
of the injured employee in the employment in which he was working at f he
time of the accident;
4. The average weekly wages of an employee shall be one-flfty-second part
of his average annual earnings;
5. If it be established that the injured employee was a minor when injured,
and that under normal conditions his wages would be expected to increase,
the fact may be considered in arriving at his average weekly wages.
In connection with subd. 5 compare Kiibcrg v. Vitch, 171 App. Div. 80.
Wages are defined by § 3, subd. 9; for other provisions compare §§ 15, 101, 102,
113.
Custom tends to fix the average daliy wage : Fredenburg v. Empire U. Railways,
168 App. Div. 618.
Subdivision 5 of section 15, following, establishes maximum and minimum limits
for the use of the average weekly wages as the basis of compensation under § 15,
and, also, according to the ruling of the Commission in Morey v. Worden, S. D. R.,
vol. 2, p. 494, absolutely excludes use of the average weekly wages as the basis of
compensation for loss of hand, arm, foot, leg, or eye. For loss of these members, the
wages at the time of the injury, and not the average weekly wages, are the basis.
§ 15. Schedule in case of disability.— The following schedule of compensa¬
tion is hereby established:
1. Total permanent disability. In case of total disability adjudged to be
permanent sixty-six and two-thirds per centum of the average weekly wages
shall be paid to the employee during the continuance of such total disability.
Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or
of any two thereof shall, in the absence of conclusive proof to the contrary.
13
constitute permanent total disability. In all other eases permanent total
disability shall be determined in accordance with the facts.
The compensation of an employee who loses any two of the members named in
this section by different accidents occurring at different times, e. g., the loss of
one hand in 1909 and the loss of the other in 1916, is determined by § 15, subd. 6,
which see.
2. Temporary total disability. In case of temporary total disability, sixty-
six and two-thirds per centum of the average weekly wages shall be paid
to the employee during the continuance thereof, but not in excess of three
thousand five hundred dollars, except as otherwise provided in this chapter.
" Except as otherwise provided," compare § 13.
On the subject of malingering, compare Glidder v. Hallver, S. D. R., vol. 6, p. 366.
Concurrent awards for temporary total disability and permanent partial disabil¬
ity are not within the intent of the law ; Fredenburg v. Empire U. Railways, 168
App. Div. 618.
3. Permanent partial disability. In case of disability partial in character
but permanent in quality the compensation shall be sixty-six and two-thirds
per centum of the average weekly wages and shall be paid to the employee
for the period named in the schedule as follows:
Thumb. For the loss of a thumb, sixty weeks.
First finger. For the loss of a first finger, commonly called index finger,
forty-six weeks.
Second finger. For the loss of a second finger, thirty weeks.
Third finger. For the loss of a third finger, twenty-five weeks.
Fourth finger. For the loss of a fourth finger, commonly called the little
finger, fifteen weeks.
For loss of fingers, see also below, this subdivision, under " Loss of use."
Phalange of thumb or finger. The loss of the first phalange of the thumb
or finger shall be considered to be equal to the loss of one-half of such thumb
or finger, and compensation shall be one-half of the amount above specified.
The loss of more than one phalange shall be considered as the loss of the
entire thumb or finger; provided, however, 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.
The amputation of one-third of the first phalange of a finger has been held to
constitute, in law, the loss of the phalange, and, therefore, the loss of half the
finger : Matter of Petrie, 165 App. Div. 561 ; 215 N. Y. 335.
Great toe. For the loss of a great toe, thirty-eight weeks.
Other toes. For the loss of one of the toes other than the great toe,
sixteen weeks.
Phalange of toe. The loss of the first phalange of any toe shall bo con¬
sidered to be equal to the loss of one-half of said toe, and the compensation
shall be one-half of the amount specified. The loss of more than one phalange
shall be considered as the loss of the entire toe.
Hand. The loss of a hand, two hundred and forty-four weeks.
Arm. For the loss of an arm, three hundred and twelve weeks.
Foot. For the loss of a foot, two hundred and five weeks.
Leg. For the loss of a leg, two hundred and eighty-eight weeks.
Eye. For the loss of an eye, one hundred and twenty-eight weeks.
14
Loss of use. Permanent loss of the use of a hand, arm, foot, leg, eye,
thumb, finger, toe, or phalange, shall be considered as the equivalent of the
loss of such hand, arm, foot, leg, eye, thumb, finger, toe or phalange. [Clause
am'd hy L. 1916, ch. 622.]
Loss of fingers may constitute loss of the hand : Rockwell v. Lewis, 168 .\pp.
Dlv. 674 ; and loss of part of a finger, loss of the finger : Felnman v. Albert Manu¬
facturing Co., 170 App. Dlv. 147.
Amputations. Amputation between the elbow and the wrist shall be con¬
sidered as the equivalent of the loss of a hand. Amputation between the
knee and the ankle shall be considered as the equivalent of the loss of a foot.
Amputation at or above the elbow shall be considered as the loss of an arm.
Amputation at or above the knee shall be considered as the loss of the leg.
The compensation for the foregoing specific injuries shall be in lieu of all
other compensation, except the benefits provided in section thirteen of this
chapter.
In case of an injury resulting in serious facial or head disfigurement the
commission may in its discretion, make such award or compensation as it
may deem proper and equitable, in view of tlie nature of the disfigurement,
but not to exceed three thousand five hundred dollars. [Clause added hy L.
1916, eh. 622.]
Compare also { 11. The addition of this clause by L. 1916, ch. 622, should be
read In the light of Shinnlck v. Clover Farms Co., 169 App. Dlv. 236.
Other cases. In all other cases in this class of disability, the eompensation
shall be sixty-six and two-thirds per centum of the diflference between his
average weekly wages and his wage-earning capacity thereafter in the same
employment or otherwise, payable during the continuance of such partial
disability, but subject to reconsideration of the degree of such impairment
by the commission on its own motion or upon application of any party
in interest. i
4. Temporary partial disability. In case of temporary partial disability,
except the particular cases mentioned in subdivision three of this section, an
injured employee shall receive sixty-six and two-thirds per centum of the
difference between his average weekly wages and his wage earning capacity
thereafter in the same employment or otherwise during the continuance of
such partial disability, but not to exceed when combined with his decreased
earnings the amount of wages he was receiving prior to the injury, and not
to exceed in total the sum of three thousand five hundred dollars, except as
otherwise provided in this chapter. [Suhd. 4 am'd hy L. 1916, ch. 622.]
5. Limitation. The compensation payment under subdivisions one, two and
four and under subdivision three except in case of the loss of a hand, arm,
foot, leg or eye, shall not exceed fifteen dollars per week nor be less than
five dollars per week; the compensation payment under subdivision three in
case of the loss of a hand, arm, foot, leg or eye, shall not exceed twenty
dollars per week nor be less than five dollars a week; provided, however,
that if the employee's wages at the time of injury are less than five dollars
per week he shall receive his full weekly wages-
Compare note to § 14.
6. Previous disability. The fact that an employee has suffered previous
disability or received compensation therefor shall not preclude him from
15
compensation for a later injury nor preclude compensation for death resulting
therefrom; but in determining compensation for the later injury or death his
average weeklj'^ wages shall be such sum as will reasonably represent his
earning capacity at the time of the later injury, provided, however, that an
employee who is suffering from a previous disability shall not receive com¬
pensation for a later injury in excess of the compensation allowed for such
injury when considered by itself and not in conjunction with the previous
disability. [Bubd. 6 am'd by L. 1915, ch. 015.]
This proviso, added by L. 1915, ch. 615, obviates the decision in Schwab v.
Emporium Forestry Co., 167 App. Div. 614 ; 216 N. Y. Rep. 712. L. 1916, ch. 622.
has made special provision for this class of cases by the addition of subd. 7,
following.
7. Permanent total disability after permanent partial disability. If an
employee who has previously incurred permanent partial disability through
the loss of one hand, one arm, one foot, one leg, or one eye, incurs permanent
total disability through the loss of another member or organ, he shall be
paid, in addition to the compensation for permanent partial disability pro¬
vided in this section and after the cessation of the payments for the pre¬
scribed period of weeks special additional compensation for the remainder
of his life to the amount of sixty-six and two-thirds per centum of the
average weekly wage earned by him at the time the total permanent disability
was incurred. Such additional compensation shall be paid out of a special
fund created for such purpose in the following manner: The insurance car¬
rier shall pay to the state treasurer for every case of injury causing death
in which there are no persons entitled to compensation the sum of one hun¬
dred dollars. The state treasurer shall be the custodian of this special fund,
and the commission shall direct the distribution thereof. IBubd. 1 added by
L. 1916, ch. 622.]
§ 16. Death benefits.— If the injury causes death, the compensation shall
be known as a death benefit and shall be payable in the amount and to or for
the benefit of the persons following:
1. Reasonable funeral expenses not exceeding one hundred dollars;
2. If there be a surviving wife (or dependent husband) and no child of the
deceased under the age of eighteen years, to such wife (or dependent hus¬
band) thirty per centum of the average wages of the deceased during widow¬
hood (or dependent widowerhood) with two years' compensation in one sum,
upon remarriage; and if there be surviving child or children of the deceased
under the age of eighteen years, the additional amount of ten per centum
of such wages for each such child until of the age of eighteen years; in case
of the subsequent death of such surviving wife (or dependent husband) any
surviving child of the deceased employee, at the time under eighteen years
of age, shall have his compensation increased to fifteen per centum of such
wages, and the same shall be payable until he shall reach the age of eighteen
years; provided that the total amount payable shall in no case exceed sixty-
six and two-thirds per centum of such wages. The commission may in its
discretion require the appointment of a guardian for the purpose of receiving
the compensation of a minor child. In the absence of such a requirement by
the commission the appointment of a guardian for such purposes shall not
be necessary. [fiiMbd. 2 am'd by L. 1916, ch. 622.]
