UBRAKY Of THE UNIVERSITY OF ILLINOIS. SENATE BILL No. 905 INTRODUCED BY SENATOR BOYNTON, January 28 , 1913 . Referred to Committee on Labor and Capital. AN ACT To Promote the General Welfare of the People of This State by Creating and Enforcing a Liability on the Part of Employers to Compensate Their Employees, and the De- . PENDENTS OF SUCH EMPLOYEES, FOR ACCIDENTAL INJURY OR Death in the Course of the Employment, Irrespective of "T A AY I % NO 1U. 3E the Fault of Either Party and to Provide for the Settle- ment of Disputes by the Industrial Accident Commission; by Creating a “State Compensation Insurance Fund” to Insure Employers Against Such Liability and Providing for Its Administration; by Requiring Safety in all Em- ployments and Places of Employment in This State to Be Safe and Providing the Means and Methods of Enforcing Such Safety; to Require Reports of Industrial Accidents; to Provide Penalties for Offenses by Employers, Their Officers, Agents, and by Employees and Other Persons and Corporations; to Change the Name of the Industrial Acci- dent Board to Industrial Accident Commission; to Provide for Its Organization, Define Its Powers and Duties and Provide for a Review of Its Orders, Decisions and Awards, and Appropriating Moneys to Carry Out the Provisions of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 2 This Act and Also Repealing All Acts and Parts of Acts Inconsistent With the Provisions of This Act. The people of the State of California do enact as follows: Section 1. This act shall be known, and may be cited, as the “Workmen’s compensation, insurance and safety act” and shall apply to the subject mentioned in its title. Sec. 2. The following terms as used in this act shall, unless a different meaning is plainly required by the context, be con- strued as follows : (1) The term “commission” means the industrial accident commission of the State of California. (2) The term “commissioner” means one of the members of the commission. (3) The term “compensation” means compensation under this act and includes every benefit or payment conferred by the act upon an injured employee, or in the event of his death, upon his dependents, without regard to negligence. (4) The term “damages” means the recovery allowed in an action at law as contrasted with compensation under this act. (5) The term “person” includes an individual, firm, volun- tary association or a corporation. (6) The term “insurance carrier” includes the state com- pensation insurance fund herein created and any private com- pany, corporation or mutual association authorized under the laws of this state to insure against liability for compensation under this act. (7) Wherever in this act the singular is used ‘the plural shall be included; where the masculine gender is used, the feminine and neuter shall be included. Sec. 3. The industrial accident board of this state shall hereafter be known as the industrial accident commission and shall consist of three members who shall be appointed by the governor from the state at large by and with the advice and consent of the senate ; provided, that the members of the indus- trial accident board holding office when this act goes into effect shall continue to hold office as members of the industrial acci- — 3 — °?\ ?> %■ 1 dent commission during the terms for which they were sever- 2 ally appointed as members of the industrial accident board. 3 Thereafter, the term of office of each commissioner shall be 4 four years. Vacancies shall be filled by appointment in the 5 same manner for the unexpired terms. Each commissioner shall 6 receive an annual salary of three thousand six hundred dollars 7 and shall devote his entire time to the service of the state in 8 performing the duties required of him under this act. 9 Sec. 4. The commission shall organize by choosing one of 10 its members as chairman. A majority of the commission shall 11 constitute a quorum for the transaction of any business, for the 12 performance of any duty, or for the exercise of any power or 13 authority of the commission. A vacancy on the commission shall 14 not impair the right of the remaining members to perform all 15 the duties and exercise all the power and authority of the 16 commission. The act of the majority of the commission, when 17 in session as a commission, shall be deemed to be the act of the 18 commission, but any investigation, inquiry or hearing, which 19 the commission has power to undertake or to hold, may be 20 undertaken or held by or before any member thereof or any 21 referee appointed by the commission for that purpose, and 22 every finding, order, decision, or award made by any com- 23 missioner or referee, pursuant to such investigation, inquiry 24 or hearing, when approved and confirmed by the commission 25 and ordered filed in its office, shall be deemed to be the finding, 26 order, decision or award of the commission. 27 Sec. 5. The commission shall have a seal, bearing the fol- 28 lowing inscription: “ Industrial accident commission State of 29 California seal.” The seal shall be affixed to all writs and 30 authentications of copies of records and to such other instru- 31 ments as the commission shall direct. All courts shall take 32 judicial notice of said seal. 33 Sec. 6. The commission shall keep its principal office in the 34 'city and county of San Francisco, and shall also keep an office 35 in the city of Los Angeles, and shall provide itself with suit- 36 able rooms, necessary office furniture, stationery, and other • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 4 — supplies. For the purpose of holding sessions in other places, the commission shall have power to rent temporary quarters. Sec. 7. The commission shall have full power and authority : ( a ) To appoint as its attorney an attorney-at-law of this state, who shall hold office at the pleasure of the commission. It shall be the right and the duty of the attorney to represent and appear for the people of the State of California and the com- mission in all actions and proceedings involving any question under this act or under any order or act of the commission and, if directed so to do by the commission, to intervene, if possible, in any action or proceeding in which any such question is involved; to commence, prosecute and expedite the final deter- mination of all actions or proceedings, civil or criminal, directed or authorized by the commission ; to advise the com- mission and each member thereof, when so requested, in regard to all matters in connection with the jurisdiction, powers or duties of the commission and members thereof ; and generally to perform all duties and services as attorney to the commission which may be required of him. ( b ) To appoint, and it shall appoint, a secretary, who shall hold office at the pleasure of the commission. It shall be the duty of the secretary to keep a full and true record of all the proceedings of the commission, to issue all necessary processes, writs, warrants and notices which the commission is required or authorized to issue, and generally to perform such other duties as the commission may prescribe. The commission may also appoint such assistant secretaries as may be necessary and such assistant secretaries may perform any duty of the secre- tary, when so directed by the commission. (c) To appoint a manager of the state compensation insur- ance fund who shall hold office at the pleasure of the commis- sion. It shall be the duty of such manager to manage, super- vise and conduct, subject to the general direction and approval of the commission, the business and affairs of the state com- pensation insurance fund and to perform such other duties as the commission may prescribe. Before entering on the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 — 5 — duties of his office, he must give an official bond in the sum of $25,000, and take and subscribe to an official oath. Said bond must be approved by the commission, by written endorse- ment thereon, and be filed in the office of the secretary of state. ( d ) To appoint a superintendent of the department of safety, who shall be a technically-trained mechanical engineer who shall hold office at the pleasure of the commission and who shall perform such duties as the commission shall prescribe. (e) To employ such other officers, experts, statisticians, actuaries, accountants, inspectors, referees and other employees, as it may deem neee sary to carry out the provisions of this act, or to perform the duties and exercise the powers conferred by law upon the commission. Sec. 8. All officers and employees of the commission shall receive such compensation for their services as may be fixed by the commission and shall hold office at the pleasure of the commission and shall perform such duties as are imposed on them by law or by the commission. The members of the com- mission, its attorney, secretary and assistant secretary, shall be civil executive officers and their salaries as fixed by law or the commission shall be paid in the same manner as are the salaries of other state offices. The salary or compensation of every other person holding office or employment under the commission as fixed by law or by the commission shall be paid monthly from the funds appropriated for the use of the com- mission, after being approved by the commission upon claims therefor, to be audited by the board of control. All expenses incurred by the commission pursuant to the provisions of this act, including the actual and necessary traveling and other expenses and disbursements of the members thereof, its officers and employees, incurred while on business of the commission, either within or without the state, shall, unless otherwise pro- vided in this act, be paid from the funds appropriated for the use of the commission, after being approved by the commission, upon claims therefor to be audited by the board of control; provided, however , that no such expenses incurred outside of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 — 6 the state shall be allowed unless prior authorization therefor be obtained from the board of control. Sec. 9. In all cases in which salaries, expenses or outgoings of one department of service under the jurisdiction of the industrial accident commission are expended in whole or in part on behalf of another department of such service, the com- mission may apportion the cost of such service to the depart- ment for whose benefit it is rendered and, from time to time, transfer from the account of one department to the other such sums as, in its judgment, are necessary to effect an equitable adjustment of its funds between such departments and shall certify such transfers to the board of control, controller and treasurer of the state. Sec. 10. The commission shall cause to be printed and furnished free of charge to any employer or employee, or other person, such blank forms as it shall deem requisite to facilitate or promote the efficient administration of this act; it shall pro- vide a book in which shall be entered the minutes of all its proceedings, a book in which shall be recorded all awards made by the commission and such other books or records as it shall deem required for the proper and efficient administration of this act; all such records to be kept in the office of the com- mission. Sec. 11. The commission shall also have power and authority : (a) To charge and collect the following fees for copies of papers and records not required to be certified or otherwise authenticated by the commission, ten cents for each folio; for certified copies of official documents and orders filed in its office, fifteen cents for each folio; for certified copies of the evidence taken on proceedings had, fifteen cents for each folio. » (b) To publish and distribute in its discretion from time to time, in addition to its annual report to the governor of the state, such further reports and pamphlets covering its opera- tions, proceedings and matters relative to its work as may be of value. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 (c) To fix and collect reasonable charges for publications issued under its authority. id) The fees charged and collected under this section shall be paid monthly into the treasury of the state to the credit of the “industrial accident fund” and shall be accompanied by a detailed statement thereof. Sec. 12. (a) Liability for the compensation provided by this act, in lieu of any other liability whatsoever, shall, without regard to negligence, exist against an employer for any per- sonal injury accidentally sustained by his employees, and for the death of any such employee if the injury shall proximately cause death, in those cases where the following conditions of compensation concur : 1. Where, at the time of the accident, both the employer and employee are subject to the compensation provisions of this act. 2. Where, at the time of the accident, the employee is per- forming service growing out of and incidental to his employ- ment and is acting within the line of his duty and course of his employment as such. 3. Where the injury is proximately caused by accident, either with or without negligence, and is not so caused by the wilful misconduct of the employee. (b) Where such conditions of compensation exist for any personal injury or death, the right to the recovery of such compensation pursuant to the provisions of this act, and acts amendatory thereof, shall be the exclusive remedy against the employer for such injury or death, except that when the injury w r as caused by the employer ’s personal gross negligence, wilful personal misconduct or wilful violation of any statute designed for the protection of employees, and such act or failure to act causing such injury was the personal act or failure to act on the part of the employer himself, or if the employer be a partnership, on the part of one of the partners, or if a cor- poration, on the part of an elective officer or officers thereof, and if such act or failure to act indicated a wilful disregard of the life, limb, or bodily safety of employees, any such 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 8 — injured employee may, at his option, either claim compensation under this act or maintain an action at law for damages. (c) In all other cases where the conditions of compensation do not concur, the liability of the employer shall be the same as if this act had not been passed. Sec. 13. The term “employer” as used in this part of this act shall be construed to mean: The state, and each county, city