Chapter 23. WORKMEN’S COMPENSATION.

§1. Compensation Commissioner; Legal Services by Attorney General.—There shall be a state compensation commissioner who shall be a citizen of this State entitled to vote and shall be appointed by the governor by and with the advice and consent of the senate. The compensation commissioner in office on the date this Code takes effect shall, unless sooner removed, continue to serve until his term expires and his successor has been appointed and has qualified. On or before the first day of June, nineteen hundred and thirty-five, and on or before the first day of June of each sixth year thereafter, the governor shall appoint a compensation commissioner to serve for a term of six years commencing on said first day of June. An appointment may be made to fill a vacancy or otherwise when the senate is not in session, but shall be acted upon at the next session thereof. The person so appointed shall take the oath or affirmation prescribed by section five of article four of the Constitution, and such oath shall be certified by the person who administers the same and shall be filed in the office of the secretary of state. He shall give bond in the penalty of twenty-five thousand dollars conditioned for the faithful performance of the duties of his office, which bond shall be approved by the attorney general as to form, and by the governor as to sufficiency. The surety of such bond may be a bonding or surety company, in which case the premiums shall be paid out of the appropriation made for the administration of this chapter. The commissioner shall hold no position of trust or profit, or engage in any occupation or business, interfering or inconsistent with his duties as such commissioner. The commissioner shall receive an annual salary of six thousand dollars, payable in the same manner as the salaries of other state officers are paid and charged to the appropriations which shall be made from time to time hereafter by the State for the administration of this chapter. The commissioner shall have an official seal for the authentication of his orders and proceedings, upon which seal shall be engraved the words, “West Virginia Compensation Commissioner,” and such other design as the commissioner may prescribe. The courts in this State shall take judicial notice of the seal of the commissioner, and in all cases copies of orders, proceedings or records in the office of the West Virginia compensation commissioner, certified by the secretary of the commissioner under his seal, shall be equal to the original in evidence.

The attorney general shall perform all legal services required by the commissioner under the provisions of this chapter.(1913, c. 10, §1; 1915, c. 9, §1; Code 1923, c. 15P, §1; 1929, c 71, §1.)

§2. Expense of Administration.—All expenses peculiar to the administration of this chapter, and, when on official business, the traveling and incidental expenses of the commissioner and salaries or other compensation, traveling and other expenses of all officers or employee of the commissioner, and all expenses for furniture, books, maps, stationery, appliances and property of all kinds, shall be paid out of the workmen’s compensation fund.(1913, c. 10, §2 1915, c. 9, §2; 1915, Ex. Sess., c. 1, §2; 1919, c. 131, §2; Code 1923, c. 15P, §2.)

§3. How Salaries and Expenses Paid.—All payments of salaries and expenses in the administration of this chapter shall be made by the state treasurer upon requisitions signed by the secretary and approved by the commissioner directed to the auditor of the State, who shall draw his warrant therefor, and any such payment shall be charged to the workmen’s compensation fund: Provided, That the total charges against such fund under this section for any one fiscal year shall not exceed the amount appropriated therefor.(1913, c. 10, §3; 1915, c. 9, §3; 1915, Ex. Sess., c. 1, §3; Code 1923, c. 15P, §3.)

§4. Office Hours; Records.—The offices of the commissioner shall be open for the transaction of business between the hours of nine o’clock a. m., and five o’clock p.m., of each and every day excepting Sundays and legal holidays, and be in charge of his secretary or some other competent person. All proceedings of the commissioner shall be shown on his record of proceedings, which shall be a public record and shall contain a record of each case considered and the award with respect thereto and of all salaries allowed to any employee of the commissioner or to any other person for services.(1913, c. 10, §4; 1915, c. 9, §4; Code 1923, c. 15P, §4.)

§5. Place of Office and Hearings; Pending Proceedings.—The commissioner shall keep and maintain his office at the seat of government, and shall provide a suitable room or rooms, necessary office furniture, supplies, books, periodicals, maps, and other equipment. After due notice, showing the time and place, the commissioner may hold hearings anywhere within the State.(1913, c. 10, §6; 1915, c. 9, §6; Code 1923, c. 15P, §6.)

§6. Secretary and Other Employees; Expenses.—The commissioner may employ a secretary, actuary, accountants, inspectors, examiners, experts, clerks, stenographers and other assistants, and fix their compensation, which shall be paid as provided in sections two and three of this article. The commissioner, secretary, actuaries, accountants, inspectors, examiners, experts, clerks, stenographers and other of assistants who may be employed shall be entitled to receive from the workmen’s compensation fund their actual and necessary expense while traveling on business of the commisioner. All Such expenses shall be itemized and sworn to by the person who incurred the expense, and shall be subject to the approval of the commissioner.(1913, c. 10, §7; 1915, c. 9, §7; 1915, Ex. Sess., c. 1, §7; Code 1923, c. 15P, §7.)

§7. Secretary to Act in Absence of Commissioner.—Whenever it shall appear that the commissioner will be absent or unable to act for one week or more, the secretary of the commissioner in may be designated by the commissioner to act during his absence or inability to act, and during such period he shall have all the duties and powers of the commissioner.(1913, c. 10, §48; 1915, c. 9, §48; Code 1923, c. 15P, §48.)

§8. Authority of Commissioner and Employees as to Oaths and Evidence.—The commissioner, secretary and every inspector or examiner appointed by the commissioner shall, for the purpose contemplated by this chapter, have power to administer oaths, certify official acts, take depositions, issue subpoenas and compel the attendance of witnesses and the production of pertinent books, accounts, papers, records, documents and testimony.(1913, c. 10, §12; 1915, c. 9, §12; Code 1923, c. 15P, §12.)

§9. Compelling Compliance With Order or Subpoena.—In case of failure or refusal of any person to comply with the order of the commissioner, or subpoena issued by him, his secretary, or one of his inspectors or examiners, or on the refusal of a witness to testify to any matter regarding which he may be lawfully interrogated, or refusal to permit an inspection as aforesaid, the circuit judge of the county in which the person resides, on application of the commissioner, or any inspector or examiner appointed by him, shall compel obedience by attachment proceedings as for contempt, as in the case of disobedience of the requirements of a subpoena issued from such court on a refusal to a testify therein.(1913, c. 10, §13; 1915, c. 9, §13; Code 1923, c. 15P, §13.)

§10. Fees and Mileage of Witnesses.—Each officer who serves such subpoenas shall receive the same fee as a sheriff, and each witness who appears in obedience to a subpoena before the commissioner, or an inspector, or an examiner, a shall receive for his attendance the fees and mileage provided for witnesses in civil cases in the circuit court, which shall be audited and paid out of the workmen’s compensation fund in the same manner as other expenses are audited and paid, upon presentation of proper vouchers approved by the commissioner. No witness subpoenaed at the instance of a party other than the commissioner, or an inspector, or an examiner, shall be entitled to receive any fee or mileage out of the workmen’s compensation fund unless the commissioner shall certify a that his testimony was material to the matter investigated.(1913, c. 10, §14; 1915, c. 9, §14; 1915, Ex. Sess., c. 1, §14; Code 1923, c. 15P, §14.)

§11. Depositions.—In an investigation, the commissioner may cause depositions of witnesses residing within or without the State to be taken in the manner prescribed by law for like depositions as provided for transcripts in the circuit court.(1913, c. 10, §15; 1915, c. 9, §15; Code 1923, c. 15P, §15.)

