.miiiHiniiiUiifiHUfiHiiiifuiKmtnrmmmmn ■ 'iHjtiiHMimmnfHiiiiir" !iii Iffill HO 7816 U6A3 1915 Opinion* ol the tolicllof tai Iha Oapor i||!!tlt' ii!i!!l!!i; :|i|i|ji{r liilliliillliiliii .ifiiiiiinitif, iliT HlHi TRANSFERRED TC : L R LIBRARY FROM THE UNITED STATES GOVERNMENT THROUGH THE SUPERINTENDENT OF DOCUMENTS P[:io%'\zz: n./.^.i.i.|i5.. g 506 Rev. Stat, prohibits the withdrawal of this book for home use. , 4005 THE LIBRARY OF THE NEW YORK STATE SCHOOL OF INDUSTRIAL AND LABOR RELATIONS AT CORNELL UNIVERSITY \\<\ Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924002405201 OPINIONS OF THE SOLICITOR FOR THE DEPARTMENT OF LABOR DEALING WITH WORKMEN'S COMPENSATION Under the act of Congress granting to certain employees of the United States the right to receive from it compensa- tion for injuries sustained in the course of their employment, approved May 30, 1908, with the amendments thereto - FROM AUGUST, 1908, TO APRIL, 1915^ WASHINGTON GOVERNMENT PRINTING OFFICE 1915 — — ^5 OONTEFTS. Page. Letter or authobitt 5 ExECtTTIVE ORDER 7 Letter op tbaksmittal 9 Introductory 11 Text op legislation 15 Summary digest op opinions : The Attorney General, the Comptroller OP the Treasury, and the Solicitor 19 Opinion op the Attorney General in be administration op the act 45 Opinions 46 Former opinions modipibd, altered, ob overrttled 768 Decisions of the Comptroller op the Treasury 777 Eegulations prescribed by the Secretary 801 Index to opinions 807 3 PROPERTY OF LIBRARY NEW YORK STATE SCHOOL INDUSTRIAL AND LABOR RELATIONS CORNELL UNIVERSITY LETTER OF AUTHORITY. Department of Labor, Office of the Secretary, Washington, April 15, 1915. Sir : You are requested to compile for publication by this depart- ment the opinions of the Solicitor dealing with the Government workmen's compensation act, entitled "An act granting to certain employees of the United States the right to receive from it compen- sation for injuries received in the course of their employment," approved May 30, 1908. The administration of this law has consti- tuted one of the more important functions of the department, its importance being due in part to the intrinsic merit and highly beneficial character of the law itself and in part to the fact that the legislation is of a type involving a wide departure from long-estab- lished rules of legal liability, and giving rise accordingly to novel questions of right and obligation. The general interest in the subject of workmen's compensation is marked, being evidenced not only by discussion in the public press and elsewhere but by inquiries made of this department. In passing upon several thousand claims the questions arising for determination on legal grounds have naturally been numerous and varied, and it may be assumed that the rulings upon these questions, if available, would prove to be not without some positive interest and value to those concerned with the inter- pretation and application of this and similar laws. Attention is invited to a copy herewith of an Executive order, approved March 30, 1915, waiving the provisions of a former Executive order, approved March 9, 1907, authorizing the publication of these opinions without the formality of approval by the Attorney General. Respectfully, Wm. B. Wilson, Secretary. The Solicitor Department of Labor. EXECUTIVE ORDER. It is hereby ordered that .the provisions of an Executive order dated March 5, 1907, are hereby waived for the purpose of permitting the republication of the opinions of the Solicitor for the former Depart- ment of Commerce and Labor and the publication of subsequent opinions of the Solicitor for the Department of Labor in reference to compensation for certain employees of the Government who are injured in the course of employment, as provided for by the act of May 30, 1908, and the amendments thereto. WooDEOw Wilson. The White House, March 30, 1915. LETTER OF TRANSMITTAL. Office of the Solicitor, Department of Labor, Washington, May 1, 1915. Sir: In accordance with your request of April 15, 1915, 1 have collated the opinions of the Solicitor for this department bearing on the construction and application of the act of Congress approved May 30, 1908, granting compensation to artisans and laborers em- ployed by the United States injured in the course of their employ- ment, and now have the honor to submit the same in form for pub- lication. For the sake of completeness I have included the several opinions of the Attorney General and the decisions of the Comp- troller of the Treasury rendered under the act mentioned. The opinions are arranged in groups, each group relating to some statutory clause or phrase of which the interpretation or application has been suggested. A headnote, stating concisely the conclusion reached, is provided for each opinion. The bringing together of these headnotes under the statutory words or clauses referred to forms a summary digest of the opinions published. This digest, which precedes the text of the opinions, it is thought will not only supply the need of a subject index but will furnish a ready means of ascertaining the scope and purpose of the law, the nature of the questions raised, and the trend and character of the opinions held. As between a liberal construction and a strict construction of the statute, the former rule has naturally prevailed throughout these opinions. This was in accordance with your settled policy of admin- istration in this and similar matters, repeatedly expressed, and moreover was incontestably the true rule to follow on legal prin- ciple in dealing with an essentially remedial statute. But while the construction has been liberal, rarely if ever, it is thought, has it been strained or such as to involve a disregard of fixed limitations. A considerable number of opinions dealing wholly with simple questions of fact or mere conflicts of testimony have been omitted, because of no intrinsic value, involving no principle, and impossible of classification. Such opinions of this type, however, as appear to contain matter of interest are included under the head "A claim for compensation is established." 9 10 workmen's compensation under act of may 30, 1908. The opinions of the law officer of a department are of course purely advisory. The head of the department is not bound to follow them. Moreover, under this act the sole judge as to when a claim for compensation is established is the Secretary (or the As- sistant Secretary) of Labor, whose decision is final. These opin- ions, therefore, are official department decisions by virtue of having been severally approved by the head of the department. Respectfully, J. B. Densmore, Solicitor, Hon. W. B. Wilson, Secretary of Labor. INTRODUCTORY. Injuries to workmen in the course of their employment may. be due to negligence or to accident.. Where negligence is the cause the fault may be that of the workman or his employer, of a fellow work- man, or even a stranger. Where accident is the cause no one is at fault. In all cases the suffering and the loss fall on the injured per- son and his dependents, except in so far as the law permits the loss to be compensated. The rules of the common law, which were formu- lated at a time when industrial operations were simple and conducted in small establishments where responsibility could easily be fixed, permitted recovery only where the workman or his representatives could establish negligence on the part of the employer and denied relief if his own negligence in any way contributed to the injury or if the injury was due to the negligence of a fellow servant or a stranger, and also compelled the worker to assume the risks incident to a dangerous employment. For injuries due to accidents alone there could be no recovery, since a legal wrong could be imputed to no one. The altered situation growing out of the immense changes made in industrial conditions brought a realization of the great in- justice worked by established rules of law. Irrespective of the negli- gence of the employer or a fellow servant or a stranger, and irre- spective of the risks incident to dangerous occupations, it was recog- nized as grossly unjust that the victim alone should be allowed to bear the entire consequences and all the burden of an industrial acci- dent or injury. It was seen that the employment itself, if not the cause of the injury, at least furnished the occasion or the condition without which it could not have occurred. The principle was then formulated and accepted that the financial loss occasioned by injuries received in the course of employment was a proper charge against the industry itself, at least where the injury was not plainly due to the negligence or misconduct of the person injured. A means was thus provided whereby the burden in such cases could be shifted in a measure from a single victim and distributed among many persons. This principle was adopted and applied by the Federal Govern- ment in the act of May 30, 1908, " granting to certain employees of the United States the right to receive from it compensation for in- juries sustained in the course of their employment." Although this act is of limited application and provides but a limited measure of relief, its benefits have been many and real. The law as enacted 11 12 workmen's compensation tjndeb act of may 30, 1908, covered employment under the Isthmian Canal Commission, but be- came inapplicable thereto on April 1, 1914, by reason of an Executive order which took effect on that date providing that the United States or the Panama Eailroad Co., under the direction of the Governor of the Panama Canal, should pay compensation for personal injuries to their respective employees working on the Panama Canal or the Panama Eailroad. It now applies to injuries received by artisans or laborers employed in the manufacturing establishments, arsenals, or navy yards of the United States or in river and harbor or fortifica- tion work or in hazardous employment in the Keclamation Service; also to any artisan, laborer, or other employee engaged in hazardous work under the Bureau of Mines and in the Forest and Lighthouse Services. Any such workman injured in the course of his employ- ment, except where the injury was due to his own negligence or mis- conduct, is entitled to receive for one year thereafter, unless sooner able to resume work, the same pay as if he continued to be employed. If the injury should result in death during the year, the compensa- tion allowed is payable to the widow or children or dependent parent. The act is administered by the Secretary of Labor, who is authorized to determine all questions of negligence or misconduct, who is made the sole judge as to when a claim is established, and whose decision is final. The United States is forbidden by the act to exempt itself from liability by any contract, agreement, rule, or regulation. This act marks a distinct step in advance. It not only substitutes the enlightened modern view for the obsolete doctrines of the com- mon law respecting responsibility for certain wrongs for which there had been before no remedy, but it waives the right of the Govern- ment to exemption from liability for tort and dispenses with the necessity of an appeal to Congress in individual cases. It is a highly beneficial statute, conferring a benefit in the nature of an absolute gift or grant. It permits, under the authority given to the Secretary of Labor to prescribe rules and regulations for carrying it into effect, of the establishment of a simple and direct mode of procedure whereby technicalities and delays are avoided and the relief provided can be speedily given. The prompt payment of compensation at a time when the breadwinner is stricken and money is most needed without forcing the claimant to pursue an elaborate, expensive, and dilatory process of proof is one of the striking benefits of the act. Being in its nature a remedial statute, it is rightly susceptible of a liberal interpretation, as contrasted with a strict interpretation, in order to bring home the benefits intended. -Such has been the inter- pretation generally applied by the Secretary of Labor, without, of course, disregarding any of the limitations of the statute or extend- ing it beyond its terms. This attitude of the Department of Labor in its administration of the act, whereby matters of procedure are OPINIONS OF SOLICITOE, DEPARTMENT OF LABOB. 13 simplified, claims are promptly adjudicated, and the act is con- strued fairly and even generously, is well known and duly appre- ciated by the classes benefited and is recognized and cordially com- mended by worlanen's organizations. An idea of the benefits derived under the compensation act may be obtained from a consideration of a few figures. The act has been in operation since August 1, 1908. Between that date and June 30, 1913, the number of accidents reported was 40,130,^ or a yearly aver- age of 8,026 cases. During the same period the number of claims compensated was 14,046, a yearly average of 2,809, and the amount of compensation paid approximately $1,818,000, or a yearly average of $363,600. In computing these averages, however, the period from August 1, 1908, to June 30, 1909, is treated as one year, whereas it actually covers only 11 months. The number of accidents reported rose from 4,887 during the first year (11 months) to 10,876 in the fifth. Of the total number of acci- dents, 1,006 were reported as fatal, the numbers for the five years being 233, 231, 207, 218, and 117, respectively. Approximately 10 per cent of these fatalities were in occupations not subject to com- pensation under this or any other law. The number of claims increased from 1,818 for the first year (11 months) to 3,525 for the fifth. The payments for the first year (11 months) were approxi- mately $243,000; for the second, $337,000; for the third, $411,000; for the fourth, $435,000; and for the fifth, $392,000. Nearly one-half of the accidents and of the compensation paid refer to employment under the Isthmian Canal Commission, with its 26,000 to 30,000 employees, largely unskilled and working under conditions involving a high degree of hazard. The payments have been made from the ordinary current appro- priations for salaries and wages and not out of any special appro- priation. The compensation has simply been paid, until incapacity ceased or until the year had run, as if the injured man continued at work. Owing to the limited scope of the act there have been many more accidents reported than claims filed; and there have been a number of claims filed which could not be allowed, either because they were not within the act or were not properly established. Thus in the first year the number of injuries reported was 4,887, while the num- ber of claims submitted was but 1,818, of which 1,692 were allowed. During the second year 6,989 accidents were reported, 2,656 claims submitted, and 2,530 allowed. These latter figures are chiefly important as indicating the need of extending the benefits of the act by supplementary legislation. 'ExclusiTe of meritorious sicli-leave cases liandled on tlie Canal Zone from Not 1 1911, to June 30, 1912, estimated at 2,160. ' ' TEXT OF LEGTSLATTON. [The act of March 4, 1913, eatabliahing the Department of Labor, transferred the admin- istration of the compensation act from the Department of Commerce and Labor to the Department of Labor, Therefore, in the present volume the printing of the wordm \CommeTce and\ in brackets indicates that the words "Commerce and" are eliminated and the administrative authority is in the Secretary of Labor,] An Act Granting to certain employees of the United States the right to receive from it compensation for Injuries sustained in the course of their employment. [35 Stat., 556.] Be it' enacted hy the Senate and House of Representatives of the United States of America in Congress assembled, That when, on or after August first, nineteen hundred and eight, any person employed by the United States as an artisan or laborer in any of its manufac- turing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortification work or in hazardous employ- ment on construction work in the reclamation of arid lands or the management and control of the same, or in hazardous employment under the Isthmian Canal Commission, is injured in the course of such employment, such employee shall be entitled to receive for one year thereafter, unless such employee, in the opinion of the Secre- tary of [Commerce and] Labor, be sooner able to resume work, the same pay as if he continued to be employed, such payment to be made under such Tegulations as the Secretary of [Commerce and] Labor may prescribe: Provided, That no compensation shall be paid under this act where the injury is due to the negligence or misconduct of the employee injured, nor unless said injury shall continue for more than fifteen days. All questions of negligence or misconduct shall be de- termined by the Secretary of [Commerce and] Labor. Sec. 2. That if any artisan or laborer so employed shall die during the said year by reason of such injury received in the course of such employment, leaving a widow, or a child or children under sixteen years of age, or a dependent parent, such widow and child or children and dependent parent shall be entitled to receive, in such portions and under such regulations as the Secretary of [Commerce and] Labor may prescribe, the same amount, for the remainder of the said year, that said artisan or laborer would be entitled to receive as pay if 15 16 woekmen's compensation under act op may 30, 1908. such employee were alive and continued to be employed: Provided^ That if the widow shall die at any time during the said year her por- tion of said amount shall be added to the amount to be paid to the remaining beneficiaries under the provisions of this section, if there be any. Sec. 3. That whenever an accident occurs to any employee embraced within the terms of the first section of this act, and which results in death or a probable incapacity for work, it shall be the duty of the official superior of such employee to at once report such accident and the injury resulting therefrom to the head of his bureau or independ- ent office, and his report shall be inunediately communicated through regular official channels to the Secretary of [Commerce and] Labor. Such report shall state, first, the time, cause, and nature of the acci- dent and injury and the probable duration of the injury resulting therefrom ; second, whether the accident arose out of or in the course of the injured person's employment; third, whether the accident was due to negligence or misconduct on the pai;t of the employee injured; fourth, aiiy other matters required by such rules and regulations as the Secretary of [Commerce and] Labor may prescribe. The head of each department or independent office shall have power, however, to charge a special official with the duty of making such reports. Sec. 4. That in the case of any accident which shall result in death, the persons entitled to compensation under this act or their legal rep- resentatives shall, within ninety days after such death, file with the Secretary of [Commerce and] Labor an affidavit setting forth their relationship to the deceased and the ground of their claim for com- pensation under the provisions of this act. This shall be accom- panied by the certificate of the attending physician setting forth the fact and cause of death, or the nonproduction of the certificate shall be satisfactorily accounted for. In the case of incapacity for work lasting more than 16 days, the injured party desiring to take the benefit of this act shall, within a reasonable period after the expira- tion of such time, file with his official superioi', to be forwarded through regular official channels to the Secretary of [Commerce and] Labor, an affidavit setting forth the grounds of his claim for compen- sation, to be accompanied by a certificate of the attending physician as to the cause and nature of the injury and probable duration of the incapacity, or the nonproduction of the certificate shall be satisfac- torily accounted for. If the Secretary of [Commerce and] Labor shall find from the report and affidavit or other evidence produced by the claimant or his or her legal representatives, or from such addi- tional investigation as the Secretary of [Commerce and] Labor may direct, that a claim for compensation is established under this act, the compensation to be paid shall be determined as provided under OPINIONS OF SOLICITOB, DEPABTMENT OF LABOR. 17 this act and approved for payment by the Secretary of [Commerce and] Labor. Sec. 5. That the employee shall, whenever and as often as required by the Secretary of [Commerce and] Labor, at least once in six months, submit to medical examination, to be provided and paid for under the direction of the Secretary, and if such employee refuses to submit to or obstructs such examination his or her right to compensa- tion shall be lost for the period covered by the continuance of such refusal or obstruction. Sec. 6. That payments under this act are only to be made to the beneficiaries or their legal representatives other than assignees, and shall not be subject to the claims of creditors. Sec. 7. That the United States shall not exempt itself from liability under this act by any contract, agreement, rule, or regulation, and any such contract, agreement, rule, or regulation shall be pro tanto void. Sec. 8. That all acts or parts of acts in conflict herewith or pro- viding a different scale of compensation or otherwise regulating its payment are hereby repealed. Approved, May 30, 1908. An Act Making appropriations for sundry civil expenses of tlie Government for the fiscal year ending June thirtieth, nineteen hundred and twelve, and for other purposes. [36 Stat., 1363.] Section 5. Hereafter the act granting to certain employees of the United States the right to receive from it compensation for injuries sustained in the course of their employment shall apply to all em- ployees under the Isthmian Canal Comlnission, when injured in the course of their employment ; and claims for compensation on account of injury or death resulting from an accident occurring hereafter shall be settled by the chairman of the Isthmian Canal Commission, who shall, as to such claims and under such regulations as he may prescribe, perform all the duties now devolving upon the Secretary of [Commerce and] Labor: Provided, That when an injury results in death claim for compensation on account thereof shall be filed within one year after such death. Approved, March 4, 1911. 93364°— 15 2 18 workmen's COMPHHrSATION UNDEE ACT OF MAY 30, 1908. An Act To amend an act entitled "An act granting to certain employees of the United States the right to receive from It compensation for injuries sus- tained in the course of their employment," approved May thirtieth, nineteen hundred and eight. [37 Stat., 74.J Be it enacted iy the Senate and House of Representatives of the United States of America in Congress assembled. That the provisions of the act approved May thirtieth, nineteen hundred and eight, en- titled "An act granting to certain employees of the United States the right to receive from.it compensation for injuries sustained in the course of their employment," shall, in addition to the classes of per- sons therein designated, be held to apply to any artisan, laborer, or other employee engaged in any hazardous work under the Bureau of Mines or the forestry service of the United States: Provided, Thai this act shall not be held to embrace any case arising prior to its passage. Approved, March 11, 1912. An Act To authorize additional aids to navigation in the Lighthouse Service, and for other purposes. [37 Stat., 238, 239.] * * ^ if if if H. And hereafter the benefits of the act of May thirtieth, nineteen hundred and eight (Thirty-fifth Statutes, page five hundred and fifty-six), entitled "An act granting to certain employees of the United States the right to receive from it compensation for injuries sustained in the course of their employment," shall be extended to persons employed by the United States in any hazardous employ- ment in the Lighthouse Service. * * * Approved, July 27, 1912. SUMMARY DIGEST OF OPINIONS GROUPED UNDER THE STATU- TORY WORDS OR CLAUSES CONSTRUED OR APPLIED. I. ON OB AFTER AtTQtTST FIRST, NINETEEN HUNDRED AND EIGHT. Page. 1. The accident or otlier cause of injury as well as the beginning of the resulting incapacity must have occurred on or after the date fixed 46 II. " EMPLOYED BY THE UNITED STATES." 1. A plate printer in the Bureau of Engraving and Printing, paid by the piece, is an employee of the United States, and not a mere con- tractor 49 2. A workman employed by a Government contractor is not employed by the Government . 50 3. The owner of a power boat, chartered to the Government and oper- ated by the owner in its service, is an independent contractor and not an employee of the United States 51 4. A workman employed and carried on the pay rolls of the Reclamation Service is employed by the United States when performing work being done by a contractor for the Government, if directed so to do by his superior 56 5. A workman employed in the Forest Service was designated, with others, to perform certain work which the Government was per- forming under an agreement with county supervisors, the latter bearing the expense. Held that he was employed by the United States and entitled to compensation for the injury sustained while so employed 57 6. A contract tie maker, paid by the piece, who boards himself and hires and pays his own help is an independent contractor and not an employee of the United States 58 III. "as an ARTISAN OR LABORER." 1. An employee designated a messenger but engaged in work of the laboring class is a laborer 58 2. A clerk engaged in office work is not an artisan or laborer 61 3. A sailor working on a dredge and assisting in dredge work is a laborer 62 4. An employee appointed as a special laborer-messenger engaged on laborer or messenger work, except when detailed to clerical work, is a laborer 63 5. A policeman or watchman falls within the laboring class, as distin- guished from the leisure, professional, business, or official or clerical classes, and is a laborer (58 19 20 workmen's COMPENSATIOHr UNDER ACT OP MAY 30, 1908. Page. 6. A draftsman, whose duties resemble those of a clerk or artist, is not of the laboring class, and not a laborer 73 7. A packer in a navy yard storeroom employed to handle, arrange, and list stock is a laborer 77 8. A foreman or superintendent, who directs the work of others and whose work is mental and administrative or executive, is not a laborer 78 9. A sanitary inspector. Canal Zone, a laborer ; considered 80 10. A storeroom clerk. Canal Zone, is an artisan or laborer 81 11. A concrete inspector engaged in inspecting and directing work of others Is not a laborer '. 81 12. A telegrapher and shipping clerk engaged in work of a clerical nature is not an artisan or laborer 84 13. Artisans or laborers only, among employees of the United States, are covered by the statute 84 14. A master or pilot of a steamer used in river and harbor work is not an artisan or laborer 86 15. A rodman with a surveying party, also acting as chainman and ax- man, is a laborer 88 16. A survey man, under the circumstances, held a laborer 89 17. A time Inspector, under the circumstances, held a laborer 90 18. An acting Inspector, normally a working foreman of laborers, is a laborer 91 19. A working foreman of laborers Is a laborer 92 20. A transit man is not an artisan or laborer; the term "laborer" de- fined 94 21. A surveyor is not an artisan or laborer 98 22. An employee designated an Inspector, engaged in marking and pass- ing crossties, piling, and lumber, and without any duty of super- vision or superintendence, is a laborer 100 23. An assistant veterinarian, engaged In treating sick animals, giving medicine, and dressing wounds, is not an artisan or laborer 102 24. A laboratory assistant engaged In making tests of materials in a chemical laboratory is not an artisan or laborer ]03 25. A rigger and diver is of the laboring class and is a laborer 104 26. A dock master, having the care of a dock and the supervision of the dock force, is not an artisan or laborer 105 27. A pilot or master of a vessel who performs labor of a physical or manual nature similarly to other members of the crew of the ves- sel is an artisan or laborer. (See in this connection No. 14, above)- 106 28. Where the record shows that no part of the duties of an inspector involve manual labor of any kind, such occupation is not within the meaning of " artisan or laborer " 108 29. The character of work performed by a laboratory assistant at the Picatinny Arsenal in this case does not bring claimant in the "artisan or laborer" class 108 30. The character of work performed by this claimant as an Inspector brought him within the terms of the act as an artisan or laborer- _ 109 31. The claimant was the master of a dredge, and as the work performed was In the nature of that of a " handy man " he was held to be within the act 110 32. The character of work performed by a ship's draftsman does not bring him within the term artisan or laborer HO OPINIONS OF SOLICITOR, DEPABTMENT OP LABOE. 21 Page. 33. The matron of Lower Brule Indian School, S. Dak., is not an artisan or laborer within the meaning of the act 111 34. A messenger In the Government Printing Office, carried on the clerical roll, is an artisan or laborer 112 35. The character of work ordinarily performed by an instrument man In a surveying party determines his status under the compensa- tion act. Held In this case that the work was manual and physical rather than clerical or professional, and claimant entitled to com- pensation as an artisan or laborer 114 36. The work of a cement tester and chemist in the Reclamation Service being in its nature semiprofessional, claimant held not to be an artisan or laborer 116 IV. " MANUFACTURING ESTABLISHMENTS." 1. The Government Printing Office, where chiefly skilled and unskilled laborers are employed and where printing, binding, and book- making is done, is a manufacturing establishment 117 2. Hauling and trucking oats from car to dock by laborer in Army Quartermaster Department is not work in or in connection with a manufacturing establishment : 118 3. A lighthouse depot at which a material portion of the work consists in the manufacture and repair of materials, appliances, and vessels, is a manufacturing establishment 118 4. The Bureau of Engraving and Printing, where ink, paper, and other materials are fashioned by workmen into bank notes, Treasury cer- tificates, etc., nnd sometimes bound into book form, is a manufac- turing establishment 120 5. The local office of the Weather Bureau at Detroit, though a printing press is there operated, is not a manufacturing establishment 121 6. A lighthouse tender, a vessel attached to a lighthouse depot and used in transporting workmen and supplies and in the placement and upkeep of aids to navigation, is not a manufacturing establishment- 122 7. The driving of piles by an employee of the Bureau of Fisheries at work about a lobster pound is not work done in a manufacturing establishment 123 8. A sawmill at Fort Meade, at which lumber is sawed and dressed and shingles are made, is a manufacturing establishment 124 9. An Army quartermaster's depot, at which clothing and tents are made, is a manufacturing establishment. An employee of such an ' establishment is entitled to compensation though not engaged in manufacturing operations 125 10. A blacksmith shop, at which bolts, drills, and other articles and tools used in irrigation work are made and repaired, is a manufacturing establishment 127 11. A storekeeper-gauger of the Internal-Revenue Service is not employed in a manufacturing establishment 127 12. A naval observatory is not a manufacturing establishment nor is it an arsenal or a navy yard 1 128 13. An employee of a manufacturing establishment is entitled to compen- sation though at work elsewhere at the time of injury 129 14. An electric light and power plant of an executive department, at which ice is also made, is a manufacturing establishment 129 22 workmen's compensation under act op mat 30, 1908. Page. 15. A laboratory used only for making tests of materials Is not a manu- facturing establishment 131 16. The mail-bag repair shop of the Post Office Department, at which a variety of mail equipment is made, is a manufacturing establish- ment 131 17. The mechanical plant of the Smithsonian Institution, at which steam power and electric light are generated, and cases, cages, and mu- seum furniture are made, is a manufacturing establishment 132 18. A carpenter and machine shop connected with an Indian industrial school, at which mission furniture is made, is a manufacturing establishment 133 19. An aqueduct and filtration plant, the function of which is to collect, purify, and deliver city water. Is not a manufacturing establishment- 20. The carpenter shop in the quartermaster's shop at the United States Military Academy, West Point, N. T., is a manufacturing establish- ment 134 V. "absenals." 1. The Military Academy at West Point is not an arsenal 136 2. Carpenter work on an ice house for Fort Robinson, a mile distant, is not work in an arsenal 136 VI. " NAVY YAEDS." 1. A navy-yard employee, though injured while at work on a naval hos- pital outside the yard, is employed in a navy yard 137. 2. The Naval Academy, at Annapolis, in accordance with the organiza- tion and nomenclature of the Navy Department, is a navy yard 137 3. A gardener at a naval training station is an employee of a navy yard_ 138 4. A laundress at a naval home, an asylum for disabled Navy officers, seamen, and marines, is not employed in a navy yard 139 5. An employee at a naval station, also designated a coaling depot, is em- ployed in a navy yard 139 6. The naval experiment station at Annapolis as a navy yard 140 VII. " IN THE CONSTEtJCTION OF EIVER AND HABBOB OE rOBTIFICATION WOBK." 1. An artisan repairing cables in the underground electric system at Fort Adams is engaged in the construction of fortification work, which refers to work authorized by the fortification appropriation acts J4J 2. Carpenter work on an ice house for Fort Eobinson, a mile distant, is not done in the construction of fortification work; the "construc- tion " of such work does not include the erection of an ice plant 141 3. A machinist working on gun carriages at a seacoast fortification, though under the Ordnance rather than the Engineer Department, is engaged in the construction of fortification work 143 4. A laborer employed under the Army Quartermaster Department, hauling dirt in grading operations for new building for officers' quarters, is not engaged in the construction of fortification work. (See case of John T. Kearney, at p. 147, overruling this case.) 145 OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 23 Page. 5. A military post, called a fort thougli unfortified, is not a fortification. Work of maintenance and uplceep of a fort, such as painting, is not work of construction. ( See case of John T. Kearney, p. 147 ) , over- ruling this case.) 146 6. Claimant was employed as carpenter in the Quartermaster Depart- ment of the War Department, at Fort Clark, Tex., when his eyes were injured by the reflection of the sun from the white rocks and white sand. It was held that the place of employment properly came under the designation of " Construction of * ■ * forti- fication work." (This opinion alters the former holding on this subject as found in opinions at pp. 145, 146, in the case of James Ryan and W. E. Burgess.) 147 7. A laborer on the U. S. dredge Dalecarlia, while engaged in reclama- tion worli in Auacostia River, funds for which wore jippropriated by Congress, the District of Columbia reimbursing the General Government for one-half the expenses of such work, was employed in the construction of river and harbor work within the meaning of the act 150 8. Work or duties performed in an establishment not expressly included in the act, though similar to those performed in an establishment which is expressly included, does not of itself bring the former place within its provisions. Engineer of steamer attached to Key West Barracks, Fla., not entitled to compensation as being engaged in construction of river and harbor or fortification work 152 9. The Washington (D. C.) Aqueduct, Great Falls, Md., though under control and supervision of the Office of the Chief of Engineers, War Department, is not comprehended within the term " in the construction of river and harbor or fortification work " 153 10. A laborer employed at Fort Huachuca, Ariz., in a rock-crushing plant used to crush rock for the preparation of concrete required in new construction work at that post is engaged in the construction of fortification work 153 VIII. "hazardous employment on construction work in the RECLAMATION OP ARID LANDS OR THE MANAGEMENT AND CONTROL OF THE SAME." 1. A ditch rider required to ride at night and discover and attend to breaks in a canal is engaged in hazardous employment 154 2. A machine attendant at the ice plant of the Roosevelt Dam is en- gaged in hazardous employment 155 3. A cook's helper, working in cooking quarters, is not engaged in hazardous employment 155 4. Work authorized by act of March 1, 1907, to construct a reservoir for storing water for irrigating lands on an Indian reservation is con- struction work in the reclamation of arid lands 156 5. Work in a quarry to obtain rock for damming the Colorado River to protect a valley and supply water for Irrigation is construction work in the reclamation of arid lands 157 6. A clerk employed at a soda fountain in a store under the Reclamation Service is not engaged in hazardous employment 158 24 workmen's COMPENSATIOJT UNDBE act Of MAY 30, 1908. IX. " HAZARDOUS EMPLOYMENT UNDER THE ISTHMIAN CANAL COM- MISSION." Page. 1. A policeman employed in the Isthaiian Canal Zone Is engaged in hazardous employment 159 2. A Storeroom clerk is not engaged in hazardous employment 160 3. A cook In a hotel kitchen is not engaged in hazardous employment — 161 4. A laborer employed in a mess hall under the quartermaster's de- partment, Canal Zone, is not engaged in hazardous employment 161 5. A scythe man in a grass-cutting gang is not engaged in hazardous em- ployment 162 6. A laborer employed on a delivery wagon is not engaged in hazardous employment 162 7. A telephone operator is not engaged in hazardous employment 163 8. A water boy delivering water to grass-cutting gangs at work about various commission properties is not engaged in hazardous em- ployment 163 9. A hospital orderly in attendance upon persons violently insane is en- gaged In hazardous employment 164 10. An ambulance teamster In the Canal Zone is engaged in hazardous employment 165 11. A water boy serving water to men employed in actual construction work of Isthmian Canal is engaged in hazardous employment ,^ 166 12. A plumber and tinner working on roofs and stacks is engaged in hazardous employment 167 13. A time inspector required to attend men occupied in actual construc- tion work of Isthmian Canal is engaged in hazardous employment- 169 14. A machine printer operating a roller press is engaged in hazardous employment 170 15. A scavenger occupied in collecting garbage and hauling it away in carts is not engaged in hazardous employment 170 16. A laborer with a gang at work clearing ground, using a machete in cutting trees, is engaged in hazardous employment 171 17. A hospital attendant performing the manual service usual about a hospital is not engaged in hazardous employment 172 18. A cemetery laborer wheeling stone in a barrow is not engaged In hazardous employment 173 19. A janitor rendering services chiefly of a domestic character is not en- gaged in hazardous employment 174 X. " FORESTRY SERVICE." 1. Claimant was employed in a branch of the forestry service under the Indian Office of the Interior Department. Held to be covered by the act 175 XI. SERVICES AND EMPLOYMENTS WITHOUT THE ACT. 1. A carpenter working on improvements to the water-supply system at West Point is not entitled to the benefits of the act 176 2. A rural mail carrier is not entitled to the benefits of the act 177 3. An employee engaged in repairing a lighthouse beacon Is not entitled to the benefits of the act. [Law since amended.] 177 OPINIONS OP SOLIOITOB, DEPARTMENT OF LABOB. 25 Page. 4. A lineman employed by the Signal Corps of the Army Is not entitled to the benefits of the act 178 5. A seaman employed on a lighthouse tender is not entitled to the benefits of the act. [Law since amended] 179 6. An elevator conductor in a local Federal building is not entitled to the benefits of the act 180 7. An electrician's helper employed in an executive department at Wash- ington is not entitled to the benefits of the act 180 8. A stevedore employed in the Army transport service is not entitled to the benefits of the act 180 9. A laborer employed in a local customhouse is not entitled to the benefits of the act i 181 10. A pilot in the service of the Quartermaster Department of the War Department is not entitled to the benefits of the act 181 11. A painter employed by an Indian agent xit an Indian school is not entitled to the benefits of the act 182 12. A lighthouse keeper is not entitled to the benefits of the act. [Law since amended.] 182 13. A laborer employed in painting at an Army bn.rracks is not entitled to the benefits of the act 183 14. A launch operator in the Quartermaster Department of the War De- partment is not entitled to the benefits of the act 183 15. A deck hand on a vessel attached to Governors Island, N. T., is not entitled to the benefits of the act 184 16. A quartermaster on a lighthouse tender is not entitled to the benefits of the act. [Law since amended.] 185 17. A laborer employed at a national park is not entitled to the benefits of the act 185 18. A laborer employed in the construction of a power plant in the con- gressional buildings is not entitled to the benefits of the act , 186 19. A powder man employed by the Government Road Commission of Alaska Is not entitled to the benefits of the act 186 20. A laborer employed by the United States in the work of raising the Maine is not entitled to the benefits of the act 187 21. A seaman on a vessel of the naval auxiliary service is not entitled to the benefits of the act 187 Xn. " IS INJUEBn." " WHENEVEB AN ACCIDENT OCCUBS." 1. An accident arises from something unforeseen, unexpected, or unusual, and is not the natural result of ordinary means, voluntarily em- ployed, in a not unusual or unexpected way 188 2. But an effect which does not ordinarily follow the use of familiar means, and which can not reasonably be anticipated, is an accident- 188 3. The statute, if not restricted to injuries of an accidental nature, is at least confined to injuries which are referable to some particular event capable of being fixed in point of time 188 4. Within the language of the statute an employee may be injured with- out having suffered a definite accident ]88 5. A plate printer following his usual occupation and sustaining a sprain of the wrist and a rupture of the synovial sac is injured within the meaning of the statute 188 26 woekmen's compensation under act op may 30, 1908. Paee. 6. A disease contracted in the course of employment is not an injury within the act, as the act was intended to apply to Injuries of an accidental nature resulting from employment in hazardous occupa- tions and not to the effects of disease contracted in the course of employment, although directly attributable to the conditions thereof. (See case of Willard E. Jule, p. 261, overruling this case.) 204 6a. Acute lead poisoning contracted in course of employment held to be a disease and not an injury within the meaning of the act. (See case of Willard E. Jule, at p. 261, overruling this case.) 210 7. Evidence that employee was strong and healthy up to time he com- plained of a hurt received while at work on heavy lifting, and that he died suddenly a few days thereafter, for no other assignable cause, is sufficient to show that he had sustained some internal in- jury, though there were no external manifestations thereof 214 8. Evidence of slight blow on jaw is not evidence that tuberculosis of the cervical glands causing incapacity Is an injury within the act- 217 9. Frozen feet constitute an injury within the act 219 10. A physical injury which aggravates a previous ailment so as to dis- able an employee, where disability would not have been caused but for such previous ailment, is an injury within the act 219 11. An employee who, without negligence or misconduct on his part, is struck by his foreman in a fit of anger and has his arm broken, is injured in the course of his employment 22.5 12. An employee obeying orders of his superior and submitting to an oper- ation (vaccination) ordinarily harmless, who is disabled thereby, is injured within the act 226 13. Injuries within the act are injuries to the person, or bodily injuries, and hence the breaking of an artificial leg is iiot covered by the statute 227 14. An accidental injury received in the course of employment but arising in consequence of a disease is an injury within the act, the accident being regarded as the proximate, and the disease as the remote, cause 228 15. The fact that an injury may be classed as a disease does not take it out of the statute. Sunstroke, though classed as a disease, is not such a disease as may be contracted in the same sense as ordinary • diseases may be, but is an injury of an accidental nature, and is covered by the act 231 16. An injury caused by continuous strain due to the nature of the work, and which develops gradually, with no element of accident, is not an injury covered by the act. (See case of Margaret B. Sargent, at p. 275, overruling this case.) 233 17. A severe accidental injury which, though it does not incapacitate the employee, exposes him to an infectious disease, and so weakens him that he is unable to withstand it, may thus give rise to a disability for which compensation is payable 235 18. An infection of the hand and a secondary infection of the leg, result- ing from an abrasion of the skin and the accidental introduction of a foreign substance, is an injury within the act 237 19. A disease not contracted but caused by physical means, under cir- cumstances involving an element of accident, is an injury within the act. Idiopathic and traumatic diseases distinguished 239 OPINIONS OF SOLICITOE, DEPARTMENT OF LABOK. 27 Page. 20. An employee overtaken while at work by a disability due to some un- ascertained internal disorder, not sbown to have been caused by any accident or occurrence in the course of employment, is not Injured within the act 244 21. Disability resulting from a disease directly due to a physical injury of an accidental nature, or lighted up thereby, is an injury within the act 245 22. A disability referable to no definite accident or occurrence, though arising in the course of employment, involving chiefly a gradual weakening, wearing out, or breaking down of the employee, is not an injury within the act 248 23. A bodily affliction occasioned without a definite accident, though arising out of the employment and brought about by external causes, which is not the result of a gradual process or slow accumulation of trifling hurts, nor due to a constant repetition of known or anticipated injurious effects, if it develops rapidly and is referable to a fixed time, and if, though a natural result of surrounding con- ditions, it is neither a necessary result nor a result reasonably to be feared, is an injury within the act ' 249 24. To constitute an injury within the act, It will sufBce if an element of accident clearly appears, or if the injury is of a type which, in the interpretation of statutes of similar scope and purpose, has been accepted as properly Included in the class comprehensively known as accidental Injuries 249 25. Employee vaccinated by direction of superior oflicer upon recom- mendation of local health authorities and the Public Health Serv- ice is injured within the act if Incapacity follows 255 26. Incapacity caused by the inhalation of fine dust into the lungs in the course of employment is held to be an injury under the act 259 27. Claimant was a painter, and in the course of his employment con- tracted lead poisoning, an occupational disease. Distinguishing this disease from pneumonia, malaria, typhoid, or the like; it was held that the incapacity was due to an injury in the course of employ- ment (This opinion alters the previous ruling in the John Trelman and C. L. Schroeder cases on this subject, found at pp. 204, 210. )_ 261 ,28. The employee developed a case of acute bronchitis and lead poison- ing as a result of the inhalation of gas fumes from an oxyacetylene- burning machine, and it was held that the incapacity was due to an injury 264 29. Claimant was engaged in scaling the inner plating of a caisson. Particles of the red lead being scaled became embedded in sore spots on the face or were inhaled into the system, causing in- capacity. Held to be an Injury 266 30. An injury by a fall which lights up or aggravates a previous ailment, causing incapacity, was held to be an injury within the act 267 31. Claimant was struck in the eye by a piece of steel, causing the loss of eye. The injury, while permanent, was stated by the United States hospital service physician to have no bearing on the physical condition. Held that he was entitled only for time physically in- capacitated by the injury 268 32. Employee developed cardiac hypertrophy, causing death, as a result of the inhalation of the fumes of ether in the course of employment in a "mixing house" at the Naval Proving Ground at Indian- bead, Md. Held that his death resulted from an injury 270 28 WOEKMEN's compensation under act of may 30 1908 Page. 33. The employee in this case developed typhoid fever, which turned into pneumonia and empyema. It was claimed that the typhoid was caused by drinking water which had been contaminated and which was furnished by the Government. It was decided that the cause of Incapacity was not of an accidental nature and there- fore not an injury within the meaning of the act 272 34. A disease not contracted but caused by physical means under cir- cumstances involving an element of accident is an Injury within the act 273 35. An injury caused by continuous strain due to the nature of the work, and which develops gradually, held to be an Injury covered by the act. (Overrules Crellin case, Government Printing Office, June 21, 1911, p. 233.) 