65 failure to act.64 In order to defeat a right to compensation for refusal to submit to an examination, it is necessary that the examination shall have been directed by the Secretary, that it be made without expense to the employé, and that the employé be advised by the Secretary that such examination is required. If the Secretary so directs, an examination made by a naval surgeon designated by the Secretary of the Navy to examine an employé to determine his right to continued compensation would be a compliance with the Act. The requirement as to examination shows that the Act contemplates the payment of compensation be not authorized for a longer period than six months at a time, even though the disability is permanent in its nature. The examinations should be paid for by the government, the contingent appropriation for the department being available for such purpose."8 67 64 In re Villafranca, Op. Sol. Dept. of L. (1915) 762. 65 In re Mayott, Op. Sol. Dept. of L. (1915) 765. 66 In re Villanueva, Op. Sol. Dept. of L. (1915) 765. 67 In re Haynes, Op. Sol. Dept. of L. (1915) 761. 68 (Dec. Comp. of Treas.) Op. Sol. Dept. of L. (1915) 781. 234. 235. Dismissal. Reopening of case, rehearing, and supplementary proceedings. 236. Proceedings under original federal Act. § 223. In general The procedure before a Commission should be flexible and adapted to the direct accomplishment of the aim of the Acts, with as little formality or hampering restriction as is consistent with the preservation of the real rights of the parties and the doing of justice according to the terms of the Acts." While it was evidently the intent of this legislation that, by concise and plain summary proceedings, controversies arising under the Acts should be promptly adjusted, under a simplified procedure unhampered by the more technical forms and intervening steps which sometimes cumber and delay regular litigation, the elementary and fundamental principles of a judiciary inquiry should be observed.7° Commissions and Boards are purely creatures of statute, endowed 69 In re Hunnewell, 220 Mass. 351, 107 N. E. 934. The hearing before the Commission is of a summary character, and the Commission is not bound by the ordinary rules of evidence and practice. Gardner v. Horseheads Const. Co., 171 App. Div. 66, 156 N. Y. Supp. 899. 70 Reck v. Whittlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Cas. 1916C, with varied and mixed functions. Primarily they are administrative bodies, created to carry provisions of the Acts into effect. Supplemental to this, in order that they may more efficiently administer the law, they are vested with quasi judicial powers, plenary within the limits fixed by the statute. Along the lines marked out by the Acts, they are authorized to pass upon disagreement between employers and claimants in regard to compensation for injuries, and to that end make and adopt rules for a simple and reasonably summary procedure. As a rule, hearings are to be held upon notice to parties in interest; compulsory process for attendance of witnesses and power to administer oaths is given; the parties in interest are entitled to notice, to be heard, and to submit evidence; a review, findings, a decision, and an award of compensation are provided for; though in the final test resort must be had to the courts to enforce the awards." The rule seems to be that Commissions 71 This legislation is remedial, and should be given a broad interpretation. All controversies arising between the employé and the employer and insurer under the terms of the acts are to be settled in accordance with the procedure there established. This follows from general considerations touching the nature of the legislation and the aim intended to be accomplished by it. In re Panasuk, 217 Mass. 589, 105 N. E. 368. The Arbitration Committee and the Industrial Accident Board are given authority to summon witnesses, administer oaths, hold hearings, take testimony, examine evidence, make rulings of law and findings of fact, and render decisions. Their decisions may be enforced by appropriate proceedings in the courts. The power to take testimony and make rulings of law which are subject to review by the judi cial department of the government goes far to indicate that in performing those functions they are to be guided and controlled by the same general principles which would govern judicial officers in discharging the same duties. Pigeon v. Employers' Liab. Assur. Corp., 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737. The Arbitration Committee and the Industrial Accident Board had jurisdiction to consider whether the amount paid for medical attendance by the injured employé during the first two weeks after his injury could be recovered. (St. 1911, c. 751, pt. 2, §§ 1-5) In re Panasuk, supra. Where the employé made no claim under the Act, the