§12. Copies of Proceedings as Evidence.—A transcribed copy of the evidence and proceedings, or any specific part thereof, on any investigation, taken by a stenographer appointed by the commissioner and certified and worn to by such stenographer to be a true and correct transcript of the testimony in the investigation, or of a particular witness, or of a specific part thereof, or to be a correct transcript of the proceedings had on such investigation so purporting to be taken and subscribed, may be received in evidence by the commissioner with the same effect as if such stenographer were present and testified to the facts certified. A copy of such transcript shall be furnished on demand to any party upon payment of the fee therefor, as provided for transcripts in the circuit court.(1913, c. 10, §16; 1915, c. 9, §16; Code 1923, c. 15P, §16.)

§13. Rules of Procedure and Evidence.—The commissioner shall adopt reasonable and proper rules of procedure, regulate and provide for the kind and character of notices, and the service thereof, in cases of accident and injury to employees, the nature and extent of the proofs and evidence, the method of taking and furnishing the same to establish the rights to benefits or compensation from the fund herein after provided for, or directly from employers as hereinafter provided, as the case may require, and the method of making investigations, physical examinations and inspections, and prescribe the time within which adjudications and awards shall be made.(1913, c. 10, §8; 1915, c. 9, §8; Code 1923, c. 15P, §8.)

§14. Blank Forms.—The commissioner shall prepare and furnish free of cost blank forms (and provide in his rules for their distribution so that the same may be readily available) of applications for benefits for compensation from the workmen’s compensation fund, or directly from employers, as the case may be, notices to employers, proofs of injury or death, of medical attendance, of employment and wage earnings, and such other blanks as may be deemed proper and advisable, and it shall be the duty of employers to constantly keep on hand a sufficient supply of such blanks.(1913, c. 10, §17; 1915, c. 9, §17; Code 1923, c. 15P, §17.)

§15. Procedure Before Commissioner.—The commissioner shall not be bound by the usual common law or statutory rules of evidence, but shall adopt formal rules of practice and procedure as herein provided, and may make investigations in such manner as in his judgment is best calculated to ascertain the substantial rights of the parties and to carry out the provisions of this chapter.(1913, c. 10, §44; 1915 c. 9, §44; 1919, c. 131, §44; Code 1923, c. 15P §44.)

§16. Omission to Perform Duty Required Commissioner; Perjury.—Any person, firm or corporation knowingly failing to make any report or perform any duty required by the commissioner within the time specified shall guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than twenty-five hundred dollars. Any person or firm, or the officer of any corporation, who knowingly makes a false report or statement under oath, or affidavit respecting any information required by the commissioner, or who shall knowingly testify falsely in any proceeding before the commissioner, shall be deemed guilty of perjury, an upon conviction thereof, shall be punished as provided by law.(1913, c. 10, §49; 1915, c. 9, §49; Code 1923, c. 15P, §49.)

§17. Annual Report by Commissioner Governor.—Annually, on or about the fifteenth day of September in each year, the commissioner, under oath, shall make a report as the thirtieth day of June to the governor, which shall include a statement of the number awards made by him, a general statement the causes of the accidents leading to the injuries for which the awards were made, a detailed statement of all disbursements, and the condition of the fund, together with any other matters which the commissioner deems it proper to call to the attention of the governor, including any recommendations he may have to make.(1913, c. 10, §46; 1915, c. 9, §46; Code 1923, c. 15P, §46.)

§1. Employers and Employees Subject to Chapter; Election by Other Employers to Comply With Chapter.—All persons, firms, associations and corporations regularly employing other persons for the purpose of carrying on any form of industry or business in this State, county courts and municipal corporations, the State of West Virginia, and all governmental agencies or departments created by it, are employers within the meaning of this chapter and subject to its provisions. All persons in the service of employers as herein defined and employed by them for the purpose of carrying on the industry, business or work in which they are engaged, and checkweighmen employed according to law, are as employees within the meaning of this chapter and subject to its provisions: Provided, That the chapter shall not apply to employers or employees in domestic or agricultural service, persons prohibited by law from being employed, nor to employees of any employer while employed without the State; nor shall a member of a firm of employers, or any officer of an association or of a corporation employer, including of managers, or any elective official of the State, in county or municipal corporation, be deemed an de employee within the meaning of this chapter.

The premium and all expenses in connection her with the election of the governmental agencies and departments of the State of West Virginia shall be paid out of the state treasury out of the appropriations made for such agencies and departments, in the same manner as other disbursements are made by such agencies and departments.

Municipal corporations shall provide for the funds to pay their prescribed premiums into the fund, and such premiums and premiums of state agencies and departments shall be paid into the fund in the same manner as herein provided for other employers subject to this chapter.

Any employer whose employment in this State is to be for a definite or limited period, which could not be considered “regularly employing” within the meaning of this section, of may elect to pay into the workmen’s compensation fund the premiums herein provided for, and at the time of making application to the commissioner such employer shall furnish a statement under oath showing the probable length of time the employment will continue in this State, the character of the work, an estimate of the monthly payroll, and any other information which may be required by the commissioner. At the time of making application such employer shall deposit with the state compensation commissioner to the credit of the workmen’s compensation fund the amount required by section five of this article, which amount shall be returned to such employer if his application be rejected by the commissioner. Upon notice to such employer of the acceptance of his application by the commissioner, he shall be an employer within the meaning of this chapter and subject to all of its provisions.

Any foreign corporation employer electing to comply with the provisions of this chapter and to receive the benefits hereunder shall, at the time of making application to the commissioner, in addition to other requirements of this chapter, furnish such commissioner with a certificate from the secretary of state showing that it has complied with all the requirements necessary to enable it legally to do business in this State, and no application of such foreign corporation employer shall be accepted by the commissioner until such certificate is filed.

For the purpose of this chapter a mine shall be adjudged within this State when the main opening, drift, shaft or slope is located wholly within this State.

Any employee within the meaning of this chapter whose employment necessitates his temporary absence from this State in connection with such employment, and such absence is directly incidental to carrying on an industry in this State, who shall have received injury during such absence in the course of and resulting from his employment, shall not be denied the right to participate in the workmen’s compensation fund.(1913, c. 10, §9; 1915, c. 9, §9; 1919, c. 131, §9; Code 1923, c. 15P, §9; 1923, c. 58, §9; 1925, c. 68, §9.)

§2. Information to be Given by Employers.—Every employer shall furnish the commissioner, upon request, all information required by him to carry out the purposes of this chapter. The commissioner, or any person employed by the commissioner for that purpose, shall have the right to examine under oath any employer or officer, agent or employee of any employer.(1913, c. 10, §10; 1915, c. 9, §10; Code 1923, c. 15P, §10.)

§3. Report Blanks and Other Forms for Use of Employers.—The commissioner shall prepare report blanks for the use of, and furnish the same to, employers subject to this chapter. Every employer receiving from the commissioner any blank or blanks with direction for filling out and returning the same shall return the same filled out so as to answer fully and correctly all pertinent questions therein propounded, and if unable to do so, shall give good and sufficient reasons for such failure. Answers to such questions shall be verified under oath and returned to the commissioner within the period fixed by the commissioner for such return. Every employer subject to the provisions of this chapter, who may hereafter elect to pay the premiums as provided herein, and to receive the benefits hereunder, shall make application on the forms prescribed by the commissioner for such purpose; and all employers who desire to discontinue the payment of the premiums required under this chapter shall so notify the commissioner on forms to be furnished by the commissioner for the purpose.(1913, c. 10, §11; 1915, c. 9, §11; Code 1923, c. 15P, §11.)

§4. Classification of Industries; Accounts by Commissioner; Rate of Premiums.—The commissioner shall distribute into groups or classes the industries subject to this chapter, in accordance with the nature of the business and the degree of hazard incident thereto. And the commissioner shall have power, in like manner, to reclassify such industries into groups or classes at any time, and to create additional groups or classes. The commissioner may make necessary expenditures to obtain statistical and other information to establish the classes provided for in this section.