275 36. A physical injury which aggravates a previous ailment so as to dis- able an employee when disability would not have been caused but for such previous ailment Is an injury within the act. Tubercu- losis superinduced by brass poisoning 277 37. An injury caused by strain from rushing work under a time-record efficiency system, whereby a strong, healthy man was kept under a high, nerve-racking tension during every minute of an eight-hour workday, is an Injury within the act 279 XIII. " IN THE COURSE OF EMPLOYMENT." 1. A workman employed in the Canal Zone, Injured while riding home from work on a labor train, was injured In the course of empJoy- ment 282 2. A workman injured by a fall while in act of leaving shop at close of day's work is injured in course of employment 283 3. A workman employed in an arsenal, injured while "ringing o^ut " at a time clock at the close of the day's work, was injured in the course of employment 285 4. A fireman employed in the Canal Zone, Injured while performing service outside territory under control of the United States, was injured in the course of employment 286 5. A workman injured by an explosion while on the premises of the Government waiting for work to begin is injured in course of em- ployment 287 6. A workman Injured on a highway on his way to work is not Injured In the course of employment 288 7. A workman in the Canal Zone, injured while following a customary path on his way to work, on the premises of his employer or In the immediate vicinity thereof, was injured in the course of employ- ment 291 8. A shopboy employed to work a punching machine, injured by vol- untarily starting a rolling machine while the former machine was Idle, was not injured in the course of employment 295 9. A workman bitten by a mad dog while attending to his duties was Injured in the course of employment 297 10. A workman whose employment required him to occupy sleeping and living quarters furnished by the Government, injured after hours, but at quarters, is Injured in course of employment 302 11. A workman Injured in going to assistance of a fellow workman, attacked by a third, was not Injured in the course of employment— 305 OPINIONS OF SOLICITOR, DEPAETMENT OF LABOE. 29 Page. 12. A railroad conductor on an excursion trip, when the train was run, with permission, by the employees for their own pleasure, was not Injured in the course of employment 306 13. A laborer having gotten his fingers frozen In course of employment, who later burned his fingers at home by accidentally setting fire to the bandages, was not Injured as to the burn in the course of employment 307 14. A watchman returning from work. Injured after alighting from a labor train, while walking on the adjoining track, which was the only way of reaching the highway leading to his home, was injured in the course of employment . 309 15. A foreman whose duty in part was to enforce discipline, Injured while going to stop a fight between two of his men, was Injured in the course of employment 315 16. A workman off duty but on premises of employment volunteering a piece of work and meeting with an accident resulting in his death was not injured in the course of employment 316 17. The employee was furnished quarters on a boat for living purposes by the Government and after working hours left the boat to visit a neighboring town. Upon returning, and before reaching the boat used as quarters, he was drowned. It was held that death did not occur in the course of employment 320 18. Employee running with others to ring the time clock at the noon hour, after having been engaged In playing ball, held not to have been injured in the course of employment 322 19. Claimant was on his way home after working hours and while still on the Government premises was injured. Held to have occurred in the course of employment 323 20. Claimant fell and was injured while going through the main gate of a navy yard. Held to be injured in course of employment 324 21. The employee, with others, was furnished living quarters on a boat by the Government. Fellow employees who had been on shore were returning for the night and decedent started to get them In a small boat. While so doing he was drowned. Held to have oc- curred in the course of employment 325 22. The employee was furnished living quarters on the premises. While en route from a store thereon to his quarters and while ofC duty he stepped aside from the usual path of travel to observe the opera- tions of an electric wood saw. While standing there a piece of wood was thrown from the saw, striking and killing him. Held not to have arisen in the course of employment 326 23. The employee was a laborer or fire patrolman in the Forest Service, and while in quarters furnished by the Government for living purposes he attempted to clean a pistol belonging to a fellow em- ployee. Held not to have been injured in the course of em- ployment 328 24. The employee was engaged by a Government ofllcial on one day to proceed to a certain point on a succeeding day, carrying with him for a distance of 8 miles certain tools and equipment of the Gov- ernment which were necessary for the work in hand to be done. Before reaching the destination the employee was injured by one of the tools he was carrying. Held in the course of employment, which began when he started on the journey with the tools 33(< 30 woekmen's compensation undeb act of may 30,, 1908. Page. 25. Messenger boy employed at navy yard fell from bicycle and was injured while in the yard. Held that his subsequent death was traceable to the injury received at the time he fell 331 26. Employee on the premises during noon hour stopped to pick up a base- ball from the street to return it to players in the field when he was struck by an automobile. Held not injured in the course of employment ^^^ 27. Employee walking along railroad track of Reclamation Service when going to his work was struck by a train of that service and killed. Held that he was in the course of his employment 333 28. Employee had living quarters on boat of Government. While off duty, at about 5.30 a. m., he left his bedroom for some unknown reason, fell overboard, and was drowned. Held to be in the course of the employment 334 29. Employee was a cook in the river and harbor work and while going to work, crossing the river in a launch of a private party, he was drowned Held not in the course of employment 335 30. A colored youth, 16 years of age, employed upon river and harbor work left his work, taking a Government skiff to go across the river for some reason unknown to anyone but himself. As there was no definite evidence to the contrary, it was considered that he was doing something incidental or necessary to his occupation — 336 XIV. " ONE YEAR THEEEAFTEB." 1. The year for which compensation is payable begins to run on the day following the Injury and terminates with the anniversary of the day of Injury— 337 2. The date of the injury from which the year of compensation begins to run Is the date on which the Injury results In incapacity for work- 340 XV. " UNLESS SOONEE ABLE TO BESUME WOEK." 1. Ability to resume work means ability to resume the regular work of the injured person's employment in the course of which the injury was sustained, not any work he may be able to do notwithstanding the injury 345 2. Miscellaneous opinions holding on review of facts and testimony em- ployee to be still incapacitated and unable to resume work 347 3. Ability to resuiue the regular work of the injured person's employ- ment appearing, compensation ceases under the act, though the em- ployee remains seriously and permanently injured 367 4. Inability to resume regular work of employment appearing, compensa- tion is payable though claimant be discharged and obtains other employment of different character 369 5. Ability to resume work at a given date can not be predicated on the fact that an injured person refused to submit to an operation and therefore, according to medical opinion, delayed recovery 371 XVI. " THE SAME PAY AS IF HE CONTINUED TO BE EMPLOYED." 1. The pay or compensation granted includes allowance for subsistence or in lieu of subsistence when the same forms part of the regular remuneration or earnings !j73 OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 31 Page. 2. The right of a laborer to " the same pay as if he continued to be employed " is not lost or diminished because the work on which he was employed has been stopped or suspended before he is able to resume work 375 3. The amount of compensation payable to a dependent parent is equiva- lent to the full pay of the deceased for the balance of the year following the latter's death, though the parent had not been wholly dependent upon him or had received, before the injury, only a share of his wages 378 4. The right to " the same pay as if he continued to be employed " includes the right to any increase in the pay attached to the injured person's position made after the Injury and during Incapacity 379 5. The question of fact as to what Is the " same pay " a workman would receive if he continued to be employed is ordinarily better deter- mined by the administrative and accounting officers of the estab- lishment in which he is employed than by the Secretary of LCom- merce and] Labor 381 6. Where an injured employee, though unable to return to his regular work, returns to work of a different character and receives the same pay as if his duties remained unchanged, compensation under the act ceases ; his right to compensation is merged in his right to receive pay for his services 383 7. When lodging and subsistence are not reckoned as a part of the employee's earnings, such employee is not entitled to commutation of subsistence in fixing rate of payment during Incapacity 384 8. Compensation year begins to run from the exact time when wage earnings cease 386 9. " The same pay as if he continued to be employed " means the same rate being paid at the time of the injury 387 10. The compensation period includes all regular working days, exclusive of Sundays and legal holidays 388 11. When delay in returning to work is not chargeable to claimant, but to some rule or regulation of the establishment where he is employed, loss of time occasioned thereby held to be an incident of the injury and claimant entitled to pay therefor 38!1 XVn. "NEGLIGENCE OR MISCONDUCT." 1. Artisans are not necessarily negligent because as they become profi- cient and dexterous they naturally make use of movements more or less mechanical or, involuntary which might be regarded as negli- gent if it were reasqnable to expect men never to relax their vigi- lance and to be constantly on guard 389 2. It is unreasonable to deny compensation merely because the physical condition of the Injured person is such as to predispose him to some ailment which is also a natural concomitant of the injury received- 391 3. Failure to avoid a known danger by a laborer engrossed in his work, who momieutarily forgets it, Is not negligence 393 4. No man can be assumed to be indifferent to impending and apparent danger; it is fair to assume that he will endeavor to avoid it. If he Is slower to think or slower to act than another, this is not negligence 396 32 workmen's compensation under act of may 30, 1908. Page. 5. A laborer In a sudden emergency and seemingly called upon to act at once is not negligent merely because the action taken leads to an Injury which would not have occurred otherwise 397 6. Failure to exercise incessant vigilance in avoiding a known danger is not negligence - 398 7. Negligence under this act involves the idea of misconduct or volun- tary and unnecessary exposure to obvious danger. Mere inadvert- ence or error of judgment, under circumstances not suggesting danger, is not negligence 401 8. The violation of a positive rule or instruction directly resulting in injury amounts to negligence or misconduct; but the rule or regu- lation must be a reasonable one; it must have been known to the employee, and it must have been enforced. The disregard of a rule which has become a dead letter is not necessarily negligence- 404 9. A laborer called upon to perform a task out of his regular line of work is not chargeable with negligence because he adopts, through ignorance, a method dangerous in fact, but not obviously danger- ous to an inexperienced man 406 10. An injury to a printer's back incurred while working a hand press was not due to negligence merely because the printer had continued working the press although it worked hard and required extra exertion 408 11. Miscellaneous opinions holding on review of the facts and testimony the injury to be due to negligence or misconduct 411 12. Miscellaneous opinions holding on review of facts and testimony the injury not to be due to negligence or misconduct 446 13. The employee was engaged in painting machinery while same was in motion. No orders had been given to the contrary, so held not to be guilty of negligence or misconduct 502 14. The workman was employed as fire guard In the Forest Service, occu- pying quarters furnished by the Government. In attempting to shoot a rat in his cabin he accidentally shot himself. Held that there was nothing to show negligence or misconduct 502 15. The violation of a positive rule or instruction directly resulting in Injury amounts to negligence or misconduct 503 16. Willful or wanton disobedience of orders necessary to constitute negli- gence or misconduct under the act 504 17. A workman called upon to perform a task out of his regular line of employment is not chargeable with negligence for violation of a rule requiring the wearing of goggles while performing this class of work 507 18. In order that the violation of a rule or regulation shall constitute negligence or misconduct it must appear that reasonable efforts have been made to enforce the same 508 XVIII. " UNLESS SAID INJURY SHALL CONTINUE FOR MORE THAN 16 DAYS." 1. An injury continues for " more than " 15 days if the period of dis- ability lasts for 15 full days in addition to the day of injury; the day of injury can not be disregarded without extending the period limited to 16 days gOg 2. When the days of incapacity, whether consecutive or In broken periods, amount to more than 15, counting intervening Sundays and holidays, the law operates to grant the compensation ,__ 615 OPINIONS OF SOLIOITOE, DEPAKTMENT OF LABOB. 33 Page. 3. An employee who Is so Injured that he can never resume the work on which he was engaged at the time of the Injury, but who, after 14 days of Incapacity, Is able to resume work by accepting an as- signment to a character of work with which his injury does not materially interfere, and who does so resume work, may receive compensation for the time lost, even though it may not amount to more than 15 days 516 4. An employee who is physically able to resume work within 15 days after the injury, but who is prevented from actually resuming work until 18 days thereafter because of holidays or lack of work, is not entitled to compensation 517 5. Miscellaneous opinions holding on review of facts and testimony in- jury continued more than 15 days 519 6. Miscellaneous opinions holding on review of facts and testimony in- jury did not continue more than 15 days 526 7. Claimant in this case suffered an injury and the Government phy- sician was of opinion that the injury did not cause incapacity. Claim was upon that evidence disapproved. Upon resubmission satisfactory evidence was furnished to establish the fact that in- capacity for a period of 66 days had been due to the injury received, and claim was accordingly approved 536 8. The time consumed by an injured workman In returning from the place where he was treated for the injury may be considered a part of the Incapacity period, where it was necessary to go to such place for treatment because of the lack of facilities at a nearer point. (See also in this connection case of E. E. Bailey, p. 279.) 539 9. Notwithstanding the fact that the nature of the injury and the phy- sician's certificate indicate clearly that the Incapacity will continue for more than 15 days, yet the Secretary Is not justified in approv- ing a claim which fails to show aflSrmatlvely that incapacity con- tinued for more than 15 days 540 10. The Government physician certified that he had treated an Injury daily for a period of more than 15 days, but that the injury received did not show sufficient external evidence of violence to lead to the belief that it would cause incapacity for more than 15 days. As claimant made affidavit that he was unable to resume work for more than 15 days, and the Government physician treated the in- jury for the same period, it was held that the preponderance of the evidence established a claim for compensation 541 11. The day on which Injury occurred should be included for the pur- pose of determining whether duration of Incapacity existed for more than 15 days 542 12. When claimant's actual incapacity, due to Injury from shock re- ceived at time of accident and developing later, continued beyond the period of disability (less than 15 days) covered by report of yard surgeon and about which condition there was a difference of opinion between the yard surgeon and the attending physician, held that doubt should be determined In claimant's favor 544 93364°— 15 3 34 workmen's compensation under act of may 30, 1908. Page. 13. Where there Is a conflict of opinion between Government surgeon and attending physician as to ability of claimant to return to work, and record sustains views of attending physician, claimant can not be forced to lose Ms right to compensation by being compelled by decision of Government surgeon to resume work before 15-day period expires 546 xrx. " WIDOW." 1. A woman living as the illegitimate wife of an employee in the Canal Zone does not become, upon his death, his widow within the mean- ing of the act , 549 2. The act does not operate to grant compensation to a woman who for several years lived in Barbados and as the " reputed wife " of an employee who was killed in the Canal Zone, and to whom she had borne three illegitimate children 550 3. A woman who has been divorced from an employee and who has been given the custody of his children is not entitled to compensation on account of his death, though the compensation may be paid to her as guardian for the children 551 XX. " CHILD OB CHLLDEEN." 1. The filing of an affidavit of claim by any one or more of the benefi- ciaries named in section 2 and referred to in section 4 is sufficient to protect the rights of a minor child if filed within the period of 90 days 551 2. The word " child " or " children " as used in the act is not restricted to child or children born in wedlock, but includes illegitimate off- spring as well ; 553 3. Where an employee dies, leaving no parent or widow, but leaving a child entitled to the benefits of the act, and the acting Spanish consul files an affidavit of claim on behalf of such child, such acting consul may be regarded as acting in loco parentis and his affidavit as the affidavit of the child ; 563 4. Where on account of the death of an employee compensation has been allowed to the widow and child and the widow dies within the compensation period, and the care of the child devolves upon-the child's maternal grandmother, the remainder of the year's compen- sation may be paid to such maternal grandmother for the use and benefit of the child 564 5. Payment was authorized to the widow of a deceased employee, who died before any payment was made. Two children over 16 years of age filed claim for the compensation. Held that the children were not entitled as beneficiaries and that the amount which had accrued to the widow between death of employee and her death became part of her estate 565 6. A child which has been legally adopted according to the law of the domicile becomes entitled under the act, the same as any other child named therein 566 XXI. " DEPENDENT PARENT." 1. A foster parent by legal adoption may be a dependent parent within the act 567 2. The word "parent" does not include a stepfather or stepmother 571 OPINION'S OP SOLICITOE, DEPARTMENT OF liABOR. 35 Page. 3. The question of dependence is one of fact, and the fact of dependence sufficiently appears if a condition of partial dependence is shown. Contributions by the deceased tend to establish a condition of dependence, but is not the only criterion. The natural and equi- table claim for support which the parents have upon their children makes it proper to consider the actual needs of parents; and in ascertaining such needs, it is necessary to looli to their age, circum- stances, position in life, and earning capacity 573 4. A parent is not dependent who did not in fact depend in some measure for the means of living upon the deceased ; but if the parent is in actual need the fact of dependence is sufficiently shown if it further appears that the deceased attempted to supply such need even to a slight extent, or that but for the death the parent was reasonably assured that such need would be supplied in some cubstantia) measure 576 5. The word " parent " does not include a foster parent where there has been no legal adoption 579 6. Miscellaneous opinions holding on review of facts and testimony parents to be dependent 580 7. Miscellaneous opinions holding on review of facts and testimony parents not to be dependent 589 8. A son was In the habit of sending his mother, in Ireland, small sums of money about May and Christmas of each year. The mother was a pensioner of the British Government and had three other sons. The deceased son left a widow. Upon this state of facts it was concluded that the mother was not a dependent parent 594 9. Where decedent contributed large sums to his parents, he being single and the parents having five younger children to raise, these facts, considering the financial condition of the parents, were held to constitute dependency 595 10. Decedent left a widow and widowed mother. The widow filed claim but died before it was approved. The mother joined in the widow's claim, stating that she was not dependent on her son. Subsequent to widow's death the mother filed a claim setting forth her financial condition, that she was 61 years of age and depended upon her efforts for support. Held that although the son had not con- tributed, yet her financial and physical condition rendered her a dependent parent 597 11. Decedent was 20 years of age and until a few days previous to his death in the Government employ he had worked on the farm of his parents. He had promised to contribute from his Government wages, but met his death before receiving any. Held that parents were dependent, considering all the facts presented 598 12. Decedent was 21 years of age. The parents claimed that the son had contributed a certain amount during a certain period, which amount was in excess of his earnings. Considering all the cir- cumstances of the case, including age and financial condition of the parents, it was held that they were not dependent to any extent upon the son, the mere fact of contributions not being sufficient of itself to establish that condition 699 36 workmen's compensation under act of may 30, 1908. Page. 13. The deceased employee had, previous to going to work for the Recla- mation Service, assisted his parents in the operation ol a small farm. On the day he began work he was killed. Considering the age, circumstances, and condition of the parents, they were held entitled as dependent parents 601 14. Claim was filed by the mother on account of death of 18-year-old son. As she was unable to establish the fact of contribution by the son, who did not live with her, it was held that dependency was not shown 603 XXrt. " SUCH POETIONS." 1. The word " portions," as used in the act, refers to the division of the compensation among the claimants and not to its division into weekly or monthly payments, and the Secretary is authorized to direct that one beneficiary receive a larger and another a smaller portion ; his authority in this regard may even justify his direction that the whole compensation be paid to one beneficiary to the exclusion of the others 603 XXin. " THE PEESONS ENTITLED TO COMPENSATION UNDER THIS ACT OB THEIR LEGAL REPRESENTATIVES." 1. Where an injured employee dies several days or weeks after the injury, compensation is payable to the injured person or his per- sonal representative from the date of injury to and including the date of death, and for the balance of the year to the widow, children, or dependent parent, as the case may be 607 2. Where an employee dies as the result of an injury before having made application for or received compensation, the spirit and purpose of the act warrants payment of compensation from date of injury to date of death as well as for the remainder of the year to the widow or family of the deceased 609 3. Claim on account of the death of an employee was filed by two alleged widows and by a foster mother. The facts in the ca^e showed that neither of the alleged widows was the legal widow, and as the foster mother had never legally adopted decedent she was held not to be a dependent parent within the meaning of that term as used in the act 611 4. The Greek consul at New York was appointed administrator of a deceased employee and desired in that capacity to file a claim in behalf of the beneficiaries. It was held that the consul, as ad- ministrator of the decedent, was not the legal representative of the beneficiaries 613 5. When Incapacity lasts more than 15 days and employee dies from causes other than those producing the original injury and before a formal claim Is filed, the legal representatives entitled to file a claim and receive payment covering period of incapacity are the administrator, the executor, or the heirs or next of kin 614 OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 37 XXIV. " WITHIN NINETY DATS AFTER SUCH DEATH FILE WITH THE SECEETAET OF LABOR " Page. 1. The requirement that an affidavit of claim shall be filed within 90 days after the death is mandatory, and the claim of a widow filed 91 days after the death of the employee is barred by the statute. (See case of Thomas A. Gray, jr., at p. 648, overruling this case.)_ 619 2. If a beneficiary in case of death, in person or by an agent, files a claim for compensation, or what is equivalent to a claim, within the time prescribed, and an " affidavit " in the technical sense is not filed until 90 days have expired, owing to the delay of Government officers in supplying the necessary forms, the right to compensation Is not barred 622 3. The delivery of an affidavit of claim to the deceased employee's official superior, in accordance with regulations of the Secretary designating such, official superior to receive the same, is a filing with the Secretary within the meaning of the act 626 4. It is the date of the delivery to the official superior and not the date of the execution of the affidavit of claim which determines whether or not the affidavit of claim is filed within 90 days 629 5. Neither a verbal notice of claim by the royal vice consul of Italy to the superior officer of an Italian subject, killed while in the employ of the United States, within 90 days after death, nor a telegraphic notice by such consul sent to the Secretary of [Commerce and] Labor 92 days after the death Is a compliance with the act 630 6. An affidavit of claim filed within 90 days by an agent In accordance with a sufficient power of attorney executed by the widow of a deceased employee constitutes due filing 635 7. An affidavit of claim deposited in the mail within 90 days after death of the employee addressed to the deceased's official superior, but not received by the latter until after the expiration of the 90-day period, is not a filing within the meaning of the act 685 8. Where a claimant can not act for himself within the time limited, and another. In his name and behalf, but without prior authority, acts for him iind files a claim within 90 days, a ratification by the claim- ant of the act done on his behalf, though made after the expiration of the 90 days, relates back to the time of the act done so as to make the filing effective as of the prior date 637 9. An affidavit of claim filed with the American consul at Madrid, to whom the proper blanks had been sent and through whom they, were to be returned when filled out and executed, held, under the circum- stances to have been filed with the Secretary of [Commerce and] Labor 646 10. The requirement that an affidavit be filed within 90 days after death is held to be directory, and that a failure to so file within that time may be waived by the Secretary in cases where the facts appear to justify such waiver. (This opinion overrules the case of Wil- liam Goodley, at p. 619.) 648 38 woekmen's compensation undee act oe may 30, 1908 XXV. "AN AFFIDAVIT." Faee. 1. An affidavit of claim may be executed before any person authorized to administer oaths generally, and the authority of a person in a foreign country to administer oaths generally is a question of fact which should be established by satisfactory evidence 654 2. The alEdavit of claim may be executed and filed for the claimant by an attorney in fact duly appointed for the purpose 657 3. Authority to administer oaths generally is not indispensable if specific authority to administer oaths is not so limited as to exclude the oath In question 660 4. The filing of an affidavit is not the only basis of a claim, as the Sec- retary may find a claim established from other sources. The filing of an affidavit is therefore not mandatory hut directory 663 XXVI. "accompanied by the certificate of the attending physi- cian * * * OB the nonpboduction of the ceetificate shall BE SATISFACTOEILY ACCOUNTED FOE." 1. Where the evidence shows incapacity for more than 15 days, the attending physician's certificate covering only the 13 days the employee was under his observation satisfies the law 665 2. The fact that no physician was employed satisfactorily accounts for the nonproduction of a physician's certificate 666 XXVII. " SHALL WITHIN A EEASONABLE PEEIOD." 1. Where a verbal claim for compensation was promptly made, but an affidavit of claim was not filed until nearly a year after the injury, owing to neglect of official superiors to furnish necessary forms, delay held not unreasonable 669 2. What may be a reasonable time in which to file an affidavit of claim must be determined with reference to the circumstances of each case. Particular circumstances considered 670 XXVIII. "a claim fob compensation is ESTABLISHED." 1. A claim is not barred by evidence of congenital weakness which may have contributed to cause an injury to' result in incapacity 672 2. The fact of death established by a presumption from the facts 673 3. A claim may be approved where only circumstantial evidence of the injury can be adduced 675 4. The duty of determining whether a claim for compensation has been established involves a discretion on the part of the Secretary which can not be delegated to any other person 676 5. Review of evidence justifying the approval of a claim based upon an affection of the heart caused by a " sudden twisting of the body "— 677 6. Review of evidence justifying the approval of a claim based upon an injury not reported until after several days' absence from work— 679 7. To entitle an employee to continued compensation, the disability must be due in an appreciable measure to the original Injury 680 8. Consideration of evidence justifying the approval of a claim based on injury causing hernia or aggravating old hernia 682 OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 39 Faee. 0. Consideration of evidence justifying approval of a claim on account of hernia which had existed several months before resulting in incapacity 68i 10. Consideration of evidence Justifying the disapproval of a claim based upon death by suicide, alleged to have been committed In a fit of temporary insanity caused by an accident received In the course of employment 685 11. Nothing in act to justify following a man after he has voluntarily severed the relation of employer and employee, so as to give him the benefits of the act in case he should afterwards become inca- pacitated 686 12. Consideration of evidence justifying the approval of a claim based or injury to leg, though the employee had taken part in a parade — 688 13. An injured employee is entitled to compensation no longer than his incapacity is due to his original injury, and may not be paid be- cause, on account of old age or other bodily infirmity, he Is unable to resume iifprk within year 690 14. Cases in which the discharge of claimant from service held not to afiCect right to compensation 691 15. Cases in which the evidence was considered insufiicient to establish the fact of an accident or Injury in course of employment 70,3 16. Case of an injury caused by a fall superinduced by vertigo 709 17. Cases in which the disability, though of a nature not obviously due to an accident or injury alleged, was held on the evidence to have been so caused , 711 . 18. Cases in which compensation for disability denied because fact of an accident or injury in course of employment not shown 724 19. Consideration of evidence justifying the approval of a claim based on incapacity caused by hernia following an injury, notwithstanding medical examination may have shown prior existence of hernia 728 20. Consideration of evidence justifying approval of claim made after employee had quit the service of the United States, but based on an injury received while in the service, it appearing that he knew nothing of the compensation act and quit because he was unable to continue work 730 21. Cases in which the efCect of claimant's resignation from service upon right to compensation is considered 733 22. Circumstances held to corroborate claimant's unsupported statement as to injury in the absence of proof to the contrary 740 23. Additional evidence sought by department held to establish fact of injury as alleged 741 24. An employee who after an injury had resumed work pursuant to orders, being assigned to lighter duties and was again injured, re- sulting in immediate incapacity, held to have established a new claim ■ 744 25. In this case the superior officer of claimant recommended that claim- ant be paid for only a certain number of days but gave no satis- factory reason for same. As the medical evidence appeared to substantiate contention of claimant, it was decided that a claim was established 745 40 workmen's compensation under act of may 30, 1908. Page. 26. Claimant contended that she struck and injured her arm while at work in the Bureau of Engraving and Printing; she made no im- mediate report, as It did not cause Incapacity at the time. Review of circumstances showed same compatible with the truth of state- ment and claim held to be established 748 27. The hospital sergeant reported that the Injury should not have caused Incapacity for more than 15 days, while the attending physician cer- tified to Incapacity beyond that date. In view of all the circum- stances the claim was allowed 750 28. Claimant suffered an injury which aggravated an existing acute nephritis causing incapacity, the injury itself not being sufficient to produce incapacity. Claim held to have been established 751 29. The claimant In this case was not given an opportunity to file a claim immediately following the Injury. So, owing to misunderstanding, it was some time before he was permitted to file same. The local officials in the field of the Forest Service contended that claimant was not injured as alleged, and cited the fact that he had worked In a coal mine subsequent to his alleged injury. Upon consideration of all evidence submitted it was concluded that claimant had been Injured as alleged by him, and the medical evidence further estab- lished the fact of an Injury from the nature of which Incapacity could be presumed 752 30. An injury in the nature of a strain which lights up, excites, or ag- gravates a preexisting ailment, thereby producing incapacity when the existing ailment had not previously caused incapacity, was held to be the result of the Injury ' 756 31. The claimant was discharged from the Government hospital for leav- ing that place without permission before recovery. The date of discharge was previous to the expiration of the 15-day period. As the certificate from the hospital attendant showed that claim- ant's Incapacity would have extended beyond the 15-day period, it was held that he was entitled to compensation to the date shown that it was presumed the Incapacity would terminate 758 32. Claimant was thrown from a scaffold upon which he was working by an engine running Into it. He continued at work for some time after reporting to the yard dispensary, and subsequently developed brain trouble causing incapacity. It was held that connection was sufficiently established between the injury and the incapacity caused by the brain trouble 759 XXIX. " SUBMIT TO MEDICAL EXAMINATION." 1. The law requires an examination at least once In six months during incapacity, and contemplates tiat payment of compensation be not authorized for a longer period than six months at a time, even though the disability is permanent in its nature 761 2. The duty of claimants to submit to medical examination at least once in six months is mandatory upon them, but the obligation of the Secretary to provide such an examination is directory, so that a right to compensation Is not lost by the latter's failure to act 762 8. If the Secretary so directs, an examination made by a naval surgeon designated by the Secretary of the Navy to examine an employee to determine his right to continued compensation would be a com- pliance with the act 7g5 OPINIONS OP SOLICITOKj DEPARTMENT OP lABOB. 41 Paeo. 4. In order to defeat a right to compensation for refusal to submit to an examination, it is necessary that such examination shall have been directed by the Secretary, that it be made without expense to the employee, and that the employee be advised that such examination ' is required by the Secretary 765 XXX. QUESTIONS OP A GENEEAI, NATUBE ARISING UNDER THE ACT. Reopening and revieioing claims previously passed upon iy the former head of a department. 1. Claim had been disapproved by the former head of the Department of Commerce and Labor, which action was subsequently sustained by the head of the Department of Labor. Upon furnishing new evidence, clajm was reopened and allowed 768 2. There is no authority for the head of a department, in the absence of new and controlling evidence that the settlement was made upon an erroneous or Incomplete showing of facts, to reopen a case that has been disallowed by a predecessor 774 " Incapacity prolonged by refusal to follow medical advice." 1, Claimant was advised by the Government physician who treated the injury to perform light work in the way of exercise. Held that claimant was entitled to compensation until he was able to resume his regular duties 775 " Services and etnploym.ents without the act." 1. A skilled laborer employed in the Office of the Supervising Architect of the Treasury Department is not covered by the act, as that branch of the service was not included either specifically or by implication 776 XXXI. OPINIONS OF ATTORNEY GENERAL. "Is injured." "Whenever an accident occurs." 1. The word "injury" is employed comprehensively to embrace all the cases of Incapacity to continue the work of employment, including all cases where as a result of the employee's occupation he becomes unable to carry on his work 200 " Compensation." " Disease contracted in course of employment hy United States." 1. An artisan or laborer, employed by the United States In the construc- tion of river and harbor work, who contracted a severe cold in the course of his employment, resulting in pneumonia, and which inca- pacitated him for duty for a period lasting more than 15 days, is not entitled to compensation under the act of May 30, 1908 (35 Stat., 556). The word " Injury " as used in above statute is in no sense suggestive of disease, nor has it ordinarily any such signifi- cance. Opinion of May 17, 1909 (27 Op. At. Gen., 346), reviewed— 207 42 wokkmen's compensation under act of may 30, 1908, "In the course of employment." F«sa. 1. Where a laborer, employed by the United States In the construction of river and harbor work, while ofE duty went upon a bin to talk with the man emptying gravel about going home the following Sunday and in the act of leaving voluntarily and with no emer-* gency for immediate action attempted to empty a box of gravel and in so doing fell overboard and was drowned, the accident is deemed not to have arisen within the course of his employment and compensation therefor is unauthorized under the act of May 30, 1908 (35 Stat, 556) 319 "Questions of fact or mixed questions of lato and fact." 1. Questions of fact or mixed questions of law and fact under this act are not to be determined by the Attorney General but are com- mitted to the determination of the Secretary 409 XXXII. " DECISIONS OP THE COMFTBOIXEB OF THE TEEASTJBY." "As an artisan or laiorer." 1. The question whether an employee is an artisan or laborer Is one coming fairly within the discretion of the Secretary of [Com- merce and] Labor to decide. In absence of any showing that the duties performed were not those of a laborer, it is presumed that the finding of the Secretary is correct 67 "As if he continued to he employed." 1. So long as the injury continues the employee is entitled to his status at the time of the injury and must be paid compensation as if he continued to be employed 568 "Payments, how made." 1. The payment of compensation provided for contemplates a continuing liability and even In case of death that the payments will be made as they would have accrued 568 " Dependent parent." 1. An adopted mother must sustain the legal relation to the employee of a parent before a payment can be made to her as a " dependent parent" within the meaning of the compensation act 568 "Compensation under the act is exclusive in cases of injury." 1. Where an employee is embraced within the provisions of the com- pensation act and is injured the time lost can only be paid in the manner and in accordance with the conditions named in said act- 777, 785 "Manufacturing establishment." 1. The Government Printing Office was held to be a manufacturing estab- lishment within the meaning of the compensation act, 779 OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 43 "Appropriation from which payahle." Page. 1. The appropriation from which the employee is being paid before in- jury or death must of necessity be used to pay the compensation provided by the act for injury or death 779 "Medical examinations." 1. The medical examinations to be made by direction of the Secretary, as provided for in the act, should be paid for by the Government, the contingent appropriation for the department being available for such purpose 781 "Widow, marriage of." 1. The marriage of a widow during the compensation year does not bar her from the benefits of the act 78.3 " Parent." 1. The word " parent " in the act may be applied to include both parents- 784 " The persons entitled to compensation under the act or their legal representatives." 1. (See No. 2, p. 777) T85 2. So long as the injury continues the employee is entitled to his status at the time of the Injury and must be paid compensation as if he continued to be employed 786 3. Payment may be made to the legal representatives, who in this case appear to be the parents of decedent, of any amount due and un- paid for the period between date of Injury and date of death. (See Comp. Dec. Feb. 7, 1914, holding contra.) 787 4. The act shows the intent to be that whatever compensation is due an employee who becomes deceased after filing an injury claim is for the benefit of those naturally depending on him. The purpose of the act negatives the payment of compensation to an administrator who does not represent a beneficiary. (See Comp. Dec, Feb. 7, 1914 [p. 791], holding contra.) 789 5. Where a claim has been perfected by an injured employee and he dies before receiving payment his administrator may collect the fund and distribute same subject to the administration of the court in which the trust is pending. (This opinion practically overrules and supplants previous opinions found at pp. 787 and 789. ) ■ 794 "Appropriation for fiscal year." "DisalHHty pay of temporary employee." 1. Where the period of Incapacity covers more than one fiscal year, pay- ment should only be made for the time of incapacity during each fiscal year from the appropriation for that year. A temporary employee who is injured and whose incapacity continues beyond his term of appointment Is entitled to pay during incapacity regardless of termination of employment 794 2. Where the period of Incapacity covers more than one fiscal year pay- ment should only be made for the time of incapacity, regardless of termination of employment 795 44 workmen's compensation undee act op may 30, 1908. " Leave status of injured employee." Page. 1. The leave allowed certain employees of the Government by the act of February 1, 1901, accrues during the period such employee is disabled and receiving pay under the act of May 30, 1908, the same as if he worked 797, 799 XXXin. FOEMER OPINIONS MODIFIED, ALTERED, OB OVEEBTJLED. 1. The case of John T. Kearney at page 147, alters the previous rulings In the cases of James Ryan, page 145, and W. E. Burgess, page 146, in regard to the character of the place of employment coming under the designation " In the construction of river and harbor or forti- fication work." 2. The case of Willard E. Jule, at page 261, alters the previous rulings in the cases of John Treiman and G. L. Schroeder, pages 204 and 210, In regard to the question whether lead poisoning or painter's coUc, an occupational or vocational disease, Incurred in the course of employment was an injury within the meaning of the act. 3. The case of Thomas A. Gray, jr., at page 648, alters the previous rulings in the case of William Goodley, at page 619, in regard to provision for filing a death claim within 90 days. 4. The case of Margaret B. Sargent, at page 275, alters the previous ruling in the case of Mary A. Crellln, at page 233, in regard to the incapacity being due to an injury. OPINIONS DEALING WITH WORKMEN'S COMPENSATION UNDER ACT OF MAY 30, 1908. OPINION OF THE ATTOBNEY GENERAL IN BE ADMINISTBATION OF THE ACT. Final authority to determine claims under workm.en's compensation act. Department of Justice. April 3, 1913. Sir : I have the honor to reply to your letter dated March 12, 1913, in which you ask my opinion on the following question : " Whether under the organic act creating your department (act of Mar. 4, 1913, Public No. 426) the authority to make final determina- tion of claims arising under the workmen's compensation act of May 30, 1908, and its amendments rests in the Secretary of Labor or in the Commissioner of Labor Statistics." I am of opinion that this final authority is in the Secretary and not in the commissioner. The particular section requiring construction is section 3, which reads as follows : That the following-named offices, bureaus, divisions, and branches of the public service now and heretofore under the jurisdiction of the Department of Commerce and Labor, and all that pertains to the same, known as * * * the Bureau of Labor * * * and the Commissioner of Labor, be, and the same hereby are, transferred from the Department of Commerce and Labor to the Department of Labor, and the same shall hereafter remain under the jurisdic- tion and supervision of the last-named department. * * * The Bureau of Labor shall hereafter be known as the Bureau of Labor Statistics, and the Com- missioner of the Bureau of Labor shall hereafter be known as the Commissioner of Labor Statistics; and all the powers and duties heretofore possessed by the Commissioner of Labor shall be retained and exercised by the Commissioner of Labor Statistics ; and the administration of the act of May thirtieth, nineteen hundred and eight, granting to certain employees of the United States the right to receive from it compensation for injuries sustained in the course of their employment. The particular clause concerned, which is italicized above, was not in the original bill, but was inserted pursuant to the report of the Senate Committee on Education and Labor (62d Cong., 2d sess., S. Eept. 973). The syntax is very difficult to understand, and it may well be that, through some accident, the amendment was inserted in the wrong place. Indeed, I am unofficially informed that such was the case, and that the clause was really intended to go into the enumeration of matters transferred from the old department to the new. If that was its intention, the question you put would not arise. However, taking the passage literally and strictly in the position in which it actually stands, and therefore as a definition of matters delegated to the Commissioner of Labor Statistics, I am still of opin- ion that it does not give that commissioner independent authority. 