and county, city, school district and all public corporations therein, and every person, firm, voluntary association, and private corporation, (including any public service corporation) who has any person in service under any appointment or con- tract of hire, or appreticeship, express or implied, oral or written, and the legal representatives of any deceased em- ployer. Sec. 14. The term “employee” as used in this part of this act shall be construed to mean : Every person in the service of an employer as defined by this act under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens and also including minors, but excluding any person whose employment is but casual and not in the usual course of the trade, business, profession or occupa- tion of his employer, and also excluding any officer or enlisted man in the naval or military service of the state and also any official of the state, or of any county, city and county, city, school district or any public corporation therein, who shall have been elected or appointed for a regular term of one or more years, or to complete the unexpired portion of any such regular term. Sec. 15. Where liability for compensation under this act exists such compensation shall be furnished or paid by the employer and be as provided in the following schedule : (a) Such medical, surgical and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches and apparatus, as may reasonably be required at the time of the injury and thereafter, but not exceeding six month, to cure and relieve from the effects of the injury, the same to be provided by the employer, and in case of his neglect or refusal season- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 9 — ably to do so, the employer to be liable for the reasonable expense incurred by or on behalf of the employee in providing’ the same. (6) 1. If the accident causes disability, a disability indem- nity which shall be payable in advance as wages on the fifteenth day after the injured employee leaves work as a result of the injury, and thereafter on the employer’s regular payday, but not less frequently than twice in each calendar month, unless otherwise ordered by the commission, subject, however, to the following limitations : (1) If the period of disability does not last longer than two weeks from the day the employee leaves work as the result of the accident, no disability indemnity whatever shall be recov- erable. (2) If the period of disability lasts longer than two weeks from the day the employee leaves work as the result of the acci- dent, no disability indemnity shall be recoverable for the first two weeks of such disability. 2. The disability indemnity payable shall be as follows : (1) If the accident causes temporary total disability, sixtv- five per cent of the average weekly earnings during the period of such disability; (2) If the accident causes temporary partial disability, sixty-five per cent of the weekly loss in wages during the period of such disability ; (3) If the temporary disability caused by the accident is at times total and at times partial, the weekly disability indem- nity during the periods of each such total or partial disability shall be in accordance with subdivisions (1) and (2) hereof, respectively ; (4) Subdivisions (1), (2) and (3) hereof shall be limited as follows : Aggregate disability indemnity for a single injury causing temporary disability shall not exceed three times the average annual earnings of the employee, nor shall the aggre- gate disability period for such injury in any event extend beyond two hundred forty weeks from the date of the accident. (5) If the accident causes permanent disability, the per- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 10 — centage of disability to total disability shall be determined and the disability indemnity computed as follows: For a ten per cent disability, sixty-five per cent of the weekly wages for a period of forty weeks; for a twenty per cent disability, sixty- five per cent of the weekly wages for a period of eighty weeks ; for a thirty per cent disability, sixty-five per cent of the weekly wages for a period of one hundred twenty weeks; for a forty per cent disability, sixty-five per cent of the weekly wages for a period of one hundred sixty weeks; for a fifty per cent dis- ability, sixty-five per cent of the weekly wages for a period of two hundred weeks; for a sixty per cent disability, sixty-five per cent of the weekly wages for a period of two hundred forty weeks ; for a seventy per cent disability, sixty-five per cent of the weekly wages for a period of two hundred forty weeks, and thereafter ten per cent of such weekly wages during the remainder of the life of such injured employee; for an eighty per cent disability, sixty-five per cent of the weekly wages 'for a period of two hundred forty weeks, and thereafter twenty per cent of such weekly wages during the remainder of the life of such injured employee ; for a ninety per cent disability, sixty- five per cent of the weekly wages for a period of two hundred forty weeks and thereafter thirty per cent of such weekly wages during the remainder of the life of such injured employee ; for a hundred per cent disability, sixty-five per cent of the weekly wages for a period of two hundred forty weeks and thereafter forty per cent of such weekly wages during the remainder of the life of such injured employee. (6) The indemnity for permanent disabilities interme- diate to those fixed by the foregoing schedule shall be computed as follows : If under seventy per cent, sixty-five per cent of the wages for four w T eeks for each one per cent of disability; if seventy per cent or over, sixty-five per cent of the wages for two hundred forty weeks and thereafter a life pension of one per cent of the wages for each one per cent of disability in excess of sixty per cent. (7) In determining the percentages of permanent disability, account shall be taken of the nature of the physical injury or 1 f> ju 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 11 — disfigurement, the occupation of the injured employee and his age at the time of such injury. (8) Nothing contained in the foregoing schedule of perma- nent disability shall be held to limit the right of an employee, who may be permanently disabled, to recover the indemnity fixed for temporary disability during any period of total or partial incapacity resulting from the injury causing the per- manent disability and extending beyond the indemnity period fixed for the permanent disability suffered. (9) The following permanent disabilities shall be conclu- sively presumed to be total in character: Loss of both eyes or the sight thereof ; loss of both hands or the use thereof ; an injury resulting in a practically total paralysis; an injury to the brain resulting in incurable imbecility or insanity. In all other cases, permanent total disability shall be determined in accordance with the fact. 3. The death of the injured employee shall not affect the obligations of the employer under subsections (a) and (b) hereof, so far as such liability have accrued and become payable at the date of the death, and any accrued and unpaid com- pensation shall be paid to the dependents, if any, without administration, or if there are no dependents, to the personal representatives of the deceased employee or other person entitled thereto, but such death shall be deemed to be the ter- mination of the disability. (c) If the accident causes death, either with or without dis- ability, a death benefit which shall be payable in installments equal to sixty-five per cent of the average weekly earnings of the deceased employee, upon the employer’s regular pay-day, but not less frequently than twice in each calendar month, unless otherwise ordered by the commission and which death benefit shall be as follows : 1. In case the deceased employee leaves a person or persons wdiolly dependent upon him for support, the death benefit shall be a sum sufficient, when added to the disability indemnity which shall at the time of death have accrued and become pay- able under the provisions of subsection ( b ) hereof, to make the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 1£ 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 12 — total disability indemnity and death benefit equal to three times his average annual earnings, such annual earnings to be taken at not less than three hundred and thirty-three dollars and thirty-three cents nor more than one thousand six hundred and sixty-six dollars and sixty-six cents. 2. In case the deceased employee leaves no person wholly dependent upon him for support, but one or more persons par- tially dependent therefor, the death benefit shall be such per- centage of three times such average annual earnings of the employee as the annual amount devoted by the deceased to the support of the person or persons so partially dependent bears to such average annual earnings ; provided, that the death bene- fit shall not be greater than a sum sufficient, when added to the disability indemnity which shall, at the time of the death, have accrued and become payable under the provisions of subsection (6) hereof to make the total disability indemnity and death benefit equal to three times his average annual earnings, such average annual earnings to be taken at not less than three hun- dred and thirty-three dollars and thirty-three cents nor more than one thousand six hundred and sixty-six dollars and sixty- six cents. 3. If the deceased employee leaves no person dependent upon him for support, the death benefit shall consist of the reason- able expenses of his burial not exceeding one hundred dollars and such further death benefit as may be provided by law. (d) Payment of the compensation in accordance with the order and direction of the commission shall discharge the employer from all other claims therefor. Sec. 16. (a) Unless compensation is paid or an agreement for its payment made within the periods limited in this section for the institution of proceedings for its collection, the right to institute such proceedings shall be wholly barred. ( b ) The periods for the institution of proceedings for the collection of compensation are as follows : 1. Proceedings for the collection of the benefit provided by subsection (a) of section fifteen of the disability indemnity pro- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 13 — vided by subsection (6) of said section 15 must be commenced within one year from the date of the accident. 2. Proceedings for the collection of the death benefit pro- vided by subsection (c) of said section 15 must be commenced within one year from the date of death, and in any event within two hundred forty weeks from the date of the accident, and can only be maintained when it appears that death ensued within one year from the date of the accident, or that the acci- dent causing death also caused disability, which continued to the date of the death and for which a disability indemnity was paid, or an agreement for its payment made, or proceedings for its collection instituted within the time limited for the com- mencement of proceedings for the recovery of the disability indemnity. (c) The payment of the disability indemnity or death bene- fit, or any part thereof or agreement therefor, shall have the effect of extending the period within which proceedings for its collection may be instituted for one year from the date of the agreement or last payment of such disability indemnity or death benefit or any part thereof. (d) If an in jured employee, or in the case of his death, one or more of his dependents, shall be a minor or incompetent at any time when any right or privilege accrues to such person under the provisions of this act, a general guardian, appointed by the court or a guardian ad litem or trustee appointed by the com- mission may, on behalf of any such person, claim and exercise any such right or privilege with the same force and effect as if no such disability existed; and no limitation of time pro- vided by this act shall run against any such minor or incom- petent unless and until such guardian or trustee is appointed. (e) No compensation shall be payable in respect of the death or disability Qf an employee if his death is caused, or if and so far as his disability is caused, continued, or aggravated, by an unreasonable refusal to submit to medical treatment, or to any surgical treatment the risk of which is, in the opinion of the commission, inconsiderable in view of the seriousness of the injury. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 14 — (/) The fact that an employee has suffered a previous dis- ability, or receives compensation therefor, shall not preclude him from compensation for a later injury, or for death result- ing therefrom, but in determining compensation for the later injury, or death resulting therefrom, his average annual earn- ings shall be such sum as will reasonably represent his annual earning capacity at the time of the later injury. (p) Any payment, allowance or benefit received by the injured employee during the period of his incapacity, or by his dependents, in the event of his death, which by the terms of this act was not due and payable when made, or when there is any dispute or question concerning the right to compensation, shall not, in the absence of any agreement, be construed to be an admission of liability for compensation on the part of the employer, or the acceptance thereof as a waiver of any right or claim which the employee or his dependents may have against the employer, but any such payment, allowance or benefit may be taken into account by the commission in fixing the amount of the compensation to be paid. Sec. 17. (a) The average weekly earning referred to in section 15 hereof shall be one fifty-second of the average annual earnings of the employee ; in computing such earnings his aver- age annual earnings shall not be taken at less than three hun- dred and thirty-three dollars and thirty-three cents, nor more than one thousand six hundred and sixty-six dollars and sixty- six cents and between said limits shall be arrived at as follows : 1. If the injured employee has worked in the same employ- ment, whether for the same employer or not, during substan- tially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily earnings, wage or salary which he earned as such employee during the days when so employed. 