The commissioner shall keep an accurate account of all money or moneys paid or credited to the compensation fund, and of the liability incurred and disbursements made against same; and an accurate account of all money or moneys received from each individual subscriber, and of the liability incurred and disbursements made on account of injuries and death of the employees of each subscriber, and of the receipts and incurred liability of each group or class.

In fatal cases and permanent disability cases exceeding eighty-five per cent disability, the amount charged against the employer’s account shall be such sum as is estimated to be the average cost of such cases to the fund; provided the commissioner decides that the injury or injuries causing death or permanent disability were received in the course of and resulting from the employee’s employment.

It shall be the duty of the commissioner to fix and maintain the lowest possible rates of premiums consistent with the maintenance of a solvent workmen’s compensation fund and the creation and maintenance of a reasonable surplus in each group after providing for the payment to maturity of all liability incurred by reason of injury or death to employees entitled to benefits under the provisions of this chapter. A readjustment of rates shall be made yearly on the first day of July, or at any time the same may become necessary. The determination of the lowest possible rates of premiums within the meaning hereof and of the existence of any surplus or deficit in the fund, shall be predicated solely upon the experience and statistical data compiled from the records and files in the commissioner’s office under this and prior work men’s compensation laws of this State for the period from the first day of June, nineteen hundred and thirteen, to the nearest practicable date prior to such readjustment: Provided, however, That any expected future return, in the nature of interest or income from invested funds, shall be predicated upon the average realization from investments to the credit of the compensation fund for the two years next preceding. Any reserves set up for future liabilities and any commutation of benefits shall likewise be predicated solely upon prior experience under this and preceding workmen’s compensation laws and upon expected realization from investments determined by the respective past periods, as aforesaid.

The commissioner may fix a rate of premiums applicable alike to all subscribers forming group or class and such rates shall be determine from the record of such group or class show upon the books of the commissioner: Provided, That if any group has a sufficient number of employers with considerable difference in their degrees of hazard, the commissioner may fix rate for each subscriber of such group, such rate to be based upon the subscriber’s record on the books of the commissioner for the twelve months last ending April thirtieth of the year in which the rate is to become effective; and the liability part of such record shall include such case as have been acted upon by the commissioner during such twelve months’ period, irrespective of the date the injury was received; and any subscriber in a group so rated, whose record for such twelve months’ period cannot be obtained shall be given a rate based upon his record for any part of such period or such rate as may be deemed just and equitable by the commissioner and the commissioner shall have authority to fix a reasonable minimum and maximum for an group to which this individual method of rating is applied, and to add to the rate determine from the subscriber’s record such amount a may be necessary to liquidate any deficit in the schedule or to create a reasonable surplus.

It shall be the duty of the commissioner whenever he changes any rate, to notify ever employer affected thereby of that fact and of the new rate and when the same takes effect. It shall also be his duty to furnish to each employer yearly, or oftener if requested by the employer, a statement giving the name of each of his employees who were paid for injury and the amount so paid during the period covered by the statement.(1913, c. 10, §§18, 45; 1915, c. 9, §§18, 45; 1915, Ex. Sess., c. 1, §18; 1919, c. 131, §18; Code 1923, c. 15P, §§18, 45; 1923, c. 58, §18; 1929, c. 71; §18.)

§5. Premiums; Failure to Pay; Reinstatement; Deposit to Insure Payment; Refund of Deposit.—For the purpose of creating a workmen’s compensation fund each employer subject to this chapter shall pay the premiums of a liability based upon and being such a percentage of the payroll of such employer as may have been determined by the commissioner and be then in effect. The premiums shall be paid monthly, on or before the twenty-fifth of each a month, for the preceding month, and shall be the prescribed percentage of the total earnings of all employees within the meaning of this chapter, whose work is within this State, for such preceding month. The minimum premium to be paid by any employer for any month shall a be fifty cents. The premiums and deposits provided for in this chapter shall be paid by the on employers to the state compensation commissioner, who shall issue receipts for all sums so received, mailing the original to the person, firm or corporation paying the same, transmitting a copy thereof to the state treasurer and state auditor, and retaining a copy for his own records. All sums received by the state compensation commissioner as herein provided shall be deposited in the state treasury to the credit of the workmen’s compensation fund in the manner be now prescribed by law for depositing money in the state treasury. Each employer shall make a payroll report to the commissioner on or before the twenty-fifth each month for the preceding month, and such report shall be on the form or forms prescribed by the commissioner, and furnish all information required by him.

Failure to pay premiums as herein provided or to make the monthly payroll reports required by the commissioner shall deprive the employer so delinquent of the benefits and protection afforded by this chapter, and shall automatically terminate the election of such employer to pay into the workmen’s compensation fund as he herein provided, and such employer shall be liable to his employees as provided in section eight of this article; and the commissioner shall not be required to notify the delinquent employer of such termination, but he shall notify the employees of such employer thereof in such manner as he may deem best and sufficient. The termination of election of such delinquent employer shall date from twelve o’clock p. m., of the last day of the month in which he fails to pay the premiums or make payroll reports, as above provided, for the preceding month.

The employer so delinquent may be reinstated upon application under such terms as are prescribed by this chapter and by the commissioner hereunder, after the payment into the workmen’s compensation fund of all unpaid premiums, penalties and charges. Such reinstatement shall be in effect from and after the date that the new application is accepted by the commissioner: Provided, however, That such delinquent employer shall be entitled to the benefits and protection of this chapter until twelve o’clock p. m., of the last day of the month immediately succeeding the month in which his election is terminated, and his employees shall be entitled to compensation for injuries received during such period, but not thereafter unless such delinquent employer becomes reinstated as herein provided.

Any employer hereafter electing to avail himself of the benefits of this chapter shall at the time of making application to the commissioner deposit in the workmen’s compensation fund an amount estimated to be equal to the amount of the premiums which shall be paid by him for the next succeeding two months. Any employer whose deposit is less than the amount of his premiums for the last two months shall, upon written request from the commissioner mailed to his address as carried upon the books of the commissioner, by twelve o’clock p. m. of the twenty-fifth of the month in which request is mailed, pay to the commissioner a sum sufficient to make his deposit at least equal to the amount of his premiums for the last two preceding months, and failure of any employer to comply with such written request within the time specified shall deprive him of the benefits and protection afforded by this chapter, and shall automatically terminate his election to pay into the workmen’s compensation fund as herein provided, and such employer shall be liable to his employees as provided in section eight of this article; and the commissioner shall not be required to notify the delinquent employer of such termination, but he shall notify the employees of such employer thereof in such manner as he may deem best and sufficient. The termination of election of such employer shall date from twelve o’clock p. m. of the last day of the month in which he is notified by the commissioner that his deposit is not equal to the sum of his premium for the last two preceding months. Such employer may be reinstated upon application under such terms as are prescribed by this chapter and the rules of the commissioner. The deposit hereinbefore described shall be credited to the employer’s account on the books of the commissioner and used to pay premiums and any other sums due the fund when such employer becomes delinquent in the payment of the same.

Upon withdrawal from the fund or termination of election of any employer, he shall be refunded the balance due him of his deposit, after deducting all amounts owed by him to the workmen’s compensation fund, and the commissioner shall notify the employees of such employer of said termination in such manner as he may deem best and sufficient.(1913, c. 10, §24; 1915, c. 9, §24; 1919, c. 131, §24; Code 1923, c. 15P, §24.)