45 46 woekmen's compensation under act of may 30, 1908. The act of May 30, 1908 (35 Stat., 556), the administration of which is the subject of the clause, was itself direct and explicit in providing (sees. 1 and 4) that the final decision of the claims arising under it should lie with the Secretary of Commerce and Labor, and it also contained (sees. 2 and 3) general provisions for the execution of the act under rules and regulations to be prescribed by him. Unless in some way repealed, these provisions foreclose the ques- tion, for they were carried over by the organic act (sees. 6 and 8) from the Secretary of Commerce and Labor to the Secretary of Labor. Have they been repealed? Certainly not expressly, and there is nothing which could possibly effectuate a repeal by implication unless the words " administration of the act of May 30, 1908,^' are construed as repugnant to the continuation of the supervisory, final authority in the Secretary. Repeals by implication are not favored and can result only from so plain a repugnancy as amounts to " irreconcilable conflict." (Petri V. Creelman Lumber Co., 199 U. S., 487, 497.) I see no such repug- nancy here. Indeed, the more natural construction of the language, taken in its context, would be that it delegates to the commissioner the sort of administrative power which is appropriate to his position, namely, power not autonomous but subordinate to the authority of the head of the department. This view is confirmed by the provisions of the organic act itself, which in explicit terms makes all the powers of the heads of bureaus subordinate to the Secretary (sec. 6) and also transfers to the Secre- tary all supervisory or " appellate " authority formerly lodged in (he Secretary of Commerce and Labor in reference to the subjects now delegated to the new department. Surely if Congress had intended to constitute this particular sub- ject an exception from this general clause or to repeal pro tanto the act of May 30, 1908, it would have said so in some direct way. For these reasons I am of opinion, as above stated, that the final authority to determine these claims rests in yourself and not in the Commissioner of Labor Statistics. EespectfuUy, J. C. McEEYNOLDS. The Seceetaet of Labor. I. "ON OB AFTER AUGUST FIRST, NINETEEN HUNDRED AND EIGHT." 1, The accident or other cause of injury as well as the beginning of the resulting incapacity must have occurred on or after the date fixed. [In re claim of A. B. Adolphus, Jan. 11, 1910 ; No. 2257.] It appears from the record in this case that in 1903 the claimant was employed in the Bureau of Engraving and Printing, and that a part of his duty consisted of cleaning window screens. While en- gaged in this work the dust and rust from the screens got in his eyes, so affecting them that he asked to be changed from that work. He was then assigned to other duties. But his eyes continued to grow worse until he became practically blind and unable to perform any OPINIONS OP SOLICITOR, DEPAETMENT OF LABOR. 47 duty, necessitating his discharge from the service on July 6, 1909. He obtained from the Bureau of Labor a blank and necessary in- formation to enable him to make claim for compensation under the act of May 30, 1908. The formal aifidavit of claim was executed and the attending physician's certificate obtained^ But the proper official superior refused to fill out and sign the blank certificate which is made a part of the claim form, and the claimant filed his claim without such certificate directly with this department. All the papers in the case are now submitted to this office with special refer- ence to the question whether the evidence submitted is sufficient to establish the claim. Section .4 of the act provides : In the case of incapacity for worli lasting more than fifteen days, the injured party desiring to take the benefit of this act shall, within a reasonable period after the expiration of such time, file with his official superior, to be forwarded through regular official channels to the Secretary of [Commerce and] Labor, an affidavit setting forth the grounds of his claim for compensation, to be accom- panied by a certificate of the attending physician as to the cause and nature of the injury and probable duration of the incapacity, or the nonproduction of the certificate shall be satisfactorily accounted for. It will be observed that the law does not require any certificate from the official superior. It does, however, require that the affidavit of claim shall be filed with the official superior "to be forwarded through regular official channels to the Secretary of [Commerce and] Labor." While I do not think that the refusal of a subordinate official in any department to fill out and sign the certificate of official su- perior, in accordance with the regulations of this department, or even his refusal to receive and forward the affidavit of claim, ought to prevent the consideration by the Secretary of [Commerce and] Labor of a claim arising under the compensation act, I think the course indicated in the law as above quoted should be followed. It seems to be a wise provision, as it gives the officials of the department in which a claim arises, an opportunity to present such material facts as may have a bearing on the justice of the claim. While the claimant is entitled to file his claim in the method pre- scribed by the statute and to have it carefully considered on its merits after it shall have been so filed, it may be that a consideration at this time of the law likely to be involved will show the futility of pursuing the matter any further. It appears that injury resulted in total disability in July last, although the primary cause occurred in 1903. The question involved appears to be, therefore, must the accident or primary cause of the incapacity as well as the incapacity itself have occurred after August 1, 1908, when the compensation act went into effect, in order to entitle an injured employee to compensation? In the case of Olin P. Wells (C 19, Bu. No. 135) it was held that in computing the 15 days during which an injury must continue in order to entitle to compensation, the days of incapacity, whether consecutive or in broken periods, should be added together. In the case of William Bowen (C 349, Bu. No. 1563) it was held that the injury contemplated by section 1 of the compensation act did not begin until the accident or primary cause thereof had resulted in incapacity for work, and that the "one year thereafter" began to 48 woekmebt's compensation undek act of may 30, 1908. run with the first full day of incapacity. In this latter case it was said: We can not escape the conclusion that the only injury referred to is, as stated in the Wells case, supra, such an injury as "shall result in incapacity for work." Until the injury shall have caused incapacity it is not such an injury as is contemplated by the statute. Logically, then, the injury which may entitle an employee to compensation under the act does not begin to exist until the accident or literal injury has resulted in incapacity for work. When it has existed for more than 15 days, his right to compensation accrues. Practically the same view was expressed by the Attorney General in his opinion of May 17, 1909, in the Clark case (C 92, Bu. No. 628), as follows : The word " injury " is used comprehensively to embrace all the cases of In- capacity to continue the work of employment, unless the injury is due to the negligence or misconduct of the employee injured — and including all cases where as a result of the employee's occupation he, without any negligence or misconduct, becomes unable to carry on his work and this condition continues for more than 15 days. In each of the cases above referred to the accident or primary cause of the incapacity occurred after the compensation act had taken effect, and the question now presented was not considered. Section 1 of the act of May 30, 1908, reads in part as follows : That when on or after August 1, 1908, any person employed by the United States * * * is injured in the course of such employment, such employee shall be entitled to receive, etc. It is clear that, in order to entitle an employee to compensation, his injury must have occurred after August 1, 1908, and it must have occurred in the course of his employment. If the beginning of the incapacity is the beginning of the injury which entitles an employee to compensation,' and the incapacity did not begin until after August 1, 1908, it might seem at first blush that this alone would determine the right to compensation. But it does not. The injury must occur in the course of employment. Though the incapacity may mark the begimiing of the injury con- templated by the statute, it takes something more than the mere in- capacity to constitute such an injury. The incapacity must have a prior cause, some accident or event capable of being located in point of time, and it is such accident or event, together with the incapacity, which constitutes the " injury " for which compensation may be paid. The statute says in effect that this " injury " must have occurred after August 1, 1908, and that it must have occurred in the course of employment, so we must determine which of the component parts of the injury — the accident or the incapacity — must have occurred in the course of employment and after August 1, 1908, or whether both such component parts must have occurred in the course of em- ployment and after August 1, 1908. It would be difficult to say in any case that incapacity occurred "in the course of employment." As the result of an accident while at work during the day incapacity may arise during the night while the employee is at home. Surely no one would contend that the injured employee was not entitled to compensation because the incapacity did not arise while the man was actually at work. But, on the other hand, suppose a man should meet with an accident while off duty, and that a day or two there- after, while he is at work, the resulting incapacity should develop. 49 It is clear that in such a case the man would not be entitled to com- pensation, and for the obvious reason that the accident which caused his incapacity was in no vraj connected with his employment; so in order to produce such an injury as is contemplated by the act, there must be an accident or event capable of being located in point of time which results in incapacity for work, and the said accident or event must have occurred in the course of employment. Neither the accident alone nor the incapacity alone can entitle the employee to compensation. It takes both to constitute an injury within the meaning of the act. The act applies only to injuries sustained after August 1, 1908. If the accident occurred before August 1, 1908, and the resulting incapacity occurred after August 1, 1908, when did the "injury" occur? It did not ocCur before August 1, 1908, because there was no incapacity before that time, and it did not occur after August 1, because after that time no accident or event occurred in the course of the employment to produce the incapacity. As stated in the Bowen opinion, supra, any hurt may be considered as an " injury " within some meaning of the word, but until it has resulted in incapacity the injury contemplated by the statute is not complete. I reach the conclusion, therefore, that to constitute such an injury as will entitle an employee to compensation there must be an acci- dent or other cause which produces as an eflfect an incapacity, and that the cause must have occurred in the course of employment after August 1, 1908. II. "EMPLOYED BY THE UNITED STATES." 1. A plate printer in the Bureau of Engraving and Printing, paid by the piece, is an employee of the United States, and not a mere contractor. [In re claim of A. E. Clark, Dec. 17, 1908 ; No. 92.] In the letter of the director of the bureau of October 17, 1908, the statement is made that the first Comptroller of the Treasury held that " plate printers are not persons in the civil service of the United States within the meaning of the joint resolution (Feb. 28, 1867), but contractors, receiving a certain stipulated price for each 100 sheets printed by them," and, in view of this ruling, the director suggests that the act of May 30, 1908, does not apply to the claimant herein. The resolution of February 28, 1867 (14 Stat, 569), above referred to, provides for the payment of additional compensation to certain persons " employed in the civil service of the United States at Wash- ington." Upon inquiry at the comptroller's office, it appears that no record of such a decision as is above described can be found. How- ever, it is doubtful if a decision applying the provisions of the joint resolution of 1867 could have any bearing upon the application of the act of May 30, 1908. The purpose and language of the act are very different from the purpose and language of the resolution. The act applies to " any person employed by the United States as an artisan or laborer in certain branches of the Government service. A plate printer is a subordinate of one of the officers of the United States, and he received his pay direct from the United States. The 93364°— 15 1 50 workmen's compensation under act of may 30, 1908. fact that his pay is measured by the piece instead of by the day or month can not, in my opinion, affect his status as a " person employed by the United States." I am satisfied, therefore, that a plate prmter who renders service to the United States and who is paid by the United States, whether by the .piece or otherwise, is a " person em- ployed by the United States " within the meaning of the act. That he is an artisan or laborer is not questioned. 2. A workman employed by a Government contractor is not employed by the Government. [In re claim of E. LipBComb,- Jan. 14, 1910; No. 2418.] The above matter is submitted to this office with special reference to the question whether the employees of a Government contractor are covered by the act of May 30, 1908. The papers in the case consists of a letter from the claimant sub- mitting for consideration the matter of his alleged claim, which is based upon the following circumstances : Lipscomb was in the employ of the McCord Co., which company was engaged, under contract with the Government, in the construc- tion of Lock and Dam No. 1. This work was being done under the supervision of an engineer of the Government, and while so engaged upon the work Lipscomb was injured on December 21, 1908. Under the foregoing state of facts the question arises as above set forth and the answer to the same is found in section 1 of the act of May 30, 1908, wherein the persons entitled to the benefits of the act are described as follows : That when, on or after August first, nineteen hundred and eight, any person employed by the United States as an artisan or laborer * * * . The question herein presented is whether Mr. Lipscomb was employed by the United States within the meaning of the act. It would seem almost impossible to make the act any clearer than was done by the words as used therein, limiting the benefits thereof to " any person employed by the United States." Such wording was evidently intended to limit the application of the act to the classes mentioned therein in the immediate employ of the Government, or in other words those employees between whom and the Government some privity existed. This question has not apparently heretofore been raised in connection with the act of May 30, 1908, so there are no adjudicated cases to be found on this point. A similar question was raised in connection with the application of the provisions of section 3738, Revised Statutes of the United States, otherwise known as the eight-hour law. The wording of this statute was quite different from the wording of the compensation act, as will be observed from a perusal thereof, which is as follows: Eight hours shall constitute a day's work for all laborers, workmen, and mechanics who may be employed by or on behalf of the Government of the TJnited States. The question was raised whether this statute applied to the em- ployees of a person who had contracted with the Government to fur- OPINIONS OF SOLICITOEj DEPAETMBNT OF LABOB. 51 nish granite for the use of the United States. The matter was re- ferred to the Attorney General, who, in an opinion (14 Op. At. Gen., 37) , quoting from the syllabus, held as follows : The provisions of the act of June 25, 1868, chapter 72, declaring that eight hours shall constitute a day's worlc for all laborers, workmen, or mechanics employed by or on behalf of the United States, are not applicable to mechanics, workmen, and laborers who are in the employment of a contractor witli the United States. That act was not Intended to extend to any others than the immediate employees of the Government. ~ This case eventually reached the Supreme Court, which court, in 96 U. S., 421, sustained the opinion of the Attorney General, holding that there was no privity between the employees of the contractor and the United States, and therefore the employees were not entitled to the benefit of the statute. From a comparison of the two statutes it will readily be seen that the eight-hour law permitted a question to be raised as to its appli- cability to employees of Government contractors because of the use of the words " or on iehalf of the Government of the United States," while the wording of the act of May 30, 1908, is restricted absolutely to " any person employed hy the United States." As Mr. Lipscomb was not employed hy the United States, I am therefore of the opinion that he is not such a person as would be en- titled to compensation under the act of May 30, 1908. 3. The owner of a power boat, chartered to the Government and operated by the owner in its service, is an independent contractor and not an employee of the United States. [In re claim of John Hanson, Mar. 27, 1912 ; No. 7586.] Claim for compensation has been filed by the widow and children of John Hanson, owner and engineer of a launch which was hired by the Engineer Office of the War Department at New York, N. Y., under an agreement between the officials in charge of river and har- bor improvement work in East River and Mr. Hanson, copy of which, dated November 26, 1910, is as follows : You are requested to furnish the following as per your proposal to furnish launch : Power launch, with crew, all supplies and necessary fittings, ready for work, for the sum of $8 per day, exclusive of Sundays and legal holidays. The boat is to be returned to you when no longer needed, in as good condition as when received by the United States, loss and damage by fire, act of God, and ordinary wear and tear excepted, payment to be made as soon after the 1st day of each month as practicable. As it is not the intent of the United States to use this boat outside the usually navigable waters of New York and vicinity, unless with the special consent of the owner in each case, and as the boat is to be handled by the owner or his agent, the United States is not to be held responsible for any damages due to any accident which may occur to the boat through no fault or negligence upon the part of the employees of this office. Bill should be rendered in duplicate and should be dated and signed by you or your authorized representative before transmitting to this office, as follows : " I certify that the above account is correct and just, and payment therefor has not been received." The proposal referred to, copy of which has been secured from the Chief of Division of Accounts of the War Department, gives a de- tailed description of the launch desired and states : 52 workmen's COMPENSATION' UNDER ACT OF MAY 30, 1908. This bid must include engineer's board and wages and all supplies and fittings necessary for the boat when in commission. Under these terms the launch was furnished by Mr. Hanson, who acted as the engineer referred to in the proposal, and while carrying a survey party engaged in operations at Hell Gate, East River, N. Y., his foot became entangled in a line and he was pulled overboard and drowned. The claim has been referred to this office with special reference to the question whether claimant's occupation comes within the scope of the act. Section 1 of the act of May 30, 1908, provides that " when, on or after August first, nineteen hundred and eight, any person employed hy the United States as an artisan or laborer * * * is injured in the course of such employment, such employee shall be entitled to re- ceive for one year thereafter * * * the same pay as if he con- tinued to be employed * * *." The question, therefore, to be considered is whether decedent was, under the circumstances, an " employee of the United States " or an independent contractor. When the employment is covered by a written contract, the con- struction of such contract and the question as to what constitutes an independent employment thereunder is a question of law for the court. (Singer Mfg. Co. v. Eohn, 132 U. S., 518.) Therefore, in looking to the contract in this case, above quoted, we find that what the Gov- ernment desired was the services of a launch, properly equipped and manned while in commission. Nothing' was contained therein re- quiring any particular person or persons to handle it, and the Gov- ernment was not concerned with the personnel of the crew or with the identity of any member thereof. It was immaterial whether decedent handled the boat one day and one of his agents the following day, or still another person the next day. By the terms of the contract decedent was called upon to " furnish power launch, with crew, all supplies and necessary fittings, ready for work, for the sum of $8 per day." The proposal specifically provides that the " bid must include engineer's hoard and wages, etc.^'' which signifies that the "engineer" referred to and the " crew " mentioned in the agreement merely meant some one competent to manage and operate the boat, and it is clearly intended by the wording of the contract that the $8 agreed to be paid by the Government for each day's service of the launch included the payment of the wages of the owner or crew thereof, irrespective of whether it was handled by either the owner or agent. Defining an independent contractor, Harrison, J., in Richmond v. Sitterding (101 Va., 354; 99 Am. St. Rep., 882), said: Where a person is employed to perform a certain kind of work which re- quires the exercise of skill and judgment as a mechanic, the execution of which . is, because of his superior skill, left to his discretion, witliout restriction upon the means to be employed in doing the work, and employs his own labor, which is subject alone to his own control and' direction, the work being executed either according to his own ideas or In accordance with plans furnished him by the person for whom the work is done, such a person is not a servant under the control of a master, but an independent contractor. Another case in which the court distinguishes between an inde- pendent contractor and an employee or servant is Linton v. Smith (8 Gray, Mass., 147) , wherein it is said that : » * * The judicial conception of an independent contractor is simply that of a person who, being in the exercise of a distinct and recognized trade, craft, OPINIONS OP SOLICITOR, DEPARTMENT OF LABOR. 53 or business, undertakes to do a certain worli, without submitting himself to the control of the employer in respect of the details of that work. Considered from one point of view, the situation contemplated when such a person is engaged implies that the employer has nothing to do in regard to the work, except to see that it Is done according to the terms of the contract, or that he has merely a right to see that the contract is performed in pursuance of Its terms, conditions, and specifications. Considered from another point of view, that situation implies that he is to have the independent use of his own skill, judgment, means, and servants in the execution of the work, or that he is to have the exclusive direction and control of the manner in which the work is to be done, or that he is to have full control of the work and workmen, or that the execution of the work is to be left entirely to his discretion, or that he is to be free to exercise his own judgment and discretion as to the means and assistants that he may think proper to employ about the work, or that he is to be left entirely free to do the work as he pleases, or that the work is to be done according to his own methods, or that he is to procure labor and materials in his own way, provided they are such as the contract demands, and use such machinei'y and appliances as he deems proper, provided they do not unneces- sarily Injure the subject matter of the contract or interfere with work done by others. The work required to navigate the boat necessitated the services of a man as engineer and pilot, and was therefore of a special nature, requiring the exercise of skill and judgment on the part of such person in the manner of its performance. The details of this work and the means employed in its execution were entirely within the discretion of decedent under the contract, as the right of supervision or control by the representative of the Government was not reserved by it in the agreement. That the control of the launch was in the owner, and not in the Government, is further evidenced by the pro- vision in the contract that, " as it is not the intent of the United States to use this boat outside the usually navigable waters of New York and vicinity, unless with the special consent of the owner in each case, and as the hoat is to he handled iy the owner or his agent, the United States is not to be held responsible for any damages due to any accident," etc. Under this contract the only authority the representative of the Government had was the right by implication to direct decedent, as master or pilot of the launch, where to go and when to increase or decrease its speed as occasion demanded in the accomplishment of the work for which the boat was hired. Mr. Hanson's position was, therefore, quite analogous to that of a drayman or one who owns a conveyance, furnishes a driver or operator, and lets the same for hire, as the manner of performing his work, like driving a horse and car- riage and attending to the equipment, was a matter entirely within his discretion. In such cases the authorities agree in the view that the relationship of master and servant does not exist between the driver and the hirer, but that such driver is an independent con- tractor or the agent of one. In Little v. Hackett (116 U. S., 379) the plaintiff hired a public hackney coach from a stand near a hotel and directed the driver where to go. While crossing a railroad track the carriage was struck by the engine of a passing train and thfe plaintiil injured. The de- fense set up was that the relationship of master and servant existed between plaintiff and driver. In a very exhaustive research and review of the authorities in point, English and American, Mr. Justice Field, speaking for the court, said : Those on a hack do not become responsible for the negligence of the driver If they exercise no control over him further than to indicate the route they wish 54 woekmen's compensation undeb act of may 30, 1908. to travel or the places to which they wish to go. If he is their agent so that his negligence can be imputed to them to prevent their recovery against a third party, he must be their agent in all other respects, so far as the management of the carriage is concerned, and responsibility to third parties would attach to them for injuries caused by his negligence In the course of his employment But, as we have already stated, responsibility can not, within any recognized rules of law, be fastened upon one who has In no way interfered with and con- trolled in the matter causing the injury. From the simple fact of hiring the carriage or riding in it no such liability can arise. And in Jones v. Corporation of Liverpool (14 Q. B. D., 890), cited with approval by Justice Field in the above case, the corporation owned a water cart and contracted with a Mrs. Dean for a horse and driver that might be used in watering the streets. The horse be- longed to her, and the driver she employed was not under the control of the corporation otherwise than that its inspector directed him what streets or portions of streets to water. Such directions he was required to obey under the contract with Mrs. Dean for his employ- ment. The carriage of the plaintiff was injured by the negligent driving of the cart, and he recovered a verdict which was set aside upon the ground that the driver was the servant of Mrs. Dean, who had hired both him and the horse to the corporation. This is a case in which there was a contract between a private individual, the owner of a horse, who furnished a driver, and a municipal corpora- tion represented hy its inspector, and in so far as the latter directed the driver what streets to water, it is almost identical with the case under consideration, wherein the junior engineer, as agent of the Government, had similar authority to direct decedent where to go, etc., in the performance of the survey work, the only distinction being that the owner of the horse was not performing the work herself. From these cases it is seen that the test generally applied in an- swering the question. Who are independent contractors? is "inde- pendence of control in employing workmen and in selecting the means of doing the work." Moll, on Independent Contractors and Employers' Liability, at page 30 of his work, citing numerous authorities in support, lays down the rule as follows : The proper criterion by which to determine whether in a given case the relation of master and servant exists is found in the right of the master to order and control the other in the performance of work. A master is one who not only prescribes to the workmen the end of his work, hut directs, or at any moment may direct, the means also; or as it has been put " retained the power of controlling the work." Again it is said the true test by which to determine whether one who renders service for another does so as a contractor or as a servant is to ascertain whether he renders service in the course of an independ- ent occupation in which he represents the will of his employer only as to the result of the work and not as to the means by which it Is accomplished. The accepted doctrine is that in cases where the essential object of an agreement is the performance of work the relation of master and servant will not be predi- cated as between the party for whose benefit the work is to be done and the party who Is to do the work unless the former has retained the right to exercise control over the latter in respect to the manner in which the -work is to he executed. * ♦ * This attribute of the relation (1. e., control) supplies • * * the single and universally applicable test by which the servants are distinguished from independent contractors. The fact that the launch in this instance happened to be in the service of the United States, and that the owner was himself per- forming the work required to run it instead of an agent who would, undoubtedly, not have been an employee of the Government (case of Lipscomb, C 2418, Jan. 14, 1908), does not change decedent's status OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 55 as owner and indepeniient contractor. Moll, at page 70 of his work, in further considering who are independent contractors, and speak- ing with reference to the obligation of personal performance as a test, says that " if the terms of the contract are such as to indicate that the person employed may, if he so desires, perform the stipu- lated work by deputy, it will usually be inferred that he is not en- gaged as a servant," and in this case it is seen that the contract specifically provides that " the boat is to be handled by the owner or his agent," leaving it discretionary with the owner either to perform the work in person or by deputy. Under this provision it might be stated, incidentally, that the United States would not have been liable in damages to a third party in the event of a collision result- ing while the boat was in its service. In SprOul v. Hemmingway (14 Pick., Mass., 1; 25 Am. Doc, 350), where a vessel in tow of a steam- boat employed in the business of towage, through the negligence of the master and crew of such steamboat, came in collision with an- other vessel and the owner of the towed vessel was sued in damages, Shaw, C. J., said : The case most nearly resembling this, perhaps, Is that of a vessel chartered, where for a certain time the whole use and benefit of the ship is transferred to the charterers, but the ofiicers are appointed and the crew engaged and sub- sisted by the owners, in which case it is held that the owners, and not the charterers, are responsible to third persons for any damage occasioned by the negligence of the officers and crew. The United States Supreme Court, citing this case in Sturgis v. Boyer (24 Howard, 123), said: By employing a tug to transport their vessel from one point to another the owners of the tow do not necessarily constitute the master and crew of the tug their agents in performing the service. They neither appoint the master of the tug or ship the crew ; nor can they displace either the one or the other. Their contract for the service, even though it was negotiated with the master, is. In legal contemplation, made with the owners of the vessel, and the master of the tug, notwithstanding the contract was negotiated with him, continues to be the agent of the owners of his own vessel, and they are responsible for his acts In navigation. The fact of ownership of the launch indicates that decedent was in business for himself — ^held himself out for hire to anyone requiring the services of a launch. He was in an independent business, ready and willing at all times to serve the public on the same basis as any other public licensed carrier for hire, which in itself is sufficient to justify the conclusion that it was not his intention to part with con- trol of his boat or his agent, had such agent been placed in charge and, under the terms of this agreement, been subsisted and paid by him. In this connection this oifice is advised informally by the Chief of the Division of Accounts of the War Department that the decedent was not carried upon the pay roll of the department in any capacity ; that payment was made on vouchers for the use of the launch, re- gardless of the identity of the person or persons operating it, and that if an agent had been acting for the owner and the latter had failed to pay him his wages, he would not be considered, under the terms of the agreement, as having any claim against the Government for such unpaid wages for the reason that he would not be deemed an em- ployee of the department. If, therefore, such agent would not be an employee of the department, it is not seen how the owner could 56 woekmen's compensation tjnder act op may 30, 1908. be considered as such since, under the terms of the contract, he would be in no better position than his agent. After a careful consideration of the facts of the case, in the light of the authorities referred to, I am inclined to the opinion that the decedent was an independent contractor and not an employee or servant, and for this reason he is not to be considered as having been "employed by the United States" as contemplated by section 1 of the act. 4. A workman employed and carried on the pay rolls of the Reclamation Service is employed by the United States when performing work being done by a contractor for the Government, if directed so to do by his superior. [In re claim of Joseph W. Crawford, May 6, 1913.] The above claim is specially submitted to this office with the inquiry whether the service in which claimant was employed is cov- ered by the provisions of the act of May 30, 1908. Section 1 of that act provides : That when * * * any person employed by the United States as an artisan or laborer In any of its manufacturing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortification work, or in hazardous employment on construction work in the reclamation of arid lands or the management and control of the same * * * is injured in the course of such employment, such employee shall be entitled to receive for one year thereafter * * * the same pay as if he continued to be employed. The facts in the case herewith submitted, as gathered from the record and upon which the question presented arises, are as follows : Claimant was regularly employed as a teamster in the Reclamation Service of the United States at a monthly wage of $75. In the con- struction of the reclamation project upon which he was engaged it became necessary to build a transmission line to connect up the pimip- ing plant of the Highline Canal Construction Co., which latter work devolved upon the construction company. This company, however, was not prepared or equipped to do this particular class of work, so arrangements were made with the officials of the Reclamation Service to provide a crew of Government employees to perform the same. The expense of this work was paid over to the officials of the Recla- mation Service by the construction company; the men were car- ried on the Reclamation Service time books; were paid by and worked under the immediate supervision and direction of the Recla- mation Service officials and had no knowledge whatever of the fact that th^ were supposed to be employed by another than the United States Government, notice to the contrary not having been given them. Under the foregoing circumstances it is perfectly clear that no contract of employment existed between the crew on the one part and the construction company on the other part, so that the rela- tionship of master and servant could not have arisen between them ; and furthermore, no implication of such relationship could arise from such circumstances, since the crew neither directly received nor accepted compensation from the company. On the other 'hand, the crew were and continued to be employees of the United States ; they were never notified of their discharge or separation from the service OPINIONS OP SOLICITOR, DEPARTMENT OF LABOR. 57 in any manner or form, or of a severance of their contractual rela- tions ; they were ordered to the work by the Government officials and were supervised therein and paid by these same officials. As it is an elementary principle of the law of contract that -there must be an agreement between two or more parties to make a contract, which requisite is entirely lacking in this case, I am of the opinion that at the time this claimant was injured he was a "person employed by the United States as an artisan or laborer * * * Jn hazardous employment on construction work in the reclamation of arid lands or the management and control of the same," for which reason I have the honor to recommend that the claim be approved for payment. 5. A workman employed in the Forest Service was designated, with others, to perform certain work which the Government was performing under an agreement with county supervisors, the latter bearing the expense. Held that he was employed by the United States and entitled to com- pensation for the injury sustained while so employed. [In re claim of Ben Kenney, Oct. 6, 1913.] This claim is specially submitted with the inquiry whether th« decedent was " employed by the United States " within the meaning of that phrase as used in the act of May 30, 1908, at the time of the injury causing death. By the act of March 11, 1912, amendatory of the above-mentioned act, it was provided that the provisions of the act should " be held to apply to any artisan, laborer, or other employee engaged in any hazardous work under the Bureau of Mines or the forestry service of the United States." In the case here presented it appears that the decedent, Ben Kenney, was regularly employed as a laborer in the Forest Service of the United States and the nature of his work was undoubtedly hazardous in character. While so employed under the Forest Service the forest supervisor under whom he was employed entered into a verbal agreement with the board of supervisors of a county in his district whereby he was to perform similar work to that being per- formed by the United States, for which the county supervisors were to bear a portion of the expenses incident thereto. It was while thus engaged in performing a portion of the work which was to be paid for by the county supervisors that the decedent met his death, and under the circumstances the question arises whether the employee was " engaged in any hazardous work under the Bureau of Mines or the forestry service " so as to entitle his beneficiaries to the payment of compensation as provided for in such cases as are covered by the act and the amendment thereof. It does not clearly appear from the record whether the wages of Kenney while so engaged were paid through the office of the forest supervisor or through the board of supervisors, but from the follow- ing statement by the forest supervisor, dated September 22, 1913, viz, " I expended the Forest Service money first and completely ex- hausted this account before using the county money," it may be safely assumed that the wages of the employee were paid through the office of the forest supervisor of the United States. Be that as it 58 WOKKMESr's COMPENSATION UNDER ACT OF MAY 30, 1908. may, still it is apparent that the decedent was "employed by the United States" and "under the forestry service" thereof; that in compliance with the orders and directions of the supervisor of that service, his superior officer, he was performing the regular and usual work of his employment ; that there was no agreement by him to work for the county or any other than the United States ; nor does it appear that his relations as such employee were severed in any manner. Consequently I am of the opinion that the question sub- mitted must be answered in the affirmative. 6. A contract tie maker, paid by the piece, who boards himself and hires and pays his own help is an independent contractor and not an em- ployee of the TTnited States. [In re contractors or jobbers at Neopit Indian sawmill, Apr. 8, 1915.] The inquiry in this case is submitted to this office by the Bureau of Labor Statistics of the department at the request of the Assistant Commissioner of Indian Affairs. The facts upon which the inquiry is predicated are found in a letter from the superintendent of the mills, dated February 15, 1915, which reads in part as follows : We have several contractors or jobbers here making lath, ties, etc., and paid by the piece. They contract under Informal agreement to make so many, for which they are to be paid a stated price per M or per standard tie If made according to specifications. They board themselves and hire and pay own help. Chris Summers, a contract tie maker, was injured by a falling tree. Are cases like this under the act? I would hold them in nature of employer them- selves under contract or agreement to do certain work for Government, as he is not a laborer employed and on pay rolls here. Please advise. Basing an opinion on the information contained in the foregoing letter, it may be said that there is nothing contained therein which would satisfactorily establish the fact that the persons mentioned therein are within the words of the act, " any person employed by the United States." It rather appears from the facts at hand that these persons belong to that class laiown as independent contractors. So far as the method of payment for services is concerned, it makes no difference whether it is by the piece, day, month, or year, but the important element to be considered is the duties which arise from the relationship of master and servant. Assuredly no such characteristics are to be found in the case presented. Employees of the Bureau of Engraving and Printing of a certain character are paid for piece work, but it was held in the Clark case (Op. Sol., 49), that such a person was an employee of the United States. In this connection attention is respectfully invited to Opinions of the Solicitor, at pages 50 and 51, where a similar question was discussed and disposed of by the department. III. "AS AN AKTISAN OB LABOBEB." 1, An employee desig^nated a messenger but engaged in work of the laboring class is a laborer. [In re claim of S. J. Mulllns, Oct. 5, 1908 ; No. 21.] It appears from the reports submitted that the claimant is em- ployed as a messenger at the Watervliet Arsenal, with compensation OPINIONS OF SOLIOITOB, DEPARTMENT OF LABOR. 59 !it the rate of $1.76 a day, and that on August 19, 1908, while caring for a horse in the stables connected with the arsenal the horse kicked him, causing injuries which disabled him for a period of 15 days. The question presented is as to whether the claimant's occupation brings him within the provisions of the injured employees' compensa- tion act. Among those enumerated in the first section of the act as being entitled to the benefits thereof are those employed by the United States as artisans or laborers in any of its arsenals. The claimant's designation is that of "messenger." It is assumed that he was ap- pointed as a messenger and is on the pay rolls as a messenger. But at the time of the accident he was in the stables caring for a horse, and his superior officer, on Form C. A. 1, states that the accident arose in the course of his employment. The claimant also states, on Form C. A. 4, that the injury was received in the course of his employment. There appears to be no reason to doubt that it was a part of the claimant's duty to care for one or more horses; that he performed this duty under the direction of his superior officer ; that it was while in the discharge of this duty that the injury was sus- tained, and that the injury was not due to any negligence or mis- conduct on the part of the claimant. The work of caring for horses is the work of a laborer. The fact that the claimant was designated as a messenger is not material. The statute does not attempt to limit its operation to persons holding certain designated places or positions. It applies to artisans and laborers; and whether they be appointed and paid as machinists, brass finishers, ordnance men, messengers, or what not, should not affect their right to compensa- tion under the act. I am of opinion, therefore, ' that the claimant is an " artisan or laborer" within the meaning of the act, and as such entitled to its benefits. [In re claim of Albert Donaldson, Jan. 31, 1911 ; No. 6704.] The above claim is submitted to this office with special reference to the question whether the claimant's occupation comes within the scope of the act of May 30, 1908. The occupation of claimant is shown to be that of a messenger, and at the time of the injury he was driving a delivery wagon of the Printing Office. In the case of Blaine (C 164, Bu. 721) the Govern- ment Printing Office was held to be a manufacturing establishment ; in the cases of MuUins (C 21, Bu. 69) and Adler (C 232, Bu. 889) a messenger was held to be an " artisan or laborer," and in the Nicholas case (C 1636, Bu. 140) it was held that a laborer of the Philadelphia depot, who was injured in loading a truck away from the depot at a wharf on the Delaware Eiver, was entitled to compensation. Under the rulings of the above-mentioned cases, and for the reasons therein stated, it appears to me that claimant is an artisan or laborer employed in a manufacturing establishment of the United States, and I am therefore of the opinion that his occupation comes within the scope of the compensation act, for which reason, the claim being otherwise proper, the same should be approved for payment. 60 workmen's compensation undee act of may 30, 1908. [In re claim of John Jackson, Feb. 4, 1911 ; No. 5298.] The above claim is submitted to this office with special reference to the following questions' Is the occupation of the decedent within the scope of the act? Are the claimants dependent parents within the meaning of the act? The decedent was a boy, 14 years of age, employed as a messenger in the construction and engineering department in the Canal Zone and received $30 a month wages. While the question whether or not an employee is an artisan or laborer is to be determined independently of any special designation given to the position he holds, ordinarily the occupation of messenger is that of an artisan or laborer. (See MuUins case, C 21, Bu. 69.) That the case of this boy presents no exception to the general rule sufficiently appears from the duties required of him. He operated a telephone • and worked as a mes- senger at a booth located near a junction of a certain dump track of the Canal Commission with the Panama Railroad line, and he re- ported to the dispatcher trains passing that point and delivered to the train crews such orders as were given him by the dispatcher or yardmaster. He was killed in crossing the tracks. Nor, it is thought, can there be any doubt as to the hazardous nature of his occupation. The-claim is filed by the parents, and it appears that the property owned by them is valued at $2,200, and that their total income from all sources during the year preceding the death of their son amounted to $1,500. It further appears that $150 of this income was contrib- uted by the decedent, who regularly turned over a certain amount every month to his mother, who used it to help defray general house- hold expenses for a family consisting of the two parents, three daughters, and another son. As pointed out in the previous opinion in the Branch case (C 2091), "the fact of dependence is sufficiently established if a condition of only partial dependence is shown * * *. A person may have been no less dependent upon the de- ceased because of his dependence, in part, upon others * * *. The claimant's standard of living is not to be critically inquired into, to say whether, with the earnings of the deceased workman, the family was above or below the standard. Neither is it material to ascertain the minimum at which the claimant can be maintained * * *. -What the family was, in fact, earning, what the family was, in fact, spending, is, however, a pertinent inquiry, and whether the contributions of the deceased constituted a part of the claimants' income or means of living has been held to be a test of dependence." In a House of Lords case, it was held that where a boy paid his wages to a common fund, which, after providing for his keep, left a surplus which went to the maintenance of his family, on his being killed, his father was entitled to compensation as being in part de- pendent upon his earnings. (Davis v. Main Colliery Co., A. C, 358.) Whatever may be said as to the dependence of the father in the pres- ent case, it seems clear that the mother, at any rate, is a dependent parent within the meaning of the act, especially inasmuch as it ap- pears from the record that the mother has no income of her own. For these reasons, therefore, it is thought that the claim of the mother has been established and should be allowed. OPINIONS OF SOLICITOR, DEPAKTMENT OF LABOH. 