16
In connection with the amendment of L. 1916, ch. 622, to this subdivision, regu¬
lating appointment of a guardian, compare Woodcock v. Walker, 170 App. Div. 4.
3. If there be surviving child or children of the deceased under the age
of eighteen years, but no surviving wife (or dependent husband) then for
the support of each such child until of the age of eighteen years, fifteen per
centum of the wages of the deceased, provided that the aggregate shall in no
case exceed sixty-six and two-thirds per centum of such wages.
4. If there be no surviving wife (or dependent husband) or child under the
age of eighteen years or if the amount payable to surviving wife (or depend¬
ent husband) and to children under the age of eighteen years shall be less
in the aggregate than sixty-six and two-thirds per centum of the average
wages of the deceased, then for the support of grandchildren or brothers and
sisters under the age of eighteen years, if dependent upon the deceased at the
time of the accident, fifteen per centum of such wages for the support of each
such person until of the age of eighteen years; and for the support of each
parent, or grandparent, of the deceased if dependent upon him at the time of
the accident, twenty-five per centum of such wages during such dependency.
But in no case shall the aggregate amount payable under this subdivision
exceed the difference between sixty-six and two-thirds per centum of such
wages, and the amount payable as hereinbefore provided to surviving wife
(or dependent husband) or for the support of surviving child or children.
Any excess of wages over one hundred dollars a month shall not be taken
into account in computing compensation under this section. All questions of
dependency shall be determined as of the time of the accident. [Suhd. 4
am'd hy L. 1916, ch. 622.]
The insertion by L. 1916, ch. 622, of the words " If there be no surviving wife (or
dependent husband) or child under the age of eighteen years or " confirms the
decision in Priscia v. Drake Bros. Co., 167 App. Div. 496, which decision also holds
that parents may be dependent upon the wages of minor children. L. 1916, eh. 622,
increases the amount payable to parent or grandparent.
Dependents supported by the decedent employee voluntarily, partially or indirectly,
are entitled to death benefits : Walz v. Holbrook, Cabot & Rollins Corp., 170 App.
Div. 6.
A ruling of the State Industrial Commission that a claimant is dependent, if sup¬
ported by any evidence, is final and non-reviewable by the courts : Hendricks v.
Seeman Bros., 170 -Vpp. Div. 133. For a ruling denying a mother's dependency, see
Williams V. Coney Island Construction Co., S. D. R., vol. 6, p. 346.
In computing wages as the basis of benefits to the dependents of a deceased
minor, allowance may be made under § 14, subd. 5, for the minor's expectation of
wage increase: Kilberg v. Vitch, 171 App. Div. 89.
§ 17. Aliens.— Compensation under this chapter to aliens not residents (or
about to become nonresidents) of the United States or Canada, shall be the
same in amount as provided for residents, except that dependents in any for¬
eign country shall be limited to surviving wife and child or children, or,
if there be no surviving wife or child or children, to surviving father or
mother, or grandfather or grandmother, whom the employee has supported,
either wholly or in part, for the period of one year prior to the date of the
accident, and except that the commission may, at its option, or upon the appli¬
cation of the insurance carrier, shall, commute all future installments of
compensation to be paid to such aliens, by paying or causing to be paid to
them one-half of the commuted amount of such future instalments of com¬
pensation as determined by .the commission. [As am'd hy L. 1916, ch. 622.]
17
Compare also § 25. For an account of the Commission's practice relative to lump
sum awards, see monthly Bulletin of the State Industrial Commission, February,
1916, no. 5, pp. 2, 3.
§ 18. Notice of injury.— Notice of an injury for which compensation is
payable under this chapter shall be given to the commission and to the em¬
ployer within ten days after disability, and also in case of the death of the
employee resulting from such injury, within thirty days after such death.
Such notice may be given by any person claiming to be entitled to compensa¬
tion, or by some one in his behalf. The notice shall be in writing, and
contain the name and address of the employee and state in ordinary language
the time, place, nature and cause of the injury, and be signed by him or b^a
person on his behalf or, in case of death, by any one or more of his de¬
pendents or by a person on their behalf. Ii shall be given to the commission
by sending it by mail, by registered letter, addressed to the commission at its
office. It shall be given to the employer by delivering it to him or sending
it by mail, by registered letter, addressed to the employer at his or its last
known place of residence; provided that, if the employer be a partnership
then such notice may be so given to any one of the partners, and if the
employer be a corporation, then such notice may be given to any agent or
officer thereof upon whom legal process may be served, or any agent in charge
of the business in the place where the injury occurred. The failure to give
such notice, unless excused by the commission either on the ground that
•notice for some sufficient reason could not have been given, or on the ground
that the state fund, insurance company, or employer, as the case may be,
has not been prejudiced thereby, shall be a bar to any claim under this
chapter.
In regard to evidence of accidental Injury, §§ 18, 21 and 111 are to be read
together. Instances of the Commission's excuse of the employer for failure to give
timely notice are : Rlst v. Larkln & Sangster, S. D. R., vol. 5, p. 881, and Blrn
V. Bradley Contracting Co., S. D. R., vol. 6, p. 319 ; Instances of Its refusal to excuse
are : Opitz v. Tletze, S. D. H., vol. 6, p. 347, and Graf v. Brooklyn Rapid Transit
Co., S. D. R., no. 37, p. 105.
§ 19. Medical examination.— An employee injured claiming or entitled to
compensation under this chapter shall, if requested by the commission, submit
himself for medical examination at a time, and from time to time, at a place
reasonably convenient for the employee, and as may be provided by the rules
of the commission. If the employee or the insurance carrier request he shall
be entitled to have a physician or physicians of his own selection to be paid
by him present to participate in such examination. If an employee refuse to
submit himself to examination, his right to prosecute any proceeding under
this chapter shall be suspended, and no compensation shall be payable, for the
period of such refusal.
§ 20. Determination of claims for compensation.— At any time after the
expiration of the first fourteen days of disability on the part of an injured
employee, or at any time after his death, a claim for compensation may
be presented to the employer and if rejected or if within ten days after
presentation, a report containing an agreement for compensation be not made
and filed with the commission as provided by this section, the claim may
be presented to the commission. The commission shall have full power and
18
authority to determine all questions in relation to tlie payment of claims
presented to it for compensation under the provisions of this chapter. The
commission shall make or cause to be made such investigations as it deems
necessary, and upon application of either party, shall order a hearing,
and within thirty days after a claim for compensation is submitted under
this section, or such hearing closed, shall make or deny an award, deter¬
mining such claim for compensation, and file the same in the office of the
commission, together with a statement of its conclusions of fact and rulings
of law. The commission may before making an award, require the claimant
to appear before an arbitration committee appointed by it and consisting
of one representative of employees, one representative of employers, and
either a member of the commission or a person specially deputized by the
commission to act as chairman, before which the evidence in regard to the
claim shall be adduced and by which it shall be considered and reported
upon. Immediately after such filing the commission shall send to the parties
a copy of the decision. Upon a hearing pursuant to this section either
party may present evidence and be represented by counsel. The decision
of the commission shall be final as to all questions of fact, and, except as
provided in section twenty-three, as to all questions of law. When a claim
is presented to an employer, and the employer and employee, or in case of
death, his principal dependent, enter into an agreement for the payment of
compensation therefor pursuant to this chapter, a joint report of such
claim containing such agreement shall be made to the commission upon a'
form prepared by it and signed by the employer and employee, or in case
of death his principal dependent. The commission shall examine such re¬
port and approve the same when the terms are strictly in accordance with
this chapter and sueh approval shall constitute an award. However, the
commission may make an award in the manner provided in this section
in any case, and if the terms of the award vary from the joint report, the
employer shall comply with the award. In case of unfair dealing or of bad
faith on the part of the employer under this section, the commission may
impose a penalty of not more than ten per centum of the award. [As am'd
by L. 1915, ch. 167.]
Even when the evidence Is meagre, the court holds that It should not Interfere
with a decision of the Commission. Powley v. Vivian & Co., 169 App. Dlv. 177.
Relative to court review, compare §§23 and 68.
For an Instance of modification of an agreement by the Commission, compare
Rudewlcz V. Wendell & Evans Co., S. D. B., vol. 6, p. 408.