§6. Exemption of Contributing Employers From Liability.—Any employer subject to this chapter who shall elect to pay into the workmen’s compensation fund the premiums provided by this chapter shall not be liable to respond in damages at common law or by statute for the injury or death of any employee however occurring, after such election and during any period in which such employer shall not be in default in the payment of such premiums and shall have complied fully with all other provisions of this chapter: Provided, That the injured employee has remained in his service with notice that his employer has elected to pay into the workmen’s compensation fund the premiums provided by this chapter. The continuation in the service of such employer with such notice shall be deemed a waiver by the employee and by the parents of any minor employee of the right of action as aforesaid, which the employee or his or her parents would otherwise have.(1913, c. 10, §22; 1915, c. 9, §22; 1919, c. 131, §22; Code 1923, c. 15P, §22.)

§7. Notice to Employees; Waiver of Benefits of Chapter by Contract Prohibited.—Each employer electing to pay the premiums provided by this chapter into the workmen’s compensation fund, or electing to make direct payments of compensation as hereinafter provided, shall post and keep posted in conspicuous places about his place or places of business typewritten or printed notices stating the fact that he has made such election, and the same when so posted shall constitute sufficient notice to all his employees and to parents of any minor employees of the fact that he has made such election. No employer or employee shall exempt himself from the burden or waive the benefits of this chapter by any contract, agreement, rule, or regulation, and any such contract, agreement, rule, or regulation shall be protanto void.(1913, c. 10, §23; 1915, c. 9 §23; Code 1923, c. 15P, §23.)

§8. Election Not to Pay or Default in Payment of Premiums; Defenses Prohibited.—All employers subject to this chapter, the State of West Virginia excepted, who shall not have elected to pay into the workmen’s compensation fund the premiums provided by this chapter, or, having so elected, shall be in default in the payment of same, or not having otherwise complied fully with the provisions of section five of this article, shall be liable to their employees (within the meaning of this article) for damages suffered by reason of accidental personal injuries sustained in the course of employment caused by the wrongful act, neglect or default of the employer, or any of the employer’s officers, agents or employees, and also to the personal representatives of such employees where death results from such accidental personal injuries, and in any action by any such employee or personal representative thereof such defendant shall not avail himself of the following common law defenses: The defense of the fellow-servant rule; the defense of the assumption of risk; or the defense of contributory negligence; and further shall not avail himself of any defense that the negligence in question was that of some one whose duties are prescribed by statute.(1913, c. 10, §26; 1919, c. 131, §26; Code 1923, c. 15P, §26.)

§9. Election of Employer to Provide Own System of Compensation.—Notwithstanding anything contained in this chapter, employer subject to this chapter who are of sufficient financial responsibility to insure the payment of compensation to injured employees and the dependents of fatally injured employees whether in the form of pecuniary compensation or medical attention, funeral expenses or otherwise as herein provided, of the value at least equal to the compensation provided in this chapter, or employers of such financial responsibility who maintain their own benefit fund or systems of compensation, to which their employees are not required or permitted to contribute, or such employers as shall furnish bond or other security to insure such payments, may upon a finding of such facts by the compensation commissioner, elect to pay individually and directly, or from such benefit funds, department or association, the said compensation and expenses to injured employees or fatally injured employees’ dependents. The compensation commissioner shall require security or bond from such employer, to be approved by him, and of such amount as is by him considered adequate and sufficient to compel or secure to such employees, or their dependents, payment of the compensation and expenses herein provided for, which shall in no event be less than the compensation paid or furnished out of the state workmen’s compensation fund in similar cases to injured employees or the dependents of fatally injured employees whose employers contribute to such fund. Any employer electing under this section shall on or before the twenty-fifth day of each month, for the preceding month, file with the commissioner a sworn statement of the total earnings of all his employees subject to this chapter for such preceding month, and shall pay into the workmen’s compensation fund a sum sufficient to pay his proper proportion of the expense of the administration of this chapter, as may be determined by the commissioner. The commissioner shall make and publish rules and regulations governing the mode and manner of making application and the nature and extent of the proof required to justify the finding of facts by the commissioner, to consider and pass upon such election by employers subject to this chapter, which rules and regulations shall be general in their application. Any employer of subject to this chapter who shall elect to carry out his own risk and who has complied with the requirements of this section and the rules of the compensation commissioner shall not be liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring, after such election and during the period that he is allowed by the commissioner to carry his own risk; provided the injured employee has remained in his service with notice given, as provided for in section seven of this article, that his employer has elected to carry his own risk as herein provided. The continuation in the service of such employer with such notice shall be deemed a waiver by the employee and by the parents of any minor employee of the right of action, as aforesaid, which the employee or his or her parents would otherwise have.

Any employer whose record upon the books of the public service commission or compensation commissioner shows a liability against the workmen’s compensation fund, incurred on account of injury to or death of any of his employees, in excess of premiums paid by such employer, shall not be granted the right to individually and directly or from such benefit funds, department or association, compensate his injured employees and the dependents of his fatally injured employees until he has paid into the workmen’s compensation fund the amount of such excess of liability over premiums paid, including his proper proportion of the liability incurred on account of explosions or catastrophes occurring within the State and charged against such fund.

In any case under the provisions of this section that shall require the payment of compensation or benefits by an employer in periodical payments, and the nature of the case makes it possible to compute the present value of all future payments, the commissioner may, in his discretion, at any time, compute and permit or require to be paid into the workmen’s compensation fund an amount equal to the present value of all unpaid compensation for which liability exists, in trust; and thereupon such employer shall be discharged from any further liability upon such award, and payment of the same shall be assumed by the workmen’s compensation fund.(1915, c. 9, §54; 1915, Ex. Sess., c. 1, §54; Code 1923, c. 15P, §54.)

§10. Application of Chapter to Interstate Commerce.—In case any employer within the meaning of this chapter is also engaged in interstate or foreign commerce, and for whom a rule of liability or method of compensation has been established by the congress of the United States, this chapter shall apply to him only to the extent that his mutual connection with work in this State is clearly separable and distinguishable from his interstate work, and in such case such employer and any of his employees thus engaged in both intrastate and interstate work may, with the approval of the commissioner, elect to pay into the fund the premiums provided by this chapter on account of work done in this State only, by filing written acceptances or a joint election with the commissioner, and such election when filed and approved by the commissioner shall subject the acceptor irrevocably to the provisions of the chapter to all intents and purposes as if they had been originally included in its terms. Payments of premiums shall be on the basis of the payroll of the employees who accept as afore said, for work done in this State only.

Unless and until the congress of the United States has by appropriate legislation established a rule of liability or method of compensation governing employers and employees engaged in commerce within the purview of the commerce clause of the Federal Constitution (article one, section eight), section one of this article shall apply without regard to the interstate or intrastate character or nature of the work or business engaged in: Provided, however, That this chapter shall not apply to employees of steam railroads, or steam railroads partly electrified, or express companies, engaged in interstate commerce.(1913, c. 10, §52; 1915, c. 9, §52; 1919, c. 131, §52; Code 1923, c. 15P, §52; 1925, c. 68, §52; 1929, c. 71, §52.)

§11. Partial Invalidity of Chapter.—If any employer shall be adjudicated to be outside the lawful scope of this chapter, the chapter shall not apply to him or his employee; or if any employee shall be adjudicated to be outside the lawful scope of this chapter, because of remoteness of his work from the hazard of his employer’s work, any such adjudication shall not impair the validity of this chapter in other respects, and in every such case an accounting in accordance with the justice of the case shall be had of moneys received. If the provisions of this chapter for the creation of the workmen’s compensation fund, or the provisions of this chapter making the compensation to the employee provided in it exclusive of any other remedy on the part of the employee, shall be held invalid, the entire chapter shall be thereby invalidated and an accounting according to the justice of the case shall be had of money received. In other respects an adjudication of invalidity of any part of this chapter shall not affect the validity of the chapter as a whole or any part thereof.(1913, c. 10, §53; Code 1923, c. 15P, §53.)

