94

schedule is in lieu of all other compensation, and a claimant has already received compensation allowed for temporary total disability before it becomes known that the sight of his eye is completely destroyed, this amount is to be deducted from compensation provided by the schedule. Money advanced to the decedent as unearned wages may be deducted from compensation due him, but not from benefits due to the widow on account of her dependency, or for burial expense; the rights of the widow being separate and distinct from those of the workman.95 No deduction can be made for medical services furnished by the employer beyond the period required by statute. In death cases, where employers make advances that are absolutely needed and necessary to the injured employés, and no serious question is raised concerning the correctness of same, the Illinois Board will allow credit for them."7 Under the Califor

96

vided that no serious harm has been done the employé because of the irregularity of the payments. Unless money be paid as part payment on account of compensation, it cannot be credited to the employer, as the Act contains no provisions authorizing the Commission to adjust a set-off or counterclaim. Johnson v. Cluett Peabody Co., 2 Cal. I. A. C. Dec. 7. Where an employer by mistake secures a simple accident insurance policy upon an employé, instead of an employer's compensation liability policy, and the employé is injured, and payments are made to him by the insurance company in accordance with the policy, the employer is entitled to have credited to himself the amount paid, upon the theory that the payments made by the insurance company were in reality payments procured to be made by him upon account of liability for compensation. Mecartea v. Marsh, 2 Cal. I. A. C. Dec. 128. Where during the first five weeks of total disability following the injury the applicant received full wages from his employer, and during the next six weeks of total disability received more than 65 per cent. of his earnings, the full sum paid should not be treated as 100 per cent. compensation during the five weeks, but the whole sum paid should be credited in full on whatever sum was awarded to the applicant. Ramirez v. Binkley & Wayne, 3 Cal. I. A. C. Dec. 33.

94 Kreppel v. Boyland, 2 N. Y. St. Dep. Rep. 489.

95 Hackney v. City of New Britain School Board, 1 Conn. Comp. Dec. 160. 96 Mahoney v. Seymour Mfg. Co., 1 Conn. Comp. Dec. 292.

97 Rediger v. Pekin Wagon Co., Bulletin No. 1, Ill., p. 146.

98

nia Act, where an employé, so disabled that his service is of little. value, is kept at work on full pay, instead of being paid indemnity, the Commission will hold such pay to be compensation, and no part of it to be wages, since the law does not contemplate satisfying its compensation provisions by payment of wages, instead of compensation. But where he permits the injured employé to remain in living quarters formerly furnished her, but later furnished to her sister, also an employé, and as a part of the sister's contract of employment, the value of such quarters cannot be deducted as a part payment of the compensation due the injured employé."" Nor where money is paid by an employer to his employé, after an injury sustained by the latter, as a pure gift, and not as a part payment on liability to be later determined, can the employer subsequently change his mind and claim a pecuniary benefit for what was at the time intended as an act of generosity or charity. Suchpayments cannot be credited upon compensation later awarded.1

The Minnesota Act provides that an employer may deposit with "any savings bank or trust company of the state to be approved and designated by the court," "a sum equal to the present value of all future installments of compensation calculated on a 6 per cent. basis," and that "such sum, together with all interest thereon," shall thereafter be held in trust for the employé or his dependents, and "payments from said fund shall be made by the trustee in the same amounts and at the same time as are herein required of the

98 Turner v. City of Santa Cruz, 2 Cal. I. A. C. Dec. 991. Where an employer elects to pay 100 per cent. compensation, instead of 65 per cent. provided by the Act, the employé will not be required to refund any portion of indemnity so paid, and the employer will be credited only for the number of payments he has made, and not with the amount thereof in money. Id.

99 Fowler v. Zellerbach-Levison Co., 1 Cal. I. A. C. Dec. 609.

1 Johnson v. Cluett Peabody Co., 2 Cal. I. A. C. Dec. 7.

employer until such fund and interest shall be exhausted."

Under

this provision, where employer and employé agree upon the amount of compensation to be paid, and the court grants permission to the employer to pay the amount to the trustee, the employer may deduct 6 per cent. on all deferred payments.3

§ 184. Increased and reduced compensation

The Massachusetts Act provides that, "if the employé is injured by reason of the serious and willful misconduct of a subscriber or of any person regularly intrusted with and exercising the powers of superintendence, the amounts of compensation * * shall be doubled." Under this provision it has been held that serious and willful misconduct on the part of the employer is not established by failure to provide safety devices," by poor working conditions permitted by him," by failure to supply a foreman," or prop

4

2 Minn. Wk. Comp. Act, Gen. Laws 1913, c. 467, § 28 (Gen. St. 1913, § 8223).

3 Op. Atty. Gen. on Minn. Wk. Comp. Act, Bul. 11, p. 15.

4 Mass. Wk. Comp. Act, § 3, pt. II.

5 An employer neglected to provide a "skid" on the right-hand side of the staging, and by reason of this reglect the employé was fatally injured. This was not serious and willful misconduct on the part of the employer. Kerrigan v. Employers' Liab. Assur. Corp., Ltd., 2 Mass. Wk. Comp. Cases, 360 (decision of Com. of Arb.).