§ 20-a. Payment of moneys in advance of award by commission.— Any
employer shall upon the making of the agreement provided for in section
twenty advance to any injured employee or to the principal dependent of a
deceased employee, the payment or payments provided for in the agreement,
in return for which he shall receive a receipt on a form supplied by the com¬
mission and signed by the person receiving the money, which receipt shall
specifically state in what capacity the signer acted while so receiving such
money; such receipt shall be forwarded to the commission within forty-eight
hours after date of its issuance and the sum stated on its face shall be returned
to said employer as provided in section twenty-five.
Prior to the making of said agreement or in the event of no agreement.
19
any employer may at his option advance to any injured employee or to the
principal dependent of a deceased employee any sum of money, in return
for which he shall receive a receipt on a form supplied by the commission
and signed by the person receiving the money, which receipt shall specificall}
state in what capacity the signer acted while so receiving such money; such
receipt shall be forwarded to the commission within forty-eight hours after
date of its issuance. Should any agreement or award be made the sum
so stated on the face of the receipt shall be credited to the payment under
the award or agreement and shall be repaid as hereinbefore provided.
Any money so advanced shall be at the employer's risk. [Added iy L. 1915,
ch. 168.] ^
§ 21. Presumptions.— In any proceeding for the enforcement of a claim for
compensation under this chapter, it shall be presumed in the absence of
substantial evidence to the contrary
1. That the claim comes within the provisions of this chapter;
2. That sufficient notice thereof was given;
3. That the injury was not occasioned by the willful intention of the in¬
jured employee to bring about the injury or death of himself or of another;
4. That the injury did not result solely from the intoxication of the injured
employee while on duty.
The constitutionality of the presumption in subd. 1 is upheld in McQueeney v.
Sutphen & Myer, 167 App. Div. 528.
Defendant must offer evidence to the Commission ; otherwise the claim is pre¬
sumptively legal : McQueeney v. Sutphen & Myer, 167 App. Div. 528 ; Kohier v.
Frohmann, 167 App. Div. 533 ; Powley v. Vivian & Co., 169 App. Div. 177.
The presumptions of § 21 are as operative and binding in the court upon appeal
as in the Commission : Rhelnwald v. Builders' Brick & Supply Co., 168 App. Div.
433 ; compare also White v. N. Y. Central & H. R. R. R. Co., S. D. R., vol. 2, p. 477,
as affirmed by the courts without opinion, 169 App. Div. 903 ; 216 N. Y. 653. The
Commission may not presume that an accident happened : Hyland v. Winant,
S. D. R., vol. 6, p. 304.
§ 22. Modification of award.— Upon its own motion or upon the application
of any party in interest, on the ground of a change in conditions, the com¬
mission may at any time review any award, and, on such review, may make
an award ending, diminishing or increasing the compensation previously
awarded, subject to the maximum or minimum provided in this chapter, and
shall state its conclusions of fact and rulings of law, and shall immediately
send to the parties a copy of the award. No such review shall affect such
award as regards any monej'S already paid.
Compare § 74.
§ 23. Appeals from the commission.— An award or decision of the commis¬
sion shall be final and conclusive upon all questions within its jurisdiction,
as against the state fund or between the parties, unless within thirty days
after a copy of such award or decision has been sent to the parties, an
appeal be taken to the appellate division of the supreme court of the third
department. The commission may also, in its discretion, on the application
of either party, certify to such appellate division of the supreme court, ques¬
tions of law involved in its decision. Such appeals and the questions so
certified shall be heard in a summary manner and shall have precedence over
all other civil cases in such court. The commission shall be deemed a party
20
to every such appeal, and the attorney-general, without extra compensation,
shall represent the commission thereon. An appeal may also be taken to
the court of appeals in all cases where the decision of the appellate division
is not unanimous and by the consent of the appellate division or a judge of
the eourt of appeals where the decision of the appellate division is unanimous
in the same manner and subject to the same limitations not inconsistent here¬
with as is now provided in civil actions. It shall not be necessary to file
exceptions to the rulings of the commission. The commission shall not be
required to file a bond upon an appeal by it to the court of appeals. Other¬
wise such appeals shall be subject to the law and practice applicable to
appeals in civil actions. Upon the final determination of such an appeal,
the commission shall make an award or decision in accordance therewith.
[As am'd by L. 1916, ch. 622.]
Prior to amendment oí § 23 by L. 1916, ch. 622, an employer Insured in the
state fund could not appeal from the Commission to the courts : Crockett v. Inter¬
national Railway Co., 170 App. Div. 122. The amendment of § 23 by L. 1916,
ch. 622, regulating appeals from the Appellate Division to the Court of Appeals
may he read in connection with Harnett v. Steen Co., 216 N. Y. 101. The law
governing appeals in civil actions is the Code of Civil Procedure, §§ 190, 191, as
based on the Constitution of New York, Art. 6, |§ 1, 9. The amendment relative
to filing of exceptions, etc., is in line with the decision in Kenny v. Union Railway
Co., 166 App. Div. 497. The right of appeal is restricted by the sentence in § 20,
which declares ; " The decision of the Commission shall be final as to ail questions
of fact, and except as provided in section twenty-three, as to all questions of law."
For the right of the courts to review the evidence in compensation cases, compare
note to § 68.
§ 24. Costs and fees.— If the commission or the court before which any
proceedings for compensation or concerning an award of compensation have
been brought, under this chapter, determines that such proceedings have not
been so brought upon reasonable ground, it shall assess the whole cost of
the proceeding upon the party who has so brought them. Claims for legal
services in connection with any claim arising under this chapter, and claims
for services or treatment rendered or supplies furnished pursuant to sec¬
tion thirteen of this chapter, shall not be enforceable unless approved by
the commission. If so approved, such claim or claims shall become a lien
upon the compensation awarded, but shall be paid therefrom only in the
manner fixed by the commission.
See also § 13.
A physician cannot maintain an action against an employer under an employee's
assignment of compensation for medical services : Bloom v. JaCfe, 94 Misc. 222.
§ 25. Compensation, how payable.— Compensation under the provisions of
this chapter shall be payable periodically by the employer, in accordance
with the method of pa3mient of the wages of the employee at the time of his
injury or death, and shall be so provided for in any award; but the com¬
mission may determine that any payments may be made monthly or at
any other period, as it may deem advisable. The state or insurance cor¬
poration in which an employer is insured shall, within ten days after demand
by such employer and on the presentation of evidence of payment of com¬
pensation in accordance with this chapter, reimburse the employer therefor.
An injured employee, or in case of death his dependents or personal repre¬
sentative, shall give receipts for payment of compensation to the employer
21
paying the same and such employer shall forwai'd receipts therefor promptly
to the commissicTn. The commission, whenever it shall so deem advisable,
may commute such periodical payments to one or more lump sum payments
to the injured employee or, in case of death, his dependents, provided the
same shall be in the interest of justice. [As am'd hy L. 1915, ch. 167.]
Compare § 17.
§ 26. Enforcement of payment in default.— If payment of compensation,
or an instalment thereof, due under the terms of an award, be not made
by the employer within ten days after the same is due, the insurance carrier
shall be liable therefor and if not paid within ten days after demand by the
injured employee or in case of death his dependents or by the commission,
the amount of such payment shall constitute a liquidated claim for damages
against the employer, self-insurer or insurance corporation, which with an
added penalty of fifty per centum may be recovered in an action to be insti¬
tuted by the commission in the name of the people of tlie state. An employer
who negligently or intentionally defaults in payment of compensation in the
tiie first instance under this chapter shall be liable to a penalty of not more
than ten per centum of the amount of such compensation, notwithstanding the
fact that the insurance corporation or state fund subsequently pays the
«íompensation as provided in this section. If such default be made in the
payment of an instalment of compensation and the whole amount of such
compensation be not due, the commission may, if the present value of such
compensation be computable, declare the whole amount thereof due, and
recover the amount thereof with the added penalties, as provided by this
section. Any such action may be compromised by the commission or may
bo prosecuted to final judgment as, in the discretion of the commission, may
best serve the interests of the persons entitled to receive the compensation
or the benefits. Compensation recovered under this section shall be dis¬
bursed by the commission to the persons entitled thereto in accordance
with the award. A penalty recovered pursuant to this section shall be paid
into the state treasury, and be applicable to the expenses of the commis¬
sion.
In case of default by the employer in the payment of any compensation
due under an award for the period of thirty days after payment is due and
payable, any party in interest may file with the county clerk for the county
in which the injury occurred, a certified copy of a decision of the state indus¬
trial commission awarding compensation, or ending, diminishing or increasing
compensation previously awarded, from which no appeal has been taken within
the time allowed therefor, and thereupon judgment must be entered in the
supreme court by the clerk of such county in conformity therewith immedi¬
ately upon the filing of such decision. Such decree or judgment shall be
entered in the same manner and shall have the same effect and all proceed¬
ings in relation thereto shall thereafter be the same, as though said decree or
judgment liad been rendered in a suit duly heard and determined by the
supreme court, except that there shall be no appeal therefrom. The court
upon the filing with it of a certified copy of a decision of the state indus¬
trial commission ending, diminishing or increasing compensation previously
awarded, shall revoke or modify its prior decree or judgment so that it will
conform to said decision. Neither the commission nor any party in interest
22
shall be required to pay any fee to any public officer for filing or recording
any paper or instrument executed in pursuance of this section. [As am'd by
L. I'Jie, ch. 622.]
§ 27. Depositing future payments.— If an award under this chapter requires
payment of compensation by an employer or an insurance corporation in
periodical payments, and the nature of the injury makes it possible to
compute the present value of all future payments with due regard for life
contingencies, the commission may, in its discretion, at any time, compute
and permit or require to be paid into the state fund an amount equal to the
present value of all unpaid compensation for which liability exists, together
with such additional sum as the commission may deem necessary for a pro¬
portionate payment of e.xpenses of administering the fund so created, such
moneys to constitute an aggregate trust fund; and thereupon such employer
or insurance corporation shall be discharged from any further liability under
such award and payment of the same shall be assumed by the trust fund so
created.