§12. Effect of Repeal or Invalidity of Chapter on Action for Damages.—If the provisions of this chapter relating to compensation for injuries to, or death of, workmen shall be repealed or adjudged invalid or unconstitutional, the period intervening between the occurance of any injury or death and such repeal, or the final adjudication of invalidity or unconstitutionality, shall not be computed as a part of the time limited by law for the commencement of any action relating to such injuries or death, but the amount of any compensation which may have been paid on account of such injury or death shall be deducted from any judgment for damages recovered on account of such injury or death.(1913, c. 10, §55; Code 1923, c. 15P, §55.)

§1. Compensation Fund; Surplus Fund Compensation by Employers.—The commissioner shall establish a workmen’s compensation fund from the premiums and other funds paid thereto by employers as herein provided, for the benefit of employees of employers who have paid the premium applicable to such employers and have otherwise complied fully with the provisions of section five, article two of this chapter, and for the benefit of the dependents of such employees, and for the payment of the administration expenses of this chapter, and shall adopt rules and regulations with respect to the collection, maintenance and disbursement of such funds, not in conflict with the provisions of this chapter.

Ten per cent of all that shall hereafter be paid into the workmen’s compensation fund shall be set aside for the creation of a surplus fund until such surplus shall amount to the sum of five hundred thousand dollars, after which time the sum of five per cent of all the money paid into such fund shall be credited to such surplus fund, until such time as, in the judgment of the commissioner, such surplus fund shall be sufficiently large to cover the catastrophe hazard and all losses not otherwise specifically provided for in this chapter.

Employers electing as herein provided to individually and directly compensate their injured employees and their fatally injured employees’ dependents shall do so in the manner prescribed by the compensation commissioner, and shall make all reports and execute all blanks, forms and papers as directed by said commissioner and as herein provided in this chapter.(1913, c. 10, §§18, 19; 1915, c. 9, §§18, 19; 1915, Ex. Sess., c. 1, §§18, 19; 1919, c. 131, §§18, 19; Code 1923, c. 15P, §§18, 19; 1923, c. 58, §18; 1929, c. 71, §18.)

§2. Custody, Investment and Disbursement of Fund.—The state treasurer shall be the custodian of the workmen’s compensation fund and all premiums, deposits or other moneys paid thereto shall be deposited in the state treasury to the credit of the workmen’s compensation fund in the manner prescribed in section five, article two of this chapter. The workmen’s compensation fund shall consist of the premiums and deposits provided by this chapter and all interest accruing thereto upon investments and deposits, in the state depositories, and any other moneys or funds which may be given, appropriated or otherwise designated or accruing thereto. Said fund shall be a separate and distinct fund and shall be so kept upon the books and records of the auditor and treasurer and the state depositories in which any part is deposited. Disbursements therefrom shall be made upon requisitions signed by the secretary and approved by the compensation commissioner.

The board of public works shall have authority to invest the surplus, reserve or other moneys belonging to the fund in the bonds of the United States, of this State, of any county, city, town, village, or school district of the State. No such investment shall be made, nor any investment sold or otherwise disposed of without the concurrence of a majority of all members of the board of public works. It shall be the duty of every county, school district, or municipality issuing any bonds, to offer the same in writing to the board of public works, prior to advertising the same for sale, except such thereof as may have been taken by the trustees of the sinking fund of the county, district or municipality, and the board of public works shall, within fifteen days after receipt of such offer, accept the same and purchase such bonds or any portion thereof at par and accrued interest, or make an offer to purchase the same at such price as the board may name in such offer, or reject such offer. All bonds purchased by the board of public works for investment for the workmen’s compensation fund shall be placed in the hands of the state treasurer as the custodian thereof, and it shall be his duty to keep and account for the same as he keeps and accounts for other securities of the State, and to collect the interest thereon as the same becomes due and payable, and the principal when the same is due. No bonds or other securities shall be purchased by the board of public works until and unless the attorney general shall investigate the issuance of such bonds or securities and shall give a written opinion to the board that the same have been regularly issued according to the Constitution and the laws of this State, which opinion, if such bonds or securities be purchased, shall be filed with the treasurer with such bonds or securities.(1913, c. 10, §20; 1915, c. 9, §20; s 1919, c. 131, §20; Code 1923, c. 15P, §20.)

§3. Investment of Surplus Funds Required.—Whenever there shall be in the state treasury any funds belonging to the workmen’s compensation fund not likely, in the opinion of the commissioner, to be required for immediate use, it shall be the duty of the board of public works to invest the same as prescribed in the preceding section. Whenever it may become necessary or expedient to use any of the funds so invested, the board of public works, at the direction of the compensation commissioner, shall collect, sell or otherwise realize upon any investment to the amount deemed necessary or expedient to use.(1913, c. 10, §51; 1915, c. 9, §51; 1919, c. 131, §51; Code 1923, c. 15P, §51.)

§1. To Whom Compensation Fund Disbursed.—The commissioner shall disburse the workmen’s compensation fund to the employees of such employers as are not delinquent in the payment of premiums for the month in which the injury occurs, and who have otherwise complied fully with the provisions of this chapter, and which employees shall have received personal injuries in this State in the course of and resulting from their employment, or to the dependents, if any, of such employees in case death has ensued, according to the provisions herein after made; and also for the expenses of the administration of this chapter, as provided in section two, article one of this chapter.(1913, c. 10, §25; 1915, c. 9, §25; 1915, Ex. Sess., c. 1, §25; 1919, c. 131, §25; Code 1923, c. 15P, §25.)

§2. Disbursement Where Injury is Self-inflicted or Intentionally Caused by Employer; Rules and Safety Appliances.—Notwithstanding anything hereinbefore or hereinafter contained, no employee or dependent of any employee shall be entitled to receive any sum from the workmen’s compensation fund, or to direct compensation from any employer making the election and receiving the permission mentioned in section nine, article two of this chapter, or otherwise under the provisions of this chapter, on account of any personal injury to or death of any employee caused by a self-inflicted injury, willful misconduct, disobedience to such rules and regulations as may be adopted by the employer and approved by the commissioner, and which rules and regulations have been and are kept posted in conspicuous places in and about the work, or the intoxication of such employee, or the failure of such employee to use or make use of any protective or safety appliance or appliances prescribed by the commissioner and furnished by the employer for the use of or applicable to such employee. For the purpose of this chapter and to prevent accidents to employees, the commissioner may require all employers to adopt rules, which have been approved by him, for the protection and safety of their employees and keep the same posted in conspicuous places in and about the work; and the commissioner may require employers to install, use or adopt such protective or safety appliance or appliances as in the commissioner’s opinion are necessary for the protection of the employees. If injury or death result to any employee from the deliberate intention of his employer to produce such injury or death, the employee, the widow, widower, child or dependent of the employee shall have the privilege to take under this chapter and shall also have cause of action against the employer as if this chapter had not been enacted for any excess of damages over the amount received or receivable under this chapter.(1913, c. 10, §28; 1915, c. 9, §28; 1919, c. 131, §28; Code 1923, c. 15P, §28.)