61 2. A clerk engaged in office work is not an artisan or laborer. [In re claim of B. V. Alcee, Oct. 26, 1908 ; No. 53.] I have examined the above claim, submitted to this office with special reference to the questions whether a clerk in the employ of the United States, under the Isthmian Canal Commission at Panama, comes within the provisions of the act of May 30, 1908, and whether the negligence Shown was sufficient to bar the claim. The act applies only to artisans and laborers, and as to artisans and laborers under the Isthmian Canal Commission it applies only to such as are in hazardous employment. The claimant in this case was a clerk and not an artisan or laborer, and the report of the division engineer on Form C. A. 1 states that the accident did not arise out of or in the course of his employment. I am of opinion, therefore, that the act does not authorize compen- sation in this case. In view of the conclusion here reached, it is, of course, unnecessary to consider the question of negligence. [In re claim of G. B. La Mire, Nov. 23, 1908 ; No. 163.] " I have examined the above claim submitted to this office with special reference to the question whether the claimant's occupation should be regarded as " hazardous employment," and falls within the scope of the act of May 30, 1908. The papei^ submitted, consisting of printed Forms C. A. 1 and C. A. 4, show that the claimant was a clerk acting as postmaster, and that while going for mail he was struck by a train. The act applies only to artisans and laborers. There is nothing in the record submitted to show that the claimant was employed as an artisan or laborer. Therefore his occupation can not be regarded as falling within the scope of the act. In view of this conclusion it is not necessary to consider the question of "hazardous employment." [In re claim of T. G. Prioleau, Jan. 19, 1911 ; No. 5616.] The above claim is submitted to this office with special reference to the question whether the decedent's occupation comes within the scope of the act of May 30, 1908. The occupation of decedent is shown to be that of a clerk (prop- erty), at a salary of $135 per month, and the duties performed by him " consisted of visiting the various suboffices, work, and items of floating plant, inspecting, counting, and checking ail public property." The provisions of the compensation act apply only to artisans or laborers, and in order to entitle a claimant to compensation on ac- count of injuries received in the course of employment it must be shown that the duties of the occupation are such as are performed by artisans or laborers. • In this case, it is seen that the services performed consist of inspect- ing, counting, and checking all public property under the control of the river and harbor works of the district where decedent was em- ployed. So far as is apparent from the foregoing, there is nothing to indicate that the character of work comes within the classification of either an artisan or a laborer. 62 WOEKMEn's COMPENSATIOlir UNDER ACT OF MAY 30, 1908. Since there is nothing in the record in this case which indicates that decedent performed manual labor and as his duties were of a clerical nature, I am of the opinion that the occupation does not come within the scope of the compensation act, for which reason the claim can not be approved. [In re claim of J. J. Corrigan, jr., Apr. 30, 1912 ; No. 8227.] This case is submitted with the inquiry whether the occupation of claimant comes within the scope of the act of May 30, 1908, and the amendments thereto. It is observed from the record in the case that the occupation of claimant is given as "recorder," and from the statement of his superior officer, dated April 11, 1912, it is shown that his duties con- sist of " entering in a notebook notes of survey work of the party to which he is assigned, reducing soundings, and assisting occasionally in plotting notes." From the foregoing description of the work performed by claim- ant, it is readily apparent that the character of his duties is purely clerical. The act of May 30, 1908, which has not been changed by subsequent amendments, so far as the present claim is concerned, ap- plies only in the case of injuries sustained by a person "employed * * * as an artisan or laborer." The question presented, there- fore, is whether a person employed as a recorder is a person employed as an artisan or laborer within the meaning of the act. The duties performed in this instance are in part largely of the same character as those performed by a transit man, which occupa- tion was given careful consideration in the case of John M. Grant (C 25l3, Bu. 6160). In that case, in addition to operatinig a transit, it was necessary for the claimant in performing his duties to make notes of his measurements and, later on, to work out and compute the same, which latter work is technically known as plotting. In this case, however, the only portion of that work performed by claimant is the clerical part, and as it was decided that the applicant in the Grant case was not an artisan or laborer within the meaning of the act, the same conclusion is applicable here with greater force, since no part of the work requires in its performance what is commonly called manual labor. In view of the foregoing, I am of the opinion that the occupation of claimant, as shown by the record, does not come within the terms of the act, for which reason the claim should be disapproved. 3. A sailor working on a dredge and assisting in dredge work is a laborer. [In re claim of L. T. Zacias, Nov. 28, 1908; No. 145.] This claim is based on the loss of a Ifeg and injury to the other leg incurred on September 17, 1908, while working at La Boca, Canal Zone, as a sailor on the dredge Oopher. The head hoist, chain parted on the top of the main winch and the bight of the chain struck the claimant, cutting off one leg and injuring the other to such an extent that is must be amputated. OPINIONS OF SOLICITOB, DEPARTMENT OF LABOR. 63 The accident was reported as occurring solely because of poor mate- rial in the chain, and in the course of claimant s employment, without negligence or misconduct on his part. The case is submitted with ref- erence to the question whether the occupation of sailor in this case falls within the class of " artisans or laborers " under the act of May 30, 1908. The Standard Dictionary, as well as Webster's, makes the word sailor synonymous with seaman. A sailor or seaman is, gen- erally speaking, a man whose occupation is to assist in the manage- ment of ships at sea. A laborer, as defined by Webster, is one who works at a toilsome occupation. A laborer is one who labors with physical power, and under the direction of another, at fixed wages. (Kansas City v. McDonald, 80 Mo. App., 444, 448.) A laborer is one who performs manual labor. (In re Ho King, 14 Fed., 724, 725, and numerous State cases.) Measured by these definitions, seamen are certainly laborers. Moreover, this accident occurring on a dredge to a man assisting in its operation makes claimant's employment at the time of the accident in the nature of a laborer's employment, irre- spective of the fact that he was rated and paid as a sailor. It is my opinion, therefore, that claimant is a laborer under the act of May 30, 1908, and that his claim has been established. [In re claim of Marcos Vullcas, Dec. 11, 1908 ; No. 231.] It appears from the papers submitted in the above claim that the claimant was employed as a " sailor " on a dredge employed in the Isthmian Canal work when he was injured by an accident which occurred on October 16, 1908, and the claim is submitted to this office with special reference to the question whether the claimant's occupation brings him within the scope of the act of May 30, 1908. Following the reasoning indicated in my memorandum of Novem- ber 28, 1908, in the case of Leonidas T. Zacias (Bu. No. 433), which involved the same question, I have to advise that the claimant herein was a laborer within the meaning of the act, and that, as such, he is entitled to the benefits thereof. 4. An employee appointed as a special laborer-messenger engaged on laborer or messenger work except when detailed to clerical work is a laborer. [In re claim of Frank Adler, Dec. 15, 1908 ; No. 232.] The above claim is submitted to this office with sjiecial reference to the question whether the claimant's occupation brings him within the scope of the act of May 30, 1908. The occupation of the claimant is given as " special laborer-mes- senger." In the certificate of official superior the following state- ment is made : Mr. Adler was detailed to clerical duty in the office of the master steel maker, and, on the day of the accident, he went in the acetylene gas plant to get a job order for a man on duty. The explosion occurred at the time he was In the acetylene gas plant and he received injuries as described herein. Thus it appears that while the claimant was employed as a laborer or messenger he was detailed to do clerical duty, but that at the moment of the accident he was doing the duty of a messenger, though it was a duty which might properly be performed by a clerk. 64 wokkmbn's compensation under act of may 30, 1908. In the case of Simon J. Mullins (Oct. 5, 1908; Bu. No. 69) it was held by this office that the designation of an employee does not determine whether or not the act applies to him ; that the controlling factor is the character of the work performed. If a person is ap- pointed and paid as a laborer but is assigned to duties of a clerical nature, he is, to all intents and purposes, a clerk and not a laborer while he is so engaged, and the act does not apply to him. But sup- pose a clerk be engaged, under the direction of his superior officer, in some duty which properly belongs to the class of work usually performed by laborers, would the act then apply to him? I am in- clined to think it would, though no general rule to this effect could be laid down. Each case must be determined with reference to the circumstances attending it. In the present case the facts stated do not make it clear that the claimant's assignment took him out of the " laborer " class, to which he was appointed, and put him in the "clerk" class. Going "to get a job order for a man" is a duty which may be that of a clerk or that of a laborer or messenger. If the claimant's status was that of clerk, the fact that he went on an errand, even though it was pursuant to an order of his superior, would not, in my opinion, make him a laborer within the meaning of the law. But where a person is appointed and paid as a laborer or messenger and is assigned to do clerical work, but is at the same time expected and required to per- form duties usually and naturally belonging to a laborer or mesr senger, I do not think he should be regarded as having been removed from the " laborer " class to the " clerk " class so as to deprive him of the benefits of the act. I think we may reasonably indulge the pre- sumption that he was acting in tha capacity as laborer except when he was actually engaged in clerical work. Whatever view is finally taken as to the application o'f the law to this claimant, the reasoning must appear to be highly technical, and I am free to say that I hesitate to recommend the disapproval of the claim unless compelled by the circumstances of the case to do so. The evidence submitted does not show with sufficient certainty the status of the claimant at the time of the accident. I have to sug- gest, therefore, that the Navy Department be asked for a definite statement as to the claimant's original appointment, when and by what authority lie was detailed to do clerical duty, whether the pur- pose of the detail was permanent in character or merely temporary, whether the detail removed him from the immediate control or direc- tion of one superior and placed him under another, whether his duties after the detail were of a clerical character exclusively, in the same sense as are the duties of those who are employed as clerks, or whether he was still expected and required to do the work of a laborer or messenger. [In re claim of Frank Adler, Jan. 12, 1909 ; No. 232.] When the above claim was presented to this office in December, 1908, I expressed the opinion, under date of December 15, 1908, that the facts disclosed were not sufficient to justify a conclusion as to whether the occupation of the claimant brought him within the provisions of the act of May 30, 1908, and suggested that the Navy Department be asked for certain additional information. In ac- cordance with this suggestion a letter was addressed to the Secretary DEPARTMENT OF LABOR. 65 of the Navy, who replied under date of December 22, 1908. This reply did not give the specific information asked for, but merely stated "that Mr. Adler is a classified employee, appointed after examination and certification by the United States Civil Service Commission, and is not an artisan or laborer as referred to in the act of May 30, 1908," and expressed the opinion that he was not en- titled to compensation for the injury sustained. While the conclusion of the Secretary of the Navy may be per- fectly correct, it does not satisfy the provisions of the law. Sec- tion 4 of the act provides, in effect, that the Secretary of [Commerce and] Labor shall determine from the facts submitted to him whether or not the claim has been established. Unless, therefore, the Secre- tary of [Commerce and] Labor has before him all the facts which he deems necessary to enable him to form a correct judgment inde- pendent of any other judgment, the claimant may feel that he has not been given that hearing which the law contemplates. Therefore I have to renew my suggestion that the Secretary of the Navy be requested to submit to this Department all the facts which may be pertinent in the determination of the question whether the claimant was at the time of the accident employed in the capacity of a laborer or artisan within the meaning of the act. [In re claim of Frank Adler, Mar. 23, 1909 ; No. 232.] The above claim is resubmitted to this office with additional in- formation requested by the Secretary in his letters addressed to the Secretary of the Navy under date of December 18, 1908, and Jan- uary 18, 1909, respectively. In my opinion of December 15, 1908, submitted in this case, I said: In the present case the facts stated do not make it clear that the claimant's assignment took him out of the " laborer " class, to which he was appointed, and put him in the " clerk " class. Going " to get a joD order for a man " is a duty which may be that of a clerk or that of a laborer or messenger. If the claimant's status was that of a clerk, the fact that he went on an errand, even though it was pursuant to an order of his superior, would not, in my opinion, make him a laborer within the meaning of the law. But where a person is appointed and paid as a laborer or messenger and is assigned to do clerical work, but is at the same time expected and required to perform duties usually and naturally belonging to a laborer or messenger, I do not think he should be regarded as having been removed from the " laborer " class to the " clerk " class so as to deprive him of the benefits of the act. I think we may reasonably indulge the presumption that he was acting in the capacity as laborer except when he was actually engaged in clerical work. From the letter of the Assistant Secretary of the Navy, under date of February 18, 1909, it appears that the claimant was appointed as a special laborer-messenger boy, and that "upon authority of the United States Civil Service Commission, messenger boys at navy' yards and stations are assigned clerical work in addition to their regular messenger duties with the idea that they will eventually he fromoted to derkshi-ps provided they pass the necessary tests pre- scribed by the Civil Service Commission." The claimant was not a clerk, then. He was still required to do the work of a laborer or messenger. He was given certain clerical duties to perform with the idea that he might eventually be pro- moted to a clerical position and in order to train him for such posi- 93364°— 15 5 66 workmen's compensation under act of may 30, 1908. tiori. He had not, however, been promoted to such position, and it was not expected that he would be until after he should pass an examination. It is clear that he had not been removed from the laborer class to the clerk class. I have to advise, therefore, that, in my opinion, the claimant was, at the time of the accident, a laborer within the meaning of the act of May 30, 1908. [In re claim of Frank Adler, May 27, 1909 ; No. 232.] This claim was, under date of April 3, 1909, approved by the Sec- retary of [Commerce and] Labor. This approval was transmitted through regular official channels to the "paymaster of the yard," who, I assume, is the proper disbursing officer through whom the claimant receives his pay. The claimant, under date of April 29, 1909, submitted a certificate of disability, which was also transmitted to the paymaster of the yard. This officer, under date of May 5, 1909, referred the certificate of disability to the commandant with the following indorsement : 1. The fact that the beneficiary of this certificate is a special laborer (mes- senger boy) raises a doubt in the mind of the paymaster of the yard upon the question of his being entitled to compensation under the act of May SOj" 1908. 2. It is respectfully requested that an expression of opinion be obtained from the Bureau of Supplies and Accounts or, if the bureau deems it necessary, from the Comptroller of the Treasury upon this question. 3. It is to be noted that the law specifies artisans and laborers only as bene- ficiaries and that, while full power is given the Secretary of [Commerce and! Labor to adjust and approve claims of .those who are covered T)y the act, there does not seem to be any discretion allowed as to the class of employees to be benefited. In short, it must appear that the claimant is an artisan or laborer before his case can come before the Secretary of [Commerce and] Labor as a possible claim under tlie act of May 30, 1908. If this condition is fulfilled, then the case is to be handled under such regulations as the Secretary of [Com- merce and] Labor may prescribe. The claim is again submitted to this office with special reference to the suggestions contained in this indorsement, and the naval con- structor, in an indorsement dated May 11, 1909, invites special atten- tion to his indorsement of February 16, 1909, made in response to our department letter of January 18, 1909. The indorsement of February 16, 1909, to which the naval constructor refers, was incor- porated m the letter of the Assistant Secretary of the Navy addressed to this department under date of February 18, 1909, and was given due consideration by the Secretary of [Commerce and] Labor when the claim was finally considered upon its merits. The Secretary of [Commerce and] Labor having* passed upon the merits of the claim and having approved it in accordance with the provisions of section 4 of the act of May 30, 1908, if the disbursing officer to whom the claim is presented for payment is in doubt as to his authority to pay the same, it is his right to apply to the Comp- troller of the Treasury for a decision under section 8 of the act of July 31, 1894 (28 Stat., 208), which reads as follows: Disbursing officers, or the head of any executive department, or other estab- lishment not under any of the executive departments, may apply for and the Comptroller of the Treasury shall render his decision upon any question involv- ing a payment to be made by them or under them, which decision, when ren- dered, shall govern the auditor and the Comptroller of the Treasury in passing upon the account containing said disbursement. OPINIONS OF SOLICITOE, DEPARTMENT OF LABOR. 67 Attention is also invited to 1 Comptroller's Decisions, 349. I have the honor to recommend that the " certificate of disability " be returned to the Navy Department, with a letter inviting attention to the act of July 31, 1894, and the decision above referred to. [In re claim of Frank Adler; No. 232.] DECISION OF THE COMPTROLLER OF THE TREASURY. [15 Comp. Dec, 845.] The question whetber an employee is an artisan or laliorer Is one coming fairly witUn the discretion of the Secretary of [Commerce and] LaT)or to decide. In ahsence of any showing that the duties performed were not those of a laborer, It is presumed that the find- ing of the Secretary Is correct. Sie: By your communication of the 10th instant you request my decision of the question whether Frank Adler, special laborer (mes- senger boy), manufacturing department, naVy yard. New York, is entitled to compensation under the act of May 30, 1908 (35 Stat., 556), while incapacitated from work by reason of injuries resulting from an accident occurring in the course of his employment from October 24, 1908, to November 14, 1908—20^ days. The claim for compensation appears to have been approved for payment by the Secretary of [Commerce and] Labor, but you seem to doubt whether a special laborer (messenger boy) is a? laborer within the meaning of the act of May 30, 1908, and as such entitled to the benefits of said act. Whether or not the said Frank Adler was " a laborer " within the meaning of that term as used in the act of May 30, 1908, was a question of law to be decided by the Secretary of [Commerce and] Labor in determining whether "a claim for compensation is estab- lished under this act." His decision in such case is within the rule stated by the Supreme Court in the case of Bates & Guild Co. v. Payne (194 U. S., 106, 109), as follows: That where the decision of questions of fact is committed by Congress to the judgmeur and discretion of the head of a dejiiirUueut. his decision thereon is conclusive ; and that even upon mixed questions of law and fact, or law alone, his action will carry with it a strong presumption of its correctness, and the courts will not ordinarily review It, although they may have the power and will occasionally exercise the right of so doing. This claim has been approved for payment by the Secretary of [Commerce and] Labor after a full loiowledge of all the facts that have been submitted to this office, and a decision by me would amount to a review of his decision. It would seem that if the courts will not ordinarily review the decision of the head of a department on a question of law alone submitted to his judgment and discretion that this office ought not to do so, unless there has been a clear abuse of the discretion granted. Whether or not a special laborer (messenger boy) is a " laborer '* within the meaning of the act of May 30, 1908, is an open question and one coming fairly within the discretion of the Secretary of [Com- merce and] Labor to decide, and one which he has decided. A deci- sion by me on the same question could have no other effect than to review and reverse or affirm the decision made by the Secretary of [Commerce and] Labor on a question committed by Congress to his judgment and discretion to decide. The decision being one coming 68 workmen's compensation undeb act of may 30, 1908. within the duties committed to the Secretary of [Commerce and] Labor, requiring the exercise of judgment and discretion, his deci- sion thereon is conclusive on the accounting officers, unless he has exceeded his authority or his action is clearly wrong. (See case of Bates & Guild Co. v. Payne, supra, p. 109, and cases there cited.) In the absence of a statement showing the duties that Frank Adler, special laborer (messenger boy), was required to perform, I am not prepared to say that the Secretary of [Commerce and] Labor ex- ceeded his authority in holding that he was a laborer within the meaning of the act of May 30, 1908, or that his decision is clearly wrong. As to the necessity for a clear s.tatement of the duties performed, where they are not manifest from the official designation, in order to raise a question of law upon which I might question the decision of the Secretary of [Commerce and] Labor in any particular case, see 26 Op. At. Gen., 604 ; id., 605 ; id., 622 ; id., 623. In the absence of any showing by you that the duties performed by the employee in question were not those of a laborer within the meaning of the act of May 30, 1908, it will be presumed that the finding of the Secretary of [Commerce and] Labor that they were was correct. If the claim is otherwise correct, you are authorized to pay it. EespectfuUy, E. J. Tkacbwell, Comptroller. The honorable the Secretary or the Navy. 5. A policeman or watchman falls within the laboring class, as distin- guished from the leisure, professional, business, or official or clerical classes, and is a laborer. [In re claim of J. P. Golden, Jan. 5, 1909 ; No. 303.] The claimant is a policeman employed in the Canal Zone under the Isthmian Canal Commission. On October 17, 1908, while on duty, he attempted to remove a box from the sidewalk, when, with- out negligence or misconduct on his part, he slipped off the sidewalk and fell a distance of about 8 feet, and was so injured as to prevent him from resuming his duties for a period of more than 15 days. The claim is presented to this office with special reference to the questipn whether the occupation falls within the scope of the act of May 30, 1908. Two questions are involved in this : First, is a policeman a laborer within the meaning of the act ? Second, is the occupation of a police- man hazardous within the meaning of the act? (As to whether a policeman's occupation is hazardous, see balance same opinion, p. 159.) Numerous statutes have been enacted in reference to laborers, and the courts have frequently been called upon to interpret the words " labor " and " laborer " as used in these statutes. The principal stat- utes of this character in this country are those relating to mechanics' liens, exemptions, garnishments, labor performed on Sunday, the Chinese-exclusion acts, and the contract-labor laws. The aims and OPINIONS OF SOLICITOE, DEPARTMENT OP LABOE. 69 Eurposes of these yarious statutes are so widely different that it would e difficult to formulate from the decisions based thereon a definition of the word " laborer " which could be applied in all cases and which would satisfy the intent of the legislature in each case. Even in ap- plying statutes enacted for the same general purpose, as, for instance, the mechanics' lien laws, passed in the several States, the courts of these several States have held the word " laborer " to include in one State the classes excluded in another. As stated by Chief Justice Greene, of "Washington, in the case of Lee Yip, reported in the Seattle Chronicle of January 4, 1883, and quoted by Judge Deady, of the District Court of Oregon, in the casfe of Ho King (14 Fed. Rep., 724) , referring to the word " laborer " : The term has been used in common English speech time out of mind, and in the statutes of English-spealdng people from the first statute of laborers of 23 Edward III till to-day to denote a comprehensive, varied, and varying class in society, rather difficult accurately to define. * * * Etymologlcally, a laborer Is one who labors. He may labor physically or mentally, gratuitously or for reward, for himself or for another, freely or under control. However he labors, he is In the broad sense a laborer. But that sense is never imputed in ordinary speech or writing unless there is something In the context or the circumstances to imply that it Is Intended. All that can be gathered from the various judicial decisions in respect to the word " laborer " is that it refers to a " varied and vary- ing class in society." What may be included within this class depends upon the connection in which the word " laborer " is used, and the pur- pose of the statute or instrument in which it appears as that purpose may appear to the court or officer whose duty it is to announce the meaning of such statute or instrument. Referring to the act of 1892, limiting the hours of service of " laborers and mechanics," and dis- cussing its application to the work being done in the construction of the Panama Canal, the Attorney General held (25 Op. At. Gen., 441) that the act did not apply to the office force of the Isthmian Canal Commission stationed on the Isthmus of Panama, or to any of the employees of the Government who are not within the ordinary mean- ing of the words "laborers and mechanics." In an earlier opinion (20 Op. At. Gen., 487) it had been held that the determination of who were and who were not " laborers " or " mechanics " within the meaning of the act did not, as a question of law, devolve upon the Attorney General, but that it was a matter of administration. The administration of the act of May 30, 1908, is placed in the hands of the Secretary of [Commerce and] Labor, and the question as to what persons and occupations are to be considered as coming within the description " artisans and laborers " is one to be determined by him. Under the Chinese-exclusion laws, an actor, a Chinese merchant's daughter who did sewing but not for a living, and a proprietor of laundries who occasionally ironed a shirt, were held not to be laborers (in re Ho King, 14 Fed. Rep., 724; Yung Sing Hee, 36 Fed. Rep., 487; U. S. V. Kol Lee, 132 Fed. Rep., 136), while it was held that the term " laborer " was broad enough to include gamblers, highbinders, and prostitutes. (U. S. v. Ah Faun, 57 Fed. Rep., 591 ; Lee Ah Yin V. U. S., 116 Fed. Rep., 614.) Under the contract-lab^or laws, a window draper or dresser for a dry goods store was held to be a " skilled laborer " and not within the meaning of the law as it stood in 1899. (U. S. v. Gay, 95 Fed. Rep., 70 workmen's COMPElirSATION UNDEB ACT OP MAY 30, 1908. 226.) In the Trinity Church case (143 TJ. S., 457), it was held that the contract-labor laws did not apply to a clergyman, and the Solici- tor of the Treasury held (June 25, 1896) that they did not apply to a prostitute. In tJ. S. v. Thompson (41 Fed. Eep., 28, 29), it was held that a milliner was a laborer and not an artist. The Attorney General held (23 Op. At. Gen., 381) that a draftsman described as a lace maker was a sldlled laborer and excluded. In Treasury Deci- sions No. 15275 it was held that a property man at a theater was a laborer. Within the meaning of an exemption statute the official services of the mayor of a city were held to be labor (Eobinson v. Aiken, 39 N". H., 211), while public officers employed in a State penitentiary were held to be not laborers within an eight-hour law. (State v. Martindale, 47 Kans., 147.) Under mechanics' lien laws it has generally been held that an archi- tect was not a laborer, though in a case where he not only made the plans but superintended the construction of a building he was held to be a laborer. (Notes on p. 72, vol. 18, A. & E. Ency. of Law, 2d ed.) Within a statute exempting the wages of a laborer from garnish- ment it was held that a conductor was not a laborer (Miller v. Dugas, 77 Ga., 386) , but a street car conductor was held to be " laboring " in violation of a law prohibiting labor on Sunday. (Day v. Highland St. E. Co., 135 Mass., 113.) In construing the English employers' liability act of 1880 it was held that an omnibus conductor was not a laborer (Morgan v. The London Gen. Om. Co., 13 Q. B. D., 832). So, also in Cook v. No. Met. Trans. Co. (18 Q. B. D., 683), it was held that a street car driver was not a laborer within the English em- ployers' liability act of 1880. Although it was held in the two English cases above cited that street car conductors and drivers were not laborers within the English employers' liability act of 1880, it is to be noted that this conclusion rested upon the particular language of that act. The act of 1880 was read in connection with the earlier act of 1875. The classes enumerated were " laborer, servant in husbandry, journeyman, artifi- cer, handicraftsman, miner, or otherwise engaged in manual lahor." The court in effect held that the words " otherwise engaged in manual labor " showed that only those engaged in manual labor were meant; that manual labor means "labor performed by hand," and that as the conductor "did not lift the passengers into and out of the omnibus," he was not engaged in manual labor, and was not there- fore a laborer within the meaning of the act. The act of May 30, 1908, by its terms applies to " artisans and laborers." There is no necessity of distinguishing between an artisan and a laborer. The act applies to one as well as the other. There is nothing to indicate that it applies only to those engaged in manual labor as defined by the English court. In view of the general purjpose of the act and the treatment of the subject matter when it was being considered by the two Houses of Congress, I am of opinion that the words " artisans and laborers " were used to indicate a class of persons commonly referred to as the "laboring class," as distinguished from the leisure, professional, business, and official or clerical classes. The measure was urged by labor organizations generally. A policeman is not of the business or OPINIONS OP SOLIOITOK, DEPARTMENT OP LABOR. ^1 professional classes, nor can he be said to belong to the leisure class, as that term is usually employed. It is true that a policeman is called an officer, but not in the sense of having direction of any part of the work of the Government. The policy and work of the Government is directed by the Cabinet officers through the heads of the various bureaus and branches of the service and the clerks who make and keep the records of the directions under which the work is performed. The occupation of a policeman seems to place him very naturally in that class of persons Known as the "laboring class," and to which I think the act was intended to apply. In the case of James Nellis (Nov. 27, 1908; Bu. No. 597) I expressed the opinion that a member of the fire department under the civil administration of the Isthmian Canal Commission was within the scope of the act. This conclusion was not based upon the fact that the occupation of a fireman involves at times physical exertion so much as upon the view that I entertain that he belongs to that class known as the laboring class. But whether we take the view that the physical exertion sometimes neces- sary to be employed or the status occupied in the structure of society should determine the application of the act, it seems that it ought to apply to a policeman as well as a fireman, for a policeman must at times exert his physical powers. [In re claim of B. G. Pedrick, Jan. 20, 1909 ; No. 311.] I have examined the above claim, which has been referred to this office with special reference to the question whether the claimant's occupation falls within the scope of the act. The record submitted shows that the claimant in this case was employed as a ship keeper in the Charlestown Navy Yard. "The act of May 30, 1908, embraces, among others, persons em- ployed by the United States as artisans or laborers in navy yards, and the only question to be determined then is whether the claimant is an artisan or laborer within the meaning of the act. In my opinion dated January 5, 1909 (C 303, Bu. No. 1324), in the case of J. P. Golden, a policeman, I said : In view of the general purpose of the act and the treatment of the subject matter when It was being considered by the two Houses of Congress, I am of opinion that the words " artisans and laborers " were used to Indicate a class of persons commonly referred to as the " laboring class," as distinguished from the leisure, professional, business, and official or clerical classes. 4: « # ■(: 4: -h # The occupation of a policeman seems to place him very naturally in that class of persons known as the " laboring class," and to which I think the act was intended to apply. In the case of James Nellis (Nov. 27, 1908; Bu. No. 597) I expressed the opinion that a member of the fire department under the civil administration of the Isthmian Canal Commission was within the scope of the act. This conclusion was not based upon the fact that the occupation of a fireman involves at times physical exertion so much as upon the view that I entertain that he belongs to that class known as the laboring class. But whether we take the view that the physical exertion sometimes necessary to be employed or the status occupied in the structure of society should determine the application of the act, it seems that it ought to apply to a policeman as well as a fireman, for a policeman must at times exert his physical powers. The term " ship keeper " is defined by the Century Dictionary as " a watchman employed to take care of a ship." It is clear that the claimant is a workingman and a member of the laboring class. 12 wobkmen's compensation tjndeh act op may 30, 1908. Following the line of reasoning pursued in the case of Golden, above referred to, I conclude that the act applies to a watchman in a navy yard. I am of opinion, therefore, that the question submitted in this case should be answered in the affirmative. [In re claim of Sam PefEer, Jan. 27, 1909 ; No. 314.] I have examined the above claim submitted to this office with special reference to the question whether the claimant's occupation falls within the scope of the act of May 30, 1908. The record submitted shows that the claimant was injured while in the course of his employment as a watchman on (xovernment dredge No. 4, engaged on river and harbor work at Bowman, Mo., and as a result has been incapacitated for more than 15 days, as certified by the attending physician. The act embraces, among others, by express terms, persons em- ployed by the United States as artisans or laborers on river and harbor work. As stated in my opinion of October 5, 1908 (Bu. No. 69), in the case of S. J. Mullins, a messenger at Watervliet .Irsenal, N. Y., in- jured in the course of his employment while caring for horses: The work of caring for horses is the work of a laborer. The fact that the claimant was designated as a messenger is not material. The statute does not attempt to limit its operations to persons holding certain designated places or positions. It applies to artisans and laborers, and whether they be appointed and paid as machinists, brass finishers, ordnance men, messengers, or what not, should not affect their right to compensation under the act. And in my opinion of November 28, 1908 (Bu. No. 433), in the case of Leonidas T. Zacias, sailor on a dredge : This accident occurring on a dredge to a man assisting in its operation makes claimant's employment at the time of the accident in the nature of a laborer's employment irrespective of the fact that he was rated and paid as a sailor. In the case of J. P. Golden, policeman (opinion Jan. 5, 1909, Bu. No. 1324), it was held that the claimant's occupation placed him in that class of persons laiown as the " laboring class," and for that rea- son fell within the scope of the act. In that opinion I said : In view of the general purpose of the act and the treatment of the subject matter when it was being considered by the two Houses of Congress, I am of opinion that the words " artisans and laborers " were used to indicate a class of persons commonly referred to as the " laboring class,'' as distinguished from the leisure, professional, business, and official or clerical classes. In my opinion dated January 20, 1909 (Bu. No. 1107), in the case of Benjamin G. Pedrick, a ship keeper on the TJ. S. S. Vesuvius at the Charlestown Navy Yard, I quoted from the Johnson case cited above, and stated that the claimant being indeed a watchman was a member of the laboring class, the class to which the act in question is intended to apply, and that his occupation therefore fell within the scope of the act. The question presented here is similar to that upon which the Pedrick case turned, and, following the same line of reasoning here- tofore pursued, I conclude that the act applies to a watchman em- ployed on river and harbor work. OPINIONS OP SOLICITOE, DEPARTMENT OP LABOR.- 73 6. A draftsman, whose duties resemble those of a clerk or artist, is not of the laboring class, and not a laborer. [In re claim of A. F. Reeves, Feb. 24, 1909 ; No. 607.] The claimant is a draftsman employed at the Puget Sound Navy Yard. On January 4, 1909, while on board the steamship St. Louis, engaged in taking dimensions for drawings of certain parts of the ship, he fell and broke three of his ribs, and was disabled more than 15 days. The claim is submitted to this office with special reference to the question whether the occupation of the claimant brings him within the scope of the act of May 30, 1908. A clerk is not an artisan or laborer within the act. See opinions in the cases of Evan V. Alcee (Oct. 26, 1908, Bu. No. 420), George E. La Mire (Nov. 28, 1908, Bu. No. 1017), and John P. Golden (Jan. 5, 1909, Bu. No. 1324). A draftsman's duties are more like those of a clerk or artist than like those of an artisan or laborer. Clearly, then, a draftsman does not come within the class of employees to which the act applies, and the approval of this claim could only be justified on the ground that, notwithstanding his designation as a dra,ftsman, he was, as a matter of fact, employed as a laborer or artisan. In the case of Simon J. MuUins (Oct. 5, 1908, Bu. No. 69) I held that the designation or title under which a man is employed does not control the application of the act. It is the character of the work performed which controls. In the case of Frank Adler (Dec. 15, 1908, Bu. No. 889) I ex- pressed the opinion that if a person appointed and paid as a laborer be assigned to do clerical work, he is, while so engaged, a clerk to all intents and purposes, but if he be engaged in some work which as properly belongs to the occupation of a laborer as to that of a clerk, the particular work would not take him out of the " laborer " class and put him in the " clerk " class. So, conversely, if a person is ap- pointed and paid as a clerk, or to do clerical work, the mere fact that he might be engaged in some work which might properlj'^ belong to the occupation of a laborer would not necessarily take him out of the " clerk " class and put him in the " laborer " class. If he were assigned to do laborer's work the aspect of the case would be quite different. In the Golden case (Jan. 5, 1909, Bu. No. 1324) I expressed the opinion that the words " artisans and laborers," as used in the act, referred to a class of persons commonly referred to as the " laboring class " as distinguished from the leisure, professional, business, and oiEcial or clerical classes. Following the reasoning indicated in the cases above referred to, I conclude that the controlling factor is the status of the injured em- ployee at the time of the injury, and where his appointment or designation seems to put him in one class and the particular work on which he was engaged seems to put him in another class, his real status, for the purposes of the act, can only be determined by a con- sideration of all the circumstances of the case. The claimant, employed as a draftsman, was taking measurements of certain parts of a ship. His work might properly belong to a laborer or artisan, but it as properly belongs to a draftsman, and in 74 workmen's compensation under act op may 30, 1908. the present case the claimant was doing the work as a part of his duties as a draftsman. There is no circumstance connected with the case which would justify the conclusion that the claimant was at the time of the accident removed from the " clerk " class and put in the " laborer " class. In an opinion dated January 28, 1901 (23 Op. At. Gen., 382), the Attorney Gener;tl held that a "draftsman" described as a "lace maker" was a skilled laborer within the meaning of the contract- labor laws. But the reasoning there indicated does not apply here. The contract-labor law, as it then stood, was directed against the importation of aliens under agreement " to perform labor or service of any kind in the United States, its Territories, or the District of Columbia," and certain classes of persons, as ministers, lecturers, etc., were expressly excepted. A draftsman coming to the United States under contract did come here to perform labor or service^ and he was not a member of any of the excepted classes. In view of the law as I find it, I have the honor to advise that a draftsman injured while taking measurements on a ship for the pur- pose of making drawings therefrom is not entitled to compensation under the act of May 30, 1908. [In re claim of W. G. Moore, Sept. 23, 1909 ; No. 1781.] The above claim is submitted to this office with special reference to the question as to whether the claimant's occupation comes within the scope of the act of May 30, 1908. The claimant was regularly employed as a draftsman, but at the time of the injury he was at work in a photograph gallery, and in his affidavit he states that he was a (photographer) copyist drafts- man and at work in the " photo gallery." In the immediate report of the injury the following description is given of the accident : At work with large vertical camera; to steady the camera stand a pig of lead weighing about 100 pounds is used ; in adjusting this weight it slipped from its position, falling about 2 feet, and striking wrist of right arm, causing severe strain and contusions. It appears that at the time of the accident the injured em- ployee was not engaged in the usual duties pertaining to the work of a draftsman, but rather that of a photographer. The claimant does not give exactly the same designation or title to the position in which he was employed as the reporting officer, but this is not very material, as it is the character of the work performed which controls. In the case of Albert F. Eeeves (C 607, Bu. No. 1880), which was quite similar to the present case; it was said: A draftsman's duties are more like those of a clerk or artist than those of an artisan or laborer. Clearly, then, a draftsman does not come within the class of employees to which the act applies, and the approval of this claim could only be justified on the ground that, notwithstanding his designation as a drafts- man, he was as a matter of fact employed as a laborer or artisan. Even if the claimant should be considered to be employed as a photographer it does not seem that he would be an artisan or laborer any more than a draftsman would be. I am therefore of opinion that the claimant was neither an artisan nor a laborer within the meaning of the law, and that the claim should be disallowed. OPINIOUrS OF SOLICITOB, DEPARTMENT OF LABOR. 75 [In re claim of H. L. Meeker, Feb. 3, 1911 ; No. 5135.] The above claim was disallowed by the Secretary November 21, 1910, on the ground that the claimant was not an artisan or laborer within the meaning of the act. The claim is submitted for recon- sideration at the instance of the president of the American Federation of Labor, who transmits an argument on behalf of the claimant by the secretary of a local union of the federation at Brooklyn, N. Y'., of which the claimant is a member, and at the instance, also, of Hon. Charles B. Law, M. C, who transmits a similar argument as well as an additional statement on the part of the claimant. The contention is that the department erred in holding that the claimant was not an artisan or laborer, or, as least, that he was not an artisan. Since the compensation act of May 30, 1908, applies only in the case of injuries sustained by a person "employed * * * as an artisan or laborer," this office has been frequently called upon to consider whether individual claimants fell within the class of persons made beneficiaries under the act. In the case of Grant (C 2513) , after a full examination of the authorities, it was concluded, with respect to the term laborer, that — The occupation of a laborer Is distinguished from other occupations by the fact, (1) that his worlc is essentially physical and toilsome; (2) that it makes a demand primarily upon his physical or mechanical powers, and not upon his intellectual faculties, except in a minor degree; (3) that it requires on his part relatively little skill, except of a manual or mechanical sort, and relatively little training, except such as comes from example and experience; (4) that it calls for the exercise of little or no independent judgment or discretion ; and (5) that It is performed by rule of thumb, or under the immediate direction of a superior. With respect to the term artisan, it was said, "An artisan is defined by the Standard Dictionary to be : ' One who practices an industrial art; a trained worlanan; a superior mechanic,' and this definition is accepted by the courts (citing cases)." It was also pointed out that " The treatment of the subject matter of the present legislation when it was being considered by the two Houses of Congress, as well as the report of the committee having the bill in charge, clearly indicate that the persons designed to be benefited were those commonly laioWn as persons of the laboring class, as distinguished from persons of the leisure, professional, business, and official or clerical classes ; " that " similar acts in other countries are known as ' worlanen's compensa- tion acts ' ; " and that " it is fair to assume, therefore, that the term ' artisan or laborer ' was used in the present act in a sense very nearly synonymous with ' workman.' " But these definitions can only be applied in the light of the facts and circumstances of each particular case and independently of any special designation given to the position which the claimant holds. It is therefore necessary in the present case to consider the character of work which the claimant was employed to perform in order to determine whether he is to be deemed an artisan or laborer, as above defined. The secretary of his union states that the claimant was injured when making a sketch of the rudder of the U. S. S. May- ilower, the ship being in dry dock, while climbing around on the staging ; that such work was not out of the ordinary for a ship drafts- man, who at times " must wear overalls and go through the ship from 76 workmen's COMPENSATIOIT UNDER ACT OF MAY 30, 1908- top to bottom laying out work, also making sketches from finished work on ships, which takes him -into danger constantly and extends over a period of at least half the time employed." In another argu- ment it is said : " When the accident occurred he was employed on work requiring a skilled draftsman, an artisan, there being no work- ing plan of the rudder of the Mayflower on file, so it was necessary to have one so that in case of accident to the rudder a new one might be reproduced, even though the piesent rudder were lost," and, fur- ther, that "in order to be a good draftsman one must be a good artisan, skilled in mechanics, of artistic taste and skill, with ability to show by drawings the exact representation of the machine to be built, the exact figures required to produce the same, no matter what this machine may be." The claimant himself offers the following definition of a ship draftsman : "A skilled mechanic acquainted with all trades pertaining to the hull of a vessel and trained in the theory of ship designing. His duties are to design work and lay same out for the different tradesmen and see the work when complete." Conceding the accuracy of these statements, I am nevertheless of opinion that a ship draftsman can not properly be classed as an artisan or laborer within the meaning of the act. It is doubtless true that a ship draftsman, in addition to his qualifications as a draftsman in the strict sense of the term, must also be skilled as a mechanic or an artisan ; but, plainly, a ship draftsman is not employed to do the work of a mechanic or an artisan, but to do the work of a draftsman, i. e., "one who prepares and draws plans and designs" (Standard Dictionary). As the claimant himself says, " his duties are to design work and lay same out for the different tradesmen and see the work when complete." It is also true that a ship draftsman is expected, at times, to wear overalls and go through the ship from top to bottom and, as in the present case, to climb about on staging. But a civil engineer, for example, doing work in the field, is often required to do work of a physical or mechanical sort and such as is ordinarily expected of an artisan or laborer. The performance of such tasks, however, is merely incidental to the proper work of a civil engineer, who would scarcely on that account be deemed an artisan or a laborer. Without going more at length into the various reasons which may be advanced in support of the same conclusion, it seems to me clear that a ship draftsman belongs more properly in the pro- fessional or clerical class than in the laboring class, to which alone the act applies. In reaching this conclusion it is not pretended that in point of justice a ship draftsman injured in the course of his employment, without misconduct or negligence on his part, is not as much entitled to compensation as an artisan or laborer injured in the same way. The benefits of the present act, however, are limited in terms to artisans or laborers ; and while the act, in view of its beneficial nature, should be liberally construed, no construction is permissible which gives it a wider application than its words, understood in their ordi- nary and popular sense, permit. In my judgment, therefore, the previous decision of the department should be affirmed. OPINIONS OF SOLIOITOK, DBPAETMENI OF LABOR. 