The moneys so paid into this fund shall constitute an aggregate trust fund
and shall be kept separate and apart from all other moneys of the state
fund, and shall not be liable for any expenses of administration of the state
fund other than the expenses involved in the administration of such trust
fund. [As am'd by L. 1916, ch. 622.]
§ 28. Limitation of right to compensation.— The right to claim compensa¬
tion under this chapter shall be forever barred unless within one year
after the injury or if death result therefrom, within one year after such
death, a claim for compensation thereunder shall be filed with the com¬
mission.
§ 29. Subrogation to remedies of employees.— If an employee entitled to
compensation under this chapter be injured or killed by the negligence or
wrong of another not in the same employ, such injured employee, or in
case of death, his dependents, shall, before any suit or claim under this
chapter, elect whether to take compensation under this chapter or to pursue
his remedy against such other. Such election shall be evidenced in such
manner as the commission may by rule or regulation prescribe. If he elect
to talvc compensation under this chapter, the cause of action against such
other shall be assigned to the state for the benefit of the state insurance
fund, if compensation be payable therefrom, and otherwise to the person,
association, corporation, or insurance carrier liable foi' the payment of such
compensation, and if he elect to proceed against such other, the state insur¬
ance fund, person, association, corporation, or insurance carrier, as the case
may be, shall contribute only the deficiency, if any, between the amount of
the recovery against such other person actually collected, and the compensa¬
tion provided or estimated by this chapter for such case. Such a cause
of action assigned to the state may be prosecuted or compromised by the
commission. A compromise of any such cause of action by the employee or
his dependents at an amount less than the compensation provided for by this
chapter shall be made only with the written approval of the commission, if
the deficiency of compensation would be payable from the state insurance
fund, and otherwise with the written approval of the person, association,
corporation, or insurance carrier liable to pay the same. Wherever an
employee is killed by the negligence or wrong of another not in the same
23
employ and the dependents of such employee entitled to compensation under
this chapter are minors, such election to take compensation and the assignment
of the cause of action against such other and such notice of election to pursue
a remedy against such other shall be made by such minor, or shall be made
on behalf of such minor by a parent of such minor, or by his or her duly
appointed guardian, as the commission may determine by rule in each case.
[As am'd hy L. 1916, ch. 622.]
In Winter v. Doelger Brewing Co., May, 1916, the Supreme Court sustained an
action of the employee against his employer as a third party, though the employer
had secured compensation. The building where the accident, the collapse of an
elevator, occurred, was owned by the employer but was entirely disconnected with
his place of business.
An employee who has elected compensation and received an award Is estopped
from an action for damages : Miller v. New York Railways Co., 171 App. Dlv. 316.
An employee may maintain an action for negligence without evidencing his elec¬
tion under this section, but failure so to do excludes him from deficiency com¬
pensation : Lester v. Otis Elevator Co., 169 App. Dlv. 613.
Release of a third party by the Injured employee, with or without consideration,
does not debar the employee from compensation or the employer's Insurance carrier
from an action for negligence : Woodward v. Conklln & Son, Appellate Division,
March, 1916.
§ 30. Revenues or benefits from other sources not to afiect compensation.
— No benefits, savings or insurance of the injured employee, independent of
the provisions of this chapter, shall be considered in determining the com¬
pensation or benefits to be paid under this chapter, except that, in case of
the death of an employee of the state, a municipal corporation or any other
political subdivision of the state, any benefit payable under a pension system
which is not sustained in whole or in part by the contributions of the em¬
ployee, may be applied toward the payment of the death benefit provided
by this chapter. iSection 30 am'd hy L. 1914, ch. 316.]
§ 31. Agreement for contribution by employee void.— No agreement by
an employee to pay any portion of the premium paid by his employer to the
state insurance fund or to contribute to a benefit fund or department main¬
tained by such employer or to the cost of mutual insurance or other insur¬
ance, maintained for or carried for the purpose of providing compensation
as herein required, shall be valid, and any employer who makes a deduction
for such purpose from the wages or salary of any employee entitled to the
benefits of this chapter shall be guilty of a misdemeanor.
§ 32. Waiver agreements void.— No agreement by an employee to waive
his right to compensation under this chapter shall be valid.
contract provision by which each party exempts the other from all acts of fault
or omission Is Ineffective : Powley v. Vivian & Co., 169 App. Dlv. 176.
§ 33. Assignments; exemptions.— Claims for compensation or benefits due
under this chapter shall not be assigned, released or commuted except as
provided by this chapter, and shall be exempt from all claims of creditors
and from levy, execution and attachment or other remedy for recovery or
collection of a debt, which exemption may not be waived. Compensation and
benefits shall be paid only to employees or their dependents.
" Except as provided," compare § 29.
Release of the employer by an administrator for a consideration does not debar
dependents from compensation : Buell v. N. Y. C. & H. R. R. R. Co., S. D. R., vol. 6,
pp. 361, 377. See also note under § 29.
24
An employee may not assign to his physician an award of compensation for
medical tyeatmeut ; Bloom v. Jaffo, 94 Misc. 222.
§ 34. Preferences.— ïlie riglit of compensation granted by this cliapter ami
any awards made thereunder shall have the same preference or lien without
limit of amount against the assets of the employer as is now or hereafter may
he allowed hy law for a claim for unpaid wages for labor, [.is am'd by L.
1916, ch. 622.]
AKTICLE 3
Security for Compensation
Section 50. Security for payment of compensation.
51. Posting of notice regarding compensation.
52. Effect of failure to secure compensation.
53. Release from all liability.
54. The Insurance contract.
§ 50. Security for payment of compensation.— An employer shall secure
compensation to his employees in one of the following ways:
1. By insuring and keeping insured the payment of such compensation
in the state fund, o.r
2. By insuring and keeping insured the payment of such compensation
with any stock corporation or mutual association authorized to transact the
business of workmen's compensation insurance in this state. If insurance
he so effected in such a corporation or mutual association the employer shall
forthwith file with the commission, in form prescribed by it, a notice speci¬
fying the name of such insurance corporation or mutual association and such
information regarding the policies as the commission may require. [Subd. 2
am'd by L. 1916, ch. 622.]
Mutual employers' liability and workmen's compensation corporations are governed
by the Insurance law, §§ 185-194, as added by L. 1913, ch. 832, and amended hy
L. 1915, ch. 506, and § G7, as added by L. 1914, ch. 16.
3. By furnishing satisfactory proof to the commission of his financial
ability to pay such compensation for himself, in which case the commission
may, in its discretion, require the deposit with the commission of securities
of the kind prescribed in section thirteen of the insurance law, in an amount
to he determined hy the commission, to secure his liability to pay the com¬
pensation provided in this chapter. The commission shall have the authority
to revoke its consent furnished under this section at any time for good cause
shown.
If an employer fail to comply with this section, he shall he liable to a
penalty during which such failure continues of an amount equal to the
pro rata premium which would have been payable for insurance in the state
fund for such period of noncompliance to he recovered in an action brought
by the commission.
The commission may, in its discretion, for good cause shown, remit any
such penalty, provided the employer in default secure compensation as pro¬
vided in this section. [/Sw6d. 3 am'd by L. 1914, ch. 316; and L. 1916, ch.
622.]
§ 51. Posting of notice regarding compensation.—Every employer who
has complied with section fifty of this chapter shall post and maintain in a
25
conspicuous place or places la and about his place or places ®f business type¬
written or printed notices in form prescribed by the commission, stating the
fact that he has complied with all the rules and regulations of the commission
and that he has secured the pajonent of compensation to his employees and
their dependents in accordance with the provisions of this chapter.
§ 52. Effect of failure to secure compensation.— Failure to secure the pay¬
ment of compensation shall constitute a misdemeanor ánd have the effect of
enabling the injured employee, or in case of death, his dependents or legal
representatives, to maintain an action for damages in the courts, as prescribed
by section eleven of this chapter. [As am'd by L. 1016, ch. 622.]
Compare note to § 11.
§ 53. Release from all liability.— An employer securing the payment of
compensation by contributing premiums to the state fund shall thereby
become relieved from all liability for personal injuries or death, sustained
by his employees, and the persons entitled to compensation under this
chapter shall have recourse therefor only to the state fund and not to the
employer. An employer shall not otherwise be relieved from the liabi'Wty
for compensation prescribed by this chapter except by the payment thereof
by himself or his insurance carrier.
