Putnam's Handy Law Book for the Layman

Workmen's Compensation Acts. - Who is entitled to compensation by these acts? The proper test to apply is, whether the employer possessed the power to control the other while at work at the machine or other thing from which the injury arose. Says Honnold: "In the ordinary acceptance of the term, one who is engaged to render services in a particular transaction is not an employee; the term employee embracing continuity of service and excluding those employed for a single and special transaction. It does not usually include physicians, pastors or professional nurses. It may, however, [267]include those not engaged in manual labor, such as a school-teacher. The fact that a workman furnishes tools and materials, or undertakes to do a specified job will not prevent his being an employee. A deaconess, living and working in a hospital and receiving an annuity to cover clothing and expenses, is not an employee of the hospital," nor is an employee of a religious home for the aged who works around the house for which he is not paid any fixed amount. A director of a bank is not an employee within the meaning of the acts under consideration.

To be an employee there must be a contract of service. This is not the same thing as a contract for services. By the latter relationship one is an independent contractor and excluded from the acts. The contract of service need not be actually made, it may be implied, for example, the case of a substitute who is engaged by an employee in accordance with custom. A contract of service is not created by the relation of landlord and tenant, carrier and passenger, bailor and bailee, nor by professional service, nor by forming a partnership, nor by performing manual labor beyond the employer's control. Whether a contract of service arises from charitable work depends on the circumstances of the particular case. State employees are within these acts in some states, and excluded in others, likewise municipal employees. By the federal act the term "laborer" is used to designate men who do work that requires but little skill as distinguished from an artisan who practices an industrial art. The act includes a storekeeper, an inspector who performs no manual labor, a messenger in the government printing office, the master of a dredge, the matron of an Indian school, a transit man, a surveyor, a clerk engaged in office work, an [268]assistant veterinarian, a laboratory assistant, a dock master.

Compensation legislation is not limited to healthy employees. One's previous physical condition is of no consequence in determining the amount of relief to be afforded. Nevertheless, it is a circumstance to be considered in ascertaining, when one has been injured, whether the injury resulted from the work or from his health.

In some of the compensation acts minors are excluded, in other acts he is protected by them. An apprentice who is qualifying himself to operate an elevator is an employee within the Minnesota Act. Many of the acts provide that the term employee shall include every person in the service of another under any contract of hire, except one whose employment is casual, or is not in the usual course of the trade, business profession or occupation of his employer.

Farm laborers are outside these acts in some states. Thus, in Massachusetts "the workmen's compensation act was not intended to confer its advantages upon farm laborers, or to impose its burdens upon farmers." But a farmer may adopt it if he desires. And any contract of insurance made by him under its terms is valid and enforceable. Such an exemption, however, does not except employees working for one who is engaged in a commercial or other non-agricultural enterprise though he be a farmer. Likewise, a farmer carrying on a market garden may procure insurance covering his drivers and helpers employed in distributing the produce of his farm without insuring other employees who are merely farm laborers. The right to compensation is determined by the character of the labor one is actually doing when the accident occurs, [269]rather than by the fact that the employee occasionally does farm labor. Thus, plowing is usually farm labor, but if it is done to make land ready for building a house it is not. If a farmer does not avail himself of the act for all of his employees, he may procure insurance for a limited portion of them. "If there are those," says Chief Justice Rugg, "separable from others by classification and definition, whose labor is more exposed and dangerous, or whom he may desire to protect for any other reason, there is nothing in the act to prevent him from doing so."

Likewise, domestic servants are excluded by some of these acts, who are they? "A household servant is one who dwells under the same roof with the family under circumstances making him a member thereof." And his status is determined rather by his relation to the family than by his relation to the service. Thus, a workman who is hired to tend the furnace, mow the lawn, and do odd jobs about the house, who has a room therein and eats at the family table, is a household servant. On the other hand, a chauffeur who is hired by the month to run the employer's private automobile, but is not living as a member of the family, is not a household servant. In many cases, however, he is one. While it is doubtful whether the test of living in the employer's house is the sole test of household service, it is essential that he is engaged in rendering service in the house, such as cleaning, cooking or washing. On one occasion, a porter in a saloon was sent upstairs by the proprietor to wash the windows in the apartment where the proprietor lived with his family. While thus engaged he fell to the sidewalk and was injured. The court regarded him as a household servant.

[270]Many of the acts exclude from their protection casual employees. This term is a difficult one to define, and has been omitted in many of the acts. Where this is done all employees engaged in the usual course of the trade, business, occupation, or profession of their employer, with some exceptions, receive compensation. Ordinarily, an employment is casual when it is for a single day, or by the hour, but does not apply to one who is employed to render a service that recurs with some regularity. Thus, one who is employed as a workman in a sawmill on such days as it was in operation for four months was not a casual employee. Casual employment in the Connecticut act means occasional or incidental employment. In California, if the length of employment is less than a week it is casual, even though contrary to agreement the employee took more than a week to do the work for which he was hired, and which a skillful employee could have finished within a week.

"The question whether an employment is casual must be determined with reference to the scope and purpose of the hiring rather than with sole regard to the duration and regularity of the service. One who enters into a contract of employment for an entire season is not a casual employee merely because he may be required to work for only short and irregular periods." Thus, a longshoreman who is employed at a certain sum per hour to help load a ship, having frequently rendered a similar service on other occasions, is not a casual employee; nor is one who keeps machinery and boats in order at an amusement park; nor is a boy who is called at irregular intervals for service in a butcher's shop when extra help is needed, or in the absence of a regular employee; nor is one who is employed during [271]a packing season to drive for a packer whenever he is needed.