2. If the injured employee has not so worked in such em- ployment during substantially the whole of such immediately preceding year, his average annual earnings shall consist of three hundred times the average daily earnings, wage or salary which an employee of the same class, working substan- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 15 — tially the whole of such immediately preceding year, in the same or a similar kind of employment, in the same or a neigh- boring place, earned during the days when so employed. 3. In every case where the foregoing methods of arriving at the average annual earnings of the injured employee can- not reasonably and fairly be applied by reason of the fact that he was employed during such immediately preceding year in different kinds and classes of employment, in the same or a different place, or otherwise, such annual earnings shall be taken at 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 average earning capacity of the injured employee at the time of the injury in the kind of employment in which he was then working, or in any employ- ment similar thereto. (5) In determining such average weekly earnings, there shall be included the market value of board, lodging, fuel and other advantages received by the injured employee, as part of his remuneration and which can be estimated in money, but such average weekly earnings shall not include any sum which the employer paid to the injured employee to cover any special expenses entailed on him by the nature of his employment. (c) If the injured employee is a minor, and his incapacity, whether total or partial, is permanent, his average weekly earnings shall be deemed, within the limits fixed, to be the weekly sum, that under ordinary circumstances he would probably be able to earn after attaining the age of twenty- one years, if he had not been injured. Sec. 18. The weekly loss in wages referred to in section 15 hereof shall consist of the difference between the average weekly earnings of the injured employee, computed accord- ing to the provisions of said section, and the weekly amount which the injured employee, in the exercise of reasonable diligence, will probably be able to earn, the same to be fixed 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 16 — as of the time of the accident, except as otherwise provided in subsection (c) of section 17, but to be determined in view of the nature and extent of the injury. In computing such probable earnings due regard shall be had to the ability of the injured employee to compete in an open labor market. Sec. 19. (a) The following shall be conclusively presumed to be wholly dependent for support upon a deceased employee : 1. A wife upon a husband with whom she was living at the time of his death. 2. A husband upon a wife upon whose earnings he is par- tially or wholly dependent at the time of her death. 3. A child or children under the age of eighteen years (or over said age, but physically or mentally incapacitated from earning) upon the parent with whom he or they are living at the time of the death of such parent, or for whose mainte- nance such parent was legally liable at the time of his death, there being no surviving dependent parent. In case there is more than one child thus dependent, the death benefit shall be divided among them in proportion to their respective needs. (6) In all other cases, questions of entire or partial de- pendency shall be determined in accordance with the fact, as the fact may be at the time of the death of the employee, and if there is more than one person wholly dependent, the death benefit shall be divided among them and persons partially dependent, if any, shall receive no part thereof, and if there is more than one person partially dependent, the death benefit shall be divided among them according to the relative extent of their dependency. k (c) No person shall be considered a dependent of any de- ceased employee unless a member of the family of such employee or unless such person bears to such employee the relation of husband or wife, child, adopted child or stepchild, father or mother, father-in-law or mother-in-law, grandfather or grand- mother, brother or sister, nephew or niece. (d) Questions as to who constitute dependents and the extent of their dependency shall be determined as of the date of the death of the employee, and their right to any death benefit shall — 17 — 1 become fixed as of such time irrespective of any subsequent 2 change in conditions, except that in the event of the death of 3 any dependent his unpaid proportion of such death benefit shall 4 be payable proportionately to the surviving dependents, if any, 5 without administration. 6 (e) The death benefits shall be paid to such one or more of 7 the dependents of the deceased, or to a trustee appointed by 8 the commission, for the benefit of all the dependents, as may 3 be determined by the commission, which may apportion such 10 benefit among the dependents as it may deem just and equitable, 11 and may order payment to a dependent subsequent in right 12 upon good cause being shown therefor, anything herein con- 13 tained to the contrary notwithstanding. The person to whom 14 the death benefit is paid for the use of the several beneficiaries 15 entitled thereto, shall apply the same in compliance with the 16 finding and direction of the commission. 17 Sec. 20. No claim to recover compensation under this act 18 shall be maintained unless within thirty days after the occur- 19 rence of the accident which is claimed to have caused the injury 20 or death, notice in writing, stating the name and the address of 21 the person injured, the time and the place where the accident 22 occurred, and the nature of the injury, and signed by the per- 23 son injured or some one in his behalf, or in case of his death, 24 by a dependent or some one in his behalf, shall be served upon 25 the employer ; provided , however, that actual knowledge of such 26 accident and injury on the part of such employer, or his man- 27 aging agent, or his agent, superintendent or foreman in charge 28 of the work, upon which the injured employee was engaged at 29 the time of the injury, shall be equivalent to such service; and 30 provided, further, that the failure to give any such notice, or 31 any defect or inaccuracy therein, shall not be a bar to recovery 32 under this act if it is found as a fact in the proceedings for 33 the collection of the claim that there was no intention to mis- 34 lead or prejudice the employer, and that he was not in fact 35 misled or prejudiced thereby. # 36 Sec. 20. (a) Wherever in case of injury the right to com- 37 pensation under this act would exist in favor of any employee, 2 — SB 905 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 18 — he shall, upon the written request of his employer, submit from time to time to examination bv a regular practicing physician, who shall be provided and paid for by the employer, and shall likewise submit to examination from time to time by any reg- ular physician selected by the commission or any member or referee thereof, (b) The request or order for such examina- tion shall fix a time and place therefor, due regard being had to the convenience of the employee and his physical condition and ability to attend at the time and place fixed. The em- ployee shall be entitled to have a physician provided and paid for b}^ himself present at any such examination. So long as the employee, after such written request of the employer, shall fail or refuse to submit to such examination or shall in any way obstruct the same, his right to begin or maintain any pro- ceeding for the collection of compensation shall be suspended, and if he shall fail or refuse to submit to such examination after direction by the commission, or any member or referee thereof, or shall in any way obstruct the same, his right to the weekly indemnity which shall accrue and become payable dur- ing the period of such failure, refusal or obstruction, shall be barred. Any physician who shall make or be present at any such examination may be required to testify as to the results thereof. Sec. 22. Upon filing with the commission by any party in interest of an application in writing stating the general nature of any dispute or controversy concerning compensation, or arising out of, or incidental thereto, or concerning any right or liability, jurisdiction over which is vested by this act in the commission, a time and place shall be fixed for the hearing thereof, which shall be not less than ten days nor more than forty days after the filing of such application. The person filing such application shall be known as the applicant and the adverse party shall be known as the defendant. A copy of said application, together with a notice of the time and place of hearing thereof, shall forthwith be served upon all adverse parties and may be served either as a summons in a civil action or in the same manner as any other notice that is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 3? 36 37 — 19 — authorized or required to be served under the provisions of this act. Sec. 23. If any defendant desirous to disclaim any interest in the subject-matter of the claim in controversy, or considers that the application is in any respect inaccurate or incomplete, or desires to bring any fact, paper or document to the attention of the commission as a defense to the claim, or otherwise, he must within five days after the service of the application upon him, file with or mail to the commission his answer setting forth the particulars in which the application is inaccurate or incomplete, and the facts upon which he intends to rely. A copy of such answer must be forthwith served upon the adverse party. Sec. 24. (a) No pleadings, other than the application and answer, shall be required. The hearing on the application may be adjourned from time to time and from place to place in the discretion of the commission. Either party shall have the right to be present at any hearing, in person or by attorney or any other agent, and to present such testimony as shall be pertinent under the pleadings, but the commission may, with or without notice to either party, cause testimony to be taken, or inspection of the premises where the injury occurred to be made, or the time-books and pay-roll of the employer to be examined by any commissioner or any referee appointed by the commission, and may from time to time direct any employee claiming compensation to be examined by a regular physician ; the testimony so taken and the results of any such inspection or examination to be reported to the commission for its consideration. ( b ) The parties to a controversy may stipulate the facts relative thereto in writing and file such stipulation with the commission, which may thereupon make its findings and award based upon such stipulation, or may in its discretion set the matter down for hearing and take such further testimony or make such further investigations as may be necessary to enable it to completely determine the matter in controversy. Sec. 25. (a) After final hearing by the commission, it 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 20 — shall make and file (1) its findings upon all facts involved in the controversy and (2) its award which shall state its deter- mination as to the rights of the parties. (b) The commission in its award may fix and determine the total amount of compensation to be paid and specify the man- ner of payment, or may fix and determine the weekly dis- ability indemnity to be paid and order payment thereof dur- ing the continuance of such disability. (c) If, in any proceeding under sections twelve to thirt}^ five, inclusive, of this act, it is proved that an accident has happened for which the employer would be liable to pay com- pensation if disability had resulted therefrom, but it is not proved that any incapacity had resulted, the commission may, if it appears that disability is likely to result at a future time, instead of dismissing the application, award a nominal dis- ability indemnity. ( d ) The commission shall have continuing jurisdiction over all its orders, decisions and awards made and entered under the provisions of sections twelve to thirty-five, inclusive, of this act and may at any time, upon notice, and after oppor- tunity to be heard is given to the parties in interest, rescind, alter or amend any such order, decision or award made by it upon good cause appearing therefor; provided, that no award of compensation shall be rescinded, altered or amended after two hundred forty-five weeks from the date of the accident. Any order, decision or award rescinding, altering or amending a prior order, decision or award shall have the same effect as is herein provided for original orders, decisions or awards. Sec. 26. ( a ) Any party affected thereby may file a certi- fied copy of the findings and award of the commission with the clerk of the superior court for any county, or city and county, and judgment must be entered by the clerk in conformity with the award of the commission, immediately upon the filing of such findings and award. (b) The certified copy of the findings and award of the commission and a copy of the judgment shall constitute the judgment roll. The pleadings, all orders of the commission, — 21 — 1 its original findings and award, and all other papers or docu- 2 ments filed in the cause shall remain on file in the office of the 3 commission. 4 (c) The commission, or any member thereof, may stay the 5 execution of any judgment entered upon an award of the 6 commission, upon good cause appearing therefor and upon T such term's and conditions as may be imposed. A certified 8 copy of such order shall be filed with the clerk entering such 9 judgment. 19 ( d ) Satisfaction of a judgment entered upon the award of 11 the commission may be entered in the manner provided by law 12 for the satisfaction of judgment. When a judgment is satis- 13 fied in fact, otherwise than upon an execution, the commission 14 may, upon motion of either party or of its own motion, order 15 the entry of satisfaction of the judgment to be made, and upon 16 filing a certified copy of such order with the said clerk, he shall 17 thereupon enter such satisfaction. 18 Sec. 27. The orders, findings, decisions or awards of the 19 commission made and entered under sections twelve to thirty- 20 five, inclusive, of this act may be reviewed by the courts in 21 sections eighty-four and eighty-five of this act specified and 22 within the time and in the manner therein specified and not 23 otherwise. 