Compare amendment to § 11, effected by L. 1916, ch. 622 ; compare also, on ques¬
tion of protection, Jensen v. Southern Paciftc Co., 213 N. Y. 514 ; McQueeney v.
Sutphen & Myer, 167 App. Dlv. 528 ; Crockett v. International Railway Co., 170
App. Div. 122.
§ 54. The insurance contract.— 1. Right of recourse to the insurance carrier.
Every policy of insurance covering the liability of the employer for com¬
pensation issued by a stock company or by a mutual association authorized
to transact workmen's compensation insurance in this state shall contain a
provision setting forth the right of the commission to enforce in the name
of the people of the state of New York for the benefit of the person entitled
to the compensation insured by the policy either by filing a separate appli¬
cation or by making the insurance carrier a party to the original application,
the liability of the insurance carrier in whole or in part for the payment of
such compensation; provided, however, that payment in whole or in part of
such compensation by either the employer or the insurance carrier shall
to the extent thereof be a bar to the recovery against the other of the amount
so paid.
2. Knowledge and jurisdiction of the employer extended to cover the insur¬
ance carrier. Every such policy shall contain a provision that, as between
the employee and the insurance carrier, the notice to or knowledge of the
occurrence of the injury on the part of the employer shall be deemed notice
or knowledge, as the case may be, on the part of the insurance carrier; that
jurisdiction of the employer shall, for the purpose of this chapter, be juris¬
diction of the insurance carrier and that the insurance carrier shall in all
things be bound by and subject to the orders, findings, decisions or awards
rendered against the employer for the payment of compensation under the
provisions of this chapter.
3. Insolvency of employer does not release the insurance carrier. Every
such policy shall contain a provision to the effect that the insolvency or bank¬
ruptcy of the employer shall not relieve the insurance carrier from the pay-
26
ment of compensation for injuries or death sustained by an employee during
the life of such policy.
4. Limitation of indemnity agreements. Every contract or agreement of
an employer the purpose of which is to indemnify him from loss or damage
on account of the injury of an employee by accidental means, or on account
of the negligence of such employer or his ofBcer, agent or servant, shall be
absolutely void unless it shall also cover liability for the payment of the com¬
pensation provided for by this chapter.
5. Cancellation of insurance contracts. No contract of insurance issued by
an insurance carrier against liability arising under this chapter shall be can¬
celled within the time limited in such contract for its expiration until at
least ten days after a notice of cancellation of such contract, on a date speci¬
fied in such notice, shall be filed in the office of the commission and also
served on the employer. Such notice shall be served on the employer by
delivering it to him or by sending it by mail, by registered letter, addressed
to the employer at his or its last known place pf residence; provided that, il
the employer be a partnership, then such notice may be so given to any one
of the partners, and if the employer be a corporation then the notice may be
given to any agent or officer of the corporation upon whom legal process may
be served. Provided, however, the right to cancellation of a policy of insur¬
ance in the state fund shall be exercised only for nonpayment of premiums.
[Subd. 5 am'd by L. 1916, ch. 622.]
Sections 54 and 20 are to be read together. The Commission has full jurisdic¬
tion of disputes between employer and insurer according to an opinion of the
Attorney-General rendered August 16, 1915. Compare McCaffrey v. Tager Contract¬
ing Co., S. D. E., vol. 5, p. 434 ; and Bloom v. Tilin & Bleek, S. D. R., vol. 5, p. 441.
6. Any insurance carrier may issue policies, including with emploj'.ees,
employers who perform labor incidental to their occupations, such policies
insuring to such emjiloyers the same compensations provided for their
employees, and at the same rates; provided, however, that the estimation of
their wage values, respectively, shall be reasonable and separately stated in
and added to the valuation of their pay rolls upon which their premium is
computed. The employer so insured shall have the same rights and remedies
given an employee by this cliapter. [Subd. 6 added by L. 1916, ch. 622.]
ARTICLE 4
State Wokkmen's Compensation Commission
Section 60. State workmen's compensation commission.*
61. Secretary, deputies and other employees.*
62. Salaries and expenses.
63. Office.
04. Sessions of commission.
65. Powers of individual commissioners and deputy commissioners.
66. Powers and duties of secretary.
67. Rules.
68. Technical rules of evidence or procedure not required.
* §§ 60, 61, of the Workmen's Compensation Law were repealed, and the functions
of the Workmen's Compensation Commission transferred to the newly created In¬
dustrial Commission, by L. 1915, ch. 674, §§ 2—8. For organization and functions of
the Industrial Commission, compare Labor Law, §§ 40-52-e.
27
Section 69. Issue of subpoena ; penalty for failure to obey.
70. Recalcitrant witnesses punishable as for contempt.
71. Fees and mileage of witnesses.
72. Depositions.
73. Transcript of stenographer's minutes ; effect as evidence.
74. Jurisdiction of commission to be continuing.
75. Report of commission.
76. Commission to furnish blank forms.
77. Expenses of administering commission.
§ 62. Expenses.— The commission may make the necessary expenditure to
obtain statistical and other information to establish classifications of employ¬
ments with respect to hazards and risks. The expenses of the commission,
including the premiums to be paid by the state treasurer for the bond to
be furnished by him, shall be paid out of the state treasury upon vouchers
signed by at least two commissioners. [As ain'd by L. 1915, ch. 674.]
§ 63. Office.— The commission shall keep and maintain its principal office
in the city of Albany, in rooms in the capitel assigned by the trustees of
public buildings. The office shall be supplied with necessary office furniture,
supplies, books, maps, stationery, telephone connections and other necessary
appliances, at the expense of the state, payable in the same manner as other
expenses of the commission.
§ 64. Sessions of commission.— The commission shall be in continuous
session and open for the transaction of business during all business hours
of every day excepting Sundays and legal holidays. All sessions shall be
open to the public and may be. adjourned, upon entry thereof in its records,
without further notice. Whenever convenience of parties will be promoted
or delay and expense prevented, the commission may hold sessions in cities
other than the city of Albany. A party may appear before such commis¬
sion and be heard in person or by attorney. Every vote and official act of the
.commission shall be entered of record, and the records shall contain a record
of each case considered, and the award, decision or order made with respect
thereto, and all voting shall be by the calling of each commissioner's name
by the secretary and each vote shall be recorded as cast. A majority of the
commission shall constitute a quorum. A vacancy shall not impair the right
of the remaining commissioners to exercise all the powers of the full com¬
mission so long as a majority remains.
§ 65. Powers of individual commissioners and deputy commissioners.—
Any investigation, inquiry or hearing which the commission is authorized
to hold or undertake may be held or taken by or before any commissioner
or deputy commissioner, and the award, decision or order of a commissioner
or deputy commissioner, when approved and confirmed by the commission
and ordered filed in its office, shall be deemed to be the award, decision or
order of the commission. Each commissioner and deputy shall, for the pur¬
poses of this chapter, have power to administer oaths, certify to official acts,
take depositions, issue subpoenas, compel the attendance of witnesses and the
production of books, accounts, papers, records, documents and testimony. The
commission may authorize any deputy to conduct any such investigation,
inquiry or hearing, in which case he shall have the power of a commissioner
in respect thereof.
28
§ 66. Powers and duties of secretary.— The secretary of the commission
shall:
1. Maintain a full and true record of all proceedings of the commission,
of all documents or papers ordered filed by the commission, of decisions or
orders made by a commissioner or deputy commissioner, and of all decisions
or orders made by the commission or approved and confirmed by it and
ordered filed, and he shall be responsible to the commission for the safe cus¬
tody and preservation of all such documents at its oflBce;
2. Have power to administer oaths in all parts of the state, so far as the
exercise of such power is properly incident to the performance of his duty
or that of the commission ;
3. Designate, from time to time, with the approval of the commission, one
of the clerks appointed by the commission to exercise the powers and duties
of the secretary during his absence;
4. Under the direction of the commission, have general charge of its office,
superintend its clerical business, and perform such other duties as the com¬
mission may prescribe.
The duties prescribed by this section devolve upon the secretary of the Industrial
Commission under the Labor Law, § 49.
§ 67. Rules.— The commission shall adopt reasonable rules, not inconsistent
with this chapter, regulating and providing for
1. The kind and eharacter of notices, and the service thereof, in case of
accident and injury to employees;
2. The nature and extent of tiie proofs and evidence, and the method of
taking and furnishing the same, to establish tiie right to compensation;
3. The forms of application for those claiming to be entitled to com¬
pensation ;
4. The method of making investigations, physical examinations and in¬
spections ;
5. The time within which adjudications and awards shall be made;
6. The conduct of hearings, investigations and inquiries;
7. The giving of undertakings by all subordinates who are empowered to
receive and disburse moneys, to be approved by the attorney-general as to
form and by the comptroller as to sufficiency;
8. Carrying into effect the provisions of this chapter.
9. The collection, maintenance and disbursement of the state insurance
fund. [Punctuation of § 67 am'd hy L. 1916, ch. 622.]
§ 68. Technical rules of evidence or procedure not required.— The com
mission or a commissioner or deputy commissioner in making an investigation
or inquiry or conducting a hearing shall not he bound by common law or
statutory rules of evidence or by technical or formal rules of procedure,
except as provided by this chapter; but may make such investigation or
inquiry or conduct such hearing in such manner as to ascertain the substantial
rights of the parties.