77 7. A packer in a navy-yard storeroom employed to handle, arrange, and list stock is a laborer. [In re claim of William G. Crandall, Mar. 5, 1909 ; No. 654.] This is the case of William G. Crandall, a packer in the employ of the Mare Island Navy Yard, Cal., who was injured December 8, 1908, by an elevator. It has been submitted to this office with special reference to the question whether the claimant's occupation falls within the scope of the act of May 30, 1908. The question of negli- gence appears also to be involved. The papers submitted show that the claimant was required, as a packer, to handle and arrange stock in the storeroom for the purpose of getting all the articles of one kind together and to check and list them. It appears that while in the course of his employment on December 8, 1908, he required the elevator for the purpose of taking a load to the floor above. He pulled the rope and started the ele- vator downward, and as it neared the floor on which he was stand- ing he attempted to stop it by pulling on the "stop rope," which failed to work properly. During further efforts on the part of the claimant to stop the elevator his foot slipped under it and his toe was crushed. The fact that the claimant was designated as a packer is not material. We should be governed by the nature of his work in determining whether his occupation falls within the scope of the act. (See Op., Jan. 27, 1908, C. 314, Bu. No. 1328, in re claim of Sam Peffer.) The evidence submitted shows that claimant was required to perform manual labor. The mere fact that he was required to check and list the goods he had to handle and arrange can not operate to remove him from that class of persons commonly known as the laboring class, and thereby bar his right to compensation under the act. The name of J. H. Lyons, general helper, is given as an eyewitness to the accident, but the papers submitted do not contain any state- ment of the case over his signature, nor is he quoted. It is claimed that the injured man slipped under the elevator acci- dentally, and that the slipping was caused by the exertion of extra efforts on his part, made necessary by the failure of the " stop rope " to work properly. The claimant's immediate superior, the general storekeeper, is of the opinion that the accident was due to carelessness "in handling the elevator by standing too near the elevator while lowering same; also, by attempting to lower the elevator from the floor below, as it is laiown to be very much more difficult to handle an elevator from the floor than it is while standing on the elevator itself." While it may be more dangerous to handle an elevator from without than from within, the claimant is hardly to be charged with negligence for so handling it if such was a usual or permissible cus- tom ; and the tot:il absence in the record of any statement that such a manner of moving the elevator was either unusual or forbidden leads to the conclusion that it was a recognized practice. Obviously, if the claimant was not standing so close to the elevator he could not have gotten his foot over the edge of the floor. But before negligence or misconduct can be attributed it is necessary to consider how the claimant was occupied. In the present case the man was engrossed 78 workmen's compensation under act of may 30, 1908. with his effort to stop the elevator. By inadvertence or accident his foot slipped under the descending elevator. In view of the nature and purpose of the compensation act, it would, in my judgment, be setting too high a standard of care and prudence to hold that an injury incurred under such circumstances was " due to negligence or misconduct of the employee injured," so as to deprive him of the benefits of the act. 8. A foreman or superintendent, who directs the work of others and whose work is mental and administrative or executive, is not a laborer. [In re claim of Joseph Little, Mar. 22, 1909 ; No. 662.] This case is submitted with reference to the question whether claimant's occupation falls within the scope of the act of May 30, 1908, which provides for compensation to any person injured while "employed by the United States as an artisan or laborer * * * in hazardous employment under the Isthmian Canal Commission." Claimant at the time of the injury was supervising the firing of doby shots. A powder foreman, with a gang of men, was setting off doby shots and had placed a number of shots to be fired. Thinking that all the shots had been fired, claimant approached the scene, and as he did so one shot, which had hung fire, was discharged, and he received a severe fracture of the skull. Claimant was a superintend- ent at a salary of $400 (gold) .\ month, and presumably was not required to do any of the actual labor which he directed. He had foremen under him who actually bossed the gangs of. workmen, and thus was one more degree removed from the actual manual laborers. He was an official rather than a laborer. The cases generally decide that a superintendent is not a laborer within the meaning of any law, although foremen have been held to be laborers in several cases (Willamette Falls Transp. Co. v. Eemick, 1 Oreg., 169 ; Short v. Medberry, 29 Hun., N. Y., 39 ; Flagstaff Silver Min. Co. V. CuUins, 104 U. S., 176; Capron Strout, 11 Nev., 304; Welch V. Ellis, 15 Can., L. T., 148), generally because in the per- formance of their duties they were required to do considerable manual labor. A foreman of a gang of laborers may himself be a laborer; he may occasionally lend a hand and in many instances of employment is required to do so. But, on the other hand, a foreman or superin- tendent of a large force, who merely directs the work of many labor- ers, perhaps of a whole factory, or a large undertaking, a man whose work is purely mental, administrative, or executive, can hardly be said to be an artisan or laborer. His work is certainly of a higher grade than that of a mere clerk or draftsman, which latter were held not to come under the act. That a superintendent is not a laborer was held in Mo., etc., E. Co. V. Baker, 14 Kans., 567; Nelson v. Withrow, 14 Mo. App., 276; Boyle V. Min. Co., 9 N. Mex., 237; Blakey v. Blakey, 27 Mo.. 39; Cole V. McNeil, 99 Ga., 250; and in an English case (Osborne v. Jackson, 1883, 11 Q. B. D., 619) it was held that a superintendent who merely gives assistance to the men under him does not thereby become a person engaged in manual labor; nor is a superintendent of a mine a laborer (Cocking v. Ward, 48 S. W. Rep., 287; Malcomson V. Wappoo Mills, 86 Fed. Rep., 192; Krauser v. Ruckel, 17 Hun., OPINIONS OP SOLICITOR, DEPAETMENT OP LABOE. 79 N. Y., 463) ; also overseers on farms have been held not to be laborers (Isabell V. Dunlop, 17 S. C, 581; Whitaker v. Smith, 81 N. C, 3i0). A " boss " or director of an entire department of a factory, employ- ing and discharging the hands who work under him, who receives a monthly salary of $100, and who is not required to do manual labor, but is expected from his skill and intellectual fitness to direct the work of the operators under him, is not regarded as a journeyman mechanic, or day laborer, within the meaning of a statute which exempts the wages of such persons from garnishment. (Kyle v, Montgomery, 73 Ga., 337.) There are, however, a few cases where it has been held that a superintendent is a laborer. In Pendergast v. Yandes (124 Ind., 159), under a statute which preferred debts due to laborers, it was held that a man employed by a gas company to have the sole superin- tendence of digging the trenches and of laying the pipes, and with full authority to hire and discharge employees, was a laborer. In Willamette Falls Transp. Co. v. Eemick (1 Oreg., 169), an assistant superintendent was held to be a laborer. (See also Warner v. Hud- son River Co., 5 How. Poe, N. Y., 454: Min. Co. v. Bouscher, 9 Colo., 385.) It would seem, from a consideration of the foregoing cases, that the weight of authority supports the conclusion t£at the superin- tendent of a large undertalnng or large branch of work, such as the claimant evidently was, as indicated by his large salary, is not an artisan or laborer within the meaning of any law, and I am of opinion that, a fortiori, he should not be so craisidered in a statute such as the act of May 30, 1908, which was made primarily for the benefit of the manual laborers of the Government alone and was never intended to apply to employees whose principal, if not entire, occupation is mental, administrative, or executive, and not physical. [In re claim of J. D. Black, Oct. 14, 1910 ; No. 4700.] The above claim is forwarded to this office prepared for forma^I approval. The occupation of claimant is shown to be that of a general fore- man, at the rate of $175 per month. The immediate report gives the following description of the accident : He was standing in front of shovel No. 209, which was loading a train of cars. As the dipper was raised, it pulled up a piece of pipe which was em- bedded in the bank, and the end of same struck him on the right leg below the knee, on head, arms, and back. In view of the fact that the occupation is shown to be that of a general foreman, the question arises whether the occupation comes within the terms of the act of May 30, 1908, providing for injuries to " artisans or laborers." The rate of pay and the character of the work being performed at the time of the accident would indicate that the occupation was more in the nature of a general superin- tendent that that of a working foreman. If the former, it would come within the class to which the Little case (C 662, Bu. 2124) be- longs, and if the latter, it would fall within the class described in the Kline case (C 3064, Bu. 6126). In order to determine to which class this case belongs it will be necessary to have further information which will show the general nature and character of the duties performed by claimant. I have 80 workmen's compensation under act of may 30, 1908. the honor, therefore, to recommend that the papers be returned for that purpose. [In re claim of J. D. Blact, Apr. 24, 1911 ; No. 4700.] The above claim reached this office under date of October 5, 1910, prepared for formal approval. An examination of the record at that time showed that the occupation of claimant was that of a "general foreman," and the question therefore arose whether the occupation of claimant came within the terms " artisan or laborer " as used in the compensation act. On October 14, 1910, the papers were returned with the recom- mendation that further information be obtained which would show the general nature and character of duties performed by claimant. The papers were again received in this office on November 22, 1910, with a statement from the division engineer purporting to give the character of work performed. As this information failed to show specifically th« general nature and character of the duties of claimant, it was impossible to reach a conclusion, so the matter was taken up personally with the assistant examiner of accounts of the Isthmian Canal Commission, and he was requested to secure the de- sired information. In response to that request there is now' fur- nished a letter from the division engineer, dated April 11, 1911, and an affidavit from claimant, dated April 8, 1911, from which it is observed that the title " general foreman " is a meaningless designa- tion and that the duties performed are the same duties which were performed by the claimant when he was designated as a " foreman." It appears that the designation of " general foreman " was given claimant by reason of the fact that his wages had been increased, and claimant had no knowledge of his change in designation until some time after the injury. The character of work performed by claim- ant is that of an ordinary foreman, which occupation has been con- sistently held to come within the terms of the compensation act, such foremen being engaged in performing at various times similar work to that performed by the men under them. In view of this additional information, the claim is now prepared for formal approval as originally prepared by the Bureau of Labor. 9. A sanitary inspector, Canal Zone, a laborer; considered. [In re claim of I. W. Pickett, Apr. 7, 1909 ; No. 769.] The above claim is submitted to this office with special reference to the question whether the claimant's occupation falls within the scope of the act of May 30, 1908. The claimant is designated as a "sanitary inspector," and the accident occurred while he "was inspecting canal cut for mosquito larvs8." This rate of pay is $125 a month. The answer to the question submitted turns on the character of the work performed by the claimant. If he was employed prin- cipally on account of his expert or professional Imowledge of dis- ease germs and the like, I am of opinion that he should be regarded as belonging to the professional class, and the fact that his duties required him to visit different parts of the canal cut would not bring him within the scope of the act. If, on the other hand, he was em- ployed on labor which was essentially physical, or at least manual, OPINIONS OF SOLIOITOE, DEPARTMENT OP LABOB. 81 even though requiring skill in its performance, and if his duties required no more special Imowledge or training than an ordinarily intelligent person might readily acquire after entering upon the discharge of the duties of the position, I am of opinion that he should be regarded as of the laboring class, to which the act applies. (See opinion in the case of John P. Golden, Jan. 5, 1909, Bu. No. 1324.) I think, therefore, the department should, before taking final action, have more definite information as to the character of the claimant's work. 10. A storeroom clerk, Canal Zone, is an artisan or laborer. [In re claim of Dudley Inniss, May 20, 1909 ; No. 1019.] This claim is submitted with reference to the question whether the claimant's occupation falls within the scope of the act of May 30, 1908. -^ ' Was claimant an artisan or laborer ? Was his occupation hazard- ous ? Inniss was a clerk in a storeroom and was hurt by having his finger pierced by a nail while opening a barrel of coffee in the storeroom of the Isthmian Canal Commission hotel at Culebra. The compensation act provides for compensation to employees under the Isthmian Canal Commission if they are artisans and laborers engaged " in hazardous employment." [As to whether claimant's occupation was hazardous, see balance same opinion, p. 160.] " In view of the general purpose of the act and the treatment of the subject matter when it was being considered by the two Houses of Congress, I am of opinion that the words ' artisans and laborers ' were used to indicate a class of persons commonly referred to as the 'laboring class,' as distinguished from the leisure, professional, and official or clerical classes." (Case of Golden, Bu. No. 1324, Jan. 5, 1909.) Clerks and draftsmen have been held not to be artisans or laborers within the act. (See opinions in the cases of Alcee, Bu. No. 420, Oct. 26, 1908; La Mire, Bu. No. 1017, Nov. 28, 1908.) But in the case of Crandall (Bu. No. 1578, Mar. 5, 1909) a packer engaged in handling and arranging stock in a storeroom of a navy yard, he was held to be a laborer. The duties of a clerk in a storeroom are mainly manual and not " clerical " in its ordinary sense, which is further indicated by the particular work claimant was engaged in at the time of the accident, namely, opening of a barrel of coffee. I am of the opinion that claimant should be classed as an artisan or laborer. 11. A concrete inspector engaged in inspecting and directing *ork of others is not a laborer. [In re claim of J. C. Cunningham, July 16, 1909 ; No. 1285.] This claim is submitted with special reference to the question whether the claimant's occupation comes within the scope of the act of May 30, 1908. 93364°— 15 6 82 workmen's compensation undee act of may 30, 1908. The claimant was engaged in hazardous employment on construc- tion work in the reclamation of arid lands. His official title is " con- crete inspector." His princijpal duty is to inspect certain classes of construction work which is d!bne by laborers and artisans and to see that the work has been done as required by the specifications. His duties sometimes require him to exercise his physical powers, but to a very limited extent. He does not do any of the actual construction work. The description of the claimant's occupation discloses nothing which will justify the conclusion that he is either an artisan or laborer, and I have to advise, therefore, that the act of May 30, 1908, does not apply to him. [In re claim of J. C. Cunningham, Jan. 18, 1910 ; No. 1285.] This claim was previously considered by this office, and under date of July 16, 1909, it was decided that the description of claimant's occupation did not justify the conclusion that he was either an arti- san or laborer. The claim is now resubmitted with special reference to the follow- ing question: Is there sufficient evidence on which to base a recon- sideration of the Secretary's action of July 24, 1909, disapproving this claim? attention being invited to the correspondence since that date attached to the papers. Thequestion as to whether claimant's occupation comes within the . scope of the act of May 30, 1908, is now considered upon the entire record as presented. Claimant is shown to be a " concrete inspector " at the rate of $125 a month. In the immediate report the character ■ of work being performed at the time of the injury is described as follows : Concrete inspector on concrete turnout on equalizing reservoir, Canal A, Wil- liston proj. And in description of the accident is found the following : Party was inspecting concrete work on small structure and in walking around forms slipped and fell * * *. In the affidavit of claimant he gives the following description of the accident and the circumstances attending the same : While retying a derrick guy line on false work of concrete turnout at north- west comer of equalizing reservoir at power plant, 2 by 6 strut gave way under right foot, throwing me down backwards into manhole, landing horizontally across brace near bottom. Was assisted to my office by George Leroy, employed as foreman on above work. In a statement dated May 12, 1909, George O. Sanford, project engineer in charge of the work, in referring to the character of work claimant was engaged upon, says "that his services were largely supervisory- * * * but not entirely so ; " that his duties consisted of " inspection of the construction of the riveted Sidel smokestacks " and of " the steel trusses and ironwork on the roof of the Williston power house." In addition to the foregoing, he says that " in con- nection with the construction of the Williston power house, Mr. Cim- ningham was on the ground seeing that things were done as required by the specifications governing the various contracts in force," and that "in connection with his work at the coal mine, which was OPINIONS 01? SOLIOITOK, DEPABTMENT 01? LABOB. 83 largely of an engineering character, there can be no question that his duties called for the exercise of physical power, but to a very limited extent." In concluding, he states that "such duties would frequently call him into dangerous positions, side by side with the artisan and laborer, and while his duties would be largely super- vising their labors, he would also be at times actually 'engaged in labor himself. I think at the particular time Mr. Cunningham re- ceived his injury, his duties were of a supervisory character." In his own behalf, under date of December 12, 1909, Mr. Cunning- ham submits an additional statement, which consists mainly of an argmnent for the allowance of the claim, the only matter material to the point at issue being the following : That my Arties inTolved the actual performance of the work of an artisan, combined -vriiii il»s» genei-al character of the work performed by Cun- ningham wiis of a snpervisory nature; that in addition he appeared to have general supervisory jurisdiction of the work under him and that the imii!e3iate supervision of the various branches of the work was perfonnea liy foremen in charge of each gang. This latter in- formation is gaiiMfd from the affidavit of claimant wherein he says : Was assisted to my office by George Leroy, employed as foreman on above work. The fact that at the time of the accident claimant was engaged in doing something requiring manual exertion would not justify placing him in the classiiication of " artisan or laborer." It does not appear that the work he was doing was any part of his regular duties, nor was he required to do such work. Frequently it happens that the necessity of the case will require the immediate foreman to lend a hand and assist in emergencies, but it is not customary nor usual for a general superintendent to do so. The question as to whether a superintendent or foreman came within the act of May 30, 1908, was decided in the Little case (No. 662) , wherein it was held that : A foreman or superintendent of a large force, who merely directs the work of many laborers, perhaps of a whole factory, or a large undertaking, a man whose work is purely mental, administrative, or executive, can hardly be said to be an artisan or laborer. His work is certainly of a higher grade than that of a mere clerk or draftsman, which latter were held not to come under .he act. It was further said in that opinion, in speaking of a superin- tendent, that: He was an official rather than a laborer. The foregoing conclusion was reached after a careful consideration of the numerous adjudicated cases cited therein, some of which are the following: Mo., etc., K. Co. v. Baker, 14 Kan., 567; Nelson v. Withrow, 14 Mo. App., 276; Boyles v. Min. Co., 9 N. Mex., 237; Blakely v. Blakely, 27 Mc, 39 ; Cole v. McNeil, 99 Ga., 250 ; Malcom- son V. Wappoo Mills, 86 Fed Eep., 192; Krauser v. Euckel, 17 Hun., N. Y., 463. I am therefore of opinion that the occupation of Mr. Cunningham is not within the scope of the act of May 30, 1908, and for that reason his claim can not be allowed. 84 wokkmen's compensation undeb act of may 30, 1908. 12. A telegrapher and shipping clerk engaged in work of a clerical nature is not an artisan or laborer. [In re claim of P. M. Whiteman, July 22, 1900 ; No. 1374.] The above claim lias been examined by this office, with special reference to the question whether a telegrapher and shipping clerk in the employ of the United States, under the Isthmian Canal Com- mission at Panama, comes within the provisions of the act of May 30, 1908. The act applies only to artisans and laborers and, under the Isth- mian Canal Commission, it applies only to such as are in hazardous employment. The claimant in this case was engaged in work of a clerical nature, and not employed as an artisan or laborer. It there- fore clearly appears that the act does not authorize compensation in this case. In view of the conclusion here reached it is, of course, unnecessary to consider the question of " hazardous employment." 13. Artisans or laborers only, among employees of the United States, are covered by the statute. [In re claim of Joseph Little, July 28, 1909 ; No. 662.] The above claim was first considered by this office under date of March 22; 1909, and the conclusion reached that the claimant was not entitled to compensation. This conclusion was based upon the ground that he was not a laborer or artisan within the meaning of the statute. The claim was accordingly disallowed under date of April 3, 1909. Under date of May 28, 1909, the Secretary of War transmitted to the Secretary of [Commerce and] Labor a letter dated May 14, 1909, written by the chairman of the Isthmian Canal Com- mission, explaining the duties of the claimant, shoAving their hazard- ous nature, and requesting that the claim be reconsidered. It was evident that both these letters had been written with the understanding that the claim had been disallowed on the ground that the occupation of the claimant was not hazardous. Under date of June 8, 1909, the case was reconsidered by this office, and it was pointed out that the claim had been disallowed on the ground that the claimant was not an artisan or laborer, and not that his occupa- tion was not hazardous. The claim is again submitted to this office with a letter from the chairman of the Isthmian Canal Commission addressed to the Secretary of War, under date of June 29, 1909. In this letter it is suggested that Congress did not intend to limit the operation of the act of May 30, 1908, to artisans and laborers under the Isthmian Canal Commission, but that it should be applied to all persons em- ployed by the Isthmian Canal Commission in hazardous employ- ment, that the limitation to artisans and laborers applied only to those persons employed in manufacturing establishments, arsenals, navy yards, or in the construction of river and harbor or fortification work. OPINIONS OF SOLICITOR, DEPABTMENT OP LABOE. 85 It has been the view of this office as well as of the administrative offices of the Department of [Commerce and] Labor ever since the act has been in operation that its provisions applied only to artisans and laborers employed by the United States, and as to these it ap- plied only to such as were employed in (a) manufacturing establish- ments, arsenals, or navy yards; (h) or in the construction of river and harbor or fortification work; (c) or in hazardous employment on construction work in the reclamation of arid lands or the manage- ment and control of the same; (d) or in hazardous employment under the Isthmian Canal Commission. (See opinion in the case of Michael J. Hogan, C 4, Sept. 15, 1908.) According to the letter of the act it applies to — ■ any person employed by the United States as an artisan or laborer in any of its manufacturing establishments, arsenals, or navy yards, or in the construc- tion of river and harbor or fortification work or in hazardous employment on construction work in the reclamation of arid lands or the management and control of the same, or in hazardous employment under the Isthmian Canal Commission * * «_ It seems to me clear that the word " or " connects each of the classes enumerated with the qualifying words "employed by the United States as an artisan or laborer." To place upon the act the construction suggested by the chairman of the commission would be equivalent to treating the law as if it read : That when, on or after August 1, 1908, any person employed by the United States as an artisan or laborer in any of its manufacturing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortifica- tion work, or any person employed hy the United States in hazardous employ- ment on construction work in the reclamation of arid lands or the management and control of the same, or in hazardous employment under the. Isthmian Canal Commission * * *. If we should hold that the qualifying words " artisans and labor- ers " do not apply to the classes employed in the reclamation of arid lands or under the Isthmian Canal Commission, how can we apply the qualifying words "employed by the United States" to these classes ? As the bill was first introduced in the House on May 12, 1908, that part of it which defined the gpope read as follows : That when, after the passage of this act, any person employed by the United States in any of its manufacturing establishments, arsenals, or navy yards, or in hazardous employment under the Isthmian Canal Commission, as an artisan or laborer, is injured * * *. This indicates that it was the intention of the drafter of the bill to make it apply only to such employees under the Isthmian Canal Commission as were artisans or laborers engaged in hazardous em- ployment. But in that form it was not clear that the words " artisans or laborers " qualified any of the classes except those employed under the Isthmian Canal Commission. However, in the Judiciary Com- mittee, to whom the bill was referred, the words " as an artisan or laborer" were stricken out where they appeared immediately fol- lowing the words " Isthmian Canal Commission," and inserted im- mediately before the words " in any of its manufacturing establish- ments," etc. It may be inferred from this that the committee re- garded the language of the bill as applying to artisans and laborers wheresoever employed, and that the change was made to prevent any question being raised as to the limitation of the act to artisans 86 wokkmen's compensation under act op mat 30, 1908. and laborers in the manufacturing establishments, arsenals, navy yards, etc., as well as to those employed under the Isthmian Canal Commission. After a careful consideration of the suggestion made by the chair- man of the Isthmian Canal Commission, I have the honor to advise that the act of May 30, 1908, in its application to the employees of the Isthmian Canal Commission, embraces only those who are arti- sans and laborers and are engaged in hazardous employment. 14. A master or pilot of a steamer used in river and harbor work is not a laborer. [In re claim of A. T. Jones, Dec. 6, 1909 ; No. 2179.] The above claim has been submitted to this office with special ref- erence to the question whether the claimant's occupation comes within the scope of the act of May 30, 1908. The injured employee at the time of the accident was engaged in his regular duties as master and pilot of the steamer Titan, under the Engineer Office, at a salary of $125 per month. He was engaged in the construction of river and harbor work. The following is the description of the accident as given in the immediate report of the injury: While superintending the making fast of a coal digger to the steamer Titan the tackle block was broken, the line striking Capt. Jones on the left leg, break- ing it above the ankle and contusing his face and ear. The injury was neither due to the negligence nor misconduct of the claimant, and continued for more than 15 days. The only question to be considered is whether the injured employee was an artisan or laborer within the meaning of the statute. The claimant when injured was superintending work that other employees were doing, and nowhere in the record is there any state- ment which would indicate that the regular duties of the injured employee were those of an artisan or laborer. Doubtless the claim- ant did perform some manual labor occasionally, as there probably is some manual labor connected with nearly every description of work; for example, a surgeon could not be considered an artisan or laborer, yet there is some manual labor connected with practically all surgical operations. In the Little case, supra, the following was quoted from the case of John P. Golden (C 303, Bu. No. 1324) : In view of the general purpose of the act and the treatment of the subject matter when it was being considered by the two Houses of Congress, * * * the words " artisans and laborers " were used to indicate a class of persons commonly referred to as the " laboring class,'" * * *. After carefully considering all the evidence in the case, I am of opinion that the claimant was not an artisan or laborer within the meaning of the law and that the claim should be disallowed. [In re claim of J. D. Hays, Mar. 29, 1910; No. 3034.] The above claim is submitted to this office with special reference to the question whether the claimant's occupation as pilot on a snag boat is within the scope of the act of May 30, 1908. The case hinges on the question whether the pilot of a snag boat is an artisan or laborer within the meaning of the compensation act. OPINIONS OF SOLICITOR, DEPAKTMBNT OP LAJ30B. 87 The record does not disclose the nature or character of the duties of the claimant. It appears that the snag boat on which the claimant was employed as " pilot " was in charge of a " master," for the master signs a certificate as the official superior of the claimant. In the case of Arthur'T. Jones (C 2179, Bu. No. 5399) it was held that the claimant, who was " master and pilot " of a steamer used in connection with river and harbor construction work, was not an artisan or laborer within the meaning of the statute. Assuming that the duties of the claimant herein are similar to those of the " master and pilot " in the Jones case, it would seem that a similar conclusion must be reached. This conclusion is further sup- ported by a consideration of the duties of a pilot generally. A pilot is employed to direct the course of a boat so as to insure its greater safety. To qualify as a pilot it is necessary for a man to spend years in the study of channels and currents and their effects upon vessels and tows. Before they are permitted to take charge of vessels they must demonstrate their fitness therefor and be licensed in much the same way that physicians, attorneys at law, and other professional men must demonstrate their fitness and receive author- ity to engage in the practice of their respective professions. Pilots are not required to perform any physical work, though they may per- form such work as an incident to their principal duty to direct the course of the boat. In short, they are employed because of their, Imowledge, judgment, and experience rather than because of any physical work they may perform. The principal inducement for the employment of a laborer is the physical energy he is able to exert, though his intelligence and ex- perience may give him an advantage over others. An artisan is a trained workman, a superior mechanic, one who practices an indus- trial art. He has learned to do certain things in a certain way, and he is employed to do those things. It is true that his knowledge and experience enter into the consideration of his employment, but the principal inducement for his employment is to have him do the things he has learned to do. But in the case of the professional man the principal inducement for his employment is his knowledge, judgment, and experience. The purpose of his employment is as fully accomplished if another exerts the physical energy necessary to utilize his professional knowledge, judgment, and experience. Accordingly, it seems clear to me that a pilot should be classed as a professional man rather than as an artisan or laborer. He may not be generally referred to as a professional man ; but this is imma- terial so long as it appears that it is his Imowledge, judgment, and experience, independently of his physical energy, that induces his employment. I have the honor to advise, therefore, that a pilot is not an artisan or laborer within the meaning of the compensation act, and that the claimant herein is not entitled to the benefits of the statute. 15. A rodman with a surveying party, also acting as chainman and axman, is a laborer. [In re claim of E. R. Williams, Feb. 7, 1910; No. 2198.] The above claim is submitted to this office with special reference to the question whether the decedent's occupation comes within the scope of the act of May 30, 1908. 88 WOEKMEK^S COMPENSATION UNDER ACT OF MAY 30, 1908. In the claim for compensation the occupation of the decedent is given as " clerk — working as rodman at time of death," and the fol- lowing answers are given to questions 15 and 16 of the " Report of death within 24 hours," by the division engineer: 15. Place and character of work of deceased person at time of accident : Sur- veys on west side of canal prism, at Balboa, Canal Zone. 16. Description of accident : Williams was on the edge of canal bank when he slipped into deep water * * *. From a copy of the Canal Record of August 25, 1909, furnished by the assistant examiner of accounts, the following additional in- formation is gathered in connection with the character of work being performed by decedent at time of accident: He was working as rodman on subaqueous rock excavation, and at the time of the accident was standing on a sand bar. This claim was previously before this office for consideration, but as the record did not contain sufficient information in regard to the usual duties of the decedent the same was returned on November 26, 1909, with a request for additional information in that respect. Under date of December 24, 1909, the assistant division engineer made the following report in reply to such request : Mr. Williams was employed as clerk and assigned to clerical duties In the office of Mr. William T. Blunt, superintendent of subaqueous rock excavation, at Balboa, Canal Zone. Soon after his employment the foreman and engineer making surveys required the services of a rodman, and there being none avail- able, Mr. Williams was assigned to assist until one could be obtained. The accident occurred while thus employed. It was understood by Mr. Williams, however, that such an assignment would be made should necessity arise. On the foregoing report is the following notation: Worked as clerk from August 4 to August 7, 1909. Worked as rodman from August 8 to August 21. 1909. It is clearly shown by the record that Williams at the time of his • death was regularly assigned by his superior officer to the duties of a rodman and performing the duties of that occupation. It having been held in the MuUins and Adler cases that the character of work performed is the controlling factor in deciding whether the occupa- tion comes within the scope of the act, it now remains to be seen whether the services performed by a rodman are such as to bring the occupation within the classification of " laborers or artisans," as used in the compensation act. A rodman is one of a party engaged in making surveys, who uses or carries a surveyor's leveling rod. The exact character of work performed by him depends upon the size of party. In a large surveying party there are persons employed as chainmen and axmen, while in a small party those two persons are omitted and the rodman performs the work usually done by them. Therefore, in addition to carrying and using the leveling rod, a rod- man is frequently called upon to carry and use the chain in making measurements and to carry and use the axe in clearing the ground and driving the stakes, which latter are necessary as markers, in order that the surveyors may properly run the lines. From a consideration of the duties usually performed by a rodman it is readily observed that such duties are easily distinguished from the services performed OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 89 by those of the professional, official, clerical, business, or leisure classes, and from the very nature of the work it would appear that he naturally belongs in that class of persons commonly known as the "laboring class," and to which class it is apparent that Congress intended the provisions of the act to apply. In conclusion, 1 am of the opinion that at the time of the death of Williams his occupation was that of a rodman and that such occu- pation comes within the scope of the act. 16. A survey man, under the circumstances, held a laborer. [In re claim of C. B. Hott, Mar. 5, 1910; No. 2736.] The above-mentioned claim is submitted to this office with special reference to the following questions : 1. Does claimant's occupation come within the scope of the act? 2. Did the accident occur in the course of employment? The facts in the case upon which the two foregoing inquiries are predicated are as follows : Claimant was employed as a survey man in a United States sur- veying party using the United States steamer Mars, the quarter boat Illinois, and a fuel barge, which party was engaged in work along the Mississippi River from Natchez, Miss., to Donaldsville, La., a distance of between 100 and 150 miles. In the performance of this work it was necessary for the entire party to occupy the boats fur- nished by the Government for living quarters, taking their meals and sleeping thereon. After supper on November 9, 1909, while the fleet was moored near Red River Landing, in the neighborhood of Torras, La., the decedent left the boat and proceeded to the town of Torras for the purpose of getting his pay check cashed and making some purchases.' In due time he returned to the boat and was met at the gangplank by the watchman with a lantern. He passed across ths bow of the fuel barge, and in attempting to pass around a person who had stopped on the gangplank he lost his balance and fell over- board and was drowned, the body being recovered nine and a half- days thereafter. Decedent was an unmarried man, but left a mother who was, within the meaning of the act of May 30, 1908, dependent upon him for support, and the claim for compensation is accordingly filed by the mother, Mary A. Hott. The first inquiry raises the question whether a person designated as a "survey man" comes within the expression, as used in the com- pensation act, of " laborer or artisan." It has frequently been held by this office that the name or designation given to an occupation is not to be considered as the controlling factor in deciding whether such occupation comes within the scope, but that the same must be determined from the nature and character of the work performed. (See case of S. J. Mullins, C 21, Bu. No. 69, decided under date of Oct. 5, 1908.) Such a principle having been established and con- sistently followed in the interpretation of the act, the fact that Hott was designated and carried on the pay roll as a " survey man " may 90 workmen's compensation tTNDEE ACT OF MAY 30, 1908. be disregarded and resort must be had to an inquiry into the nature and character of the duties performed by him. From the record it is ascertained that he was engaged in assisting surveyors employed in construction of river and harbor work, and that his rate of pay was $40 per month. It will be observed that his designation was not that of a surveyor but that of a " survey man," and that his employ- ment required him to render assistance to the surveyors engaged upon the work. . The usual assistants in a surveying party consist of a transit man, levelman, chainmen, axmen, and other common laborers as may be necessary upon the particular work on which the party is engaged. As all of the assistants to a surveyor, except the ordinary laborer, have a special designation, as will be seen from the above statement, it would seem that the decedent in this case belongs in the class of ordinary laborers, and this conclusion is further strengthened when the rate of pay received by him is further considered, viz, $40 per month. I am therefore of the opinion that the first inquiry must be answered in the affirmative. 17. A time inspector, under the circumstances, held a laborer. [In re claim of B. H. Van Sittert, Mar. 5, 1910 ; No. 2946.] The above claim is submitted to this office with special reference to the question whether the occupation of the claimant comes within the scope of the act. Claimant was employed as time inspector at the rate of pay of $112.50 per month, and was injured while checking employees in Ancon Quarry. The immediate report gives the following descrip- tion of the accident : He was checking a gang that was at work on a narrow ledge about 20 feet below track on which a train was being loaded by steam shovel 153. A rock on the dipper teeth fell ofC as it was being dumped in a car and rolled over the embankment, striking him on the right side; this blow knocked him over the embankment, down which he fell to the track below — a distance of about 45 feet. Engineer Gray saw the rock falling and called to him, but there was not sufficient time to get out of the way; he only succeeded in turning part way around when the rock struck him in the side. In regard to the nature of the services performed by the claimant, the examiner of accounts, who is his superior officer, furnishes the following statement: This is the first claim that has been presented by an employee engaged in the work of time inspection, and because of that fact I have considered it proper to point out with some particularity the duties of a time inspector in order that the Secretary of [Commerce and] Labor may be in possession of all the facts inci- dent to the work of that class of employees. The duties of a time inspector are similar, in the manner of their perform- ance, to those of a policeman, and men in the latter position have been held by the Solicitor of the Department of [Commerce and] Labor to be laborers within the meaning of the act of May 30, 1908. Like the policeman, the time in- spector is assigned to a particular territory, and is obliged to walk over all of that territory each day for the purpose of seeing that the men in his district are being properly timed; to investigate the use of property; to handle and examine property abandoned or discarded, etc. He is frequently required to carry heavy packages of metal checks and to deliver them to the men, and Is called upon to check inventories, which necessitates the handling of numerous articles kept in the several storehouses of the commission. OPINIONS OP SOLICITOR, DEPARTMENT OP LABOR. 91 His work is entirely on the outside iiud is hazardous, because he is required to go among those who work arouud dynamite and machinery, and is obliged 10 walk on the railroad tracks in the canal and on the Panama Railroad. The inspector must be everywhere the construction men are, and is In more haz- ardous employment than they are, because he is not handling the machinery and explosives, and in his work can ntot as well see and avoid trouble. A time inspector has no desk or office, his work requires no clerical experience or training, and he has no supervising duties. The Civil Service Commission excludes time inspectors from the classified service because their duties are not clerical. The occupation calls for strong men who can walk and climb through the cut and hills 10 to 15 miles a day, and in the mud and rain con- tinue to make progress. Their work is entirely outside work, calling for some manual labor as well as considerable physical exertion. In my opinion, a time inspector is a laborer within the meaning of the act of May 30, 1908. That he is all the time engaged in a most hazardous employ- ment there can be no question. From the foregoing it will be noted that the services of the claim- ant are easily distinguished from those of a time clerk, whose duties are purely of a clerical nature. The time inspector herein was not a timekeeper, who had a desk and ofEce for the performance of his duties, but who was required to go from place to place to check up the time of the employees. In addition he was required to perform the manual labor mentioned by the superior officer. While the work of checking the time may be considered as of a clerical nature pure and simple, yet, when all the duties performed by him are considered, it appears that the other services are of sufficient moment to bring the claimant within the scope of the term " artisan or laborer " as used in the compensation act. The statement of the superior officer also shows very clearly that the work performed by claimant almost continually required him to be exposed to various sorts of dangers. The manner in which the injury occurred speaks in strong enough terms to show the hazard involved in his employment. On the whole I am of the opinion that the occupation of the claimant brings him within the scope of the act and that such occupation is hazardous within the meaning thereof. The claim should therefore be allowed. 