• The employé claimed double compensation because of the failure of an inexperienced workman to properly repair an elevator which he was required to operate. Because of the poor manner in which the elevator was repaired, it broke loose from the wire cable which supported it, falling with

7 The employé, with other men, had been ordered to take down a staging section by section, and had been instructed by the employer to be very careful about the manner in which it was taken down. The staging was removed by the workmen, under general orders from the employer, but without proper supervision by him or any other person vested with authority to supervise, and after the work had proceeded for about an hour and a half the structure fell. The employé was not entitled to double compensation. Holland v. Fidelity & Deposit Co. of Md., 2 Mass. Wk. Comp. Cases, 308 (decision of Com. of Arb., affirmed by Indus. Acc. Bd.).

9

er tools, or sufficient workmen, where their presence would not have prevented the accident; nor is such misconduct shown by the exercise of poor judgment on the part of a foreman.10 The

him in it from the second to the first floor of the building. It was held that the employé was not entitled to double compensation. Jacques v. Travelers' Insur. Co., 2 Mass. Wk. Comp. Cases, 478 (decision of Com. of Arb.). The employé claimed that his personal injury was due to the condition of the saw which he was using. Two fellow employés testified, however, that the injury happened because the claimant reached over the saw to remove a stick which had become wedged, and cut his thumb thereby. He could have shut off the power and removed the obstruction without danger of injury. It was held that the injury was not caused by the serious and willful misconduct of the employer. Mikonis v. Royal Indemnity Co., 2 Mass. Wk. Comp. Cases, 384 (decision of Com. of Arb.).

8 The employé received a fatal injury while working in the pole yard of the subscriber, his head being crushed. It was claimed that the pole which caused his death would not have rolled over, but for the inability of the employe's fellow workmen to hold it, because of the inefficient cant hooks supplied and their inexperience. The evidence showed that all of the men on the job had been employed for a period adequate to become familiar with the work which they were required to do, and had been instructed by the superintendent and foreman the proper manner in which to perform this work. The cant hooks were not in good repair, and a new supply of hooks had been ordered by the subscriber. The Committee held that the widow was not entitled to double compensation. Tobin v. Etna Life Insur. Co., 2 Mass. Wk. Comp. Cases, 612 (decision of Com. of Arb., affirmed by Indus. Acc. Bd.).

The employé claimed that the failure of the subscriber to provide a "tag man," whose sole duty should be to signal the engineer when to start and stop the engine, was serious and willful misconduct. The foreman acted as "tag man" when the necessity arose, and the engine was not in operation at the time of the accident. Therefore the presence of an employé, whose sole duty was to act as "tag man," would not have prevented the injury, and the employé was not entitled to double compensation. Marshall v. U. S. Fidelity & Guaranty Co., 2 Mass. Wk. Comp. Cases, 119 (decision of Com, of Arb.).

10 The employé claimed serious and willful misconduct of the subscriber through a person exercising superintendence-a foreman. The evidence showed that the injury was not due to the serious and willful misconduct of the foreman, the latter's act in ordering the employé to resume the work of digging out a blast hole being neither willful nor deliberate. It could not be said that the foreman had any idea serious consequences would result

breaking of a wire rope, allowing a heavy heater coil to fall upon the workman, has been held not to show serious and willful misconduct of the employer.11

Under a provision of the Wisconsin Act that, in case the injury is caused by the failure of the employer to comply with any lawful order of the Commission, the compensation awarded shall be increased 15 per cent., where the injury to the muscles and ligaments of the workman's arm was sustained by coming in contact with set screws on a line shaft, which were there contrary to an order of the Commission, the compensation award was so increased; 12 likewise where the injury was due to a violation of an order requiring guards in front of the feed rolls on an ironer, to prevent the workman's hands being drawn into the rolls.18 Where

from the carrying out of his instructions. The blast had been carefully inspected immediately after the explosion by a party of five, including the foreman, one of the employers, and the employé, and as a result of this inspection the two former were satisfied that there had been a perfect explosion in each of the blast holes. The employé was not entitled to double compensation. Revita v. Royal Indemnity Co., 2 Mass. Wk. Comp. Cases, 352 (decision of Com. of Arb., affirmed by Indus. Acc. Bd.). The employé claimed that his injury was due to the serious and willful misconduct of a person exercising superintendence. The evidence showed, however, that the belt had not broken frequently, as claimed by him, and that it was not defective, but was made of good material. The employé was held not entitled to double compensation. Oliveira v. Etna Life Insur. Co., 2 Mass. Wk. Comp. Cases,

517 (decision of Com. of Arb.).

11 The employé was instructed by his foreman to block a car in the testing room about 400 feet from the scene of the fatality, but during the absence of the foreman voluntarily left his work to assist other workman in loading a heavy heater coil on a flat car. While he was helping the wire rope which held the heater coil broke, and the coil fell upon and fatally injured him. A claim for double compensation, on the ground that the injury occurred by reason of the serious and willful misconduct of the employer, was filed by the widow, but was dismissed. Malewicki v. American Mut. Liab. Insur. Co., 2 Mass. Wk. Comp. Cases, 366 (decision of Com. of Arb.).

12 (Wk. Comp. Act Wis. § 2394-9 [5] a) Hickox v. Beloit Concrete Co., Rep. Wis. Indus. Com. 1914-15, p. 37.

12 Higgins v. Hanover & Butler, Rep. Wis. Indus. Com. 1914-15, p. 37.