Section 67, above, requires the Commission to adopt reasonable rules of evidence,
not inconsistent with the Workmen's Compensation Law.
The courts have repeatediy emphasized the independence of precedents permitted
and suggested by this section : Rheinwald v. Builders' Brick & Supply Co.. 168 App.
Div. 425 ; Kenny v. Union Railway Co., 166 App. Div. 497 ; Carroll v. Knicker¬
bocker Ice Co., 169 App. Div. 450; Dale v. iSaunders Bros., 171 App. Div. 528; 218
N. Y. 59.
29
Section 20 makes the decisions of the Commission " tinai as to all questions of
fact." For the jurisdiction of the courts to review the evidence in compensation
cases, see Goldstein v. Centre Iron Works, 167 App. Div. 526 ; Carroll v. Knicker¬
bocker Ice Co., 169 App. Div. 450; Gardner v. Horseheads Construction Co., 171
App. Div. 66 ; Rhyner v. Hueber Building Co., 171 App. Div. 58. The opinion In
the Carroll case admits the validity of hearsay evidence; the opinion in the Rhyner
case declares that " if there are no facts in the case * * * a question of law
arises " which gives the courts jurisdiction.
§ 69. Issue of subpoena; penalty for failure to obey.— A subpoena shall
be signed and issued by a commissioner, a deputy commissioner or by the
secretary of the commission and may be served by any person of full age
in the same manner as a subpoena issued out of a court of record. If a per¬
son fail, without reasonable cause, to attend in obedience to a subpoena, or
to be sworn or examined or answer a question or produce a book or paper,
or to subscribe and swear to his deposition after it has been eorrectly reduced
to writing, he shall be guilty of a misdemeanor,
§ 70. Recalcitrant witnesses punishable as for contempt.— If a person in
attendance before the commission or a commissioner or deputy commissioner
refuses, without reasonable cause, to be examined, or to answer a legal and
pertinent question or to produce a book or paper, when ordered so to do by
the commission or a commissioner or deputy commissioner, the commission
may apply to a justice of the supreme court upon proof by afhdavit of the
facts for an order returnable in not less than two nor more than five days
directing such person to show cause before the justice who made the order,
or any other justice of the supreme court, why he should not be committed to
jail. Upon the return of such order the justice shall examine under oath
such person and give him an opportunity to be heard; and if the justice
determine that he has refused without reasonable cause or legal excuse to be
examined or to answer a legal and pertinent question, or to produce a book
or paper which he was ordered to bring, he may forthwith, by warrant, com¬
mit the offender to jail, there to remain until he submits to do the act which
he was so required to do or is discharged according to law.
§ 71. Fees and mileage of witnesses.— Each witness who appears in
obedience to a subpoena before the commission or a commissioner or deputy
commissioner, or person employed by the commission to obtain the required
information, shall receive for his attendance the fees and mileage provided
for witnesses in civil cases in the supreme court, which shall be audited and
paid from the state treasury in the same manner as other expenses of the
commission. A witness subpoenaed at the instance of a party other than
the commission, a commissioner, deputy commissioner or person acting under
the authority of the commission shall be entitled to fees or compensation from
the state treasury, if the commission certify that his testimony was material
to the matter investigated, but not otherwise.
§ 72. Depositions.— The commission may cause depositions of witnesses
residing within or without the state to be taken in the manner prescribed by
law for like depositions in civil actions in the supreme court.
§ 73. Transcript of stenographer's minutes; effect as evidence.— A tran¬
scribed copy of the testimony, evidence and procedure or of a specific part
thereof, or of the testimony of a particular witness or of a specific part thereof,
on any investigation, by a stenographer appointed by the commission, being
certified by such stenographer to be a true and correct transcript thereof and
30
to have been carefully compared by bim with bis original notes, may be
received in evidenee by the commission with the same effect as if such ste¬
nographer were present and testified to the facts so certified, and a copy of
such transcript shall be furnished on demand to any party upon payment
of the fee provided for a transcript of similar minutes in the supreme court.
§ 74. Jurisdiction of commission to be continuing.— The power and jurisdic¬
tion of the commission over each case shall be continuing, and it may, from
time to time, make such modification or change with respect to former find¬
ings or orders relating thereto, as in its opinion may be just.
Compare § 22.
§ 75. Report of commission— Annually on or before the first day of Febru¬
ary, the commission shall make a report to the legislature, which shall include
a statement of the number of awards made by it and the causes of the acci¬
dents leading to the injuries for which the awards were made, a detailed
statement of the expenses of the commission, the condition of the state insur¬
ance fund, together with any other matter which the commission deems
proper to report to the legislature, including any recommendations it may
desire to make.
Ij. 1916, ch. 622, although Including it, made no change in this section.
§ 76. Commission to furnish blank forms.— The commission shall prepare
and cause to be distributed so that the same may be readily available blank
forms of application for compensation, notice to employers, proofs of injury
or death, of medical or other attendance or treatment, of employment and
wage earnings, and for such other purposes as may be required. Insured
employers shall constantly keep on hand a sufficient supply of such blanks.
§ 77. Expenses of administering commission.— As soon as practicable after
July first, nineteen hundred and seventeen, and annually thereafter, the com¬
mission shall ascertain the total amount of its expenses incurred during the
preceding fiscal year, in connection with the administration of the workmen's
compensation law, and shall thereupon assess upon and collect from each
insurance carrier, including the state insurance fund, the proportion of such
expense that the total compensation or payments made by such carrier in
such year bore to the total compensation or payments made by all insurance
carriers. The amounts so secured shall be transferred to the state treasury
to reimburse it for this portion of the expense of administering this chapter.
lAdded ly L. 1916, ch. 622.]
Compare § 94. Under §1 26 and 110 all penalties imposed by the Workmen's
Compensation Law are applicable to the expenses of the Commission. For refer¬
ences to penalties, see note to § 110.
ARTICLE 5
State Insitkance Fund
Creation of state fund.
State treasurer custodian of fund.
Surplus and reserve.
Investment of surplus or reserve.
Administration expense.
Classification of risks and adjustment of premiums.
Associations for accident prevention.
Requirements in classifying employment and fixing and adjusting
premium rates.
Section 90.
91.
92.
93.
94.
95.
96.
97.
31
Section 08. Time of payment of premiums.
09. Action for collection in case of default.
100. Withdrawal from fund.
101. Audit of payrolls.
102. Falsification of payroll.
103. Wilful misrepresentation.
104. Inspections.
105. Disclosures prohibited.
106. Reports of state Insurance fund ; examination by Insurance department.
§ 90. Creation of state fund.— There is hereby created a fund to be known
as " the state insurance fund," for the purpose of insuring employers against
liability under this ohapter and of assuring to the persons eaititled thereto
the compensation provided by this chapter. Such fuhd shall consist of all
premiums received and paid into the fund, of property and securities acquired
by and through the use of moneys belonging to the fund and of interest
earned upon moneys belonging to the fund and deposited or invested as
herein provided. Such fund shall be administered by the commission with¬
out liability on the part of the state beyond the amount of such fund. Such
fund shall be applicable to the payment of losses sustained on account of
insurance and to the payment of expenses in the manner provided in this
chapter.
§ 91. State treasurer custodian of fund.— The state treasurer shall be the
custodian of the state insurance fund; and all disbursements therefrom shall
be paid by him upon vouchers authorized by the commission and signed by
any two members thereof. The state treasurer shall give a separate and
additional bond in an amount to be fixed by the governor and with sureties
appreved by the state comptroller conditioned for the faithful performance
of his duty as custodian of the state fund. The state treasurer may deposit
any portion of the state fund not needed for immediate use, in the manner
and subject to all the provisions of law respecting the deposit of other state
funds by him. Interest earned by such portion of the state insurance fund
deposited by the state treasurer shall be collected by him and placed to the
credit of the fund.
§ 92. Surplus and reserves.— Ten per centum of the premiums collected from
employers insured in the fund shall be set aside by the commission for the
creation of a surplus until such surplus shall amount to the sum of one hun¬
dred thousand dollars, and thereafter five per centum of such premiums,
until such time as in the judgment of the commission such surplus shall be
suflBciently large to cover the catastrophe hazard. The commission shall
also set up and maintain reserves adequate to meet anticipated losses and
carry all claims and policies to maturity, which reserves shall be computed
in accordance with such rules as shall be approved by the superintendent of
insurance. [As am'd by L. 1916, ch. 622.]
§ 93. Investment of surplus or reserve.— Any of the surplus or reserve
funds belonging to the state insurance fund may, pursuant to a resolution of
the commission approved by the superintendent of insurance, be invested in
or loaned on the pledge of any of the securities in which deposits of insurance
corporations are required to be invested pursuant to section thirteen of the
insurance law, or in the public stocks or bonds of any one of the United
States, or in bonds and mortgages on improved unenciunbered real property in
this state worth fifty per centum more than the amount loaned thereon. All
32
such securities or evidences of indebtedness shall be placed in the hands of
the state treasurer who shall be the custodian thereof. He shall collect the
principal and interest thereof, when due, and pay the same into the state
insurance fund. The state treasurer shall pay all vouchers drawn on the
state insurance fund for the making of such investments when signed by
two members of the commission, upon delivery of such securities or evi¬
dences of indebtedness to him, when there is attached to such vouchers a
certified copy of the resolution of the commission authorizing the investment.