24 Sec. 28. No fees shall be charged by the clerk of any court 25 for the performance of any official service required by this act, 26 except for the docketing of awards as judgments and for certi- 27 fied copies of transcripts thereof. In all proceedings under 28 this act before the commission, costs as between the parties 29 shall be allowed or not in the discretion of the commission, and 30 the commission may in its discretion, where payments of com- 31 pensation have been unreasonably delayed, allow the bene- 32 ficiary thereof interest thereon, at not to exceed one and one 33 half per cent per month, during such period of delay. 34 Sec. 29. ( a ) No claim for compensation under this act 35 shall be assignable before payment, but this provision shall not 36 affect the survival thereof, nor shall any claim for compen- 37 sation, or compensation awarded, adjudged or paid, be subject 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 22 — to be taken for the debts of the party entitled to such compen- sation, except as hereinafter provided. (5) The commission may fix and determine and allow as a lien against any amount to be paid as compensation : 1. A reasonable attorney’s fee for legal services pertaining to any claim for compensation or application filed therefor and the reasonable disbursements in connection therewith. 2. The reasonable expense incurred by or on behalf of the injured employee and for which the employer is liable under the provisions of subsection ( a ) of section 15 hereof. 3. The reasonable burial expenses of the deceased employee, not to exceed the sum of one hundred dollars. i (c) If notice in writing be given to the employer setting forth the nature and extent £f such claim, the said claim shall be a lien against any amount thereafter to be paid as compen- sation, subject to the determination of the amount and approval thereof by the commission. The commission may, in its discre- tion, order the amount of such claim as fixed and allowed by it paid directly to the person entitled, either in a lump sum or in installments. ( d ) No claim or agreement for the legal services or dis- bursements mentioned in subdivision one hereof, or for the expense mentioned in subdivision two hereof, in excess of a reasonable amount, shall be valid or binding in any respect. Sec. 30. A claim for compensation for the injury or death of any employee, or any award or judgment entered thereon, shall be entitled to a preference over the other unsecured debts of the employer to the same extent as the wages of such em- ployee shall be so preferred but for the entire amount of such compensation, but this section shall not impair the lien of any judgment entered upon any previous award. Sec. 31. The making of a lawful claim against an employer for compensation under this act for the injury or death of his employee shall operate as an assignment of any assignable cause of action in tort for damages which the employee, or his personal representative, may have against any other party for 1 2 3 4 5 6 7 8 9. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 23 such injury or death, and such employer may enforce in his own name the legal liability of such other party. Sec. 32. (a) No contract, rule or regulation shall exempt the employer from liability for the compensation fixed by this act, but nothing in this act contained shall be construed as impairing the right of the parties interested to settle, subject to the provisions herein contained, any liability which may be claimed to exist under this act on account of such injury or death, nor as conferring upon the dependents of any injured employee any interest which he may not divert by such settle- ment or for which he, or his estate, shall, in the event of such settlement by him, be accountable to such dependents or any of them. ( b ) The compensation herein provided shall be the measure of the responsibility which the employer has assumed for injuries or death that may occur to employees in his employ- ment when subject to the provisions of this act, and no release of liability or settlement agreement shall be valid unless the benefits provided thereunder are as favorable as the benefits conferred by this act, and until and unless the same shall be approved by the commission. (c) A copy of any such release or settlement agreement signed by both parties shall forthwith be filed with the com- mission. When such release or settlement agreement is filed with the commission and approved by it, the commission may of its own motion, or on the application of either party, with- out notice, enter its award based upon such release or settle- ment agreement. ( d ) Every such release or settlement agreement shall be in writing, duly executed and attested by two disinterested wit- nesses, and shall specify the date of the accident, and the date of the death, if the accideht caused death, the average weekly wages of the employee as determined according to section seventeen hereof, the nature of the disability, whether total or partial, permanent or temporary, the amount paid, or due and unpaid to the employee up to the date of the release or agreement or death, as the case may be, and, if any, the amount — 24 — 1 of the payment or benefits then or thereafter to be made, and 2 the length of time that snch payment is to continue. In case 3 of death there shall also be stated in such release or settlement 4 agreement the date of death, the name of the widow, if any, the 5 name and ages of all children, if any, and the names of all other 6 dependents, if any, and whether such dependents be total or 7 partial, and the amount paid or to be paid as a death benefit and 8 to whom such payment is to be made in ease of death where the 9 employee leaves persons only partially dependent. 10 Sec. 33. (a) At the time of making its award or at any 11 time thereafter the commission may, on its own motion, either 12 with or without notice, or upon application of either party with 13 due notice to the other, in its discretion, commute the com- 14 pensation payable under this act to a lump sum, if it appears 15 that such commutation is necessary for the protection of the lb person entitled thereto, or for the best interest of such person, 17 or that it will avoid undue expense or hardship to either party, 18 or that the employer has sold or otherwise disposed of the 19 greater part of his assets, or is about to do so, or that the 20 employer is not a resident of this state, and may order such 21 compensation to be paid forthwith or at some future time. 22 (ft) The amount of the commuted payment shall be deter- 23 mined in accordance with the following provisions : 24 l. if the accident causes temporary disability, the commis- 25 sion shall estimate the probable duration thereof and the prob- 26 able amount of the temporary disability indemnity payable 27 therefor in accordance with the provisions of section 15 hereof 28 and shall fix the lump sum payment at such amount so deter- 29 mined. 30 2. If the accident causes permanent disability or death, the 31 commission shall fix the total amount of the permanent dis- 32 ability indemnity or death benefit payable therefor in accord- 33 ance with the provisions of said section fifteen and shall esti- 34 mate the present value thereof, assuming interest at the rate of 35 four per cent per annum, disregarding the probability of the 36 beneficiary’s death in all cases except where the percentage of 37 permanent disability is such as to entitle the beneficiary to a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 life-pension, and then taking into consideration the probability of the beneficiary’s death only in estimating the present value of such life pension. (c) The commission in its discretion may order the lump sum payment to be determined, as hereinbefore provided, paid directly to the injured employees or to his dependents, or deposited with any savings bank or trust company authorized to transact business in this state, that will agree to accept the same as a deposit bearing interest at not less than four per cent, or the commission may order the same to be deposited with the state compensation insurance fund. Any such amount so deposited, together with all interest thereon, shall thereafter be held in trust for the injured employee, or in the event of his death, for his dependents, who shall have no further recourse against the employer. Payments from said fund, when so deposited, shall be made by the trustee only in the same amounts and at the same times as fixed by the order of the com- mission until said fund and interest thereon shall be exhausted. In the appointment of the trustee preference shall be given, in the discretion of the commission, to the choice of the injured employee or his dependents. Upon the making of such pay- ment, the employer shall present to the commission a proper receipt evidencing the same, executed either by the injured em- ployee or his dependents, or by the trustee, and the commission shall thereupon issue its certificate in proper form evidencing the same and such certificate, upon filing with the clerk of the superior court in which any judgment upon an award may have been entered, shall operate as a satisfaction of said award and shall fully discharge the employer from any further liabil- ity on account thereof. Sec. 34. ( a ) Nothing in this act shall affect the organiza- tion of any mutual or other insurance company, or any exist- ing contract for insurance or employers ’ liability, nor the right of the employer to insure in mutual or other companies, in whole or in part, against such liability, or against the liability for the compensation provided for by this act, or to provide by mutual or other insurance, or by arrangement with his em- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 26 — ployees, or otherwise, for the payment to such employees, their families, dependents or representatives of sick, accident or death benefits, in addition to the compensation provided for by this act. (5) Liability for compensation under this act shall not be reduced or affected by any insurance, contribution, or other benefit whatsoever due to or received by the person entitled to such compensation, except as otherwise provided by this act, and the person so entitled shall, irrespective of any insurance or other contract, have the right to recover such compensation directly from the employer, and in addition thereto, the right to enforce in his own name, in the manner provided in this act, either by making the insurance carrier a party to the original application or by filing a separate application, the liability of any insurance carrier, which may, in whole or in part, have insured against liability for such compensation ; provided , how- ever , that payment in whole or in part of such compensation by either the employer or the insurance company shall, to the extent thereof, be a bar to recovery against the other of the amount so paid ; and provided, further, that as between the em- ployer and the insurance company, payment by either directly to the employee, or to the person entitled to compensation, shall be subject to the conditions of the insurance contract between them. (c) Every such insurance contract or insurance* policy evi- dencing the same must contain a clause to the effect 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 act, be jurisdiction * of the insurance carrier and that the insurance carrier shall in all things be bound by and subject to the orders, findings, deci- sions or awards rendered against the employer under the pro- visions of this act. ( d ) Such policy must also provide that the employee shall have a first lien upon any amount which shall become owing on 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 — 27 — account of such policy to the employer from the insurance car- rier and that in case of the legal incapacity or liability of the employer to receive the said amount and pay it over to the employee or his dependents, the said insurance carrier may and shall pay the same directly to the said employee or his depend- ents, thereby discharging to the extent of such payment the obligations of the employer to the employee, and such policy shall not contain any provisions relieving the insurance carrier from payment when the employer becomes insolvent or is dis- charged in bankruptcy, or otherwise, during the period that the policy is in operation or the compensation remains owing. ( e ) If the employer shall be insured against liability for compensation with any insurance carrier, and if after the hap- pening of any accident such insurance carrier shall serve or cause to be served upon any person claiming compensation against such employer a notice that it has assumed and agreed to pay the compensation, if any, for which the employer is liable, and shall file a copy of such notice with the commission, such employer shall thereupon be relieved from liability for compensation to such claimant and the insurance carrier shall, without notice, be substituted in place of the employer in any proceeding theretofore or thereafter instituted by such person to recover such compensation, and the employer shall be dis- missed therefrom. Such proceeding shall not abate on account of such substitution but shall be continued against such insur- ance carrier. (/) .Where any employer is insured against liability for compensation under this act with any insurance carrier, such insurance carried shall be subrogated to all the rights and duties of the employer and may enforce any such rights in its own name. Sec. 35. (a) If any insurance policy shall be issued cover- ing liability for compensation under this act, which policy shall contain any limitation as to the compensation payable, — such limitation shall be printed in the body of such policy in bold- face type and in addition thereto the words ‘ ‘ Limited compen- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 — 28 — sation policy” shall be printed on the top of the policy in bold- faced type not less than 18 point in size. (6) No insurance carrier shall insure against the liability of the employer for damages recoverable at law by the injured employee under the optional provisions contained in section 12 hereof, and any insurance carrier liable to any such injured employee for the compensation provided by this act, upon the payment of the same shall have the same option given by said section 12 to such employee and shall be fully subrogated to his rights, and may enforce such liability for damages against the employer in its own name, anything in the insurance con- tract to the contrary notwithstanding. Sec. 36. There is hereby created and established a fund to be known as the “State compensation insurance fund,” to be administered by the industrial accident commission of the state, without liability on the part of the state beyond the amount of said fund, for the purpose of insuring employers against liability for compensation under this act and insuring to employees and other persons the compensation fixed by this act for employees and their dependents. Sec. 37. (a) The state compensation insurance fund shall be a revolving fund and shall consist of such specific appro- priations as the legislature may from time to time make or set aside for the use of such fund, all premiums received and paid into the said fund for compensation insurance issued, all property and securities acquired by and through the use of moneys belonging to said fund and all interest earned upon moneys belonging to said fund and deposited or invested, as herein provided. (b) Said fund shall be applicable to the payment of losses sustained on account of insurance and to the payment of the expenses to be charged against said fund in accordance with the provisions contained in this act. (c) Said fund shall, after a reasonable time during which it may establish a business, be fairly competitive with other insurance carriers, and it is the intent of the legislature that 29 — » * 1 said fund shall ultimately become neither more nor less than 2 self-supporting. 