The compensation law does not apply to independent contractors. It is difficult, however, to draw the line in many cases. Generally, an independent contractor is one who exercises an independent employment and contracts to do a piece of work according to his own method, without being subject to the control of the employer. A test that is sometimes applied is, who has the right to direct what shall be done and when and how, and who has the right of general control. When, therefore, one exercises an independent employment, selects his own help and has the control of them, and the method of conducting the work, he is an independent contractor. Again, he may change his relation for a time, and become an employee, or he may be a contractor for a part of his service and an employee for a part. Thus, one who was injured while operating a launch to bring supplies to a dredge for his employer was an employee and not an independent contractor, though he was one in conducting the work of dredging. Likewise, a physician who is employed on a salary by another physician, who in turn is serving a manufactory, is an employee of the latter and not an independent contractor, though he is still engaged to some extent in his own private practice.

By the Federal act an employee must be "employed by the United States to be entitled to its benefits." Thus, a plate printer in the bureau of engraving and printing who is paid by the piece, and who bonds himself and hires and pays his own help, also the owner of a power boat chartered to the government and operated by the owner in its service, are contractors, and not federal employees. [272]A workman, therefore, who is employed by a government contractor is not an employee of the government. On the other hand, one who is employed and carried on the pay rolls of the reclamation service, though working for the contractor, is employed by the government, likewise, a workman employed in the forest service who is working with others for county supervisors who, in turn, are executing a contract with the government.

As public officers are not employees within the meaning of the compensation acts, they may be distinguished from others who are employees. Unless the statute says so, a policeman is not an employee of the city which he serves, but an officer holding a public trust. On the other hand, a night policeman or marshal is an employee by the Wisconsin law. Firemen and deputy sheriffs on a fee basis are officers rather than employees.

The compensation acts secure compensation not only for injured workmen, but should they die, to their dependents. Who then is a dependent? "Dependency," says Honnold, "does not depend on an answer to the question whether the alleged dependents could support themselves without the earnings of the person who is no longer living, but whether they were in fact supported in whole or in part by such earnings intentionally by him. Occasional gifts do not prove dependency, yet purely voluntary contributions may establish dependency. Voluntary contributions of money, support or service by a brother to a sister or by a sister to a brother are not complete evidence of the dependency of either. Compensation cannot be awarded to dependents who do not belong to the classes of relatives mentioned in the statutes."

[273]The phrase, actual dependents, means dependents in fact whether they are wholly or partially dependent. Partial dependency, giving a right to compensation may exist though the contributions are at irregular intervals and of irregular amounts, and the dependent has other means of supporting himself. An employee contributed all of his earnings to his mother who was partially dependent on him for support. Five other children contributed to the family fund. It was held that the mother was entitled to a weekly compensation equal to one half of the weekly compensation of her deceased son. A dependent who is an alien living in a foreign country is not debarred from receiving compensation. By some of the acts such compensation to nonresidents is limited to a father or mother.

Children who are entitled to compensation as dependents include stepchildren, illegitimate children, children adopted by the workman, also posthumous, legitimate and illegitimate.

The federal act provides that if the injured artisan or laborer die within the year after his injury "leaving a widow, or a child or children under sixteen years of age, or a dependent parent, they shall be entitled to compensation." The word parent, while including both parents, does not include a stepfather or a stepmother, or a foster parent who has not been legally adopted. The question of dependence is one of fact; contributions by the deceased tend to establish this, but are not conclusive. The word child or children used in the act is not limited to a child or children born in wedlock, but includes illegitimate offspring, and children legally adopted. If an injured workman dies before he has made application for or received compensation, it may be paid from the date of the [274]injury to the date of his death, as well as for the remainder of the year to his widow or family.

The earnings of a workman are the basis for computing the amount of compensation he is to receive for an injury. These include anything that he receives for his labor that possesses a money value. In the way of illustrating more clearly what he may receive the outline of a section of the Massachusetts Act may be given. It provides what the workman may receive when his injury is partial from the insurance association which has become liable therefor. A weekly compensation equal to one half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter; but not more than ten dollars a week, nor for a longer period than three hundred weeks from the date of the injury. Formerly, when injured, he received as compensation a sum fixed by agreement between himself and his employer; and if they could not agree, as often happened, then he sued his employer and the court decided the amount the employer must pay. These suits were often costly, long contested, and if the employee won his counsel often took such a large share as to leave a disappointing amount to the employee. On the other hand, many an employee magnified his injury, juries were usually sympathetic, especially if the employer was a corporation, and from the general dissatisfaction has been created the new system.

Having stated in the most general way what the law provides for a workman who has been injured, there remains the statement of what is done when the workman dies from his accident. The Arizona law illustrates this as well as any other. When he dies within six months thereafter and leaves a [275]widow, and a minor child or children dependent on his earnings for support and education, then the employer must pay to the personal representative of the deceased workman for the benefit of the widow and children a sum equal to twenty-four hundred times one half of the daily wages or earnings of the deceased, not exceeding in any case more than four thousand dollars. If the employer has insured the lives of his employees in an insurance company, for which the acts quite generally provide, then of course payment of the benefits are paid by the company to those who are entitled to them.

Some of the compensation acts provide compensation for both total and partial incapacity resulting from injuries which do not prove fatal. Thus the Connecticut act provides that loss of sight, the loss or paralysis of certain physical members, and incurable imbecility or insanity, resulting from the accident shall be "considered as causing total incapacity." For these and all other injuries resulting in total incapacity to work, there must be paid to the injured employee weekly, while incapacitated, compensation equal to half of his earnings at the time of the injury, for a maximum and minimum period. Another section provides that in cases resulting in partial incapacity there must be paid to the injured employee a weekly compensation during his incapacity, equal to half the difference between his average weekly earnings before the injury and the amount he is able to earn thereafter with a maximum and minimum limitation of the amount within a limited period.

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