The commission may, upon like resolution approved by the superintendent of
insurance, sell any of such securities. [As am'd hy L. 1916, ch. 622.]
§ 94. Administration expense.— The entire expense of administering the
state insurance fund shall be paid in the first instance by the state, out of
moneys appropriated therefor. In the month of July, nineteen hundred and
seventeen, and annually thereafter in such month, the commission shall ascer¬
tain the just amount incurred by the commission during the preceding fiscal
year, in the administration of the state insurance fund, and shall refimd
such amount to the state treasury. If there be employees of the commission
other than the commissioners themselves and the secretary whose time is
devoted partly to the general work of the commission and partly to the work
of the state insurance fund, and in case there is other expense which is
incurred jointly on behalf of the general work of the commission and the
state insurance fund, an equitable apportionment of the expense shall be made
for such purpose and the part thereof which is applicable to the state insur¬
ance fund shall be chargeable thereto. [As am'd by L. 1916, ch. 622.]
Under §§26 and 110 all penalties Imposed by the Workmen's Compensation Law
are applicable to the expenses of the Commission.
§ 95. Classification of risks and adjustment of premiums.— Employments
coming under the provisions of this chapter shall be divided for the purposes
of the state fund, into the groups set forth in section two of this chapter.
¡Separate accounts shall be kept of the amounts collected and expended in
respect to each such group for convenience in determining equitable rates;
but for the purpose of paying compensation the state fund shall be deemed
one and indivisible. The commission shall have power to rearrange any of
the groups set forth in section two by withdrawing any employment em¬
braced in it and transferring it wholly or in part to any other group, and
from such employments to set up new groups at its discretion. The com¬
mission shall determine the hazards of the different classes composing each
group and fix the rates of premiums therefor based upon the total payroll
and number of employees in each of such classes of employment at the lowest
possible rate consistent with the maintenance of a solvent state insurance
fund and the creation of a reasonable surplus and reserve; and for such
purpose may adopt a system of schedule rating in such a manner as to take
account of the peculiar hazard of each individual risk.
The limitations upon the power of the Commission to group a single employer
by himself for rating and dividend purposes have been set forth in an opinion of
the Attorney-Generai, S, D. R., vol. 6, p. 476, January 26, 1916.
Under § 67 of the Insurance Law, added by L. 1914, ch. 16, risks and premiums
of workmen's compensation, other than those of the state fund, must be filed hy
private insurance corporations or associations with the superintendent of insurance
and must be approved by him before going into effect.
33
§ 96. Associations for accident prevention.— The employers in any of the
groups described in section two or established by the commission may with
the approval of the commission form themselves into an association for
accident prevention, and may make rules for that purpose. If the commission
is of the opinion that an association so formed sufficiently represents the
employers in such group, it may approve such rules, and when so approved
and approved by the industrial board of the labor department they shall be
binding on all employers in such group. If such an approved association
appoint an inspector or expert for the purpose of accident prevention, the
commission may at its discretion provide in whole or in part for the payment
of the remuneration and expenses of such inspector or expert, such payment
to be charged in tlie accounting to such group. Every such approved associa¬
tion may make recommendations to the commission concerning the fixing of
premiums for classes of hazards, and for individual risks within such group.
For the powers and duties of directors of mutual employers' liability and work¬
men's compensation corporations relative to accident pi-evention, compare Insurance
I..aw, § 193.
§ 97. Requirements in classifidng employment and fixing and adjusting
premium rates.— The following requirements shall he observed in classifying
employments and fixing and adjusting premium rates:
1. The commission shall keep an accurate account of the money paid in
premiums by each of the several classes of employments or industries, and
the disbursements on account of injuries and deaths of employees thereof,
including the setting up of reserves adequate to meet anticipated losses and
to carry the claims to maturity, and also, on account of the money received
from each individual employer and the amount disbursed from the state in¬
surance fund on account of injuries and death of the employees of such
employer, including the reserves so set up;
2. On January first, nineteen hundred and fifteen, and every fifth year
thereafter, and at such other times as the commission, in its discretion, may-
determine, a readjustment of the rate shall be made for each of the several
groups of employment or industries and of each hazard class therein, which,
in the judgment of the commission, shall have developed an average loss
ratio, in accordance with the experience of the commission in the adminis¬
tration of the law as shown by the accounts kept as provided herein;
3. If any such accounting show an aggregate balance (deemed by the com¬
mission to be safely and properly divisible) remaining to the credit of any
class of employment or industry, after the amount required shall have been
credited to the surplus and reserve funds and after the payment of all awards
for injury or death lawfully chargeable against the same, the commission may
in its discretion credit to each individual member of such group, who shall
have been a subscriber to the state insurance fund for a period of six months
or more prior to the time of sueh readiustment, and whose premium or
premiums exceed the amount of the disbursements frtim the fund on account
of injuries or death of his employees during such period, on the instalment or
instalments of premiums next due from him such proportion of such balance
as the amount of his prior paid premiums sustains to the whole amount of
such premiums paid by the group to which he belongs since the last readjust
ment of rates. In the event that any member of the group who has heretofore
34
or shall hereafter withdraw would have become entitled to such dividend if
he had remained in the fund the commission is empowered to pay the amount
of the dividend to such employer. [Subd. 3 am'd by L. 1916, ch. 622.]
4. If the amount of premiums collected from any employer at the beginning
of any period of six months is ascertained and calculated by using the esti¬
mated expenditure of wages for the period of time covered by such premium
payment as a basis, an adjustment of the amount of such premium shall he
made at the end of such six months, and the actual amount of such premium
shall be determined in accordance with the amount of the actual expenditure
of wages for such period; and, if such wage expenditure for such period is
less than the amount on which such estimated premium was collected, such
employer shall he entitled to receive a refund firom the state insurance fund
of the difference between the amount so paid by him and the amount so found
to he actually due, or to have the amount of such difference credited on
succeeding premium payments, at his option; and if such actual premium,
when so ascertained, exceeds in amount a premium so paid by such employer
at the beginning of such six months, such employer shall immediately upon
being advised of the true amount of such premium due forthwith pay to
the treasurer of the state an amount equal to the difference between the
amount actually found to be due and the amount paid by him at the beginning
of such six months' period.
§ 98. Time of payment of premiums.— Except as otherwise provided in
this chapter, all premiums shall he paid by every employer into the state
insurance fund on or before July first, nineteen hundred and fourteen, and
semi-annually thereafter, or at such other time or times as may be pre¬
scribed by the commission. The commission shall mail a receipt for the
same to the employer and place the same to the credit of the state insurance
fund in the custody of the state treasurer.
§ 99. Action for collection in case of default.— If an employer shall default
in any payment required to be made by him to the state insurance fund, the
amount due from him shall be collected by civil action against him in the
name of the people of the state of New York, and it shall be the duty of the
commission on the first Monday of each month after July first, nineteen
hundred and fourteen, to certify to the attorney-general of the state the
names and residences, or places of business, of all employers known to the
commission to he in default for such payment or payments for a longer period
than five days and the amormt due from such employer, and it shall then be
the duty of the attorney-general forthwith to bring or cause to be brought
against each such employer a civil action in the proper court for the collection
of such amount so due, and the same when collected, shall he paid info the
state insurance fund, and such employer's compliance with the provisions of
this chapter requiring payments to he made to the state insurance fund shall
date from the time of the payment of said money so collected as aforesaid to
the state treasurer for credit to the state insurance fund.
§ 100. Withdrawal from fund.— Any employer may, upon complying with
subdivision two or three of section fifty of this chapter, withdraw from the
fund by turning in his insurance contract for cancellation, provided he is
not in arrears for premiums due the fund and has given to the commission
35
written notice of his intention to withdraw within thirty days before the
expiration of the period for which he has elected to insure in the fund; pro¬
vided that in case any employer so withdraws, his liability to assessments
shall, notwithstanding such withdrawal, continue for one year after the date
of such withdrawal as against all liabilities for such compensation accruing
prior to such withdrawal. [As am'd hy L. 1916, ch. 622.]
This reference to assessment Is the only use of the word In the Workmen's Com¬
pensation Law. The Attorney-General, In an opinion of July 16, 1915, has held
that assessments cannot be levied.
§ 101. Audit of payrolls.— Every employer who is insured in the state
insurance fund shall keep a true and accurate record of the number of his
employees and the wages paid by him, and shall furnish to the commission,
upon demand, a sworn statement of the same. Such record shall be open to
inspection at any time and as often as the commission shall require to verify
the number of employees and the amount of the payroll.
§ 102. Falsification of payroll.— An employer who shall wilfully misrepre¬
sent the amount of the payroll upon which the premiums chargeable by the
state insurance fund is to be based shall be liable to the state in ten times
the amount of the difference between the premiums paid and the amount the
employer should have paid had his payroll been correctly computed and the
liability to the state under this section shall be enforced in a civil action in
the name of the state insurance fund, and any amount so collected shall be¬
come a part of such fund.