3 Sec. 38. (a) The commission is hereby vested with full 4 power, authority and jurisdiction over the state compensation 5 insurance fund and may do and perform any and all things 6 whether herein specifically designated, or in addition thereto, 7 which are necessary or convenient in the exercise of any 8 power, authority or jurisdiction over said fund in the admin- 9 istration thereof, or in connection with the insurance busi- 40 ness to be carried on by it under the provisions of this act, 41 as fully and completely as the governing body of a private 42 insurance carrier might or could do. 13 (5) The commission shall have full power and authority, 14 and it shall be its duty, to fix and determine the rates to be 15 charged by the state compensation insurance fund for com- 10 pensation insurance, and to manage and conduct all business 17 and affairs in relation thereto, all of which business and 18 affairs shall be conducted in the name of the state compensa- 19 tion insurance fund, and in that name, without any other 2d name or title, the commission may: 21 1. Sue and be sued in all the courts of the state in all 22 actions arising out of any act, deed, matter or thing made, 23 omitted, entered into, done, or suffered in connection with 24 the state compensation insurance fund, the administration, 25 management or conduct of the business or affairs relating 28 thereto. 27 2. Make and enter into contract of insurance as herein pro- 28 vided, and such other contracts or obligations relating to the 29 state compensation insurance fund as are authorized or per- 30 mitted under the provisions of this act. 31 3. Invest and re-invest the moneys belonging to said fund 32 as hereinafter provided. 33 4. Conduct all business and affairs, relating to the state 34 compensation insurance fund, whether herein specifically 35 designated or in addition thereto. 36 (c) The commission may delegate to the manager of the 37 state compensation insurance fund, or to any other officer, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 30 — under such rules and regulations and subject to such condi- tions as it may from time to time prescribe, any of the pow- ers, functions or duties, conferred or imposed on the commis- sion under the provisions of this act in connection with the state compensation insurance fund, the administration, man- agement and conduct of the business and affairs relating thereto, and the officer or officers to whom such delegation is made may exercise the powers and functions and perform the duties delegated with the same force and effect as the com- mission, but subject to its approval. (d) The commission shall not, nor shall any commissioner, officer or employee thereof, be personally liable in his private capacity for or on account of any act performed or contract or other obligation entered into or undertaken in an official capacity in connection with the administration, management or conduct of the state compensation insurance fund, the administration, conduct or management of its business or affairs relating thereto. Sec. 39. In conducting the business and affairs of the state compensation insurance fund the manager of the said fund or other officer to whom such power and authority may be dele- gated by the commission, as provided by subsection (c) of section thirty-eight hereof, shall have full power and authority : 1. To enter into contracts of insurance, insuring employers against liability for compensation and insuring to employees and other persons the compensation fixed by this act. 2. To sell annuities covering compensation benefits to the persons entitled to such benefits. 3. To decline to insure any risk in which the minimum requirements of the commission with regard to construction, equipment and operation are not observed, or which is beyond the safe carrying of the state compensation insurance fund. 4. To reinsure any risk or any part thereof. 5. To inspect and audit, or cause to be inspected and audited, the payrolls of employers applying for insurance against lia- bility for compensation. 6. To make rules and regulations for the settlement of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 31 — claims against said fund and to determine to whom and through whom the payments of compensation are to be made. 7. To contract with physicians, surgeons and hospitals for medical and surgical treatment and the care and nursing of injured persons entitled to the benefits from said fund. Sec. 40. (a) It shall be the duty of the commission to fix and determine the rates to be charged by the state compensa- tion insurance 1 fund for compensation ^insurance coverage as herein provided, and such rates shall be fixed with due regard to the physical hazards of each industry, occupation or em- ployment and, within each class, so far as practicable, in accord- ance with the elements of bodily risk or safety or other hazard of the plant or premises or work of each insured and the man- ner in which the same is conducted, together with a reasonable regard for the accident experience and history of each such insured, and the means and methods of caring for injured per- sons, but such rates shall take no account of the extent to which the employees in any particular establishment have or have not persons dependent upon them for support. ( b ) The rates so made shall be that percentage of the payroll of any employer which, in the long run and on the average, shall produce a sufficient sum, when invested at three and one half per cent interest : 1. To carry all claims 4o maturity; that is to say the rates shall be based upon the “reserve” and not upon the “assess- ment” plan; 2. To meet the reasonable expenses of conducting the busi- ness of such insurance; 3. To produce a reasonable surplus to cover the catastrophe hazard ; (c) Nothing herein contained shall, however, be held to pre- vent the rates made by the state rate-making bureau being adopted by the commission as the rates of insurance for the state compensation insurance fund. Sec. 41. The policy contract entered into between the state compensation insurance fund and persons insuring therewith may be either limited or unlimited and issued for one year or, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 32 — in the form of stamps or tickets or otherwise, for one month or any number of months less than one year, or for one day or any number of days less than one month, or during the performance of any particular work, job or contract, provided that the rates charged shall be proportionately greater for a shorter than for a longer period and that a minimum premium charge shall be fixed in accordance with a reasonable rate for insuring one person for one day. Nothing in this act shall be construed to prevent any person applying for compensation insurance from being covered temporarily until the application is finally acted upon, or to prevent the insured from surrendering any policy at any time and having returned to him the difference between the premium paid and the premium at the customary short term for the shorter period which such policy has already run. The state compensation insurance fund may at any time can- cel any policy, after due notice, upon a pro rata basis of pre- mium repayment. Sec. 42. The state compensation insurance fund may issue policies, including with their employees, employers who per- form labor incidental to their occupations, and including also members of the families of such employers engaged in the same occupation, such policies insuring to such employers and work- ing members of their families the same compensations provided for their employees, and at* the same rates; provided, that the estimations of their wage values, respectively, shall be reason- able and separately stated in and added to the valuation of their payrolls upon which their premium is computed. Such policies may likewise be sold to self-employing persons and to casual employees, who, for the purpose of such insurance, shall be deemed to be employees within the meaning of sections twelve to thirty-five, inclusive, of this act. Sec. 43. The treasurer of the state shall be custodian of all moneys and securities belonging to the state compensation insurance fund, except as otherwise provided in this act, and shall be liable on his official bond for the safe-keeping thereof. All moneys collected or received by the commission, or the manager of the state compensation insurance fund, under and — 33 — » 1 by virtue of the provisions of this act, shall be delivered to the 2 treasurer of the state or may be deposited to his credit in such 3 bank or banks throughout the state as he may, from time to 4 time, designate, and such moneys when so delivered or depos- 5 ited shall be credited by the treasurer to the said fund and no 6 moneys received or collected on account of such fund shall be 7 expended or paid out of such fund without first passing into 8 the state treasury and being drawn therefrom as provided in 9 this act. In like manner there shall be delivered to the treas- 10 urer all securities belonging to said fund which shall be held 11 by him until otherwise disposed of as provided in this act. 12 Sec. 44. (a) The commission shall submit each month to 13 the state board of control an estimate of the amount necessary 14 to meet the current disbursements from the state compensa- 15 tion insurance fund during each succeeding calendar month 16 and, when such estimate shall be approved by the state board 17 of control, the controller is directed to draw his warrant on 18 said fund in favor of said commission for such amount, and 19 the treasurer is authorized and directed to pay the same. 20 (&) At the end of each calendar month the commission shall 21 account to the state board of control and the state controller 22 for all moneys so received, furnishing proper vouchers therefor. 23 Sec. 45. (a) The commission shall cause all moneys in the 24 state compensation insurance fund, in excess of current require- 25 ments, to be invested and reinvested, from time to time, in the 26 securities now or hereafter authorized by law for the invest- 27 ment of funds of savings banks. (5) The commission shall, from time to time, submit to the 29 state board of control an estimate of the amount required by 39 it for investment, which estimate shall be accompanied by a 31 full description of the kind and character of the investments 32 to be made and, when such estimate shall be approved by the 33 state board of control, the controller is directed to draw his 34 warrant on the state compensation insurance fund in favor of 35 the commission for such amount and the treasurer is author- 36 ized and directed to pay the same. 37 (c) At the end of each calendar month the commission shall 3 — sb 905 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 34 — account to the said board of control and the state controller for all moneys so received, furnishing proper vouchers therefor. (d) All moneys in said fund, in excess of current require- ments and not otherwise invested, may be deposited by the state treasurer from time to time in the banks authorized by law to receive deposits of public moneys under the same rules and regulations that govern the deposit of other public funds and the interest accruing thereon shall be accredited to the state compensation insurance fund. Sec. 46. Each county, city and county, city, school district or other public corporation within the state, may insure against liability for compensation to injured employees provided for by this act with the state compensation insurance fund and not otherwise, and the premium therefor shall be a proper charge against the general fund of each such political subdivision of the state. Sec. 47. When the premium rates shall have been estab- lished for compensation insurance under the provisions of this act, the commission shall furnish schedules of rates and copies of the forms of policy to the commissioner of labor, to the clerk and to the treasurer of every county, city and county, and city in the state, and it shall be the duty of every public officer to whom the foregoing may be furnished to fill out and transmit to the manager of the state compensation insurance fund applications for compensation insurance in such fund and to receive and transmit to said manager all premiums paid on account of any policy issued or applied for. Sec. 48. The commission shall make to the governor of the state quarterly reports of the business done by the state com- pensation insurance fund during the previous quarter, and a statement of the fund’s resources and liabilities, and it shall be the duty of the state board of control to audit such reports and to cause an abstract thereof to be published one or more times in at least two newspapers of general circulation in the state. The commission shall likewise make to the state insur- ance commissioner all reports required by law to be made by other insurance carriers. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 35 — Sec. 49. Any employer who shall wilfully misrepresent the amount of the payroll upon which his premium under this act is to be based shall be liable to the state in ten times the amount of the difference in premium 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 compensation insurance fund. Sec. 50. Any person who wilfully misrepresents any fact in order to obtain insurance at less than the proper rate for such insurance, or in order to obtain any payments out of such fund, shall be guilty of a misdemeanor. Sec. 51. The following terms, as used in sections 51 to 72, inclusive, of this act, shall, unless a different meaning is plainly required by the context, be construed as follows : (1) The phrase “place of employment ” shall mean and include every place, whether indoors or out or underground, and the premises appurtenant thereto where, either temporarily or permanently, any industry, trade, work or business is carried on, or where any process or operation directly or indirectly related to any industry, trade, work or business, is carried on, and where any person is directly or indirectly employed by another for direct or indirect gain or profit, but shall not in- clude any place where persons are employed in private domestic service or agricultural pursuits which do not involve the use of mechanical power. (2) The term “employment” shall mean and include any trade, work, business, occupation or process of manufacture, or any method of carrying on such trade, work, business, occupa- tion or process of manufacture in which any person may be engaged, except in such domestic service or agricultural pur- suits as do not involve the use of mechanical power. (3) The term “employer” shall mean and include every person, firm, voluntary association, corporation, officer, agent, manager, representative or other person having control or cus- tody of any employment, place of employment or of any employee. — 36 — 1 (4) The term “employee” shall mean and include every 2 person who may be required or directed by any employer, in 3 consideration of direct or indirect gain or profit, to engage in 4 any employment, or to go to work or be at any time in any 5 place of employment. 6 (5) The term “frequenter” shall mean and include every 7 person, other than an employee, who may go in or be in a place 8 of employment under circumstances which render him other 9 than a trespasser. 10 (6) The term “ order ” shall mean and include any decision, 11 rule, regulation, direction, requirement or standard of the 12 commission or any other determination arrived at or decision 13 made by such commission under this act. 14 (7) The term “general order” shall mean and include such 15 order under this part of this act as applies generally through- 16 out the state to all persons, employments or places of employ- 17 ment, or all persons, employments or places of employment of a 18 class under the jurisdiction of the commission. All other orders 19 of the commission shall be considered special orders. 20 (8) The term “local order” shall mean and include any ordi- 21 nance, order, rule or determination of any board of supervisors, 22 city council, board of trustees or other governing body of any 23 county, city and county, city or of any school district or other 24 public corporation, or of the board of health of any such county, 25 city or county, municipality or district, or an order or direction 26 of any official of such municipality, upon any matter over 27 which the industrial accident commission has jurisdiction. 28 (9) The term “ safe ” and “ safety ” as applied to an employ- 29 ment or a place of employment shall mean such freedom from 30 danger to the life or safety of employees or frequenters as the 31 nature of the employment will reasonably permit. 32 (10) The terms “safety device” and “safeguard” shall be 33 given a broad interpretation so as to include any practicable 34 method of mitigating or preventing a specific danger. 35 Sec. 52. Every employer shall furnish employment which 36 shall be safe for the employees therein and shall furnish a 37 place of employment which shall be safe for employees therein — 37 — 1 and for frequenters thereof, and shall furnish and use safety 2 devices and safeguards, and shall adopt and use such practices, 3 means, methods, operations and processes reasonably adequate 4 to render such employment and place of employment safe, and 5 shall do every other thing reasonably necessary to protect the 6 life and safety of such employees and frequenters. 7 Sec. 53. No employer shall require, permit or suffer any 8 employee to go or be in any employment or place of employ- 9 ment which is not safe, and no such employer shall fail to fur- 10 nish, provide and use safety devices and safeguards, or fail to 11 adopt and use methods and processes reasonably adequate to 12 render such employment and place of employment safe, and no 13 such employer shall fail or neglect to do every other thing 14 reasonably necessary to protect the life and safety of such 15 employees and frequenters ; and no such employer shall occupy 16 or maintain any place of employment that is not safe. 17 Sec. 54. (1) Wherever practicable the points of danger 18 in any machine or mechanism shall be securely guarded by the 19 maker, and the manufacture or sale of any machine or median - 20 ism not so guarded is hereby prohibited. 21 (2) No employer, owner or lessee of any real property in 22 this state shall construct or cause to be constructed any place 23 of employment that is not safe. 24 Sec. 55. No employee shall remove, displace, damage, 25 destroy or carry off any safety device or safeguard furnished 26 and provided for use in any employment or place of employ- 27 ment, nor interfere in any way with the use thereof by any 28 other person, nor shall any such employee interfere with the 29 use of any method or process adopted for the protection of any 30 employee in such employment, or place or employment or f re- 31 quenter of such place of employment, nor fail or neglect to do 32 every other thing reasonably necessary to protect the life and 33 safety of such employees or frequenters. 34 Sec. 56. The commission is vested with power and jurisdic- 35 tion over and shall have such supervision of every employment 36 and place of employment in this state as may be necessary ade- 37 quately to enforce and administer all laws and all lawful orders 1 2 3 4 5 G 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 38 — requiring such employment and place of employment to be safe, and requiring the protection of the life and safety of every em- ployee in such employment or place of employment and every frequenter of such place of employment. Sec. 57. The commission shall have power, after a hearing had upon its own motion or upon complaint, by general or special orders, rules or regulations, or otherwise : (1) To declare and prescribe what safety devices, safe- guards or other means or methods of protection are best adapted to render the employees of every employment and place of employment and frequenters of every place of employ- ment safe as required by law or lawful order. (2) To fix such reasonable standards and to prescribe, modify and enforce such reasonable orders for the adoption, installation, use, maintenance and operation of safety devices, safeguards and other means or methods of protection, to be as nearly uniform as possible, as may be necessary to carry out all laws and lawful orders relative to the protection of the life and safety of employees in employments and places of employ- ment or frequenters of places of employment. (3) To fix and order such reasonable standards for the construction, repair and maintenance of places of employment as shall render them safe. (4) To require the performance of any other act which the protection of the life and safety of employees in employments and places of employment or frequenters of places of employ- ment may demand. (5) To declare and prescribe the general form of indus- trial accident reports, the accidents to be reported and the information to be furnished in connection therewith, and the time within which such reports shall be filed. Nothing in this act contained shall be construed to prevent the commission from requiring supplemental accident reports. Sec. 58. Upon the fixing of a time and place for the holding of a hearing for the purpose of considering and issuing a gen- eral safety order or orders as authorized by section 57 hereof, the commission shall cause a notice of such hearing to be pub- — 39 — i 4 1 lished in one or more daily newspapers of general circulation 2 published and circulated in the city and county of San Fran- 3 c-isco, and also in one or more daily newspapers of general circu- 4 lation published and circulated in the county of Los Angeles, 5 such newspapers to be designated by the commission for that 6 purpose. No defect or inaccuracy in such notice or in the pub- 7 lication thereof shall invalidate any general order issued by 3 the commission after hearing had. 9 Sec. 59. Whenever the commission, after a hearing had 10 upon its own motion or upon complaint, shall find that any 11 employment or place of employment is not safe or that the 12 practices or means or methods or operations or processes em- 13 ployed or used in connection therewith are unsafe, or do not 14 afford adequate protection to the life and safety of employees 15 in such employments and places of employment, or frequent- ly ers of places of employment, the commission shall make and 17 enter and serve such order relative thereto as may be necessary 13 to render such employment or place of employment safe and 19 protect the life and safety of employees in such employments 29 and places of employment or frequenters thereof and may in 21 said order direct that such additions, repairs, improvements 22 or changes be made and such safety devices and safeguards be 23 furnished, provided and used, as are reasonably required to 24 render such employment or place of employment safe, in the 29 manner and within the time specified in said order. 29 Sec. 60. The commission may, upon application of any 27 employer, or other person affected thereby, grant such time 28 a S may reasonably be necessary for compliance with any order, 29 and any person affected by such order may petition the com- 39 mission for an extension of time, which the commission shall 31 grant if it finds such an extension of time necessary. 32 Sec. 61. Whenever the commission shall learn or have rea- 33 son to believe that any employment or place of employment 34 is not safe or is injurious to the welfare of any employee or 35 frequenter it may, of its own motion, or upon complaint, sum- 36 marily investigate the same, with or without notice or hearings, 37 and enter and serve such order as may be necessary relative 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 40 — thereto, anything in this act to the contrary notwithstanding. Sec. 62. Every employer, employee and other person shall obey and comply with each and every requirement of every order, decision, direction, rule or regulation made or pre- scribed by the commission in connection with the matters herein specified, or in any way relating to or affecting safety of employments or places of employment, or to protect the life and safety of employees in such employments or places of employment, and shall do everything necessary or proper in order to secure compliance with and observance of every such order, decision, direction, rule or regulation. Sec. 63. The orders of the commission, general or special, its rules or regulations, findings and decisions, made and entered under this part of this act, may be reviewed by the courts in sections eighty-four and eighty-five of this act specified and within the time and in the manner therein specified and not otherwise. Sec. 64. Nothing contained in this act shall be construed to deprive the board of supervisors of any county, or city and county, the board of trustees of any city, or the board of health of any municipality, or any other public corporation, or board or department, of any power or jurisdiction over or relative to any place of employment; provided, that whenever the industrial accident commission shall, by order, fix a standard of safety for employments or places of employment, such order shall, upon the filing by the commission of a copy thereof with the clerk of the county, city and county, or city to which it may apply, establish a minimum requirement con- cerning the matters covered by such order and shall be construed in connection with any local order relative to the same matter and to amend or modify any requirement in such local order not up to the standard of such order. Sec. 65. The industrial accident commission shall have further power and authority: (1) To establish and maintain museums of safety and hygiene in which shall be exhibited safety devices, safeguards and other means and methods for the protection of the life and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 — 41 — safety of employees, and to publish and distribute bulletins on any phase of this general subject. (2) To cause lectures to be delivered, illustrated by stere- opticon or other views, diagrams or pictures, for the informa- tion of employers and their employees and the general public in regard to the causes and prevention of industrial accidents, occupational diseases and related subjects. Sec. 66. Every order of the commission, general or special, its rules and regulations, findings and decisions, made and entered under this act shall, in every prosecution for the viola- tion thereof or for the violation of any provision of this act, be conclusively presumed to be reasonable and lawful, unless, prior to the institution of the prosecution for such violation or violations, proceedings for a rehearing thereon or a review thereof shall have been instituted as provided in sections eighty-one to eighty-five, inclusive, hereof and not then finally determined. Sec. 67. Every employer, employee or other person who, either individually or acting as an officer, agent or employee of a corporation or other person, violates any safety provision of this act, or who shall fail or refuse to perform any duty lawfully enjoined, or who fails to observe, obey or comply with any safety order, decision, rule, direction, demand or require- ment, or any part thereof, lawfully made by the commission under this act, or within the time prescribed by the commission, or who procures, aids or abets another in so doing, is guilty of a misdemeanor. Sec. 