§3. Disbursements for Medical, Surgical, Dental and Hospital Treatment.—The commissioner shall disburse and pay from the fund for such personal injuries to such employees as may be entitled thereto hereunder as follows:

(a) Such sums for medical, surgical, dental and hospital treatment as may, in the opinion of the commissioner, be reasonably required, not, however, in any case to exceed the sum of eight hundred dollars;

(b) Payment for such medical, surgical, dental, or hospital treatment authorized under subdivision (a) hereof may be made to the injured employee, or to the person or persons who have furnished such service, or who have advanced payment for same, as the commissioner may deem proper;

(c) Notwithstanding anything hereinbefore contained, no, payment shall be made out of the workmen’s compensation fund for medical, surgical, dental or hospital treatment for an injured employee, if said employee be entitled under contract connected with his employment or by reason of a subscription list to medical, surgical, dental, or hospital treatment without further charge to him: Provided, however, That if, in the opinion of the commissioner on the advice of the medical examiner, an injured employee needs hospital treatment for an injury sustained under this chapter, such hospital treatment shall be ordered by the commissioner and paid out of the workmen’s compensation fund, not, however, in any case to exceed eight hundred dollars.(1913, c. 10, §27; 1915, c. 9, §27; 1919, c. 131, §27; Code 1923, c. 15P, §27; 1923, c. 58, §27; 1925, c. 68, §27.)

§4. Funeral Expenses.—In case the personal injury causes death within the period of four years from the date of the original injury and disability is total and continuous from the date of such injury to date of death, reasonable funeral expense, not to exceed one hundred and fifty dollars, may be paid from the fund, payment to be made to the persons who have furnished the service and supplies, or to the persons who have advanced payment for same, as the commissioner may deem proper, in addition to such award as may be made to the employee’s dependents.(1913, c. 10, §29; 1915, c. 9, §29; 1919, c. 131, §29; Code 1923, c. 15P, §29; 1929, c. 71, §29.)

§5. Benefits for Week After Injury.—If the period of disability does not last longer than one week from the day the employee leaves work as the result of the injury, no award shall be allowed, except the disbursements provided for in the two next preceding sections. If the period of disability lasts longer than one week from the day the employee leaves work as the result of the injury, no award shall be allowed for the first week of such disability, except the disbursements provided for in the two next preceding sections.(1913, c. 10, §30; 1915, c. 9, §30; Code 1923, c. 15P, §30.)

§6. Classification of Benefits in Case of Disability.—Where compensation is due an employee under the provisions of this chapter, such compensation shall be provided in the following schedule:

(a) If the injury causes temporary total disability, the employee shall receive during the continuance thereof sixty-six and two-thirds per cent of his average weekly earnings, not to exceed a maximum of sixteen dollars per week nor to be less than a minimum of eight dollars per week;

(b) Subdivision (a) shall be limited as follows: Aggregate award for a single injury causing temporary disability shall be for a period not exceeding fifty-two weeks: Provided, That in case an injured employee, by reason of having an ununited fracture or having undergone a surgical operation to correct a vicious union following a fracture, or for the repair of an ununited fracture, or having suffered an injury to the spine or pelvic bones which is of a temporary nature, or for any ankylose joint, is disabled for a longer period than fifty-two weeks, the period during which compensation shall be paid may be, but shall not exceed, seventy-eight weeks;

(c) If the injury causes permanent disability, the percentage of disability to total disability shall be determined and the award computed and allowed as follows:

For a two per cent disability, sixty-six and two-thirds per cent of the average weekly earnings for a period of eight weeks,

For a five per cent disability, sixty-six and two-thirds per cent of the average weekly earnings for a period of twenty weeks,

For a ten per cent disability, sixty-six and two-thirds per cent of the average weekly earnings for a period of forty weeks,

For a fifteen per cent disability, sixty-six and two-thirds per cent of the average weekly earnings for a period of sixty weeks,

For a twenty per cent disability, sixty-six and two-thirds per cent of the average weekly earnings for a period of eighty weeks,

For a thirty per cent disability, sixty-six and two-thirds per cent of the average weekly earnings for a period of one hundred and twenty weeks,

For a forty per cent disability, sixty-six and two-thirds per cent of the average weekly earnings for a period of one hundred and sixty weeks,

For a fifty per cent disability, sixty-six and two-thirds per cent of the average weekly earnings for a period of two hundred weeks,

For a sixty per cent disability, sixty-six and two-thirds per cent of the average weekly earnings for a period of two hundred and forty weeks,

For a seventy per cent disability, sixty-six and two-thirds per cent of the average weekly earnings for a period of two hundred and eighty weeks,

For an eighty per cent disability, sixty-six and two-thirds per cent of the average weekly earnings for a period of three hundred and twenty weeks,

For an eighty-five per cent disability, sixty-six and two-thirds per cent of the average weekly earnings for a period of three hundred and forty weeks,

For a disability from eighty-five to one hundred per cent, sixty-six and two thirds of the average weekly earnings during the remainder of life,

Awards for permanent disability of from two per cent to eighty-five per cent shall be computed on the basis of four weeks’ compensation for each per cent of disability determined;

(d) If the injury results in the total loss by severance of any of the members named in this subdivision, the percentage of disability shall be determined in accordance with the following table, and award made as provided in subdivision (c) of this section:

The loss of a great toe shall be considered a ten per cent disability,

The loss of a great toe (one phalange) shall be considered a five per cent disability,

The loss of other toes shall be considered a four per cent disability,

The loss of other toes (one phalange) shall be considered a two per cent disability,

The loss of all toes shall be considered a twenty-five per cent disability,

The loss of forepart of foot shall be considered a thirty per cent disability,

The loss of foot shall be considered a thirty- five per cent disability,

The loss of leg shall be considered a forty-five per cent disability,

The loss of thigh shall be considered a fifty per cent disability,

The loss of thigh at hip joint shall be considered a sixty per cent disability,

The loss of little or fourth finger (one phalange) shall be considered a three per cent disability,

The loss of little or fourth finger shall be considered a five per cent disability,

The loss of ring or third finger (one phalange) shall be considered a three per cent disability,

The loss of ring or third finger shall be considered a five per cent disability,

The loss of middle or second finger (one phalange) shall be considered a three per cent disability,

The loss of middle or second finger shall be considered a seven per cent disability,

The loss of index or first finger (one phalange) shall be considered a six per cent disability,

The loss of index or first finger shall be considered a ten per cent disability,

The loss of thumb (one phalange) shall be considered a twelve per cent disability,

The loss of thumb shall be considered a twenty per cent disability,

The loss of thumb and index finger shall be considered a thirty-two per cent disability,

The loss of index and middle finger shall be considered a twenty per cent disability,

The loss of middle and ring finger shall be considered a fifteen per cent disability,

The loss of ring and little finger shall be considered a ten per cent disability,

The loss of thumb, index and middle finger shall be considered a forty per cent disability,

The loss of index, middle and ring finger shall be considered a thirty per cent disability,

The loss of middle, ring and little finger shall be considered a twenty per cent disability,

The loss of four fingers shall be considered a thirty-two per cent disability,

The loss of hand shall be considered a fifty per cent disability,

The loss of forearm shall be considered a fifty-five per cent disability,

The loss of arm shall be considered a sixty per cent disability;

(e) The total loss of one eye, or the total and irrecoverable loss of the sight thereof shall be considered a thirty-three per cent disability, and the injured employee shall be entitled to compensation for a period of one hundred and thirty-two weeks,

For the partial loss of vision in one, or both eyes, the percentage of disability shall be determined by the commissioner, using as a basis the total loss of one eye;

(f) The award for permanent disabilities intermediate to those fixed by the foregoing schedule and permanent disability of from two per cent to eighty-five per cent shall be in the same proportion and shall be computed and allowed by the commissioner;

(g) The percentage of all permanent disabilities other than those enumerated in subdivisions (c), (d), (e), and (f) of this section shall be determined by the commissioner, using as a basis the loss of an arm at or above the elbow, and award made in accordance with the schedule in subdivision (c);