18. An acting inspector, normally a working foreman of laborers, is a laborer. [In re claim of P. J. Keating, Mar. 21, 1910 ; No. 2963.] The above claim is submitted to this office with special reference to the question whether the claimant's occupation falls within the scope of the act of May 30, 1908. It appears from the record that the claimant at the time of the injury, on January 4, 1910, was employed by the United States as an inspector of certain work being done by contractors in the construc- tion of river and harbor work in Cumberland Sound, Ga. and Fla. The injury was caused by a heavy shackle giving way at the " mast- head of a derrick on barge No. 7, belonging to contractor who was repairing the jetty under contract." The colonel of the Corps of Engineers of the Engineer Office of the War Department, under whom the claimant was employed, made the following statement under date of February 18, 1910 : 92 workmen's compensation UNDEE act of may 30, 1908. 2. Patrick Joseph Keating, herein referred to, has been in the employ of the United States for nearly 17 years. For the past period of about four years, during which I have been in charge of the district, his general employment has been that of a working foreman. He was what might be called a " handy man." A good deal of the time he has been in charge of a steam bolster, a vessel used for the removal of snags, logs, and other obstructions In certain rivers. He operated the machinery and worked with his own hands. He also has been employed, as occasion required, in charge of small parties, where he directed the work and also worked himself. 3. About the 1st of December, 1909, for want of a more available man, he was put as inspector of contract work at Cumberland Sound, and it was there that he was injured. It was my purpose, as soon as this short contract was over (and it was only expected to last two or three months), to return him to work similar to that upon which he had before been employed. As a general proposition it may be stated that an employee's right to compensation is governed by his status at the time of the- injury. See opinion of December 15, 1908, in the case of Frank Adler (C232, Bu. No. 889). But his status is not controlled by his designation (C 21, Bu. No. 69) nor by the particular duties he may be perform- ing at the time of the accident. (Opinion of Jan. 18, 1910; C 1285, Bu. No. 1709.) The controlling factor is the actual normal status of the employee, whether the general character of his duties for the time being is such as to place him in the class of laborers or artisans or otherwise. In the case now under consideration the employee had been employed by the United States for nearly 17 years, and during at least the last 4 years of this time his employment was that of a " working foreman " in connection with the general river and harbor work carried on under the Engineer Department of the War Depart- ment. As a " working foreman " he was undoubtedly a laborer within the meaning of the act. About December 1, 1909, for the want of a more available man, he was sent to inspect some work which was being done by a contractor, and he was soon to be relieved of these duties and put back upon his former work. When this change was made he was designated as " inspector," but this did not, it seems to me, remove him from the class of " laborers or artisans " to which the law applies and put him in a class to which the act does not apply. As said in the Golden case (C 303, Jan. 5, 1909), "in view of the general purpose of the act and the treatment of the sub- ject matter when it was being considered by the two Houses of Con- gress, I am of opinion that the words ' artisans and laborers ' were used to indicate a class of persons commonly referred to as the ' laboring class,' as distinguished from the leisure, professional, busi- ness, and official or clerical classes." It does not appear that after December 1 his status was essentially different from what it was be- fore that date, nor that he was removed from the control and direc- tion of one superior officer and put under the control and direction of another. I have the honor to advise, therefore, that in my opinion the claim- ant herein was a laborer or artisan at the time of the injury, and that he is entitled to the benefits of the act oi May 30, 1908. 19. A working foreman of laborers is a laborer. [In re claim of William L. Kline, Mar. 26, 3910; No. 3004.] The above claim is submitted to this office with special reference to the question whether the occupation of claimant comes within the scope of the act. OPINIONS OF SOLICITOE, DEPARTMENT OF LABOR. 93 Claimant is employed as an overseer or foreman of the workmen engaged on Lock No. 1, Monongahela Eiver, being river and harbor improvement work, and his rate of pay is $115 per month. The immediate report gives the following description of the acci- dent: Mr.' Kline slipped on tlie ice, falling between concrete forms for lock walls and stone excavated from the foundation for miter sills. The character of work being performed at the time of the accident is given as follows in the same report : Inside cofferdam, directing tlie placing of a siphon. The description of the accident and character of the work shown by claimant's affidavit are substantially the same as shown in the foregoing report. As the information furnished was not deemed sufficient to show the general nature of the work performed by Kline, the papers were returned by the Acting Secretary under date of February 7, 1910, for additional statements describing more fully the usual duties of claimant. In response to that request there is now attached to the claim a letter from claimant dated February 24, 1910, with a notation thereon by the assistant engineer in charge of the work. The material por- tion of the letter from the claimant is as follows : My duties are generally diversified, and especially during my connection with the building of new Lock No. 1, on the Monongahela Ulver, all of which work is being done by hired labor. I have had charge of gangs of men, some- times large and sometimes small, since about June 1, 1909, building cofferdams, tearing down old lock walls, tearing up old cribs and building new ones, hoisting debris of all kinds out of lock chamber, and erecting and moving derricks, etc. The nature of my duties are such that I frequently have to exert my own physical strength in aid of the man under me. The necessity for my thus laboring from time to time is of daily occurrence. The indorsement thereon states that — Mr. Kline has been almost daily under my personal observation at Lock No. 1 since last June and I can affirm that his statement above is correct. It very frequently happens that more or less ignorant and untrained laborers are placed under him who are best taught their duties by his personal example. He was himself for a number of years a skilled laborer. From this additional evidence it appears that while claimant is designated and performs the duties of a foreman or overseer of the work, it also undisputably appears that the necessities of the work daily require his assistance in the actual manual labor, similar to that performed by the men under him. It further appears from the record that the position occupied by Kline is not that of a general superintendent, but that such superintendence of the work is in charge of the assistant engineer. As stated in the case of John P. Golden (Jan. 5, 1909, Bu. No. 1324) , I take the view that the words " artisans and laborers " were used in the act to indicate a class of persons commonly referred to as the "laboring class" as distinguished from the leisure, _ profes- sional, business, and official or clerical classes. The claims of several employees who were employed as foremen have been passed without question, for it has been generally regarded that a foreman belongs to the class of men with whom he works and that they belong to the laboring class. (John H. Petry, Bu. No. 225 ; Fred C. Kuehnle, Bu. 94 workmen's compensation under act of may 30, 1908. No. 246; Geo. W. Wygant, Bu. No. 725; Z. M. Crooks, Bu. No. 418.) The courts have held to the same effect. (Willamette Falls Transp. Co. V. Eemick, 1 Oreg., 169; Short v. Medberry, 29 Hun., N. Y., 39; Flagstaff Silver Min. Co. v. CuUins, 104 U. S., 176; Capron Stout, 11 Nev., 304; Welch v. Ellis, 15 Can., L. T., 148.) The case of a superintendent or overseer of a work is, of course, different. (Joseph Little, Mar. 22, 1909, Bu. No. 2124.) In this case there is no question but that the gang of men with whom claimant was working were "artisans or laborers" within the meaning of the act of May 30, 1908, in view of which I am of the opinion that the occupation of the claimant comes within the scope of the act and that the claim should be allowed. 20. A transit man is not an artisan or laborer; the term " laborer " defined. [In re claim of J. M. Grant, Apr. 21, 1910 ; No. 2513.] The above claim is submitted to this office with special reference to the question whether the claimant's occupation brings him within the scope of the act of May 30, 1908. The sole information contained in the record concerning the claim- ant's occupation is that he is employed as a transit man at a salary of $150 a month in the construction and engineering department of the Isthmian Canal Commission. The act of May 30, 1908, applies only in the case of injuries sustained by a person " employed * * * as an artisan or laborer." The question presented, therefore, is whether a person employed as a transit man is a person employed as an artisan or laborer. In regard to the proper definition of the word " artisan," little or no difference of opinion exists. An artisan is defined by the Stand- ard Dictionary to be " one who practices an industrial art ; a trained workman; a superior mechanic," and this definition is accepted by the courts. (O'Clair v. Hale, 54 N. Y., Supp., 386; Duncan -v. Bateman, 79 Amer. Dec, 109.) The meaning of the word " laborer," however, is involved in much uncertainty, by reason of the different senses in which it has been employed in various statutes, in conse- quence of the various words which have been associated with it, and because of the widely varying occupations to which it has been applied by the courts. The word has been used in statutes granting liens to mechanics, in statutes creating prior* claims against insolvent corporations, in statutes making stockholders individually liable for wages of employees, in statutes exempting wages from attachment or garnishment, in statutes limiting the hours of labor, in the Chi- nese-exclusion laws, and in the contract-labor laws. The practical impossibility of arriving at a definition of the word which would harmonize the great number of decisions construing these various statutes may readily be appreciated by reference to the cases col- lected (24 Cyc, 810; 5 Words and Phrases, 3952; 18 L. E. A., 305; 58 Amer. St. Eepts., 303). In applying the word under the present statute, therefore, little assistance can be had by reference to deci- sions construing statutes enacted for other purposes. The sole inquiry must be as to the intent of Congress in using the term in the present act. OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 95 " Etymologically," it has been pointed out, " a laborer is one who labors. He may labor physically or mentally, gratuitously or for reward, for himself or for another, freely or under control. How- ever he labors he is, in the proper sense, a laborer ; but that sense is never imputed in ordinary speech or writing, unless there is some- thing in the context or the circumstances to imply that it is in- tended." (In re Ho King, 14 Fed. Rep., 724.) There is nothing in the context or the circumstances of the present act to imply that the word was used in this broad, unrestricted sense, and therefore no such sense can be imputed. The historical use of the term is equally unavailable. In England, in Eyiackstone's day, the civil state was said to consist of the nobility and the common alt5^ After describing the "orders" of the com- monalty, which included " esquires," " gentlemen," and " yeomen," it was said : " The rest of the commonalty are tradesmen, artificers, and laborers." (1 Black. Com., 407.) At common law, laborers were classed as " a third species of servants," the two other species being " menial servants " or " domestics " and " apprentices." Of laborers, it was said they " are only hired by the day or the week and do not live intra moenia as part of the family." (1 Black. Com., 426.) These qualifications and distinctions obviously have no appli- cation at the present day or in this country. Discarding alike, therefore, the technical meaning given to the word as employed in other statutes, the etymological meaning, and the historical meaning, there remains only the ordinary meaning given to the word in everyday speech and writing at the present time, and this, it is believed, is the actual sense in which the word was used by Congress in the enactment of the law. Not only is it a rule of interpretation that the words of a statute are to be understood in their usual and popular meaning, unless the context or purpose of the act requires otherwise, but the treatment of the subject matter of the present legislation when it was being considered by the two Houses of Congress, as well as the report of the committee having the bill in charge, clearly indicates that the persons designed to be benefited were those commonly known as persons of the laboring class as dis- tinguished from persons of the leisure, professional, business, or offi- cial or clerical classes. Similar acts in other countries are known as "workmen's compensation acts." It is fair to assume, therefore, that the term " artisan or laborer " was used in the present act in a sense very nearly synonymous with " workmen," which has been de- fined as follows : A " workman " is defined by Webster to be a man employed in labor, whether in tillage or manufacture; a worker; hence, especially, a skillful artificer or laborer. The Century Dictionary gives the definition as a man who is em- ployed in menial labor, whether skilled or unskilled; a worker; a toiler, spe- cifically an artificer; a mechanic or artisan; a handicraftsman. Bouyier defines a " workman," generally, as " one who labors ; one who is employed in some business for another " ; and that is the meaning of the word in bankruptcy act, July 1, 1908, according priority of payment out of bankruptcy estates to wages due workmen. (In re Scanlan, 97 Fed., 26, 27. * * *) The essential idea conveyed by the word "workman," as commonly used, is that of a subordinate whose occupation has nothing to do with correspond- ence or books of account, but requires him to use his hands to a suitable degree In manufacturing, or building, or in similar pursuits. He may be skilled or unskilled ; he may or may not be aided by tools or machinery ; but he does not belong to the same class as the man that is neither making goods nor erecting 96 workmen's compensation under act of may 30, ;i908. buildings nor accomplishing similar results, but is engaged exclusively in the sale of a finished product. (In re Greenewald, 99 Fed., 705.) The ordinary and popular understanding of the word "laborer" accords with the definition given by the Standard Dictionary, whereby a laborer is described as "one who performs physical or manual labor requiring little skill or training other than regular domestic servants; one who gains a living by manual toil," and the definition given by the dictionary accords with the view taken by probably a decided majority of the courts. (See 24 Cyc, 810 et seq.) According to general understanding, the occupation of a laborer is distinguished from other occupations by the fact (1) that his work is essentially physical and toilsome; (2) that it makes a demand primarily upon his physical or mechanical powers and not upon his intellectual faculties except in a minor degree; (3) that it requires on his part relatively little skill except of a manual or mechanical sort, and relatively little training except such as comes from ex- amples and experience; (4) that it calls for the exercise of little or no independent judgment or discretion; and (5) that it is performed by rule of thumb or under the immediate direction of a superior. The foregoing characteristics are severally illustrated in a measure by the following passages from the decided cases : (1) In its ordinary and usual acceptation, the word carries with it the idea of actual • physical and manual exertion or toil. (Farinholt v. Luckland, 44 Am. St. Repts., 953.) A laborer is one who labors with his physical powers in the service of and under the direction of another for fixed wages. (Bernard v. Railroad Co., 87 Me., 241.) (2) A laborer is one whose work depends upon mere physical power to per- form ordinary manual labor, and not one engaged in services consisting mainly of work requiring mental skill or business capacity, and involving the exercise of the intellectual faculties. (Kline v. Russell, 113 Ga., 1058.) Primarily a clerk in a mercantile establishmenf is not a laborer, even though the proper discharge of his duties may include the performance of some amount of manual labor. If the contract of employment contemplated that a clerk's services were to consist mainly of work requiring mental skill or business ca- pacity, and involving the exercise of his intellectual faculties rather than work the doing of which properly would depend upon the mere physical power to per- form ordinary labor, he would not be a laborer. If, on the other hand, the work which the contract required the clerk to do was, in the main, to be the per- formance of such labor as that last above indicated, he would be a laborer. (Oliver v. Macon Hardware Co., 58 Am. St. Repts., 300.) (3) "Laborer" should be construed according to its common acceptation and to mean men who do work which requires little skill as distinguished from an artisan. (Guise v. Oliver, 11 S. W. Rep., 515.) When we speak of laboring or working classes, we do not Intend to include therein persons like civil engineers, the value of whose services rests rather in their scientific than in their physical ability. In one sense the engineer is a laborer; but so is a lawyer, a doctor, and a banker, yet no statistician has ever been known to include these among the laboring classes. (Railroad Co. v. Berry, 72 S. W. Rep., 1049.) (4) The word "laborers" refers to those whose services are manual or menial, those who are responsible for no Independent action, but who do a day's work or stated job under the direction of a superior. (Wildner v. Ferguson, 42 Minn., 112.) (5) In the language of the business world, says Mr. Chief Justice Peters, a laborer is one who labors with his physical powers, in the service and under the direction of another, for fixed wages; this is the common meaning of the word, and hence its meaning In the statute. (Blanchard v. Railroad Co., 87 Me., 241.) Assuming that the definition of the word " laborer " here suggested fairly represents the meaning which Congress intended to convey OPINIONS OF SOLICITOR, DEPARTMENT OP LABOR. 97 when the word was chosen, this definition, like any other, can only be applied in the light of the facts and circumstances of each par- ticular case, and independently of any special designation given to the position which the claimant holds. As said in Oliver v. Macon Hardware Co., supra: The legislature manifestly had reference to the worlc in which such laborers were engaged rather than to the particular designation by which they were usually distinguished one from another. In determining whether a particular employee is really a laborer the character of the wort he does must be taken into consideration. In other words, he must be classified, not according to the arbitrary designation given to his calling, but with reference to the character of the services required of him by his employer. In the present case the precise character of the work actually per- formed by the claimant does not appear. The particular services required of him are not described. In lieu of definite information on these points, therefore, the statements of those familiar with the work ordinarily required of a transit man must be relied upon. Upon inquiry, accordingly, it is learned that a transit man must in the first place be capable of adjusting and using a transit. While in the field, a transit man usually has charge of from three to six men, depending upon the locality of the work. These men might be, where the char- acter of .the ground demanded it, two rodmen, two chainmen, an ax- man, and perhaps several bushmen. If an assistant engineer were along, he would be in charge of the party and the transit man would simply operate the instrument. Besides being familiar with the adjustment and use of the transit, the transit man is usually re- quired to make notes of his measurements at the time and later work out or compute them. The latter task, technically known as plotting, requires a familiarity with plane trigonometry. Transit men usually receive their training in technical schools. If the foregoing is a sub- stantially correct account of the services rendered by the claimant, it can hardly be said that his occupation is that of an artisan or laborer as above defined, or that, in the language of the act, he was "em- ployed * * * ■ as an artisan or laborer." It may be suggested that, inasmuch as a transit man is not neces- sarily a civil engineer, he is not a member of any recognized profes- sion, and hence may be classed as a laborer. It does not follow, how- ever, that because a man does not belong to either the professional, leisure, business, or official or clerical classes he is therefore to be included in the laboring class. If the practice of a certain recognized profession carried with it the doing of certain well-defined profes- sional acts, one whose sole duties consist of the performance of even a circumscribed part of these professional duties is, in my opinion, sufficiently indentified with that profession to withdraw him from the class of " artisans or laborers." If the occupation of a civil engineer is a profession and the exclusive duties of a transit man consist in performing part of the professional duties of a civil engineer, then a transit man must be regarded as so far identified with the pro- fession of civil engineering as to preclude his classification as an artisan or laborer. That he is not fully qualified as an engineer would doubtless prevent his classification as a professional man but is not sufficient to warrant his classification as an artisan or laborer. To hold otherwise would be to hold, for example, that a student of 93364°— 15 7 98 workmen's compensation under act op may 30, 1908, medicine who had not finished his studies and been admitted to practice but who took an active part in the treatment of the sick under the supervision of a physician, not being a member of the medical profession and not belonging to any other nonlaboring class., must therefore be considered as an artisan or laborer. For the reasons given, I am of opinion that the claimant in the present case is not an artisan or laborer within the meaning of the compensation act and that his claim for compensation thereunder should therefore be denied. 31. A surveyor is not an artisan or laborer. [In re claim of A H. Sheppard, May 9, 1910; No. 2507.] The above-mentioned claim is resubmitted to this office for con- sideration with reference to the question " whether the additional statements attached to the papers contain sufficient evidence on which to recommend a reconsideration of the Secretary's action of April 4, 1910, disapproving the claim." The facts upon which the claim is resubmitted are substantially as follows : The occupation of decedent in the original submission wa's shown to be that of a junior civil engineer, while from the additional papers submitted it appears that he was employed as a surveyor, and that the day before his death a commission had been signed promoting him from that grade to the next higher grade of junior civil engineer, but that official notice of such promotion had not reached him and he had not taken the necessary oath of office to entitle him to the com- pensation of such higher grade. Thus it will be seen that the occu- pation of decedent at the time of his death was that of a surveyor. The question now presented is whether the occupation of a surveyor comes within the scope of the act of May 30, 1908, and is fully covered by previous opinions of this office. In the Grant case (C 2513, Bu. No. 6160), where the occupation of the injured employee was that of a "transit man," very careful consideration was given to the meaning of the words " artisan " and " laborer " as used in the act. Eef erring to the word " artisan," it was said : An artisan is defined by the Standard Dictionary to be " one who practices an industrial art; a trained workman; a superior mechanic," and this definition is accepted by the courts. (O'Clalr v. Hale, 54 N. Y., Supp., 386; Duncan v. Batemau, 79 Amer. Dec, 109.) Referring to the word " laborer," it was said : According to general unaerstanding, the occupation of a laborer is distin- guished from other occupations by the fact (1) that his work is essentially physical and toilsome; (2) that it makes a demand primarily upon his physical or mechanical powers, and not upon his intellectual faculties except in a minor degree; (3) that it requires on his part relatively little skill, except of a manual or mechanical sort, and relatively little training, except such as comes from example and experience; (4) that it calls for the exercise of little or no inde- pendent judgment or discretion; and (5) that it is performed by rule of thumb or under the immediate direction of a superior. (Citing Farinholt v Luckland 44 Am. St. Repts., 953 ; Bernard v. Railroad Co., 87 Minn., 241 ; Kline v. Russell, 113 Ga., 1058 ; Oliver v. Macon Hdw. Co., 58 Am. St. Repts., 300 ; Guise v. Oliver, 11 S. W. Rep., 515; Railroad Co. v. Berry, 72 S. W. Rep., 1049; Wildner i), Ferguson, 42 Minn., 112; Blanchard v. Railroad Co., 87 Me., 241.) OPIliriONS OP SOLICITOK, DEPAETMENT OP LABOK. 99 It was pointed out that — This definition, like any other, can only be applied in the light of the facts and circumstances of each particular case, and independently of any special designation given to the position which the claimant holds. Eeferring then to the specific occupation of a transit man, it was said: It is learned that a transit man must, in the first place, be capable of adjust- ing and using a transit. While in the field a transit man usually has charge of from three to six men, depending upon the locality of the work. These men might be, where the character of the ground demanded it, two rodmen, two chalnmen, an axman, and perhaps several bushmen. If an assistant engineer were along, he would be in charge of the party and the transit man would sim- ply operate the instrument. Besides being familiar with the adjustment and use of the transit, the transit man is usually required to make notes of his measurements at the time and later work out or compute them. The latter task, technically known as plotting, requires a familiarity with plane trigo- nometry. Transit men usually receive their training in technical Schools. If the foregoing is a substantially correct account of the services rendered by the claimant, it can hardly be said that his occupation is that of an artisan or laborer as above defined, or that, in the language of the act, he was " employed * * * as an artisan or laborer." It may be suggested that, inasmuch as a transit man is not necessarily a civil engineer, he is not a member of any recognized profession, and hence may be classed as a laborer. It does not follow, however, that because a man does not belong to either the professional, leisure, business, or ofiicial or clerical classes he Is therefore to be Included in the laboring class. If the practice of a certain recognized profession carries with it the doing of certain well-defined profes- sional acts, one whose sole duties consist of the performance of even a circum- scribed part of these professional duties is, in my opinion, sufficiently identified with that profession to withdraw him from the class of " artisans or laborers." If the occupation of a civil engineer is a profession, and the exclusive duties of a transit man consist in performing part of the professional duties of a civil engineer, then a transit man must be regarded as so far identified with the profession of civil engineering as to preclude his classification as an artisan or laborer. That he is not fully qualified as an engineer would doubtless prevent his classification as a professional man, but is not sufficient to warrant his classification as an artisan or laborer. To hold otherwise would be to hold, for example, that a student of medicine who had not finished his studies and been admitted to practice but who took an active part in the treatment of the sick under the supervision of a physician, not being a member of the medical pro- fession and not belonging to any other nonlaboring class, must therefore be considered as an artisan or laborer. For the reasons given, I am of opinion that the claimant in the present case is not an artisan or laborer within the meaning of the compensation act, and that his claim for compensation thereunder should therefore be denied. In the Snyder case (C 2390, Bu. No. 4687) the occupation of the injured employee was that of a surveyor, and it was accordingly held : As the claimant in this ease Is classified as a surveyor, and as the class of work performed by a surveyor Is of a higher grade than that performed by a transit man, the same reasoning applies with greater force to the occupation of a surveyor. I am therefore of the opinion that the claimant's occupation Is not within the scope of the act. As the occupation in the present case is similar to that in the Snyder case, the conclusion must be the same. The record now submitted contains further evidence tending to show dependence on the part of the parents. Since, however, the decedent's occupation does not come within the scope of the act, it is unnecessary to consider that phase of the cast). 100 workmen's compensation under act of may 30, 1908. 22. An employee designated an inspector, engaged in marking and passing orossties, piling, and lumber, and without any duty of supervision or superintendence, is a laborer. [In re claim of S. W. Baker, Jr., July 7, 1910; No. 3887.] The above claim is submitted to this office with special reference to the question whether the occupation of claimant comes within the scope of the act of May 30, 1908. The occupation of the claimant is shown to be that of an "in- spector," whose rate of pay is $4 a day, and who was injured while engaged in inspecting railroad ties which were being transferred from a lighter to a ship. The accident was described as follows : In the immediate report: Struck by a sling of crossties as it was being hoisted on board ship, bruising left knee severely. In the affidavit of claim: I was inspecting ties when a sUng load of ties that was being hoisted from the lighter struck my left knee, bruising it and causing same to swell, develop- ing an abscess and leaving a running sore. The question who are artisans or laborers within the meaning of the compensation act was examined with much care in the case of Grant (C 2513, Apr. 26, 1910). In the opinion rendered in that case it was shown, so far as the term " laborer " was concerned, that it was necessary to discard alike the technical meaning given to the word as employed in other statutes, the etymological meaning, and the historical meaning, and to accept the ordinary meaning given to the word in everyday speech and writing at the present time. Ac- cording to general understanding, it was found that : The occupation of a laborer is distinguished from other occupations by the fact (1) that his work is essentially physical and toilsome; (2) that it makes a demand primarily upon his physical or mechanical powers, and not upon his intellectual faculties except in a minor degree; (3) that it requires on his part relatively little training, except such as comes from example and experience; (4) that it calls for the exercise of little or no independent judgment or dis- cretion; and (5) that it is performed by rulfe of thumb or under the immediate direction of a superior. In regard to the word " artisan " it was found that the definition " one who practices an industrial art ; a trained workman ; a superior mechanic " had been accepted by the courts. In the same opinion it was further shown that these definitions, like any others, " can only be applied in the light of the facts and circumstances of each par- ticular case, and independently of any special designation given to the position which the claimant holds." In the present case the nature of the claimant's occupation is de- scribed by the claimant himself as follows : In the inspection of crossties, lumber, and piling it is necessary for me to examine personally each and every piece of material as it is offered alongside of ships. After examining this material it is then necessary for me to brand each piece with a hammer, thereby signifying that the same is up to grade and has been accepted by the inspector, and in order to properly carry out this work the inspector is required to use his physical as well as mental faculties. By the claimant's official superior : I have to advise that Mr. Baker's duties as inspector require him to examine each piece of lumber, piling, or ties, arid to hammer with a steel-die official OPINIONS OF SOLICITOE, DEPARTMENT OF LABOR. 101 hammer ench piece of material accoptocl. This part of his work requires no little actiTity, especially when crossties are being inspected. When ties are being inspected as they are being placed aboard a vessel, the inspector must be very active to see that all the material is inspected, and it was while performing such duty that Mr. Baker was injured. By the assistant examiner of accounts : In addition to the statement made by Col. Davis, It may be added that the steel-die hammer used in marking the lies weighs slightly over 2 pounds. From 1,500 to 2,000 crossties are each day marked on the end with this hammer. As the head of the hammer is necessarily not evenly balanced and is thus a rather cumbersome tool, considerable physical exertion is necessary in order to use it and to mark each tie so that the mark will show clearly. Disregarding the word " inspector," used to designate the position held by the claimant, and considering solely the work actually per- formed by him, I think it clear that his occupation falls squarely within the definition of the word " laborer," quoted above. Examin- ing daily from 1,500 to 2,000 pieces of lumber, piling, or crossties and marking the end of each piece with a steel-die hammer is plainly work which is essentially physical and toilsome, which involves the use of the intellectual faculties only in a minor degree, which involves no very high degree of skill or any very special training, which calls, indeed, for the exercise of some independent judgment or discretion, but which probably may be accomplished in accordance with simple rules, readily learned by practical experience. In my opinion, there- fore, the claimant is an " artisan or laborer " within the meaning of the act, and his claim is a valid one. [In re claim of M. T. J. Green, Aug. 16, 1910 ; No. 4083.] The above claim is submitted to this office with special reference to the following questions: Does the claimant's occupation come within the scope of the act ? Is there sufficient evidence of connection between the alleged accident and the claimant's incapacity? From an examination of the record it appears that claimant's occupation was that of an inspector, at the rate of $60 per month, the duties of which position consisted of accompanying scows con- taining dredging material to the dumping grounds at sea, it being necessary for him to board the scows from the tug in the open sea. While in the act of performing this duty on October 15, 1908, claim- ant was knocked down on the hatch and combings of the scow he was boarding, wherebv he was bruised and skinned about the legs and hips and internally injured, resulting in a hernia which neces- sitated a surgical operation on May 23, 1910. Claimant was inca- pacitated for resuming work from May 19 to July 5, 1910. The circumstances surrounding the accident and incapacity are explained by the claimant as follows:- The injury consisted of badly skinning both legs and very seriously bruising the left leg and hip; also internal injuries which caused me to be troubled with pains In the stomach until relief was given by the operations recently had. Subsequent to the time of the accident, October 15, 1908, while seriously in- jured, I made no report of the accident and doctored myself in the hope that I would ultimately recover without laying off. Getting no permanent relief, In April, 1910, I went to Dr. Daniel B. Hurley, 21 Chelsea Street, Bast Boston, who told me that he could give me no relief with medicine and that I should go to the hospital for an operation. I accordingly, on May 21, 1910, went to 102 workmen's compensation undee act op may 30, 1908. the United States Marine Hospital, where two operations were performed on me, and I was discharged from the hospital on June 25. In accordance with the doctor's orders, to rest a week or 10 days, I did not report for duty until July 5, 1910. There is furnished a physician's certificate which establishes the fact of incapacity during the above period of time, but the physician makes no statement with reference to the cause of the incapacity. Medical testimony to connect the incapacity with the accident is lack- ing. The superior officer of claimant, however, makes a statement vouching for the reliability and trustworthiness of the employee and cites the fact that the master and engineer of the tugboat were witnesses to the accident of October 15, 1908. No statements are furnished, however, from these witnesses. Adverting now to the first question propounded, it will be seen that the occupation of claimant is not of that class wherein he exer- cises any degree of supervision or superintendence over any character of work or workmen, but merely consists in examining and reporting on the nature and amount of the material dredged. In performing this service it is necessary for him to transfer from the tugboat to the scow in the open sea, which feat of itself requires the perform- ance of considerable manual labor, and when the foregoing is con- sidered in connection with the rate of pay received by claimant it would appear that he belongs to that class of employees designated in the act as " artisans or laborers." In regard to the second question, the only evidence presented to establish the connection between the accident of October 15, 1908, and the incapacity beginning on May 21, 1910, is the statement of claimant himself. While it is stated that there were eyewitnesses to the accident, yet no statements are furnished from such witnesses. Before taking final action upon this claim, the fact of the accident should be established by statements of the witnesses, setting forth the nature of the accident and condition of claimant immediately thereafter. The claimant should also give a detailed account of his condition from the time of the accident to the date of his admission to the hospital — whether he sought the advice of any other physician before consulting Dr. Hurley (if so, a statement should be submitted from such physician), and, further, whether previous to May 19, 1910, he was incapacitated at any time for performing his work by reason of the accident ; and if so, the dates of such incapacity. 23. An assistant veterinarian, engaged in treating sick animals, giving medicine, and dressing wounds, is not an artisan or laborer. [In re claim of J. E. Brown, Oct. 14, 1910; No. 4749.] The above claim is submitted to this office with special reference to the question whether the claimant's occupation comes within the scope of the act of May 30, 1908. The occupation of claimant is shown to be that of an assistant veterinarian, and the injury occurred while claimant was assisting in the work of loading mules on a lighter. On September 13, 1910, the papers were returned to the Isthmian Canal Commission to ascertain the usual duties of the claimant. Under date of Septem- OPINIONS OP SOLICITOE, DEPAETMENT OF LABOR. 103 ber 24, 1910, the papers were returned, with the following statement, giving the nature or the duties performed : I beg to advise that Dr. Brown's duties are partly manual, as he administers medicine to siok animals and dresses wounds. I don't know that his duties could be considered hazardous, but I should say they are fully as much so as a blacksmith's, or those of anyone who has to handle mules at close range. From the foregoing description of the duties of claimant it is readily seen that they are similar in all respects to the usual duties of a medical practitioner, and, as such, they therefore bring the occupa- tion of claimant within the category of that of a professional man. It may be, and no doubt it is true, that the work of administering medicines to mules is more dangerous than are similar services when performed for human beings, but the question of hazard does not arise in this case, since the primary question is whether claimant is an " artisan or laborer " within the meaning of the compensation act. As the occupation of claimant is shown to be that of a profes- sion, I am of the opinion that his occupation does not come within the scope of the act of May 30, 1908, for which reason the claim can not be allowed. S4. A laboratory assistant engaged in making tests of materials in a chemi- cal laboratory is not an artisan or laborer. [In re claim of William H. Ransom, Apr. 27, 1911 ; No. 6206.] The question in this case is whether the claimant, who is employed as a laboratory assistant in the Picatinny Arsenal laboratory of the Bureau of Ordnance of the War Department at Dover, N. J., is an artisan or laborer within the meaning of the compensation act. In my opinion a laboratory assistant could not be regarded as an artisan or laborer in the absence of any affirmative showing that such a position was actually filled by an artisan or laborer, or that the duties thereof were those of an artisan or laborer. The claimant's duties are reported to "consist in the performance of general lab- oratory work under the direction of the chief chemist. Some of this work requires a loiowledge of chemistry, although much of it is of a routine character." At the time of the injury claimant was recrys- tallizing a compound of diphenylamine and urea by means of benzol. It has been heretofore shown (Grant case, C 2513) that the legis- lative history of the compensation act indicates that the persons designed to be benefited were those commonly known as persons of the laboring class, as distinguished from persons of the leisure, professional, business, or official or clerical classes, and that the term " artisan or laborer " was used in the present act in a sense very nearly synonymous with that of " workman." In a later report the duties of thfe claimant were described as fol- loT^s: The duties of a " laboratory assistant " are as follows : First. Making routine tests of materials. These tests, some chemical, some mechanical, are most of them of such a nature that any intelligent man, or so- called " skilled laborer," can be taught in a short time to conduct them. Second. Assisting chief chemist in laboratory investigations. This work may be similar at times to that described under the preceding paragraph ; at other 104 workmen's compensation undek act of may 30, 1908. times it may require a considerable knowledge of chemical manipulations, and can be assigned only to the more experienced or better trained laboratory assistants. Third. From the above statements it will be seen that the duties of laboratory assistants are largely of such a nature as would justify their classification with skilled laborers; while on the other hand, the more experienced or better edu- cated laboratory assistants perform some duties more nearly allied with those usually assigned to chemists or assistant chemists. It seems to me that the duties thus described, particularly those of the second variety, are clearly not those of a person belonging to the laboring class, as distinguished from those of persons belonging to the leisure, professional, business, or official or clerical classes. The only thing in this description indicating that the claimant may be regarded as an artisan or laborer is the statement that some of his duties are " of such a nature that any intelligent man, or so-called ' skilled laborer,' can be taught in a short time to conduct them." It is not stated, however, that the present claimant had ever been a laborer, skilled or otherwise, and taught the routine duties of his position. Nor is it stated that the second sort of duties which the claimant is called upon to perform, namely, " assisting chief chemist in labora- tory investigations, which can be assigned only to the more experi- enced or better trained laboratory assistants," are such that could readily be learned by any intelligent skilled laborer. On the whole, it is manifest that the duties required of the claimant are not those of an artisan or laborer, even though an artisan or laborer may be taught to perform them. An artisan or a laborer may be taught the duties of any calling or profession, but after having been taught, and if practicing that profession or pursuing that calling, he has ceased to be an artisan or laborer. For the reasons stated the claimant is not, in my opinion, entitled to the benefits of the act. 25. A rigger and diver is of the laboring class and is a laborer. [In re claim of Frltziho£E Lagerholm, Mar. 22, 1912 ; No. 8151.] This claim is specially submitted to this office with the two follow- ing inquiries : 1. Does the claimant's occupation come within the scope of the act? 2. As to rate of pay in case claim is approved. The facts in the case upon which the questions submitted are predicated are as follows : Claimant is rated and carried upon the rolls of the Brooklyn Navy Yard as a rigger with pay at the rate of $3.28 per diem. Under date of March 4, 1910, the Assistant Secretary of the Navy issued authority to the commandant of the above yard to employ claimant among others as a diver when necessary, those named in the order having demonstrated their fitness for such employment, to be paid at the rate of $1.20 per hour or $9.60 per day when actually engaged upon diving work. During the six months preceding the injury this claimant was employed on diving work a total of 119 days out of about 150 possible working days, and at the time of the inquiry he was engaged upon the same character of work, being paid at the OPINIONS OF SOLICITOR, DEPARTMENT Of LABOR. 105 rate of $9.60 per diem. It is also stated by the construction officer, under date of February 19, 1912, that it is more than probable that he would have been employed at diving a greater part of the time for some time to come. By reference to section 1 of the act of May 30, 1908, it is seen that when any one of the employees of the United States embraced within the act is injured in the course of such employment he shall be en- titled to receive " the same pay as if he continued to be employed." This language of the act clearly contemplates as a measure of damages a compensation equal to the amount the employee would have been enabled to earn, had he not been injured, during the year following, or during such portion of the year when he was incapacitated for resuming work. The record shows -that the claimant's incapacity, due to the injury, would probably be, in the opinion of the yard surgeon, about four weeks, aiid that the job he was on at the time of his injury is quite extensive, so he would undoubtedly have been employed at diving, for some time to come. Therefore, as the statute provides that the injured employee shall receive the same pay as if he continued to be employed, the claimant would appear to be entitled to the pay of a diver during his incapacity. As the work usually performed by a diver is plainly and essentially of the character of work usually performed by artisans and laborers, it can be concluded that the occupation of this claimant belongs in the class embraced in the act under the designation of " artisan or laborer," and as the claim in all other respects appears to be a proper one, I have the honor to recommend that it be approved for payment. 26. A dock master, having the care of a dock and the supervision of the dock force, is not an artisan or laborer. [In re claim of G. W. Trahey, July 29, 1912 ; No. 9043.] This claim is specially submitted to this office with the inquiry whether the occupation of claimant comes within the scope of the act of May 30, 1908, providing for compensation for " artisans or laborers " injured in the course of employment. The nature and character of the duties of claimant in his occupa- tion as dock master are found fully set forth in the record" in a letter dated July 10, 1912, from the construction officer of the yard to the commandant, which letter is as follows : George W. Trahey is a foreman in the hull division of the inanufacturing department. His special duties are the care and operation, under the con- struction oflBcer, of the dry docks and dry-dock appurtenances ; the supervision of the force employed In the docking of ships; also of all laborers, riggers, and ship keepers, and of the force employed in the care and preservation of ships out of commission. Mr. Trahey is by trade a shipwright, and while his position as foreman does not ordinarily entail his actual employment with tools at that trade, he is available for such employment, and such employment is within the scope of his duties. Thus it is noted that the special and principal duties of the em- ployment consist primarily of superintending the force of employees performing the particular work over which the claimant exercises 106 workmen's compensation tjndek act op may 30. 