68. Every violation of the provisions of this act or of any order, decision, rule, direction, demand or requirement of the commission, or of any part or portion thereof by any person or corporation is a separate and distinct offense, and, in the case of a continuing violation thereof, each day’s con- tinuance thereof shall constitute a separate and distinct offense. Sec. 69. All fines imposed and collected under prosecutions for violations of the provisions of sections fifty-one to seventy- two inclusive of this act, shall be paid into the state treasury to 9 Li 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 — 42 — the credit of the “accident prevention fund,” which fund is hereby created. Sec. 70. It shall be unlawful for any member of the com- mission, or for any officer or employee of the commission, to divulge to any person not connected with the administration of this act any confidential information obtained from any person, concerning the failure of any other person to keep any place of employment safe, or concerning the violation of any order, rule or regulation issued by the commission. Any member of the commission or any officer or employee of the commission divulging such confidential information shall be guilty of a misdemeanor. Sec. 71. (a) Every employer of labor, and every insur- ance carrier, is hereby required to file with the commission, under such rules and regulations as the commission may from time to time make, a full and complete report of every accident to an employee arising out of or in the course of his employ- ment and resulting in loss of life or injury to such person. Such reports shall be furnished to the commission in such form and such detail as the commission shall from time to time prescribe, and shall make specified answers to all questions required by the commission under its rules and regulations. Any such employer or insurance carrier who shall furnish such report shall be exempt from furnishing any similar report or reports authorized or required under the laws of this state. (h) Every employer or insurance carrier receiving from the commission any blanks with directions to fill the same shall cause the same to be properly filled out so as to answer fully and correctly each question propounded therein; in case he or it is unable to answer any such question a good and suffi- cient reason shall be given for such failure. (c) No information furnished to the commission by an employer or an insurance carrier shall be open to public inspec- tion or made public except on order of the commission, or by the commission or a commissioner in the court of a hearing or proceeding. Any officer or employee of the commission who, 1 2 o O 4 D a L' 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 43 — in violation of the provisions of this subsection, divulges any information shall be guilty of a misdemeanor. Sec. 72 (a) The commission shall investigate the cause of all industrial accidents occuring within this state in any em- ployment or place of employment, or directly or indirectly arising from or connected with the maintenance or operation of such employment or place of employment, resulting in personal injury or death and requiring, in the judgment of the commission, such investigation; and the commission shall have the power to make such orders or recommendations with respect to such accidents as may be just and reasonable, pro- vided that neither the order nor the recommendation of the commission, nor any accident report filed with the commission, shall be admitted as evidence in any action for damages or any proceeding to recover compensation, based on or arising out of such injury or death. (6) For the purpose of making any investigation which the commission is authorized to make under the provisions of this section, or for the purpose of collecting statistics or exam- ining the provisions made for the safety of employees, any member of the commission, inspector or other person desig- nated by the commission for that purpose, may enter any place of employment. (c) Any employer, insurance carrier or any other person who shall violate or omit to comply with any of the provisions of this section, or who shall in any way obstruct or hamper the commission, any commissioner or other person conducting any investigation authorized to be undertaken or made by the commission, shall be. guilty of a misdemeanor. Sec. 73. (a) All proceedings for the recovery of compen- sation, or arising out of or incidental thereto, or for the enforcement against the employer or an insurance carrier of any liability for compensation imposed upon him or it by this act in favor of the injured employee, his dependents or any third person, or for the determination of any question as to the distribution of compensation among dependents or other persons as to who are dependents of any deceased em- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 — 44 — ployee, or what persons are entitled to any benefit under the compensation provisions of this act, or for obtaining any order which by this act the commission is authorized to make, shall be instituted before the commission, and not elsewhere, except as otherwise in this act provided, and the commission is hereby vested with full power, authority and jurisdiction to try and finally determine all such matters, subject only to the review by the courts in this act specified and in the man- ner and within the time in this act provided. (6) All orders, rules and regulations, findings, decisions and awards of the commission in conformity with law shall be in force and shall be prima facie lawful; and all such v orders, rules and regulations, findings, decisions and awards shall be conclusively presumed to be reasonable and lawful, until and unless they are modified or set aside by the com- mission or upon a review by the courts in this act specified and within the time and in the manner herein specified. Sec. 74 ( a ) Any notice, order or decision required by this act to be served upon any person or party either before, during or after the institution of any proceeding before the commisison, may be served in the manner provided by chapter V, title XIV of part II of the Code of Civil Procedure of this state, unless otherwise directed by the commission or a member thereof, in which event the same shall be served in accordance with the order or direction of said commission or member thereof. (&) Any such notice, order or decision affecting the state or any city and county, city, school district or public corporation therein, shall be served upon the same officer, officers, person or persons, upon whom the service of similar notices, orders or decisions is authorized by law. f Sec. 75. The commission shall have full power and author- ity : 1. To adopt reasonable and proper rules of practice and pro- cedure ; 2. To regulate and provide the manner, and by whom, minors 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 45 — and incompetent persons shall appear and be represented be- fore it; 3. To appoint a trustee or guardian ad litem to appear for and represent any such minor or incompetent upon such terms and conditions as it may deem proper ; 4. To provide for the joinder in the same proceeding of all persons interested therein, whether as employer, insurance car- rier, employee, dependent, creditor or otherwise ; 5. To regulate and prescribe the kind and character of notices, where not otherwise prescribed by this act, and the service thereof ; 6. To regulate and prescribe the nature and extent of the proofs and evidence. Sec. 76. (a) The commission may by order entered upon its minutes, upon the agreement of the parties, upon the appli- cation of either, or of its own motion, and either with or without notice, direct and order a reference in the following cases : 1. To try any or all of the issues in any proceeding before it. whether of fact or of law, and to report a finding, order, decision or award to be based thereon. 2. To ascertain a fact necessary to enable the commission to determine any proceeding before it or to make any order, deci- sion or award that the commission is authorized to make under this act, or that is necessary for the information of the com- mission. (6) The commission may appoint one or more referees in any proceeding, as it may deem necessary or advisable, and may refer separate matters arising out of the same proceeding to different referees. It may also, in its discretion, appoint gen- eral referees who are residents of the county or city and county for which they are appointed and who shall hold office during the pleasure of the commission. Any referee appointed by the commission shall have such powers, jurisdiction and authority as is granted under the law, by the order of appointment and by the rules of the commission and shall receive such salary or compensation for his services as may be fixed by the com- mission. i 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 46 — (c) Any party to the proceeding may object to the appoint- ment of any person as referee upon any one or more of the grounds specified in Section 641 of the Code of Civil Procedure and such objection must be heard and disposed of by the com- mission. Affidavits may be read and witnesses examined as to such objections. (d) Before entering upon his duties, the referee must be sworn before an officer authorized to administer oaths, faith- fully and fairly to hear and determine the allegations and evi- dence of the parties in relation to the matters in the reference, and to make just findings and report according to his under- standing. ( e ) The referee must report his findings in writing to the commission within twenty days after the testimony is closed. Such report shall be made in the form prescribed by the com- mission and shall include all matters required to be included in the order of reference or by the rules of the commission. The facts found and conclusion of law must be separately stated. (/*) Upon the filing of the report of the referee, the commis- sion may confirm, adopt, modify or set aside the same or any part thereof and may, either with or without further proceed- ings, and either with or without notice, enter its order, findings, decision or award based in whole or in part upon the report of the referee. Sec. 77. (a) All hearings and investigations before the commission or any member thereof, or any referee appointed thereby, shall be governed by this act and by the rules of prac- tice and procedure adopted by the commission, and in the con- duct thereof neither the commission nor any member thereof nor any referee appointed thereby shall be bound by the tech- nical rules of evidence. No informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, award, rule or regulation made, approved or con- firmed by the commission. (b) The commission or any member thereof or any party to the action or proceeding may, in any investigation or hearing before the commission, cause the deposition of witnesses resid- — 47 — i l 1 ing within or without the state to be taken in the manner pre- 2 scribed by law for like depositions in civil actions in the supe- 3 rior courts of this state, and to that end may compel the attend- 1 ance of witnesses and the production of books, documents, 5 papers and accounts. 6 Sec. 78. The commission and each member thereof, its sec- 7 retary and referees, shall have power to administer oaths, cer- 8 tify to all official acts, and to issue subpoenas for the attendance 9 of witnesses and the production of papers, books, accounts, 10 documents and testimony in any inquiry, investigation, hear- 11 ing or proceeding in any part of the state. Each witness who 12 shall appear, by order of the commission or a member thereof, 13 or a referee appointed thereby, shall be entitled to receive, if 11 demanded, for his attendance the same fees and mileage 15 allowed by law to a witness in civil cases, which amount shall 16 be paid by the party at whose request such witness is sub- 17 poenaed, unless otherwise ordered by the commission. When 16 any witness who has not been required to attend at the request 19 of any party is subpoenaed by the commission his fees and mile- 20 age may be paid from the funds appropriated for the use of 21 the commission in the same manner as other expenses of the 22 commission are paid. Any witness subpoenaed, except one 23 whose fees and mileage may be paid from the funds of the 21 commission, may, at the time of service, demand the fee to 25 which he is entitled for travel to and from the place at which 26 he is required to appear, and one day’s attendance. If such 27 witness demands such fees at the time of service, and they are 26 not at that time paid or tendered, he shall not be required to 29 attend before the commission, member thereof, or referee as 36 directed in the subpoena. All fees or mileage to which any wit- 31 ness is entitled under the provisions of this section may be 32 collected by action therefor instituted by the person to whom 33 such fees are payable. 34 Sec. 79. The superior court in and for the county, or city 35 and county, in which any inquiry, investigation, hearing or 36 proceeding may be held by the commission or any member 37 thereof or referee appointed thereby, shall have the power to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 — 48 — compel the attendance of witnesses, the giving of testimony and the production of papers, including books, accounts and documents, as required by any subpoena issued by the commis- sion or member thereof or referee. ' The commission or the member therof or the referee, before whom the testimony is to be given or produced, in case of the refusal of any witness to attend or testify or produce any papers required by such subpoena, may report to the superior court in and for the county, or city and county, in which the proceeding is pending, by petition, setting forth that due notice has been given of the time and place of attendance of said witness, or the production of said papers, and that the witness has been subpoenaed in the manner prescribed in this act, and that the witness has failed and refused to attend or produce the papers required by the subpoena, or has refused to answer questions propounded to him in the course of such proceeding, and ask an order of said court, compelling the witness to attend and testify or pro- duce said papers before the commission. The court, upon the petition of the commission or such member thereof or referee, shall enter an order directing the witness to appear before the court at a time and place to be fixed by the court in such order, the time to be not more than ten days from the date of the order, and then and there show cause why he had not attended and testified or produced said papers before the commission, member thereof or referee. A copy of said order shall be served upon said witness. If it shall appear to the court that said subpoena was regularly issued by the commission or mem- ber thereof or referee, the court shall thereupon enter an order that said witness appear before the commission or member thereof or referee at the time and place fixed in said order, and testify or produce the required papers, and upon failure to obey said order, said witness shall be dealt with as for contempt of court. The remedy provided in this subsection is cumula- tive, and shall not be construed to impair or interfere with the power of the commission or a member thereof to enforce the attendance of witnesses and the production of papers, and to — 49 — i 4 1 punish for contempt in the same manner and to the same extent 2 as courts of record. 