(h) Compensation payable under any subdivision of this section shall be limited as follows: Not to exceed a maximum of sixteen dollars per week, nor to be less than a minimum of eight dollars per week;

(i) Where an injury results in temporary total disability for which compensation is awarded under subdivision (a) of this section, and such injury is later determined a permanent partial disability under subdivision (c), the amount of compensation so paid shall be considered as payment of the compensation payable for such injury in accordance with the schedule in subdivision (c). Compensation under this section shall be payable only to the injured employee, and the right thereto shall not vest in his or her estate; except that such compensation as may have accrued to the date of his or her death shall be paid to the dependents of such injured employee, if there be such dependents at the time of death;

(j) The following permanent disabilities shall be conclusively presumed to be total in character:

Loss of both eyes or the sight thereof,

Loss of both hands or the use thereof,

Any injury resulting in practically total paralysis,

In all other cases permanent disability shall be determined by the commissioner in accordance with the facts in the case, and award made in accordance with the schedule in subdivision (c).(1913, c. 10, §§31, 32; 1915, c. 9, §31; 1919, c. 131, §31; Code 1923, c. 15P, §31; 1923, c. 58, §31; 1925, c. 68, §38.)

§7. Hernia.—In all claims for compensation for hernia resulting from personal injury received in the course of and resulting from the employee’s employment, it must be definitely proven to the satisfaction of the commissioner: First, that there was an injury resulting in hernia; second, that the hernia appeared suddenly; third, that it was accompanied by pain; fourth, that the hernia immediately followed an injury; fifth, that the hernia did not exist prior to the injury for which compensation is claimed. All hernia, inguinal, femoral or otherwise, so proven to be the result of an injury received in the course of and resulting from the employment, shall be treated in a surgical manner by radical operation. If death results from such operation, the death shall be considered as a result of the injury, and compensation paid in accordance with the provisions of section ten of this article. In non-fatal cases, time loss only shall be paid, unless it is shown by special examination that the injured employee has a permanent partial disability resulting after the operation. If so, compensation shall be paid in accordance with the provisions in section six of this article with reference to permanent partial disability. In case the injured employee refuses to undergo the radical operation for the cure of said hernia, no compensation will be allowed during the time such refusal continues. If, however, it is shown that the employee has some chronic disease, or is otherwise in such, physical condition that it is considered unsafe for him to undergo such operation, he shall be, paid as provided in section six.(1915, c. 9, §25; 1915, Ex. Sess., c. 1, §25; 1919, c. 131, §25; Code 1923, c. 15P, §25.)

§8. Physical Examination of Claimant; Expenses.—The commissioner shall have power, after due notice to the employer, and whenever in his opinion it shall be necessary, to order a claimant to appear for examination before a medical examiner selected by the commissioner. Claimant shall be entitled to reasonable traveling and other expenses necessarily incurred by him in obeying said order, which shall be paid out of the amount allowed under this chapter for medical, surgical, dental and hospital treatment.(1925, c. 68, §47; 1929, c. 71, §47.)

§9. Medical, Surgical, Dental, or Hospital , Treatment to Reduce Permanent Disability.—In certain cases where an employee has sustained a permanent disability, and such fact on has been so determined by the commissioner, and in his opinion the percent of such permanent disability can be materially reduced or made negligible by medical, surgical, dental, or hospital treatment, the commissioner shall have authority, after due notice to the employer, to expend an amount not to exceed the sum of six hundred dollars for such medical, surgical, dental, or hospital treatment, regardless of any other provision in this chapter providing for the payment of medical, surgical, dental, or hospital treatment. No payment shall be made for such medical, surgical, dental, or hospital treatment provided for in this section unless such treatment has been duly authorized by the commissioner prior to the rendering of such treatment.(1923, c. 58, §38; 1929, c, 71, §38.)

§10. Classification of Benefits in Case of Death; “Dependent” Defined.—In case the personal injury causes death within the period of one year from the date of the original injury, and the disability is continuous from date of such injury until date of death, the benefits shall be in the amounts, and to the persons, as follows:

(a) If there be no dependents, the disbursements shall be limited to the expense provided for in sections three and four of this article;

(b) If the deceased employee be under the age of twenty-one years and unmarried and leave a wholly dependent father or mother, the father, or if there be no father, the mother shall be entitled to a payment of sixty-six and two- thirds per cent of the average weekly wages of the deceased employee, not to exceed a maximum of seven dollars per week, to continue for such period of six years after the date of death as the commissioner in the case may determine: Provided, however, That in case the deceased employee be under the age of sixteen years at the time of death, payment shall continue until Such employee would have been twenty-one years of age: Provided further, That payment of compensation awarded under this subdivision to a dependent father shall be continued and paid to his surviving widow, mother of the deceased employee, to continue as per original award to father. Compensation in either case shall cease upon the death of the dependent;

(c) If the deceased employee be under the age of twenty-one and unmarried and leave a partially dependent father or mother, the father, or if there be no father, the mother shall be entitled to a payment of sixty-six and two-thirds per cent of the average weekly wages, not to exceed a maximum of seven dollars per week, to continue until the employee would have been twenty-one years of age;

(d) If the deceased employee leaves a dependent widow or invalid widower, the payment shall be thirty dollars per month until death or remarriage of such widow or widower, and in addition five dollars per month for each child under sixteen years of age, to be paid until such child reaches such age: Provided, That if such widow or invalid widower shall remarry within two years from the date of the death of such employee, such widow or widower shall be paid at the time of remarriage twenty per cent of the amount that would be due for the period remaining between the date of such remarriage and the end of ten years from the date of death of said employee: Provided further, That if upon investigation it shall be ascertained that said widow or widower is living with a man or woman, as the case may be, as man and wife and not married, or the widow living a life of prostitution, the commissioner may stop the payment of the benefits herein provided to said widow or widower.

If the deceased employee be a widow or widower and leave a child or children under the age of sixteen years, the payment shall be ten dollars per month to each child until he or she reaches the age of sixteen years.

In all awards of compensation to children, the award shall be until they reach the age of sixteen years or their death prior thereto;

(e) If the deceased employee be an adult and there be no dependent widow, or widower, or child under sixteen years of age, but there are wholly dependent persons at the time of death, the payment shall be fifty per cent of the aver age monthly support actually received from the employee during the preceding twelve months, to continue for the remainder of the period be tween the date of death and six years after the date of injury, and shall not amount to more than a maximum of twenty dollars per month;

(f) If the deceased employee be an adult and there be no dependent widow, widower or child under sixteen years of age, or wholly de pendent person, but there are partly dependent persons at the time of death, the payment shall be fifty per cent of the average monthly support actually received from the employee during the preceding twelve months, and to continue for such portion of the period of six years after the date of death as the commissioner in the ease may determine, and not to amount to more than a maximum of twenty dollars per month.

Compensation under subdivisions (e) and (f) hereof shall cease upon the death of the depend ent, and the rights thereto shall not vest in his or her estate;

(g) Dependent, as used in this chapter, shall mean a widow, invalid widower, child under sixteen years of age, invalid child over such age, or a posthumous child, who, at the time of the injury causing death, is dependent in whole or part for his or her support upon the earnings of the employee; also, the following persons who are and continue to be residents of the United States or its territorial possessions: step-child under sixteen years of age; child under sixteen years of age legally adopted prior to the injury causing death; father, mother, grandfather or grandmother, who, at the time of the injury causing death, is dependent in whole or in part for his or her support upon the earnings of the employee; an invalid brother or sister wholly dependent for his or her support upon the earnings of the employee at the time of the injury causing death.(1913, c. 10, §33; 1915, c. 9, §33; 1919, c. 131, §33; Code 1923, c. 15P, §33; 1923, c. 58, §33.)