action of the insurer of her employer in notifying the Industrial Accident Board of the accident and the formation of a Committee of Arbitration which made an award in favor of the employé was 73 and Boards are not courts,72 and that their members are not judicial officers, within the strict meaning of these terms. It has been held in Massachusetts, however, that the word "court" is used with a broader significance than including simply judicial officers; that it may be given a signification liberal enough to include the Committee on Arbitration and the Industrial Accident Board as constituted by the Act, and should be given such construction; 74 and the California Supreme Court has stated that "the Industrial Accident Commission exercises judicial functions; it sits as a court to try matters pertinent to issues within its jurisdiction." 75 The claimant before the Wisconsin Industrial Accident Board is not a suitor in any court within a provision of the Constitution of that state that a suitor in any court may prosecute or defend either in person or by attorney or agent. The Wisconsin 76 warranted. (St. 1911, pt. 3, § 5, as amended by St. 1912, c. 571, § 10) Young v. Duncan, 218 Mass. 346, 106 N. E. 1; Burt v. Brigham, 117 Mass. 307. 72 The Compensation Board provided for by the Act of 1916 is not a "court" within Const. § 135, prohibiting the establishment of courts not provided for by the Constitution. Greene v. Caldwell, 170 Ky. 571, 186 S. W. 648. The Industrial Accident Board is a ministerial and administrative body, with incidental quasi judicial powers, exercised by consent of those electing to be governed by the Act, not vested with powers or duties in violation of constitutional limitations. Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N. W. 49. The Industrial Commission is merely an administrative body, and not a court. Menominee Bay Shore Lumber Co. v. Indus. Com., 162 Wis. 344, 156 N. W. 151. The Commission is not a court; its hearings are inquiries, not trials. McDonald v. Globe Laundry Co., 2 Cal. I. A. C. Dec. 217. 73 The members of the Industrial Commission are not "judicial officers" within the Constitution. Pigeon v. Employers' Liab. Assur. Corp., 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737. 74 Id. 75 Smith v. Indus. Acc. Com., 26 Cal. App. 560, 147 Pac. 600. This case is supported by Corea v. Higuera, 153 Cal. 451, 95 Pac. 882, 17 L. R. A. (N. S.) 1018; People v. McCue, 150 Cal. 195, 88 Pac. 899. The Industrial Accident Commission, in awarding compensation, is a judicial body exercising judicial functions. Western Metal Supply Co. v. Pillsbury (Cal.) 156 Pac. 491; Carstens v. Pillsbury (Cal. 1916) 158 Pac. 218. 76 International Harvester Co. v. Indus. Com., 157 Wis. 167, 147 N. W. 53, Ann. Cas. 1916B, 330. HON.COMP.-50 Act recognizes the right of a claimant to select and employ his own attorney, subject to the limitation that the fee to be paid must be approved by the Board." The Industrial Commission of Ohio acts as the state Liability Board of Awards in matters pertaining to its administration of the Workmen's Compensation Fund." Members of the Compensation Board provided for by the Kentucky Act of 1916 are arbitrators within Constitution, § 250, authorizing submission of controversies to arbitrators selected by the parties, and the acceptance of the Act constitutes a consent that the Board may act as arbitrators in determining differences between employer and employé." § 224. Jurisdiction The California Commission has jurisdiction to determine all questions of liability arising under the Act of that state, including the power to examine and construe an insurance policy protecting the employer against liability for injuries to his employés, should examination be necessary in determining the liability imposed by the Act, either upon the employer or upon the insurance carrier; so but it cannot obtain jurisdiction over a controversy where the employer or insurance carrier applies for the adjustment of a controversy, unless the injured employé consents thereto, since otherwise the employé would be deprived of his right of election to sue for damages in the courts upon the ground of personal gross negligence of the employer. Thus, where the only issue presented arises be 77 Id. 81 78 "For convenience the Board in charge of the administration of the fund will be referred to in this opinion as the Board of Awards, rather than as the Industrial Commission of Ohio, for the Commission, in matters pertaining to its administration of the Workmen's Compensation Fund, acts as the State Liability Board of Awards." State v. Indus. Com., 92 Ohio St. 434, 111 N. E. 299. 79 Greene v. Caldwell, 170 Ky. 571, 186 S. W. 648. 80 Walker v. Santa Clara Oil & Development Co., 2 Cal. I. A. C. Dec. 1. 81 State Comp. Insur. Fund v. Lemon, 2 Cal. I. A. C. Dec. 507. |