3 Sec. 80. ( a ) The commission is hereby vested with full 4 power, authority and jurisdiction to do and perform any and 5 all things, whether herein specifically designated, or in 6 addition thereto, which are necessary or convenient in the 7 exercise of any power, authority or jurisdiction conferred 8 upon it under this act. 9 (5) The commission and each member thereof shall have 10 power to issue writs of summons, warrants of attachment, 11 warrants of commitment and all necessary process in proceed- 12 ings for contempt, in like manner and to the same extent as 13 courts of record. The process issued by the commission or 14 any member thereof shall extend to all parts of the state and 15 may be served by any persons authorized to serve process of 16 courts of record, or by any persons designated for that pur- 17 pose by the commission or any member thereof. The persons 18 executing any such process shall receive such compensation 19 as may be allowed by the commission, not to exceed the fees 20 now prescribed by law for similar services, and such fees shall 21 be paid in the same manner as provided herein for the fees of 22 witnesses. 23 Sec. 81. (a) Any party or person aggrieved directly or 24 indirectly by any final order, decision, award, rule or regula- 25 tion of the commission, made or entered under any provision 26 contained in this act, may apply to the commission for a 27 rehearing in respect to any matters determined or covered by 28 such final order, decision, award, rule or regulation and 29 specified in the application for rehearing within the time and 30 in the manner hereinafter specified, and not otherwise. 31 (b) No cause of action arising out of any such final order, 32 decision or award shall accrue in any court to any person 33 until and unless such persons shall have made application for 34 such rehearing, and such application shall have been granted 35 or denied; provided, that nothing herein contained shall be 36 construed to prevent the enforcement of any such final order, 4 — sb 905 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 — 50 decision, award, rule or regulation in the manner provided in this act. (c) Such application shall set forth specifically and in full detail the grounds upon which the applicant considers said final order, decision, award, rule or regulation is unjust or unlawful, and every issue to be considered by the commission upon such application must be verified upon oath in the same manner as required for verified pleadings in the courts of record and must contain a general statement of any evidence or other matters upon which the , applicant relies in support thereof. The applicant for such rehearing shall be deemed to have finally waived all objections, irregularities and illegalities concerning the matter upon which such rehearing is sought other than those set forth in the application for such rehearing. (d) A copy of such application for rehearing shall be served forthwith on all adverse parties, if any, and any such adverse party may file an answer thereto within ten days thereafter. Such answer must likewise be verified. If there are no adverse parties, such application may be heard ex parte or the commission may require the application for rehearing to be served on such parties as may be designated by it. ( e ) Upon filing of an application for a rehearing, if the issues raised thereby have theretofore been adequately con- sidered by the commission, it may determine the same by confirming without hearing its previous determination, or if a rehearing is necessary to determine the issues raised, the commission shall order a rehearing thereon and consider and determine the matter or matters raised by such application. Notice of the time and place of such rehearing shall be given to the applicant or adverse parties and to such other persons as the commission may order. ( ( f ) If after such rehearing and a consideration of all the facts, including those arising since the making of the order. ; ' decision or award involved, the commission shall be of the opinion that the original order, decision or award or any part thereof, is in any respect unjust or unwarranted, or should be changed, the commission may abrogate, change or modify the — 51 — i 4 J 1 same. An order, decision or award made after such rehear- 2 ing, abrogating, changing or modifying the original order, 3 decision or award shall have the same force and effect as an 4 original order, decision or award, but shall not affect any 5 right or the enforcement of any right arising from or by 6 virtue of the original order, decision or award, unless so 7 ordered by the commission. An application for a rehearing 8 shall be deemed to have been denied by the commission unless 9 it shall have been acted upon within thirty days from the date 10 of filing. 11 Sec. 82 (a) At any time within twenty days after the serv- 12 ice of any final order or decision of the commission awarding or 13 denying compensation, or arising out of or incidental thereto, 14 any party or parties aggrieved thereby may apply for such 15 rehearing upon one or more of the following grounds and upon 16 no other grounds: 17 1. That the commission acted without or in excess of its 18 powers. 19 2. That the order, decision or award was procured by fraud. 20 3. That the evidence does not justify the finding of fact. 21 4. That the findings of fact do not support the order, deci- 22 sion or award. 23 (&) Nothing contained in this section shall, however, be con- 24 strued to limit the right of the commission, at any time within 25 245 weeks from the date of its award, and from time to time, 26 after due notice and upon the application of any party inter- 27 ested, to review, diminish or increase, within the limits provided 26 by this act, any compensation awarded upon the grounds that 29 the disability of the person in whose favor such award was 69 made has either increased or diminished or terminated. 61 Sec. 83. (a) At any time within twenty days after the 32 service of any other final order, decision, rule or regulation 63 made by the commission under the provisions of this act, any 34 party or parties, person or persons aggrieved thereby or other- 35 wise affected, directly or indirectly, may apply for such rehear- 66 ing upon one or more of the following grounds and upon no 37 other grounds. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 52 1. That the commission acted without or in excess of its powers. 2. That the order or decision was procured by fraud. 3. That the order, decision, rule or regulation is unreason- able. 4. If findings of fact are made, that the evidence does not justify such findings of fact. 5. If findings of fact are made, that such findings of fact do not support the order or decision based thereon. (b) Nothing contained in this section shall be construed to limit the right of the commission, to at any time and from time to time, adopt new or different rules or regulations or new or different standards of safety, or to abrogate, change or modify any existing rule, regulation, or standard, or any part thereof, or to deprive the commission of continuing jurisdiction over the same or to prevent the enforcement in the manner provided bv this act, of any rules, regulations or standard of the commis- sion, or any part thereof, when so adopted, or changed, or modified. Sec. 84. ( a ) Within thirty days after the application for a rehearing is denied, or, if the application is granted, within thirty days after the rendition of the decision on the rehearing, any party affected thereby may apply to the supreme court of this state or to the district court of appeal of the appellate district in which such person resides, for a writ of certiorari or review (hereinafter referred to as a writ of review) for the purpose of having the lawfulness of the original order, decision or award or the order, decision or award on rehearing inquired into and determined. (b) Such writ shall be made returnable not later than thirty days after the date of the issuance thereof, and shall direct the commission to certify its record in the case to the court. On the return day the cause shall be heard in the court unless for good ^ cause the same be continued. No new or additional evidence may be introduced in such court but the cause shall be heard on the record of the commission as certified to by it. The — 53 — i V 1 review shall not be extended further than to determine whether 2 or not : 3 1. The commission acted without or in excess of its powers. 4 2. The order, decision or award was procured by fraud. 5 3. The order, decision, rule or regulation is unreasonable. 6 4. If findings of fact are made, whether or not such findings I of fact support the order, decision or award under review. 8 (c) The findings and conclusions of the commission on ques- 9 tions of fact shall be conclusive and final and shall not be 10 subject to review ; such questions of fact shall include ultimate 11 facts and the findings and conclusions of the commission. The 12 commission and each party to the action or proceeding before 13 the commission shall have the right to appear in the review 14 proceeding. Upon hearing the court shall enter judgment 15 either affirming or setting aside the order, decision or award. 10 (<2) The provisions of the Code of Civil Procedure of this 11 state relating to writs of review shall, so far as applicable and 18 not in conflict with this act, apply to proceedings in the court 19 under the provisions of this section. No court of this state 20 (except the supreme court and the district courts of appeal to 21 the extent herein specified) shall have jurisdiction to review, 22 reverse, correct or annul any order, decision or award of the 23 commission or to suspend or delay the operation or execution 24 thereof, or to restrain, enjoin or interfere with the commission 25 in the performance of its duties ; provided, that a writ of man- 26 damus shall lie from the supreme court or the district courts 21 of appeal in all proper cases. 28 Sec. 85. (a) The filing of an application for a rehearing 29 shall have the effect of suspending the order, decision, award, 30 rule or regulation affected, in so far as the same applies 31 to the parties to such application, unless otherwise ordered by 32 the commission, for a period of ten days, and the commission 33 may, in its discretion and upon such terms and conditions as 34 it may by order direct, stay, suspend or postpone the same 35 during the pendency of such rehearing. 36 ( b ) The filing of an application for, or the pendency of a 3^ writ of review, shall not of itself stay or suspend the operation — 54 — 1 of the order, decision, award, rule or regulation of the commis- 2 sion subject to review, but the court before whom such appli- 3 cation is filed may, in its discretion, stay or suspend in whole 4 or in part the operation of the order, decision, award, rule or 5 regulation of the commission subject to the review upon such 6 terms and conditions as it may by order direct. 7 Sec. 86. (a) "Whenever this act, or any part or section 8 thereof, is interpreted by a court, it shall be liberally con- 9 strued by such court. 10 (b) If any section, subsection, subdivision, sentence, clause 11 or phrase of this act is for any reason held to be unconstitu- 12 tional, such decision shall not affect the validity of the remain- 13 ing portions of this act. The legislature hereby declares that 14 it would have passed this act, and each section, subsection, 15 subdivision, sentence, clause and phrase thereof, irrespective 16 of the fact that any one or more sections, subsections, sub- 17 divison, sentences, clauses or phrases is declared unconstitu- 18 tional. 19 (c) This act shall not be construed to apply to employers 20 or employments which, according to law, are so engaged in 21 interstate commerce as to be not subject to the legislative 22 power of the state nor to employees injured while they are 23 so engaged, except in so far as this act be permitted to apply 24 under the provisions of the Constitution of the United States 25 or the acts of congress. 26 Sec. 87. The commission shall, not later thsm the first day 27 of December of each calendar year, subsequent to the year 28 1913, make a report to the governor of the state covering its 29 entire operations and proceedings for the previous fiscal year, 89 with such suggestions or recommendations as it may deem of 81 value for public information. Such report shall be printed 32 and a copy thereof furnished to all applicants within this 33 state. 34 Sec. 88. The sum of four hundred twelve thousand, one 35 hundred thirty dollars is hereby appropriated out of any 36 money in the state treasury, not otherwise appropriated, to 37 be used by the industrial accident commission in carrying out 1 2 3 4 5 6 7 8 I 9 10 11 * 12 — 55 — the purposes of this act, and the controller is hereby directed to draw his warrant on the general fund from time to time in favor of said industrial accident commission for the amounts expended under its direction, and the treasurer is hereby authorized and directed to pay the same. Sec. 89. All acts or parts of acts inconsistent with this act are hereby repealed. Sec. 90. The compensation provisions of this act shall not apply to any injury sustained prior to the taking effect thereof. Sec. 91. This act shall take effect and be in force on and after the first day of September, A. D. 1913.