§11. To Whom Death Benefits Paid.—The benefits, in case of death, shall be paid to such one or more dependents of the decedent, or to such other persons, for the benefit of all of the dependents, as may be determined by the commissioner, who may apportion the benefits among the dependents in such manner as he may deem just and equitable. Payment to a dependent subsequent in right may be made if the commissioner deems proper, and shall operate to discharge all other claims therefor.(1913, c. 10, §34; 1915, c. 9, §34; Code 1923, c. 15P, §34.)

§12. Application of Benefits.—The dependent or person to whom benefits are paid shall apply the same to the use of the several beneficiaries thereof according to their respective claims upon the decedent for support, in compliance with the finding and direction of the commissioner.(1913, c. 10, §35; 1915, c. 9, §35; Code 1923, c. 15P, §35.)

§13. Widow or Widower Living Separate From Employee.—Notwithstanding anything herein contained, no sum shall be paid a widow or widower who shall have been living separate and apart from, or has been abandoned by the employee, and who shall not have been supported by him or her at the time of the injury causing death.(1913, c. 10, §36; 1919, c. 131, §36; Code 1923, c. 15P, §36.)

§14. Computation of Benefits.—The average weekly wage earnings of the injured person at the time of the injury shall be taken as the basis upon which to compute the benefits. The time of injury within the meaning of this section shall be such reasonable length of time immediately preceding the date of injury as shall enable the commissioner to make a fair and just award.(1913, c. 10, §37; 1915, c. 9, §37; 1919, c. 131, §37; Code 1923, c. 15P, §37.)

§15. Application for Benefits; Nonresident Aliens.—To entitle any employee or dependent of a deceased employee to compensation under this chapter, the application therefor must be made on a form or forms prescribed by the commissioner and filed in the office of the commissioner within six months from and after the date of injury or death, as the case may be, and all proofs of dependency in fatal cases must be filed with the commissioner within nine months from and after the date of death: Provided, That in case the employer fails to report an injury within six months from and after the date such injury is received, the commissioner may in his discretion accept an application for compensation filed after the expiration of six months as above provided, and award compensation to an employee who would have been so entitled had the injury been reported and application filed within the prescribed period of six months. Nonresident aliens may be officially represented by the consular officers of the country of which such aliens may be citizens or subjects: Provided, That nothing herein contained shall be construed as giving such consular officer the right to make application for compensation in behalf of the nonresident aliens.(1913, c. 10, §39; 1915, c. 9, §39; 1919, c. 131, §39; Code 1923, c. 15P, §39.)

§16. Commissioner’s Jurisdiction Over Case Continuous; Modification of Finding or Order.—The power and jurisdiction of the commissioner over each case shall be continuing, and he may from time to time, after due notice to the employer, make such modifications or change with respect to former findings or orders with respect thereto as in his opinion may be justified: Provided, That no further award may be made in fatal cases except within one year after the death of the employee, or, in cases of non-fatal injuries, except within two years after payments for temporary disability shall have ceased and within one year after the commissioner shall have made the last payment in any permanent disability case.(1913, c. 10, §40; 1915, c. 9, §40; Code 1923, c. 15P, §40; 1929, c. 71, §40.)

§17. Commutation of Periodical Benefits.—The commissioner, under special circumstances and when the same is deemed advisable, may commute periodical benefits to one or more lump sum payments.(1913, c. 10, §41; 1915, c. 9, §41; Code 1923, c. 15P, §41.)

§18. Mode of Paying Benefits; Exemption From Legal Process.—Compensation shall be paid only to or for the use of such employees or their dependents as hereinbefore provided, and shall be exempt from all claims of creditors and from any attachment, execution or assignment. Payments may be made in such periodical installments as may seem best to the commissioner in each case.(1913, c. 10, §42; 1919, c. 131, §42; Code 1923, c. 15P, §42.)

§19. Wrongfully Seeking Compensation; Penalty.—Any person who shall knowingly and with fraudulent intent secure or attempt to secure larger compensation, or compensation for a longer term than he is entitled to, from the workmen’s compensation fund, or knowingly and with like intent secure or attempt to secure compensation from such fund when he is not entitled thereto, or shall knowingly and with like intent aid and abet any one in the commission of the offenses herein set forth, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not exceeding five hundred dollars, or imprisoned not exceeding twelve months, or both, in the discretion of the court, and if the person so convicted is receiving compensation from such fund, he shall, from and after such conviction, cease to receive such compensation.(1913, c. 10, §50; Code 1923, c. 15P, §50; 1925, c. 68, §50.)

§1. Finality of Commissioner’s Rulings; Review by Supreme Court.—The commissioner shall have full power and authority to hear and determine all questions within his jurisdiction, and to review the action of any employer taken under section nine, article two of this chapter, but upon the making of any award going to the basis of the claimant’s right to compensation, from the fund or directly from any employer under said section nine, or upon the review of any action of any employer under said section nine, the commissioner shall give notice in writing to the employer, employee or dependent, as the case may be, of his action, which action shall be final unless the employer, employee or dependent shall, within ten days after receipt of such notice, object to such finding, in which event, upon receipt of objection in writing from the employer, employee or dependent relative to the basis of the claim on the ground that the injury was self inflicted or that it was not received in the course of and resulting from his employment, or upon any other ground going to the basis of the claimant’s or employer’s right, the commissioner shall set a time and place for the hearing of evidence, notifying both the employer and claimant at least ten days in advance; and the evidence taken shall be transcribed and become a part of the record in the proceedings, together with other records thereof in the commissioner’s office. After such hearing the action of the commissioner affirming, reversing or modifying his former action shall be final: Provided, however, That the claimant or the employer may, within ninety days after notice of the final action of the commissioner, apply to the supreme court of appeals for a review of the record and such decision.

The applicant shall file a petition before the supreme court of appeals against the commissioner and other party, (claimant or employer, as the case may be), within said period of ninety days, and the commissioner and other party shall be notified forthwith by the clerk of said court of the filing of such petition for review. And the commissioner shall, within ten days after the receipt of such notice, file with the clerk of said court the record of such proceedings before the commissioner, including a transcript of the evidence. The court, or any judge thereof, may thereupon decide whether a review shall be granted or not, and if such review be granted to a nonresident of this State, he shall execute and file before the clerk of said court, before such proceeding for review becomes effective, a bond with surety to be approved by said clerk conditioned to pay all costs which may be awarded against him on such review. If a review be granted, the commissioner and the opposing party, (claimant or employer), or their attorneys, shall be notified of the fact, by mail, by the clerk of said court. If a review be granted as aforesaid, the case shall be tried by said court in the same manner as other cases before it, save and except that neither the record nor briefs need be printed, and that every such review granted prior to thirty days before the beginning of any term shall be placed upon the docket for such term. The attorney general, without extra compensation, or other counsel, if the commissioner sees fit to employ the same, shall represent the commissioner on such review. The supreme court on such review shall determine the matter and certify its decision to the commissioner, and if it determines the issue in claimant’s favor, the commissioner shall fix his compensation within the limits and under the rules prescribed in this chapter and as directed by the court. The cost of such proceedings, including a reasonable attorney’s fee, not exceeding one hundred dollars, to the claimant’s attorney, shall be fixed by the court and taxed against the employer if the latter be unsuccessful, and if the claimant be unsuccessful, such costs, not including attorney’s fees, shall be taxed against the commissioner, payable out of any funds available in his hands, or shall be taxed against the claimant, in the discretion of the court.(1913, c. 10, §43; 1915, c. 9, §43; 1919, c. 131, §43; Code 1923, c. 15P, §43; 1929, c. 71, §43.)