§ 103. Wilful misrepresentation.— Any person who wilfully misrepresents
any fact in order to obtain insurance in the state insurance fund at less than
the proper rate for such insurance, or in order to obtain payment out of
such fund, shall be guilty of a misdemeanor.
§ 104. Inspections.— The commission shall have the right to inspect the
plants and establishments of employers insured in the state insurance fund;
and the inspectors designated by the commission shall have free access to
such premises during regular working hours.
§ 105. Disclosures prohibited.— Information acquired by the commission or
its oflBcers or employees from employers or employees pursuant to this chap¬
ter shall not be opened to public inspection, and any officer or employee of
the commission who, without authority of the commission or pursuant to
its rules or as otherwise required by law shall disclose the same shall be
guilty of a misdemeanor.
§ 106. Reports of state insurance fund; examination by insurance depart¬
ment.— The commission shall make reports to the superintendent of insurance
concerning the state insurance fund at the same times and in the same manner
as is required from mutual employers' liability and workmen's compensation
corporations by section one hundred and ninety-two of the insurance law, and
the superintendent of insurance may examine into the condition of such state
insurance fund at any time, either personally or by any duly authorized
examiner appointed by him, for the purpose of determining the condition of
the investments and the adequacy of the reserves of such fund. [Added by
L. 1916, oh. 622.]
36
ARTICLE 6
Miscellaneous Provisions
Se'.'tlon 110. PesEiItles applicable to expense of commission.
111. Record and report of injuries by employers.
112. Information to be furnished by employer.
113. Inspection of records of employers.
114. Interstate commerce.
115. Penalties for false representations.
116. Limitation of time.
117. Duties of commissioner of labor.
118. Unconstitutional provisions.
119. Actions or causes of action pending.
§ 110. Penalties applicable to expenses of commission.— All penalties im¬
posed by this chapter shall be applicable to the expenses of the commission.
When collected by the commission such penalties shall be paid into the state
treasury and be thereafter appropriated by the legislature for the purposes
prescribed by this section.
Penalties are prescribed by §§ 26, 31, 50, 69, 102, 103, 105, 111, 115. Actions
for their recovery may be brought under § 26.
§ 111. Record and report of injuries by employers.— Every employer shall
keep a record of all injuries, fatal or otherwise, received by his employees in
the course of their employment. Within ten days after the occurrence of an
accident resulting in personal injury a report thereof sliall be made in writing
by the employer to the commission upon blanks to be procured from the
commission for that purpose. Such report shall state the name and nature
of the business of the employer, the location of his establishment or place
of work, the name, address and occupation of the injured employee, the time,
nature and cause of the injury and such other information as may be re¬
quired by the commission. An employer who refuses or neglects to make a
report as required by this section shall be guilty of a misdemeanor, punish¬
able by a fine of not more than five hundred dollars.
Compare Labor Law, §§ 20-a, 87 and 126.
In regard to evidence of accidental Injury, §§ 18, 21 and 111 are to be rend
together. The employer's failure to give the details required by § 111 has told
against him in McQueeney v. Sutphen & Myer, 167 App. Div. 528 ; Kohler v. Froh-
niann, 167 App. Dlv. 533 ; and Powley v. Vivian & Co., 169 -Ipp. Div. 170.
§ 112. Information to be furnished by employer.— Every employer shall
furnish the commission, upon request, any information required by it to
carry out the provisions of this chapter. The commission, a commissioner,
deputy commissioner, or any person deputized by the commission for that
purpose, may examine under oath any employer, oflBcer, agent or employee.
An employer or an employee receiving from the commission a blank with
directions to file the same shall cause the same to be properly filled out
so as to answer fully and correctly all questions therein, or if unable to
do so, shall give good and sufficient reasons for such failure. Answers to
such questions shall be verified under oath and returned to the commission
within the period fixed by the commission therefor.
§ 113. Inspection of records of employers.— All books, records and payrolls
of the employers showing or reflecting in any way upon the amount of wage
37
expenditures oí such employers shall always be open for inspection by the
commission or any of its authorized auditors, accountants or inspectors for
the purpose of ascertaining the correctness of the wage expenditure and
number of men employed and such other information as may be necessary
for the uses and purposes of the commission in the administration of this
chapter.
§ 114. Interstate commerce.— The provisions of this chapter shall apply to
employers and employees engaged in intrastate, and also in interstate or
foreign commerce, for whom a rule of liability or method of compensation
has been or may be established by the congress of the United States, only
to the extent that their mutual connection with intrastate work may and
shall be clearly separable and distinguishable from interstate or foreign
commerce, except that such employer and his employees working only in
this state may, subject to the approval and In the manner provided by the
commission and so far as not forbidden by any act of congress, accept and
become bound by the provisions of this chapter in like manner and with the
same effect in all respects as provided herein for other employers and their
employees.
Compare § 2, groups 1-8, 10.
" Section 114 is one of limitation." : Jensen v. Southern Pacific Co., 215 N, Y.
614, 521 ; Post v. Burger & Gohlke, 216 N. Y. 544.
" The words ' may be ' should be construed in the sense of ' shall be'." ; Jensen
V. Southern Pacific Co., 215 N. Y. 522.
The decisions of the courts narrow the application of the law of negligence to
accidental injuries arising in the interstate commerce employments enumerated
under Workmen's Compensation Law, | 2, not only to railroad accidents strictly
but to railroad accidents in which the accident is due to the railroad's negligence.
The relations of federal and state law in the matter of workmen's compensation
are discnssed fully in the leading case of Winfield v. N. Y. C. & H. R. R. R. Co.,
216 N. Y. 284. The coverage of the Workmen's Compensation Law of New York,
from the standpoint of interstate commerce, is intended to be Just as broad as
federal law permits : Jensen v. Southern Pacific Co., 215 N. Y. 521. .4n accident
to an employee of an interstate railroad is compensable ; if the element of negli¬
gence is absent ; Winfield v. N. Y. C. & H. R. R. R. Co.. 216 N. T. 284 ; if the
employee is engaged in new construction work : White v. N. Y. Central & H. R. R.
R. Co., S. D. R., vol. 2, p. 4TT, compensation ruling, as affirmed without opinion,
161) App. Div. 903, 216 N. Y. Rep. 653 : if the employee is injured while repairing
an empty car of a. foreign company : Parsons v. Delaware & Hudson Co., 167 App.
Div. 536 ; Okrzesz v. Lehigh Valley Railroad Co., 170 App. Div. 15 ; if the employee
is injured on a steamship line operated by the railroad ; Jensen v. Southern Pacific
Co., 215 N. Y. 522 ; if the railroad, though an intrastate carrier, occasionally
carries interstate baggage, freight, passengers, cars, etc. ; Pairchiid v. Pennsylvania
R. R. Co., 170 App. Div. 135.
A claim for compensation may exist concurrently with a remedy in admiralty :
Walker v. Clyde S. S. Co., 215 N. Y. 529'; Opinion of Counsel to Workmen's Com¬
pensation Commission, S. D. R., vol. 1, p. 413.
§ 115. Penalties for false representation.— If for the purpose of obtaining
any benefit or payment under the provisions of this chapter, either for him¬
self or any other person, any person wilfully makes a false statement or
representation, he shall be guilty of a misdemeanor.
I 116. Limitation of time.— No limitation of time provided in this chapter
shall run as against any person who is mentally incompetent or a minor
dependent so long as he has no committee, guardian or next friend.
38
§ 117. Duties of commissioner of labor.— The commissioner of labor shall
render to the commission any proper aid and assistance by the department
of labor as in his judgment does not interfere with the proper conduct of
such department.
§ 118. Unconstitutional provisions.— If any section or provision of thU
chapter be decided by the courts to be unconstitutional or invalid, the same
shall not affect the validity of the chapter as a whole or any part thereoi
other than the part so decided to be unconstitutional- or invalid.
§ 119. Actions or causes of action pending.— This act shall not affect an.\
action pending or cause of action existing or which accrued prior to Juh
first, nineteen hundred and fourteen.
ARTICLE 7
Laws Repealed; When to Take Effect
Section 130. Laws repealed.
1.31. When to take effect.
§ 130. Laws repealed.— Article fourteen-a and sections two hundred and
fifteen to two hundred and nineteen-g, both inclusive, of chapter thirty-six of
the laws of nineteen hundred and nine, as amended "by chapter six hun¬
dred and seventy-four of the laws of nineteen hundred and ten, are hereljy
repealed.
§ 131. When to take effect.— This chapter shall take effect immediatelyt.
provided that the application of this chapter as between employers and em¬
ployees and the payment of compensation for injuries to employees or their
dependents, in case of death, shall take effect July first, nineteen hundred
and fourteen, but payments into the state insurance fund may be made prior
to July first, nineteen hundred and fourteen.
* "As amended " should read " as added."
t L. 1916, ch. 816, has words " January first, nineteen hundred and fourteen ",
instead of word " immediately," which was inserted by L. 1914, ch. 41, in effect
March 16, 1914. The amendments of L. 1916, ch. 622, took effect June 1. 1916.
ijuiax
331.82
M 56 7