1908. supervision, which character of work clearly brings him under the designation of a general foreman or superintendent. It is stated in the letter, however, that claimant is a shipwright by trade, that he is available for such employment, and that such employment is within the scope of his duties. There is nothing, however, in the record to show that claimant has at any time been called on to perform the actual manual labor of his trade while occupying his present position of dock master, and the fact that he was a shipwright by trade would not, of itself, bring him within the classification of " artisan or la- borer," for it has been repeatedly held in construing this act that it is the character of the work performed, rather than the name of the position or the trade of the claimant, which is to be considered in connection with the question whether a certain employee is an artisan or laborer within the meaning of that term as used in the compensa- tion act. (See case of John M. Grant, C 251 3, Bu. No. 6160.) A case in point is to be found in 27 Op. At. Gen., 383, where the question involved was whether a superintendent of a lumbering com- pany was a "contract laborer" within the meaning of the term as defined by section 2 of the act of February 20, 1907. In reaching a conclusion on the question the Attorney General had this to say in regard to the test to be applied for the purpose of ascertaining whether the occupation of superintendent constituted the person a laborer within the act : It appears from the facts stated in your letter that while he Is required 'to have the qualifications of a skilled laborer and mechanic, the woric he is ex- pected to perform is that of superintendent of the "upper works" of the Bridal Veil Lumbering Co. Whether or not he comes within the statute is to be determined by the character of the work he is to perform and not by his qualifications for the position. The position of superintendent referred to does not appear to require manual labor, skilled or unskilled, on his part, and therefore he is not, in my judgment, within the purview of the act. As there is nothing in the record of this case to establish the fact that claimant performs manual labor in connection with his occupa- tion as dock master, it is clear that his duties are of a supervisory nature only, for which reason the principle laid down by the Attor- ney General in the case cited above, viz, that the character of work to be performed must be the basis rather than the qualifications for the position, is applicable herein. It must accordingly be held that the occupation of dock master is not that of an " artisan or laborer " within the meaning of the act of May 30, 1908. 37. A pilot or master of a vessel who performs labor of a physical or manual nature similarly to other members of the crew of the vessel is an artisan or laborer. (See in this connection No. 14, above.) [In re claim of J. C. Sturdevant, July 22, 1913 ; No. 23186.] This claim is specially submitted to this office with the inquiry whether the occupation of claimant is that of an artisan or laborer as contemplated by section 1 of the act of May 30, 1908. An examination of the record shows that it contains very little information regarding the nature and character of the work usually performed by this claimant in his occupation as " pilot." From the immediate report it appears that claimant was injured " while en- OPINIONS OP SOLICITOE, DEPAETMENT OF LABOR. 107 gaged in raising sunken boat," and that while so engaged " a heavy timber fell and struck him on the left leg." In his affidavit claimant states that the character of his work at the time of the injury was "helping to raise U. S. steamer PearlP The above comprises all the information furnished in reference to the usual duties of the claimant or the character of work generally performed by him, from which it will readily be seen that the par- ticular class of work he was doing at the time of the injury was not of that character which is performed by " pilots " as such when em- ployed upon the waters of the bays and oceans, their duties in that capacity consisting principally in directing the course of the ship, which is usually steered by a helmsman who does the actual manual labor of guiding the ship in its course. To one familiar with the class of work required of so-called pilots of tugboats, snag boats, lighters, and other similar vessels there is no comparison between the two, as the work of the latter .class is essentially laborious and manual, the duties of the occupation in many instances comprising those frequently performed by deck hands and other laborers. The fact that a man is called a " pilot " is not of itself sufficient to desig- nate the class in which he belongs, for there are different kinds and classes of pilots. For instance, thp Government licenses a certain class of pilots for the purpose of boarding vessels at deep water and directing their courses into the harbors. This class of pilots prac- tically perform no manual labor, although their duties are of an extraordinarily hazardous nature, since they must at times lay in wait in small vessels for incoming ships, in the open sea, and board the ship in all kinds of weather. There are also pilots, otherwise known as "navigating officers," attached to the ships of the Navy who perform no manual labor, but there are many other classes of men called " pilots " whose duties are of an entirely different nature and whose principal duties are manual and physical. A man may be called a " pilot " who steers a small gasoline launch, and at the same time he may perform all the other labor connected with the employment of the vessel or the business in which it is en- gaged. Likewise a man may steer a tugboat, a snag boat, or other such vessel and at the same time perform services similar to the other employees. In other words, it may be said that a so-called " pilot " of this class is nothing more than a working foreman, and as such is clearly within the class of " artisans or laborers " comprehended by the compensation act. This view has heretofore been taken in cases arising under the act, as will be observed from the following cases approved by the former Department of Commerce and Labor in the administration of the law: August E. O. Ganzkow (C 684, Bu. 1977), who was "captain of a tugboat '; Frank E. Thompson (C 8640, Bu. 18145), who was "master U. S. lighter Pancuo'''; and G. W. Barbour (C 9933, Bu. 21073), who was " pilot of snag boat R. O. McCalla:' As the work being performed at the time of injury in the case in- dicates that it was work of the laboring class, and there is nothing in the record to prove otherwise except the designation of the occupa- tion as " pilot," I am of the opinion that claimant is an " artisan or laborer " within the meaning of that term as used in the act. I therefore have the honor to recommend that the claim be ap- proved for payment. 108 WOBKMEN^S COMPENSATION UKDEE ACT 01* MAY 30, 1908. 38. Where the record shows that no part of the duties of an inspector involve manual labor of any kind, such occupation is not within the meaning of " artisan or laborer." [In re claim of Curtis A. Shetler, Oct. 8, 1913.] The above-mentioned claim is submitted to this oflGice with the in- quiry whether the occupation of claimant is covered by the act of May 30, 1908. It is noted that the occupation of claimant is that of " inspector " and that he is employed on river and harbor improvement work. Under the provisions of the compensation act as originally approved it will be found that the employees embraced within its terms are confined to "artisans or laborers " and that there has been no amend- ment to the law so far as employees of the river and harbor work are concerned. In order, therefore, for this employee to be entitled to compensation it must clearly appear by the record that the services performed by him in the usual course of his duties are such as are performed by that class designated as " artisans " or as " laborers." A statement has been furnished by the superior officer of claimant, under date of September 24, wherein he gives the following descrip- tion of the character of work performed by claimant in his occupa- tion as inspector: This employee is an inspector on the breakwater at Cleveland. This break- water is formed by dumping or otherwise depositing stone from barges. The duties of the inspector consist in laying out ranges for the breakwater and verifying the position of the vessel on these ranges when stone is dumped; inspecting the stone on the vessel to determine whether it is of proper quality and proper size ; reading of gauges to determine the amount of stone in load ; inspecting the breakwater as the work progresses to see that all stone is put in the proper place and is properly blocked up; making measurements and esti- mates of the quantities of stone deposited in the breakwater; making daily or other reports of the work. In no case is he called upon to do any manual labor, except possibly measuring with a rod or with a tapellne to determine whether prescribed dimensions are being complied with. From the foregoing it will readily appear that the services per- formed by this claimant are practically identical in character to those which were being performed by the claimant in the Cunning- ham case, which are reported in two opinions of the Solicitor for the Department of [Commerce and] Labor at pages 81 and 83 et seq. of the published opinions of that office. As it will be seen from the de- scription of the work required in this case that no part of it involved manual labor of any kind, it would appear that the conclusion reached in the Cunningham case was applicable here; for which reason it must be held that the occupation, is not covered by the act. (See also opinion in case of I. W. Pickett, Op. Sol., 80.) 29. The character of work performed by a " laboratory assistant " at the Picatinny Arsenal in this case does not bring claiimant in the " artisan or laborer " class. [In re claim of Isndore Miller, Oct. 27, 1913.] The above-mentioned claim is submitted to this office with the in- quiry whether the claimant is an artisan or laborer within the mean- ing of the compensation act. OPINIONS OF SOLICITOE, DEPARTMENT OP LABOB. 109 It appears from the record that the occupation of claimant is desig- nated as " laboratory assistant " and that he is employed in the Pica- tinny Arsenal. The question therefore arises whether a laboratory assistant is an artisan or laborer within the meaning of the words used in the act of May 30, 1908. A similar question was considered by the Solicitor for the former Department of Commerce and Labor, and upon the facts stated in that case, showing the nature and character of work performed, it was decided that a "laboratory assistant" was not an artisan or laborer within the meaning of the compensation act. (See Op. Sol., 103.) As the superior officer of claimant in this case states that the character of work performed is the same as in the case decided by the above-mentioned opinion, it would appear that there is nothing to distinguish between the two cases and the previous opinion is applicable herein. It is not intended by this to say, how- ever, that every employee designated as such assistant fails to come within the act, for the title given an employee is not the controlling factor in determining whether he is an artisan or laborer, but this must be decided from a knowledge of the actual work being per- formed. 30. The character of work performed by this claimant as an " inspector " brought him within the terms of the act as an " artisan or laborer." [In re claim of Sylvester B. Creamer, Nov. 3, 1913.] This claim is submitted with the inquiry whether the claimant's occupation is covered by the act of May 30, 1908, and the amend- ments thereto. The occupation of claimant is shown to be that of "inspector" engaged upon river and harbor work, so the point in issue is whether he is an " artisan or laborer " within the meaning of those words as used in the compensation act. The character of the work performed by claimant in his occupation as inspector is given by his superior officer as follows : 1. Mr. Creamer was employed as an inspector on river and harbor work In the construction of Lock and Dam No. 12, Ohio River. His duties were inspecting the driving of piles, inspecting the mixing and placing of concrete, and assisting in establishing lines and grades for the work, such as driving stakes, measuring with tapelines, etc. His duties at times were hazardous, it being necessary for him to climb to the top of high forms and over the work in general and be in the vicinity of derricks and other parts of the contractor's plant. His duties did not at all times require him to use his physical powers. However, physical exertions were necessary in performing a part of the work above described. 2. The claim of William V. Hetchie, inspector, who performed work of the character described above, was approved by the Secretary of [Commerce and] Labor on February 6, 1913, claim No. 21339, B. D. Pile mark 69572/9859. A number of cases have heretofore been considered wherein the same question as here presented has arisen. In some of these cases the work being performed consisted of supervision and superin- tendence; in others it partook of the former, together with some physical or manual labor, while in still other cases the work was solely manual. In view of the usually mixed character of the work performed by persons designated as "inspectors" great difficulty has been experienced in determining on which side of the line each 110 workmen's compensation under act oe may 30. 190«. individual case falls, since no two cases are identical. There have been cases wherein the occupation was designated as " sanitary inspector," " time inspector," " dumping inspector," " lumber inspec- tor," and " concrete inspector," as well as other kinds of inspectors (see Op. Sol., 80, 81, 82, 90, 91, and 100), and the general rule laid doAvn in such cases has been that where a portion of the work per- formed consisted of physical or manual labor, such as is performed by the ordinary laborer or by an artisan, such inspectors fall within the class provided for by the act. As the character of work performed by this claimant is identical with that which was being performed by William V. Hetchie, re- ferred to by the supervising officer in his statement quoted above, and which claim was formally approved by the Secretary of [Com- merce and] Labor, I am of the opinion that the same action should be talfen in this case. 31. The claimant was the master of a. dredge, and as the work performed was in the nature of that of a " handy man " he was held to be within the act. [In re claim of John V. Waters, Feb. 12, 1914.] This claim is specially submitted with the inquiry whether the occupation of claimant is covered by the act of May 30, 1908. It appears from the record that the occupation of claimant is that of master of the dredge Morgan; that in connection with the duties of his employmeat it is necessary for him to perform such manual labor as is generally performed by that class of employees known as working foremen; that in this particular instance the employee performed such various Itinds of service as to be designated a " handy man " ; that in the absence of his subordinates he is required to per- form the same character of work as is performed by the ordinary laborer. As the occupation in this case requires the performance of work similar to the character of work performed by the ordinary laborer — in addition to that of master of the dredge — it appears that the occupation belongs in the class of working foreman, which class of employees was held in the Kline case (Op. Sol., 92) to be artisans or laborers within the meaning of that term as used in the act. I am therefore of the opinion that the occupation of claimant is covered by the act and, the claim being otherwise a proper one, should be approved for payment, as it is evident that claimant was injured in the course of his employment, without negligence or mis- conduct on his part, and that the incapacity continued for more than 15 days from the date of injury, which incapacity immediately fol- lowed the injury. 33. The character of work performed by a ship's draftsman does not bring him within the term artisan or laborer. [In re claim of Leonard C. Ripley, Sept. 3, 1914.] This claim has been specially submitted to this office with the in- quiry whether the claimant is an artisan or laborer within the mean- ing of the compensation act. OPINIONS OF SOLIOITOE, DEPAETMENT OF LABOE. Ill It appears from the. record that the occupation of claimant is that of a ship draftsman, and there is nothing further in the record to show that his duties are any different from those of other similar employees. Claimant filed a statement under date of July 29, 1914, wherein he contends that the object of the law was to protect those whose work is of a hazardous nature. The question involved here, however, is whether the claimant is an artisan or laborer. If so, he would come under the act regardless of whether or not his work was of a hazardous nature, since it is not necessary for artisans or laborers employed in navy yards to be en- gaged in hazardous employment. In regard to whether a ship draftsman is an artisan or laborer under the act attention is invited to a case found in the published Opinions of the Solicitor at page 73-. In that case the claimant was a ship draftsman employed at the Puget Sound Navy Yard and was injured while taking measurements of a ship. After a care- ful consideration of the facts as found in the case it was concluded that the services i)erf ormed by the employee were more in the nature of clerical services than those of an artisan or laborer, and it was accordingly held that claimant was not entitled to recover as an " artisan or laborer." As the facts in this case appear to be similar to that case the con- clusion reached would seem to be applicable here. 33. The matron of Lower Brule Indian School, S. Bak., is not an artisan or laborer within the meaning of the act. [In re claim of Mrs. Harriet M. Humphreys, Sept. 23, 1914.] The above-mentioned claim is specially submitted to this office Avith the following inquiries: 1. Is the service In which the claimant is employed covered by the act? 2. Is the claimant an artisan or laborer within the meaning of the act? It appears from the record that the claimant was employed as matron at the Lower Brule Indian School in South Dakota and that on February 10, 1914, she was injured while removing pupils from a burning building connected with the school. Under these circumstances the questions as submitted arise, and as a negative answer to either question will bar the claim, it is only considered necessary to ascertain whether the place of employment is one of the branches covered by the compensation act. The ques- tion whether an Indian school comes under the act has been con- sidered by the department on a number of previous occasions. In some of the cases it was found that considerable work of a manufac- turing character was carried on in connection with the school work and as a part thereof, including sawmills, the construction of various kinds of furniture, as well as other such work, all of which was thought to be in the nature of manufacturing and to that extent to constitute the place a manufacturing establishment within the meaning of the act. See claim of F. A. P. Clarke (Op. Sol., 133). On the other hand, a number of claims have been presented from other Indian schools in which cases it was clearly shown that there 112 workmen's compensation under act of may 30, 1908. was nothing done in the character of the work performed at the insti- tutions which would bring them under the designation of a manufac- turing establishment. These claims were accordingly disapproved as not coming within the provisions of the act. In this case there is furnished a statement from the superintendent of the school wherein he gives the following description of the work performed at the school : I have to advise that this school might come under the head of a manufac- turing establishment from the fact that pupils' clothing is regularly made and repaired at the school throughout the year. Bread and other foodstufEs are manufactured throughout the year, and a small amount of furniture is made aud repaired — all of the above being for our own use and not for sale. For this work we are equipped with the necessary employees and tools usu- ally furnished in connection with an industrial school. The greater part of the work above enumerated was done under the direction of the matron, pupils and other employees actually doing the work. From a perusal of the foregoing it is apparent that there is no work performed at the institution which would properly bring it under the designation of manufacturing establishment, but that the greater portion of the work appears to be such as is done in a family or other large home. In view of this conclusion, I am of the opinion that there is noth- ing in the record to show that the service is covered by the act. As the above answer bars the claimant from recovery of compensa- tion on that ground, it is unnecessary to consider the second inquiry. 34. A messeng'er in the Government Printing Office, carried on the clerical roll, is an artisan or laborer. [In re claim of P. C. Ellett, Dec. 1, 1914.] This claim is specially submitted with the inquiry whether the claimant has established a right to compensation under the act of May 30, 1908. The question as submitted does not suggest any pre- cise inquiry, so an examination of the record will be made for the purpose of ascertaining the exact nature of the claim as well as the ground of objection to formal approval. It is observed that claimant is a boy, 17 years of age, engaged as a messenger at the Government Printing Office. On October 9, 1914, while in the performance of his regular duties he was passing through one of the buildings connected with the establishment where he was employed when an elevator conductor requested him to rear- range a cable which had slipped from the cylinder of one of the elevators. While so doing the electricity was turned on, starting the cable and injuring the boy. There is also found in the record a statement from the superior official wherein he calls attention to the fact that this employee is carried upon the clerical roll of the Superintendent of Documents. As the Government Printing Office has been held to be a " manufacturing establishment " (Op. Sol., IIT), end a messenger has been held to be an " artisan or laborer " within the meaning of the act (Op. Sol., 58), it would appear that the place of employment and the occupation are covered by the statute. OPINIONS OF SOLICITOB, DEPAETMENT OP LABOK. 113 While it is stated that the employee is carried upon the clerical roll of the Superintendent of Documents, still this official is under the Government Printing Office; and it is immaterial on which roll an employee may be paid, since it is the character of the work per- formed by him which designates his classification as an " artisan or laborer," or otherwise. It appears then that the only other question for consideration is whether the employee was injured in the course of his employment. Ordinarily where an employee leaves the course of his regular employment to perform some service for the master outside thereof, which increases the danger and hazard of the em- ployment, and he is injured while so doing, it would be decided that the injury did not arise in the course of the employment, following which conclusion the claim could not be approved for payment. In this case, however, there are found mitigating circumstances which would seem to take it out of the general rule, for it will be seen that the employee was a young boy, 17 years of age, and that his duties were those of the general nature of a messenger, subject to the call of those working around the place. There is furthermore found in this case an element which may be regarded as an emergency, in that the elevator had gotten out of order and it was desired to imme- diately restore it to working order. In such cases where work out- side of the regular employment is performed by a servant in an emergency for the benefit of the master and the employee is injured, his action has been generally held to not take him out of the course of the employment, it being considered that it was his duty to guard the welfare of the master even though it was no part of his regular duties. Again, it is a cardinal principle of the law of negligence that what may amount to contributory negligence in adults may not be so regarded in the case of children. Therefore by analogy the same principle should be applicable in a case where an infant of this age performs work which may not strictly speaking be considered as a part of his regular duties. The claimant herein, it will be noted, was a mere child, 17 years of age, and when directed by the ele- vator conductor, evidently a full-grown man, to assist him, he was in no position to dispute the question of the authority of the con- ductor to direct him to do such work. Therefore he was incompetent to judge whether he was likely to be taken without the protection of the act by reason of performing such work, siiice he was of such tender age as to have no discretion in obeying what he probably re- garded as the orders of his superior in some sense. Then, too, it would hardly be reasonable under such circumstances to expect a child of such immature age to be able to discriminate between the technical line of demarkation in his particular work and that which niay reach over into another field. Such a line it has frequently been difficult even for the courts to draw in the cases of adults; so much less should be expected of children. _ From this view of the facts presented herein, together with the circumstances surrounding the case, it is my opinion that the claim- ant was also injured in the course of his employment. As the claim in all other respects appears to this office to be a proper one, it is respectfully recommended that it be approved for payment. 93364°— 15 8 114 woekmen's compensation under act of may 30, 1908. 35. The character of work ordinarily performed by an instrument man in a surveying party determines his status under the compensation act. Held in this case that the work was manual and physical rather than clerical or professional, and claimant entitled to compensation as an artisan or laborer. [In re claim of Charles H. Sanders, Dec. 30, 1914.] This claim is submitted to this office with the inquiry whether the claimant, whose occupation is shown to be that of an instrument man, is an artisan or laborer within the meaning of the act of May 30, 1908. The word "instrument man" does not appear to have been de- fined in any of the dictionaries available and neither is a legal definition found of the word in Words and Phrases. The word therefore may be supposed to have arisen from a name given the employee of a surveying party who operates the instrument of a surveyor in distinction from the one who operates the transit — who is laiown as the transit man. In a large surveying party each of these men would have sufficient work to do in attending to their various instruments, but it is a well-lcnown fact among those familiar with such work that in the usual performance of survey work one man operates both instruments and performs all other work of a manual kind which is necessary to be done in the absence of a full complement or crew. In view of this understanding of the matter, it is perfectly clear that the work performed ordinarily by such employees is to a greater extent manual and physical rather than clerical or professional. In the construction of this act by the Department of Commerce and Labor a transit man and a surveyor have been held not to be artisans or laborers (Op. Sol., 94, 98, respectively), while on the other hand a rodman with a surveying party who was also acting as chainman and axman and a survey man performing manual labor with a surveying party have been held to be within the act (Op. Sol., 88, 89). It does not appear that the case of an instrument man with a surveying party has ever been considered by either depart- ment. It appears, however, that there is very little distinction to be drawn between the character of work performed by a transit man as such and that performed by an instrument man strictly in the line of his duty. If the services performed by this claimant are strictly those of an instrument man, this claim would apparently fall under the ruling laid down in the transit-man case. However, before reaching such a conclusion it may be well to ascertain the exact nature of the work being performed in this individual case, so as to deter- mine whether the kind of work is such that it would bring the em- ployee in the class of " artisan or laborer " as mentioned in the act. The superior officer of claimant, in a letter dated November 5, 1914, makes the following statement concerning the character of work usually performed by this claimant: An Instrument man, as the name indicates, is the man in charge of the in- struments In a field party, and as such In work of minor importance is usually in charge of the party. In the case in question Mr. Sanders was in charge of the instruments in making surveys in connection with possible water development on the Ooachella Indian Reservation. This Investigation, besides surveys, included the testing of a number of wells by means of a portable compressed-air outfit, which con- sisted of a gas engine, a compressor, and a quantity of pipe used to connect up OPINIOlSrS OP SOLICITOK, DEPAETMENT OF LABOR. 115 The instrumental work consisted of the reading of a number of gauges and water-measuring devices in order to determine the draw down, the amount of water delivered by each well, and the effect on adjacent wells. Mr. Sanders had two assistants, which were suflBcient to operate the machinery while run- ning, but when moving the rig or setting up the machinery at the wells this crew was not sufficient and it was necessary for Mr. Sanders to help in lifting the heavy machinery and in connecting up the pipe. It was while employed on this work that he was injured. The work was not of sufficient magnitude or importance to justify the expense of a large crew, and it was not the part of economy to employ an extra mechanic at the rate of $4 a day for this limited time, particularly as during this period the Instrument man would otherwise be idle. Both the position of instrument man and mechanic are practically the same grade, but the position of instrument man is considered higher, though a mechanic usually demands higher pay. Inasmuch as the instrument man was injured while performing the work of an artisan or mechanic in order to save expense to the Government, it seems only just that he should receive the same consideration as a mechanic. From the foregoing it will be seen that while the employee is designated as an instrument man, whose rate of pay is $100 per month, in addition to his duties as such he likewise performs other duties which are essentially those of the artisan or laboring class. In this connection it was said in the case of the survey man (Op. Sol., 89): That the name or designation given to an occupation is not to be considered as the controlling factor in deciding whether such occupation comes within the scope, but that the same must be determined from the nature and character of the work performed. Again, in the case of S. J. MuUins (Op. Sol., 58), it was said: The fact that the claimant was designated as a messenger is not material. The statute does not attempt to limit its operation to persons holding certain designated places or positions. It applies to artisans or laborers; and whether they be appointed and paid as machinists, brass finishers, ordnance men, messen- gers, or what not should not affect their right to compensation under the act. From the information furnished by the superior officer of claimant it appears that he was practically in charge of the small force of men engaged upon the same work with him; that this also compre- hended his being in charge of the various instruments used in the work as shown in the letter of the superior officer, wherein he says that "An instrument man, as the name indicates, is the man in charge of the instruments in a field party, and as such in work of minor im- portance is usually in charge of the party ; " and that in addition to the foregoing work he is called upon to perform the ordinary and usual work of a mechanic or artisan. If this view of the matter is to be accepted as the true condition under which the claimant was employed, it would appear that what was said in the case of the survey man, supra, is applicable, and that the name or designation given to an occupation is not to be con- sidered as the controlling factor in deciding whether such occupation comes within the scope of the act, since the same should be deter- mined from the nature and character of the work performed. From the description of the work being performed, as shown in the record, it would seem that the major portion thereof consisted of the character of work usually performed by an ordinary mechanic and laborer, and that the running of lines or other work usually performed by a surveyor is a minor factor in the consideration of the 116 workmen's compensation undee act of may 30, 1908. sum total. This being the case, it would appear that the character of work performed, as in this instance shown, would constitute claim- ant more of a working foreman than of an instrument man, and this occupation has received classification in a number of cases which have been approved under this act (Op. Sol., 91, 92). In view of the foregoing and without attempting at this time to decide whether an "instrument man" in that capacity alone is an artisan or laborer, I am of the opinion that from the character of work being performed this claimant may be said to be an artisan or laborer within the act. 36. The work of a cement tester and chemist in the Reclamation Service being in its nature semiprofessional, claimant held not to be an arti- san or laborer. [In re claim of Arthur E. Fenz, chemist and cement tester, Mar. 23, 1915.] The claim is referred to this office with the inquiry whether the occupation of the injured employee is covered by the act of May 30, 1908. The claimant is employed in the Reclamation Service, and his occupation is shown to be that of " cement tester and chemist," and the nature of the work performed by him is described in the letter following from his superior officer, under date of February 26, 1915 : I will state that Mr. Fenz is employed as a cement tester and chemist at this point. His duties require him to take samples of water from the river and canals in the vicinity of El Paso and take them to the laboratory at this point to make tests. He is also required to take samples of cement from the cement company here and make tests of them in his office. By reference to section 1 of the compensation act it will be noted that the employees mentioned therein as entitled to the benefits of the act are designated as " artisans or laborers," while employees engaged upon construction work in the reclamation of arid lands or the management and control of the same must be engaged in haz- ardous employment connected therewith. From the explanation of the superior officer quoted above it does not appear that there is any duty performed by the employee which can be said to be of a hazardous character, so this fact alone might bar the claim on the evidence submitted. It further appears that the description of the work performed by this claimant does not bring the occupation within the scope of that commonly known as artisan or laborer. It would rather appear to be along the line of that usually performed by ordinary draftsman, ship draftsman, or laboratory assistant. In other words, the nature of the work would bring it within a class which might be termed of a semiprofessional character. In this connection it may be here added that, while this particular occupation has never been considered formally since the law became eflFective, yet cases have been presented and considered where labora- tory assistants and ship draftsmen were held not to come within the act. See cases of H. L. Meeker and W. H. Ransom (pp. 75 and 103, resjjectively, of the published Opinions) and also opinion of this office in case of Isadore Miller, dated October 27, 1913. Fol- lowing the reasoning laid down in those cases, in the absence of fur- ther evidence to establish the occupation as within the act, I am of the opinion that the occupation in this case is not covered thereby. OPINIO UrS OF SOLICITOR, DEPARTMENT OF LABOR. 117 IV. « MANUPACTTmiNG ESTABLISHMENTS." 1. The Government Printing Office, where chiefly skilled and unskilled lal)orers are employed and where printing, binding, and bookmaking is done, is a manufacturing establishment. [In re claim of Edward Blaine, Dec. 1, 1908 ; No. 164.] I have examined the above claim submitted with special reference to the question whether the claimant's occupation comes within the provisions of the act of May 30, 1908. The record submitted shows that the claimant was employed as a laborer at the Government Printing Office, and that on October 21, 1908, while engaged in moving heavy iron pots in the courtyard of the old building one of the pots whiclti was loaded on a truck slipped upon his thumb and inflicted a severe -injury which, as certified by the attending physician, has incapacitated him for more than 15 days. The act includes by express terms, " any person employed by the United States as an artisan or laborer in any of its manufacturing establishments." The process of manufacturing has been defined to be " making an article either by hand or machinery into a new form, capable of being used and designed to be used in ordinary life." (Lawrence v. Allen, T How., U. S., 794.) A debtor carried on the business of bookbinding and manufactur- ing blank books, working himself and employing four hands. He had sundry machines for doing different parts of the work, all of which were operated by hand, and all of which, as well as the tools used, would have been needed if he had done the work alone. He was not only carrying on a trade, but was also a manufacturer. (Seeley v. Gwillim, 140 Conn., 106.) If it be admitted that the publishers of a newspaper were not manufacturers, yet if they should buy paper, ink, and other material and make the same into cards or billheads or blank boolfs, and con- duct a business of this kind, they are manufacturers and traders. (In re Kenyon, 6 Natl. Bank Eeg., 238-240.) In the Government Printing Office there are employed for the most part compositors, stereotypers, electrotypers, and pressmen, who " must show " in their application for appointment " that they have served at least five years in the trade," and skilled and unskilled laborers, male and female. Job printing is done and books are made. Such work involves the fashioning of paper and other mate- rials into different shapes for making blank forms for the use of the various offices of the Government, and the printing, assembling, and binding of books. In my opinion the Government Printing Office is a manufacturing establishment, and the laborers and artisans em- ployed there are embraced by the statute. The fact that the claim- ant in the present case, a laborer pursuing his course of employment when injured, was occupied at such time outside the walls of the building does not affect his position with regard to the act 118 workmen's compensation ttndbe act of may 30, 1908. 2. Hauling and trucking oats from car to dock by laborer in. Army Quai^ermas- ter's Department is not work in or in connection with a manufacturing establishment. [In re claim of J. B. Gray, Dec. 11, 1908 ; No. 234.] The claimant is an employee of the United States in the Quarter- master's Department of the War Department, and at the time of the accident, September 28, 1908, was engaged in hauling or trucking hay and oats from car to dock at Pier 5, Seattle, Wash. The claim is submitted to this office with special reference to the question whether the claimant's occupation brings him within the scope of the act of May 30, 1908. The only branches of the service under the War Department to which the act can apply are manufacturing establishments, river and harbor work, fortifications work, and arsenals. The arsenals are a part of the Ordnance Department and the river and harbor and fortifications work is done under the Engineer Department, so I conclude that a claim coming from the Quartermaster's Department could not be connected with an arsenal or river and harbor or forti- fications work. Unless, therefore, the claimant was employed in a manufacturing establishment under the Quartermaster's Depart- ment, the act does not apply to him. Whether there may be a branch of the service under the Quartermaster's Department which could be classed as a " manufacturing establishment " it is unnecessary to determine at this time. The record shows that the claimant was employed in " hauling and trucking hay and oats from car to dock " at the time of the accident. It is apparent from this that the work was not done at a manufacturing establishment or in connection with a manufacturing establishment. I am of opinion, therefore, that the claimant's occupation does not bring his injury within the scope of the act. 3. A lighthouse depot at which a material portion of the work consists in the manufacture and repair of materials, appliances, and vessels is a manu- facturing establishment. [In re claim of G. W. Wygant, Dec. 14, 1908 ; No. 260.] This claim is founded upon a sprained ankle, fractured bone, and torn ligaments incurred on October 10, 1908, while the claimant was removing a boat cradle from the upper deck of the tender Pansy at the general lighthouse depot, at Tompkinsville, N. Y. Wygant's foot slipped, he lost his balance, and jumped to the dock to avoid falling between the vessel and the dock, thereby receiving the injury. The accident was reported as arising out of claimant's employment as a foreman blacksmith employed at the Tompkinsville lighthouse depot. New York, and was not due to the negligence or misconduct of the injured employee. To allow this claim it must appear that said claimant was em- ployed in a manufacturing establishment, because he does not come under any of the other classes of employees included in the law of Jlay 30, 1908. OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 119 Claimant was an employee in the blacksmith shop of the general depot of the Lighthouse Establishment, which is also the principal depot of the third lighthouse district, located at Tompkinsville, Staten Island, N. Y. The following from the last annual report (dated June 30, 1908) of the Lighthouse Board, concerning this depot, indicates the nature of the work done there : The portion of the work under the direction of the inspector embraces the receiving, storing, and shipping of supplies and cleaning materials, buoys and appendages, ground tackle for light vessels and tenders, the analysis and testing of supplies and stores, repairing tenders and light vessels, and the manufacture and repair of buoys and fittings. The work of the depot In charge of the engineer Includes the Importation, inspection, storage, preparation, and. In large part, the manufacturing and assembling of Illuminating and other lighthouse appliances; the manufacture and development of lamps and technical apparatus of many kinds; the testing of engines and fog signals; the investigation of new illuminants, methods of Illumination, and improvements in the design and application of lighthouse structures and materials ; the preparation of plans and specifications for works of construction and repairs to stations, and the procurement and shipment of necessary materials therefor. * * * Under the direction of the Inspector, 5 tenders and 11 light vessels were re- paired by the depot force at a cost of about $5,500. In connection with the foregoing, the following statement Indicates how economy is served by having repairs made at this depot: Buoys and mushroom anchors sent from the fourth district by order of the board were repaired at a total cost for material and labor of $263.95. This equipment might otherwise have been condemned, and as its value after having been repaired was $1,117.20, the operation resulted In a saving to the Govern- ment of $853.25. From the above it will be seen that a considerable part of the work done at this depot is the manufacturing and repair of materials, ap- pliances, and vessels used in the work of the proper installation and maintenance of aids to navigation. Is such a place a " manufacturing establishment " ? The case of August Michel, a laborer at Sandusky Bay Light Sta- tion (C 144, No. 535, Nov. 16, 1908), was held not to come under the act, because in no sense can the Sandusky Bay Light Station be con- sidered a factory. And in an additional memorandum relating to said case (C 144, No. 535, Nov. 23, 1908) it was stated that the mem- orandum of November 16, 1908, had no reference to and did not consider the question of employees in a manufacturing establish- ment under the Lighthouse Board. The word " factory " is a contraction of " manufactory," which is defined to be a building or collection of buildings appropriated to the manufacture of goods. (A. and E. 12, 706.) " The term m.anu- facturing establishment includes the whole plant." (Cyc. Law and P. 26, 529.) In Ritchie v. People (155 111., 98) the definition of factory in the Illinois factory aat is given as follows : The words " manufacturing establishment," " factory," or " workshop," wher- ever used In this act, shall be construed to mean any place where goods or products are manufactured or repaired, cleaned or sorted. In whole or In part, for sale or for wages. Other lighthouse depots seem to be used only as storage and dis- tributing points for various supplies needed in the lighthouse service and can not properly be classed as manufacturing establishments. 120 WOEKMEHr's COMPENSATION' UNDER ACT OF MAY 30, 1908. The plant at Tompkinsville, however, seems to come well within the nile, as will be seen by an enumeration of some of the things done there. Thus, there are manufactured there buoys and fittings, light- house appliances, illuminating apparatus, lamps, and technical ap- paratus. There are also repaired tenders and light vessels, buoys, and anchors, which are often practically made over, so that, without such hand labor, they would be of no value whatever. The receiv- ing, storing, and shipping of various supplies, while not manufac- turing, are also carried on ; but the fact that such work is also done does not rob the establishment of its character as a manufactory so as to take from its employees the benefit of the act of May 30, 1908. It may be possible to distinguish between men engaged in such storing and shipping from the others engaged in purely manufac- turing pursuits, but that question has not yet arisen, and there is no necessity for going into it here. Enough has been shown to convince one that this lighthouse depot is also a manufacturing establishment. In my opinion claimant is entitled to the benefits of the act. [In re claim of George Bell, Apr. 14, 1909; No. 790.] This case is submitted with special reference to the question whether the occupation of the claimant falls within the scope of the act of May 30, 1908. The accident occurred while Bell was working in a coal-hoist plat- form, 40 feet above ground, placing an iron band on a mast. He lost his balance and fell a distance of 10 feet. The accident occurred in the course of employment and was not due to any negligence or misconduct on the part of the claimant. To allow the claim it must be established that said claimant was em- ployed in a manufacturing establishment. The case is exactly similar to the case of Wygant (Dec. 14, 1908, Bu. No. 725), where claimant was an employee in the blacksmith shop of the same lighthouse depot, and it was held that inasmuch as a considerable part of the work done at this depot is the manu- facturing and repair of materials, appliances, and vessels used in the work of the proper installation and maintenance of aids to naviga- tion, said depot was also a manufacturing establishment within the meaning of the act, irrespective of its use as a place for storing and shipping various materials and supplies, and 1 am of opinion that claimant should be compensated. 4. The Bureau of Engraving and Printing, where ink, paper, and other materials are fashioned hy workmen into bank notes, Treasury certificates, etc., and sometimes bound into book form, is a manufacturing establishment. [In re claim of A. E. Clarlt, Dec. 17, 1908; No. .92.1 In my opinion of December 1, 1908, in the case of Edward Blaine (Bu. No. 721), I held that the Government Printing Office is a manu- facturing establishment within the meaning of the statute. The Bureau of Engraving and Printing is, in many respects, a similar institution. While, as I understand, no books, in the ordinary sense. OPINIONS or SOLICITOB, DEPARTMENT OP LABOR. 121 are made at the bureaUj ink, paper, and other materials are there fashioned by workmen into the form of bank notes. Treasury cer- tificates, etc., and these are sometimes bound into book form. This brings the establishment within the definition of a manufactory as given in the Standard Dictionary, viz, a place where, as a business, anything is made or fashioned by labor into useful or desirable forms. I am satisfied, therefore, that the act applies to the artisans and laborers employed in the Bureau of Engraving and Printing, 5. The local office of the Weather Bureau at Detroit, though a printing press is there operated, is not a manufacturing establishment. [In re claim of Wm. H: McAlliater, May 4, 1909 ; No. 880.] The above claim is submitted to this office with special reference to the question whether the claimant's occupation falls within the scope of the act of May 30, 1908. The solution of the question turns upon whether the local office of the Weather Bureau at Detroit, Mich., is a manufacturing estab- lishment within the meaning of the act. It has been held that the Government Printing Office (C 164, Dec. 1, 1908, Bu. No. 721) and the Bureau of Engraving and Printing (C 92, Dec. 17, 1908, Bu. No. 628) are manufacturing establishments. The principal business of each of these establishments is printing and binding into books. The claimant in the present case was, at the time of the accident, running a printing press, doing the same kind of work that is done at the Government Printing Office and possibly at the Bureau of Engraving and Printing. But the local office of the Weather Bureau is a very different kind of establishment. The printing done here is not done as a business; it is merely an incident of the office work of the bureau. One of the definitions of a " manufacturer " is " a person engaged in manufacturing as a busi- ness" (Standard Dictionary), and all the definitions of "factory," which is a name applied to " manufacturing establishments," involve the idea that it is a place where the manufacturing is done as a busi- ness. To hold that the Weather Bureau is a manufacturing estab- lishment because printing is done there would at once suggest that any office or place where printing is done may be regarded as a manufacturing establishment. The fact that the printing is done on a printing press is not an important factor, and it might be claimed that where printing is done by means of stamps or mimeo- graph apparatus the place is a manufacturing establishment, thus extending the application of the act to almost every branch of the public service. It is very evident that such was not the purpose of the law. I am of opinion that in order to bring a place within the tenn " manufacturing establishment," as used in the act of May 30, 1908, it must be a place where some kind of manufacturing is carried on as its principal business. The local office of the Weather Bureau is not such a place, and I have to advise, therefore, that the above claim does not come within the scope of the act. 122 workmen's compensation under act of may 30, 1908. 6. A lighthouse tender, a vessel attached to a lighthouse depot and used in transporting workmen and supplies, and in the placement and upkeep of aids to navigation is not a manufacturing establishment. [In re claim of John Lambert, May 27, 1909 ; No. 93T.1 The above claim is .submitted to this office with special reference to the question whether it comes within the scope of the act of May 30, 1908. In my opinion of December 14, 1908, in the case of George W. Wygant (C 260, Bu. No. 725), I held that, inasmuch as the Toinp- kinsville lighthouse depot is a place where buoys and fittings, light- house appliances, illuminating apparatus, lamps, and technical appa- ratus are manufactured, it may be regarded as a manufacturing estab- lishment within the meaning of the act. However, in that opinion I said: It may be possible to distinguish between men engaged In such storing and shipiJing from the others engaged in purely manufacturing pursuits, but that question has not yet arisen and there is no necessity for going into it here. Enough has been shown to convince one that this lighthouse depot Is also a manufacturing establishment, and. In my opinion, claimant Is entitled to the benefits of the act. The present case inakes it necessary to distinguish between such employees. In the Wygant case, supra, the claimant was a blacksmith, and at the time of the accident he was removing a boat cradle from the upper deck of the tender Pansy. This indicates that his occupa- tion was directly connected with the manufacturing pursuits carried on at the Tomplrinsville depot. In the case of (Jeorge Bell (Apr. 14, 1909, C 790, Bu. No. 2399) the claimant was a blacksmith in the same establishment, and the reasoning in the Wygant case applied to bring him within the scope of the act. But in the case now under consideration the claimant is a cook on the tender Gardenia. His occupation seems to be in no way con- nected with the manufacturing pursuits carried on at the Tompkins- ville depot. His designation as a cook and the fact that, at the time of the accident, he was " coming on board with the milk and bread " shows that his occupation was independent of the manufacturing carried on there. It was the same as it might be at the " other light- house depots" which "seem to be used only as storage and dis- tributing points for the various supplies needed in the Ijighthouse Service and can not be properly classed as manufacturing establish- ments." (Wygant case, supra.) I am of opinion, therefore, that the act of May 30, 1908, does not apply to a cook on a lighthouse tender at the Tompkinsville light- house depot. [In re claim of J. A. Veseth, Dec. 11, 1909 ; No. 2206.] The above claim has been referred to this office with special refer- ence to the questions whether the claimant's occupation comes within the scope of the act of May 30, 1908, and whether the service in which he was employed is covered by the act. The official superior, Capt. Thomas, states that the claimant, a quartermaster, at the time of the accident was on deck of the tender OPINIONS OF SOLICITOH, DEPARTMENT OF LABOR. 123 Gardenia, hoisting the anchor. The following is the description of the accident as given by the official above referred to: " The anchor was being hoisted on a whip, when the anchor hook broke and a piece flew back striking Veseth in the left leg below the knee, in- flicting a compound fracture of the tibia." This case is similar to the case of John Lambert (C 937, Bu. No. 2908), who was also employed on the lighthouse tender Gardenia at Tompkinsville. After reviewing the other cases that had been re- ferred to this office for opinions in regard to claims on account of injuries to employees under the lighthouse depot at Tompkinsville, it was held : But In the case now under consideration the claimant is a cook on the tender Gardenia. His occupation seems to be in no way connected with the manu- facturing pursuits carried on at the Tompkinsville depot. His designation as a cook and the fact that, at the time of the accident, he was " coming on board with the milk and bread " shows that his occupation was independent of the manufacturing carried on there. It was the same as it might be at the " other lighthouse depots " which " seem to be used only as storage and distributing points for the various supplies needed in the Lighthouse Service and can not bo properly classed as manufacturing establishments." Ordinarily lighthouse depots are not considered manufacturing establishments; however, as there is considerable manufacturing in the Tompkinsville depot it has been held that that part of it where the manufacturing is done is a " manufacturing establishment " within the meaning of the law. But as the claimant in the case now under consideration was not employed in that part of the depot where the manufacturing is performed his claim does not come within the scope of the statute. In view of the fact that the claim can not be allowed for the reason that the service in which the claimant was engaged is not covered by the act, it is not necessary to consider whether his occu- pation comes within the scope of the act. 7. The driving of piles by an employee of the Bureau of Fisheries at work about a lobster pound is not work done in a manufacturing establishment. [In re claim of A. H. Feltis, July 27, 1909; No. 1378.] The above claim is submitted to this office with special reference to the question whether the service in which claimant was employed is covered by the act of May 30, 1908. The claimant was engaged in guiding the piles as they were being driven by a pile driver, and a cross timber struck the guiding stick held by the injured employee, causing it to fly upward, striking him in the face. He was employed in the Bureau of Fisheries and was injured in the course of his employment. The act specifically provides for compensation to artisans or laborers in any of the manufacturing establishments, arsenals, or navy yards of the United States, or in the construction of river and harbor or fortification work, or in hazardous employment on con- struction work in the reclamation of arid lands or the management and control of the same, or in hazardous employment under the Isthmian Canal Commission. By inference all other classes are excluded from the act. 124 woekmen's compensation under act of may 30, 1908. Unless the Bureau of Fisheries may properly be considered as a manufacturing establishment no compensation can be allowed, as it clearly appears that the bureau above mentioned does not fall within any of the other classes enumerated in the act. The following gives a brief synopsis of the work performed in the Bureau of Fisheries (Department of Commerce and Labor., organization and law, 1904) : (1) The systematic investigation of the waters of the United States and the biological and physical problems which they present. This includes not only a study of the life history of fishes of economic value, but the history of the animals and plants upon which they feed or upon which their food is nourished, as well as the currents, temperatures, and other physical phenomena of the waters in which they live, in relation to migration, reproduction, and growth. (2) The introduction and multiplication of useful food fishes throughout the country, particularly in the coastal waters and Great Lakes. (3) The investigation of the methods of the fisheries, past and present, and the statistics of production and commerce of fishery products. This includes a study of methods and apparatus, and a comparison of the same with those of other lands, that the use of those which are objectionable may be dis- couraged and those which are inefiicient be replaced by others more serviceable. From the above it will be seen that the principal work of the bureau is scientific, and it can not by any reasonable construction be considered as a manufacturing establishment. It seems clear, therefore, that the claim does not fall within the scope of the act. 8. & sawmill at Fort IVEeade, at which lumher is sawed and dressed and shingles are made, is a manufacturing establishment. [In re claim of Leander Herron, Aug. 4, 1909; No. 1502.] The above claim has been submitted to this office with special refer- ence to the question whether the service in which the claimant was employed is covered by the act of May 30, 1908. The record shows that the claimant was injured while at work in a sawmill at Fort Meade, and the question of approving or disapprov- ing his claim depends upon whether the sawmill is to be considered a manufacturing establishment within the meaning of the act. The Quartermaster General says the sawmill " is used for sawing logs into lumber, dressing lumber, and making shingles for repairing pub- lic buildings at the Fort Meade Military Reservation, also as a pump- ing plant. The Supreme Court has defined the word manufacture as follows: " Making an article, either by hand or machinery, into a new form, capable of being used, and designed to be used in ordinary life." (Lawrence v. Allen et al., 7 How., 785, 794). Another definition of manufacture by the Supreme Court will be found in the case of Kidd V. Pearson, where Mr. Justice Lamar, speaking for the court, says : " Manufacture is transformation — the fashioning of raw ma- terials into a change of form for use." Webster gives the following definition of manufacture: "The operation of reducing raw mate- rials of any kind into a form suitable for use, by hand, by art, or by machinery." OPINIONS OF SOLICITOE, DEPARTMENT OP LABOK. 125 As the work at the sawmill at which the claimant was engaged at the time of the injury was essentially that of sawing logs into lumber, dressing lumber, and making shingles, I am of opinion it should be considered as a manufacturing establishment within the meaning of the law, and the claim may properly be allowed. 9. An Army quartermaster's depot at which clothing and tents are made is a manufacturing; establishment. An employee of such an establishment is entitled to compensation though not engaged in manufacturing operations. [In re claim of J. V. Nicholas, Aug. 25, 1909 ; No. 1636.] The above claim is submitted to this oflSce with special reference to the question whether the service in which the claimant was employed is covered by the act of May 30, 1908. It appears that the claimant was employed as a laborer at the Philadelphia depot of the Quartermaster's Department, and that, while loading truck at wharf, on August 31, 1908, he sustained an injury to his back. He returned to work September 16, 1908. His claim for compensation, dated June 17, 1909, and sworn to June 28, 1909, was received by the Bureau of Labor July 6, 1909. Under date of June 16, 1909, the quartermaster at the Philadelphia depot, in a letter addressed to the Quartermaster General, explained that no claim for the injury to Mr. Nicholas had been forwarded, " as it was understood that 15-day clause annulled the claim." Under date of July 23, 1909, this Department sent to the War Department .a letter of inquiry as to what manufacturing, if any, was carried on at the Philadelphia depot, and what relation, if any, the claimant's duties at the time of his injury bore to such manufacturing operations. This letter bears the following indorsement under date of August 4, 1909 : KepectfuUy returned to the. Quartermaster General of the Army, with report that the manufacturing operations at this depot consist of making clothing and tents. James V. Nicholas at the time of his Injury was in no way connected with manufacturing operations, being engaged In loading a trucli, away from the depot, at a wharf on the Delaware River. In the case of Harry L. Fenton (C1571, Bu. No. 1913), a black- smith employed under an appropriation for irrigation of Indian reservations, it was said: It may be observed that the right to compensation does not depend upon what the claimant may be doing at the time of the accident, but upon the place where he was employed. In the case of George W. Wygant (C260, Bu. No. 725) it was held that a blacksmith at the TompkinsvIUe lighthouse depot was covered by the act, but this conclusion was based upon the finding that the Tompkins- vIUe lighthouse depot was a manufacturing establishment. It is clear that the Philadelphia depot of the Quartermaster's De- partment is a manufacturing establishment, and all artisans and laborers' employed there are included within the terms of the act. Ordinarily a quartermaster's depot is not a manufacturing astab- lishment, but I understand that the Philadelphia depot is essentially such an establishment. If the depot were divided into two or mors 126 WOEKMEN's compensation under act op may 30, 1908. branches, at only one of which manufacturing was carried on, only those employed at the manufacturing branch could be regarded as being employed at a manufacturing establishment. But it is under- stood that there is no such division into branches, and all the em- ployees of the depot are, therefore, employees of a manufacturing establishment. The fact that the work of the claimant, as stated by the quartermaster, was in no way connected with manufacturing operations, and that at the time of the injury he was employed away from the depot and at a wharf on the Delaware Kiver is immaterial. See opinion in the case of Hinton Blount (C 36, Bu. No. 364) , wherein it was held that an employee of the Norfolk Navy Yard was not de- prived of the benefits of the act because of the fact that the injury was received while he was engaged in construction work on the naval hospital, outside the limits of the navy yard. I have the honor to advise, therefore, that the claimant herein was employed in a manufacturing establishment within the meaning of the act of May 30, 1908. [In re claim of George WortMngton, Jan. 4, 1911 ; No. 5330.] The above claim is submitted to this office with special reference to the question whether the service in which claimant is employed is covered by the act of May 30, 1908. As the record did not show the character of work being carried on at the above place, the papers were returned to the War Department on December 1, 1910. There is now furnished a statement from the Quartermaster General, wherein he states " that a number of articles of quartermaster's supplies are manufactured at the Jeffersonville depot, and on this account it appears that the Jeffersonville depot may b& properly classed as a manufacturing establishment." While the foregoing statement furnishes very little information on the point submitted, yet it is clear that supplies of some character are manufactured at the depot, and the policy of this Department has been to give great weight to the views of other departments respect- ing the character and classification of establishments within their jurisdiction. (Case of R. L. Brown, C 34, Bu. 81.) Accepting the conclusion of the War Department in the present case, the Jefferson- ville depot must be taken. as a manufacturing establishment within the meaning of the act. See cases of George BeU (C 790, Bu. 2399) and James V. Nicholas (C 1636, Bu. 140). It is noted that claimant was a painter, engaged at the time of the injury in painting one of the buildings connected with the depot. This character of work, of course, can hardly be said to be that of actually manufacturing, but this is not essential. All that is neces- sary under the act is that the claimant be an artisan or laborer em- ployed as one of the force of a manufacturing establishment of the United States. (Blount case, C 36, Bu. 364.) As the general depot of the Quartermaster's Department at Jeffersonvillej Ind., appears to be a manufacturing establishment, I am of the opinion that uie serv- ice in which this daimant is employed is covered by the act of May 30, 1908, for which reason the claim should be allowed. OPINIONS OP SOLICITOR, DEPAETMENT OF LABOE. 127 10. A blacksmith shop, at which bolts, drills, and other articles and tools used in irrigation work are made and repaired, is a manufacturing establishment. [In re claim of H. L. Fenton, Nov. 22, 1900; No. 1571.] The above claim has been resubmitted to this office with special reference to the question as to whether the service in which the claim- ant was engaged at the time of his injury is covered by the act of May 30, 1908. The injured employee, while sharpening drill steel in the black- smith shop at Henry, Idaho, was struck in the right eye by a piece of hot steel. The eyeball was burned and blistered so as to deprive him of the use of the eye. In regard to what, if any, manufacturing was done at the blacksmith shop where the accident occurred, the superintendent of irrigation, in his letter dated September 7, 1909, has the following to say : The shop not only is used as a place for making necessary repairs, but as a place for manufacturing bolts, drills, and any other article or tool which may be required in the construction of the work at that point, and I believe that the blacksmith shop can properly be considered a manufacturing establishment within the meaning of the act referred to. This case is analogous to that of George W. Wygant (C 260, Bu. No. 725.). Wygant was a blacksmith, as was the present claimant, and after referring to the work performed by the said Wygant, which was similar to work done by Fenton, it was said : " From the above it will be seen that a considerable part of the work at this depot is the manufacturing and repair of materials, appliances, and vessels used in the work of the proper installation and maintenance of aids to navigation." The claim for compensation was allowed. However, it does not follow from what has been said above that every blacksmith shop is a manufacturing establishment. It depends upon the class of work that is regularly performed at such shop by the persons there employed. I am, therefore, of opinion, as above indicated, that the claimant was employed in a manufacturing estab- lishment within the meaning of the law and his claim for compensa- tion should be allowed. While the claimant may also be entitled to compensation for the further reason that, as stated by the superintendent of irrigation, he was engaged in employment in connection with irrigation matters, yet in view of the conclusion herein reached, it is not deemed neces- sary to consider whether the claimant was engaged "in hazardous employment on construction work in the reclamation of arid lands or the management and control of the same." 11, A storekeeper-gauger of the Internal-Revenue Service is not employed In a manufacturing establishment. [In re query of S. J. Roberts, Dec. 13, 1909 ; No. 2283.] A letter addressed by S. J. Roberts, collector of internal revenue, seventh district of Kentucky, to the Commissioner of Internal Rev- enue, under date of November 23, 1909, asking whether the act of 128 woekmen's compensation under act of may 30, 1908. May 30, 1908, applies to storekeeper-gaugers, is submitted to this office with the request for an opinion as to the question asked. The duties of a storekeeper-gauger are not set forth in the inquiry, nor is any fact stated which would indicate that their place of em- ployment might be considered a manufacturing establishment. They are under the Treasury Department, and, even though a storekeeper- gauger might be a laborer or artisan within the meaning of the term as used in the act, it would be necessary to show, in order to bring him within the act, that he is employed in a manufacturing estab- lishment, for all the other branches of the service to which the act can apply are under departments other than the Treasury. I do not understand that a storekeeper-ganger's place of employment can be regarded as a manufacturing establishment in any sense of the term. Furthermore, the Acting Secretary of the Treasury, in a letter dated August 6, 1908, replying to an inquiry from this Department as to what branches of the service under the Treasury Department might be affected by the act of May 30, 1908, said : I have the honor to say that the Bureau of Engraying and Printing, the United States mints and assay oflBlces, and the offices of the Assistant Treas- urers of the United States are believed to be the only bureaus or services of this department affected by the act. I am of opinion, therefore, that storekeeper-gaugers are not covered by the act of May 30, 1908. 12. A naval observatory is not a manufacturing establishment; nor Is it an arsenal or a navy yard. [In re claim of Jolin Lamkin, Mar. 8, 1910; No. 2922.] The above claim is submitted to this office with special reference to the question whether the place of service is covered by the act of May 30, 1908. The claimant was employed as a laborer at the Naval Observatory, Washington, D. C, and at the time of the injury was at work in the grounds. It is clear from the language of the act that unless the Naval Observatory may be regarded as a manufacturing establishment, an arsenal, or a navy yard, the artisans or laborers who may be em- ployed there do not come within its scope. It will not of course be contended that the place is an arsenal or a navy yard, and there is nothing in the record or in the act appropriating funds for its support which indicates that any manufacturing is carried on there. But even though some manufacturing is done there, it must, in the very nature of the case, be merely incidental to the main object of the Observatory, and not its principal business. See opinion in the case of William H. McAllister (C 880, Bu. No. 2297), in which it was held that the printing done at a local office of the Weather Bureau did not make such office a manufacturing establishment within the meaning of the compensation act. I have the honor to advise, therefore, that the Naval Observatory is not a manufacturing establishment within the meaning of the act of May 30, 1908, and that the claimant herein is not entitled to the benefits of the said act. OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 129 13. An employee of a manufacturing establishment is entitled to compensation though at work elsewhere at the time of injury. [In re claim of I. E. Melllng, Apr. 9, 1910; No. 3060.] This claim is submitted with special reference to the question " Is the service in which she was employed covered by the act " ? The record in this case shows that the claimant was an employee of the Bureau of Engraving and Printing and was temporarily detailed to work as a press feeder in the pressroom, Division of Issue, in the United States Treasurer's Office, under the Treasury Department. This office held in the Alfred Clark case that the Bureau of Engrav- ing and Printing was a manufacturing establishment within the mean- ing of the act of May 30, 1908, and artisans or laborers employed therein come within the said act. The above question is therefore raised by reason of the fact that the employee of the bureau was not at the time of the injury actually at work in the bureau, but was de- tailed to another branch of the service for work therein. A similar question was passed upon by this office in the case of Hinton Blount (C 36, Bu. No. 364) and others, employees of the Norfolk Navy Yard who were injured while at work at the United States Naval Hospital at Portsmouth, Va. In those cases it was held that such fact would not deprive the employees of the compen- sation, and I am of the opinion that the same principle is applicable to this case and that the claim should be allowed. 14. An electric light and power plant of an executive department at which ice is also made is a manufacturing establishment. [In re claim of Jacob Pyrah, July 15, 1910; No. 3970.] The above claim has been prepared for disapproval on the ground that the service in which claimant was employed is not covered by the act of May 30, 1908. The immediate report of the injury states that claimant was em- ployed in the " Interior Department ice plant " at Washington, D. C, and while so employed met with the injury which incapacitated him for performing the work of his employment. There is nothing in the record which shows. the nature or character of work carried on at this ice plant. The assumption would be that the work of an ice plant consists in the making of ice, in which event it would appear that the place of employment would come within that provision of the act which applies to artisans or laborers " in any of its manu- facturing establishments." In view of the lack of evidence in this respect, I have the honor to recommend the return of the papers to the Interior Department for a statement showing the character of the work at the ice plant. [In re claim of Jacob Pyrah, Sept. 28, 1910; No. 3970.] The above claim is submitted to this office with special reference to the question whether the service in which claimant was employed is covered by the act of May 30, 1908. 93364°— 15 9 130 wobkmen's compensation under act oe may 30, iyu8. An examination of the papers shows that claimant was injured while engaged in placing a new motor in position, which motor was to be used m connection with the ice plant of the Department of the Interior. In a letter dated July 22, 1910, from the chief engineer, addressed to the Secretary of the Interior, the duties of claimant in connection with the work he was performing at the time of the injury, and a description of the ice plant, are given as follows : Jacob Pyrah is one of the regular operating engineers of the electric light and power plant for this department, and on the day he received the injury he was engaged in erecting an electric motor which was to operate the compressor for the ice plant. As stated in the application, he was inserting an iron roller beneath the motor frame in order to roll same in position, and by a misunderstanding the motor was pushed over on his hand, thus injuring the thumb as described. The ice plant in this department is simply an auxiliary to the regular power plant and does not require a regular engineer to operate it ; but when repairs or improvements are required, it is the practice to detail one of the engineers on duty to perform this work. The work of handling the product of the ice plant is performed by the ordinary laborers in the department. When repairs or Improvements are neces- sary, skilled labor is absolutely required to obtain satisfactory results. Hence, the employment of the department engineers. From the foregoing it will be seen that claimant is employed as an operating engineer in the electric light and power plant of the In- terior Department, and that in addition to the making of light and power this plant has auxiliary machinery attached for the purpose of making ice. A factory or manufactory is defined in 12 American and English Encyclopedia, 706, as a building or collection of buildings appro- priated to the manufacture of goods. The words " manufacturing , establishment," as used in the Illinois factory act, has been defined to mean " any place where goods or products are manufactured or repaired, cleaned or sorted, in whole or in part, for sale or for wages." The process of manufacturing was said, in Lawrence v. Allen (7 How., 794), to be "making an article either by hand or machinery into a new form, capable of being used and designed to be used in ordinary life." At the place where claimant is employed as an artisan or laborer there are manufactured such products as light, power, and ice. Cer- tainly this clearly brings the place within the description of a manu- facturing establishment as defined under the Illinois act. The fact that in this case the product was not made for purposes of sale or for wages is immaterial, since it is no part of governmental functions to go into a business of that character, and Congress could not have so contemplated when enacting the compensation act. This conclusion does not appear to harmonize with a former ruling of this office, wherein it was held that an employee engaged in an ice plant located at a military post in the Philippine Islands was not entitled to compensation because he was not engaged in construction work on a fort or fortification. The question whether such ice plant was a manufacturing establishment does not appear to have been considered. In view of the foregoing, I am of the opinion that claimant is employed in a manufacturing establishment within the meaning of the compensation act, and, there being no other grounds of objection, the claim should be allowed. OPINIONS OF SOLICITOR, DEPAKTMENT OF LABOK. 131 15. A laboratory used only for making tests of materials is not a manufacturing establishment. [In re claim of H. J. Melssner, Jan. 10, 1911 ; No. 5537.] Papers having reference to an injury to Elmer J. Meissner, an employee of the Northampton Laboratory of the Bureau of Stand- ards, have been submitted to this office with a request for an opinion on the question whether the injured employee is entitled to com- pensation under the act of May 30, 1908, for time lost on account of said injury. In order to entitle an employee to compensation under the said act it is necessary that he be an artisan or laborer, and employed by the United States in a manufacturing establishment, arsenal, navy yard, or in the construction of river and harbor or fortification work, or in hazardous employment on construction work in the reclamation of arid lands, or the management and control of the same, or in hazard- ous employment under the Isthmian Canal Commission. As it was clear that the place of employment of the injured man did not come within the scope of any of the places mentioned in the act, except manufacturing establishments, a letter was addressed to the Bureau of Standards requesting information relative to the char- acter of work carried on at the Northampton Laboratory. This office is now in receipt of a letter from the acting director of the bureau, in which he gives the following information : The laboratory of the Bureau of Standards at Northampton is not a manu- facturing establishment, but a testing laboratory. In view of the fact that no manufacturing is carried on at the Northampton Laboratory, it is plain that the place of employment does not come within the scope of the act, for which reason the injured employee is not entitled to compensation for lost time. 16. The mail-bag repair shop of the Post Office Department, at which a variety of mail equipment is made, is a manufacturing establishment. [In re claim of M. A. Kennedy, Jan. 20, 1911; No. 5617.] The above claim is submitted to this office with special reference to the question whether the service in which claimant is employed is covered by the act of May 30, 1908. From the papers in the case it is noted that claimant is employed as a machine operator in the mail-bag repair shop under the Post Office Department, and the question, therefore, arises whether the claimant is employed in a manufacturing establishment of the United States. Under date of July 20, 1908, the Secretary of Commerce and Labor addressed a letter to the Postmaster General inquiring as to which of the employees of that department came within the scope of the compensation act, and in a letter in reply thereto, dated August 18, 1908, the Acting Postmaster General made the following statement : You are informed that the only employees of the Post OflSce Department who come within the scope of this act are the mechanics and laborers in the mail- bag repair shop and mall-lock repair shop. 132 woekmen's compensation under act op may 30, 1908. In a letter dated December 9, 1910, the Acting Secretary of Com- merce and Labor requested the Postmaster Ganeral to furnish a statement showing the nature of the work done at the mail-bag repair shop, and in reply thereto, under date of January 9, 1911, the Postmaster General advised " that the work performed in that branch of the postal service comprises the general overhauling and repair of mail equipment and the manufacture of such distinctive equipment as is required for use by other executive departments and the service in Alaska, Porto Rico, the Philippine Islands, and Hawaii." While the record does not show the exact nature of the articles manufactured at the mail-bag repair shop, it is positively stated by the head of the department that certain articles are manufactured there. The policy of the department, as indicated in the cases of E. L. Brown (C 34, Bu. 81) and George Worthington (C 5330, Bu. 11013), has been to give much weight to the views of the heads of other departments respecting the character and classification of establishments under their control; and I am of opinion that the conclusion reached by the head of the Post Office Department, that the mail-bag repair shop is a manufacturing establishment, may be accepted as conclusive of that fact. 17. The mechanical plant of the Smithsonian Institution, at which steam power and electric light are generated, and cases, cages, and museum furniture are made, is a manufacturing establishment. [In i-e claim of Albei-t Strong, Jan. 23, 1911 ; No. 5651.] The above claim is submitted to this office with special reference to the question whether the service in which claimant is employed is covered by the act of May 30, 1908. Claimant is employed as a coal passer in the engine room of the mechanical plant, under the Smithsonian Institution, and, in a letter dated January 16, 1911, the Secretary of the Institution states that the " plant generates steam and the electric current used for light and power purposes for the Smithsonian Institution and its branches." It is also stated in the same letter that " it is believed that this plant, which manufactures electricity for light and power purposes * * * is properly within the provisions of the act of May 30, 1908." In a letter dated July 31, 1908, the Acting Secretary of the Institu- tion advised the Department of Commerce and Labor that certain employees therein described probably came within the act — setting forth that the men were engaged in building cases and other museum furniture, constructing roofs, cages, walls, and similar work. From the foregoing description of the work performed under the Smithsonian Institution it is perfectly clear that a portion of the same consists of manufacturing. In the Pyrah case (C3970, Bu. 8855) claimant was employed as an engineer in the electric light and power plant of the Interior Department, which plant also had aux- iliary machinery attached for the purpose of making ice. In reach- ing a decision as to whether the place of employment was covered by the compensation act, it was said : Thus, It will be noted that at the place where claimant is employed as an artisan or laborer there are manufactured such products as light, power, and ice. OPINIONS OF SOLICITOK, DEPARTMENT OF LABOE. 133 Certainly this clearly brings tlie place within the description of a manufactur- ing establishment as defined under the Illinois act. A comparison of the character of work performed at the Smith- sonian Institution with that performed at the Interior Department plant shows that it is identical in many respects, and in view of this fact I am of the opinion that claimant is employed in a manufactur- ing establishment within the meaning of the compensation act, for which reason the claim should be allowed. 18. A carpenter and machine sho^ connected with an Indian industrial school at which Mission furniture is made is a manufacturing establishment. [In re claim of F. A. P. Clarke, Dec. 4, 1911 ; No. 7659.] This claim is submitted with reference to the question whether the service in which decedent was employed is covered by the act of May 30, 1908. The nature and character of the work upon which decedent was engaged is fully shown in a statement dated November 24, 1911, from the official in charge, and which is as follows : I, Clinton J. Crandall, sr., superintendent of the United States Indian Indus- trial School, situated 2 miles out from the city of Santa Fe, N. Mex., do hereby certify that I have been the superintendent of said school since February 26, 1900. That within the past five years I have equipped a shop with ma- chinery and have manufactured more or less Mission furniture. That F. A. P. Clarke, carpenter, from March 2, 1911, till his accidental death, October 15, 1911, was in full charge of the shop in which furniture was manufactured and that he was foreman and supervised the Indian boys in the manufacture of this Mission furniture. From this statement it is seen that decedent was the foreman in charge of a shop equipped with machinerj'^ for the purpose of ^manu- facturing Mission furniture, therefore it appears that the service in which he was engaged properly comes within that provision of the act requiring that an artisan or laborer must be employed in a manu- facturing establishment in order to be entitled to the benefits of the act. (C 3970, B 8855; C 3415, B 7626; C 1502, B 3718; C 1571, B 1913.) As the claim appears in all other respects to be a proper one, I have the honor to recommend that it be approved for payment. 19. An aqueduct and filtration plant, the function of which is to collect, purify, and deliver city water, is not a manufacturing establishment. [In re claim of J. W. Schlosser, Jan. 10, 1912; No. 7799.] This claim is submitted with the inquiry whether the service in which claimant was employed is covered by the act of May 30, 1908. At the time of the injury claimant was employed at the Dalecarlia Reservoir of the Washington Aqueduct, under the control and super- vision of the Engineer's Office of the War Department. The nature of the branch of the service in which he was employed and the char- acter of the work performed by him in that connection will be more 134 workmen's compensation under act of may 30, 1908. fully understood from a perusal of the following statement, made by the official in charge of the work : Mr. Schlosser was employed on work in connection with the operation of the Washington Aqueduct and Filtration Plant, from which Is furnished the water used for the purposes of the General Government within the District of Colum- bia, and also for the needs of the inhabitants of the District, the cost of operat- ing being paid for one-half from the revenues of the District of Columbia and one-half from the revenues of the United States. The operation of the filtration plant and aqueduct does not seem to be connected with any of the branches of the service mentioned in section 1 of the compensation act, and whether or not it could be considered a manufactur- ing establishment of the United States would .seem to be a matter for decision by the legal branch of the Government. The function of the two Is to collect, purify, and deliver water to the city. It does not appear from the foregoing description of the service in which claimant was employed that the same is included in any of the branches of service specifically enumerated in section 1 of the compensation act, nor does it appear that any of the work performed at the place will bring it within the classification of manufacturing establishments. The question whether a waterworks company is a manufacturing establishment has been considered by the courts. In a Massachu- setts case it was held that a statute exempting the machinery of manufacturing corporations from certain taxation will not exempt an aqueduct company which supplies water to a city, and it was said : Neither in a popular nor a legal sense is there any such use of the term "manufacturing company" as would include the functions of an aqueduct company or describe the distribution of pure water as a branch of manufac- ture. (100 Mass., 183.) It was also held (62 Ind., 63) that "the term 'manufacturing cor- poration,' * * * authorizing the incorporation of such com- panies, does not include a waterworks company." (See vol. 5, Words and Phrases, p. 4358.) In view of the foregoing I am of the opinion that the inquiry submitted must be answered in the negative and the claim accord- ingly disapproved. 20. The carpenter shop in the quartermaster's shop at the United States Military Academy, West Point, N. Y., is a manufacturing establish- ment. [In re claim of Eli McCreery, Oct. 26, 1914.] This claim is submitted with the inquiry whether claimant is em- ployed in a manufacturing establishment within the meaning of the act of May 30, 1908. It appears from the papers in the case that claimant is employed as a carpenter in the quartermaster's shop at the United States Mili- tary Academy at West Point, N. Y. Thus it is seen that claimant is employed at the Military Academy at West Point, N. Y., and as it was held in the Mackay case (Op. Sol., 136) that this place was not an arsenal under the act the claimant would not be entitled on that ground. It was then subsequently shown that Mackay was em- ployed as a carpenter in the construction of a bridge in connection with improvements in the West Point water-supply system. As this character of work obviously did not come tmder the places of em- OPINIONS OP SOLICITOR, DEPARTMENT OF LABOR. 135 ployment covered by the act, it was again held (Op. Sol., 176) that the place of employment was not covered by the act. The record in the above-mentioned case did not show whether claim- ant was employed in some particular branch of the service which might be covered by the act by reason of any manufacturing which might be carried on therein, and indeed this phase of the (question does not appear to have been raised. Taking the proposition as a whole it may well be said that the West Point Military Academy as such is not one of the establishments covered by the act, for the principal work carried on there is in the nature of military instruc- tion, and no one will contend that this branch of Government service was included. But the question arises, are there in any of the minor departments of that service any such branches as are enumerated in the act. This is not a new or novel proposition, for the construction of the law was early adopted in a number of cases that such branches could be included, even though the whole department was not. For instance, in one case it was held that the Bureau of Engraving and Printing was a manufacturing establishment, which bureau was a subsidiary branch of the Treasury Department. While it could not well be said that the Treasury Department as a whole was a manu- facturing establishment, and all artisans or laborers included be- cause of the fact that manufacturing was carried on in one of its bureaus, yet it was held that the bureau was a manufacturing estab- lishment within the meaning of the act and that all artisans or laborers employed therein were entitled to the benefits of the act. Applying the same reasoning to the present case we find from the record that this claimant is employed in one of the various subsidiary branches of the service under the management and control of the West Point authorities. Some of the places are known as " carpenter shop," "tin shop," "blacksmith shop," and "plumber shop." This claimant was employed in the " carpenter shop," which shop has the following power machinery for the purpose of carrying on its work : 1 rip saw, 1 cross-cut saw, 1 boring and mortising machine, 1 univer- sal woodworker, 1 planing machine, 1 sanding machine, 1 friezing and molding machine, 1 saw-sharpening machine, 1 lathe, and 1 grindstone. The nature of the work performed is shown to be "keeping in repair all the buildings, on the post, comprising the making of sash, shelves, closets, doors, renewing floors, roofs, and similar work, and building additions to quarters and erecting small structures where the work can be done more economically by the hire of civilian labor than would be the case if let by contract." As it has been frequently decided that one branch of a department or bureau may be within the act while the department or bureau as a whole would not be covered, it would seem that the same principle would apply in this case. Further instances of cases of this character may be cited in that of a carpenter shop in the Indian school at Pine Eidge, S. Dak., and Santa Fe Indian Industrial School in New Mexico, as well as in that of the carpenter shop of the National Museum in the Smithsonian Institution at Washington, D. C. From a consideration of the foregoing I am of the opinion that claimant is employed in a manufacturing establishment within the meaning of that term as used in the act of May 30, 1908, and that the claim otherwise being a proper one should be approved. 136 workmen's compensation under act of may 30, 1908. v. "arsenals." 1. The Military Academy at West Point is not an arsenal. [In re claim of Finlay Mackay, Oct. 14, 1908 ; No. 22.] The claimant in this case is a carpenter, and at the time of the injury, August 27, 1908, was employed by the United States in the construction of an arch bridge in connection with improvements in - the West Point water-supply system. The injury was not due to any negligence or misconduct on the part of the claimant, and no doubt is entertained as to the justice of the claim, if the terms of the statute may be construed so as to cover the particular work on which he was engaged and the place of his employment. The claimant was employed by the United States as an artisan, but does the statute embrace such a person working on the improvement of the water-supply system at West Point? Certainly not, unless the West Point Military Academy may be regarded as an " arsenal " or the work on the water-supply system there may be regarded as the " construction of river and harbor or fortification work." Remedial statutes of the character of the act under consideration are to be con- strued liberally in favor of the class of persons whom they were intended to benefit. The executive officers of the Government, how- ever, are not justified in going beyond the terms of the statute to include cases not covered thereby. In construing the act of February 1, 1901, granting leaves of absence to employees of the navy yards, gun factories, naval stations, arsenals, etc., the Attorney General held (23 Op. At. Gen., 443) that the word " arsenals " covered ordnance depots and the National Armory. But the Military Academy is in no sense an " arsenal," even though arms and ammunition may be kept there. It is not a place for their storage. It can not be regarded as an arsenal any more than any military camp where arms and ammunition are kept may be so regarded. The particular work on which the claimant was engaged at the time of the injury happened to be on the river bank or over the water of the river. But this does not, in my opinion, bring the case within the language " construction of river and harbor or fortification work." This language evidently has reference to the- work contemplated and provided for in the river and harbor appropriation acts. I am of opinion, therefore, that the terms of the injured employees' compensation act are not broad enough to cover the claim here pre- sented, and recommend that it be disallowed. 2. Carpenter work on an ice house for Tort Bobinson, a mile distant, is not work in an arsenal. [In re claim of J. P. Olson, May 19, 1909 ; No. 1112.] This case is submitted with reference to the question whether claimant's occupation comes within the scope of the act of May 30, 1908. Olson was a carpenter and was injured while employed in re- building a Government ice house about IJ miles from Fort Eobinson, Nebr. OPINIONS OP SOLICITOE, DEPARTMENT OP LABOK. 137 According to the Standard Dictionary, an arsenal is " a repository for arms and munitions of war ; also, a public establishment for their manufacture; an armory." The word " arsenal " has a common and well understood meaning. Certain establishments are regularly appropriated for and easily recognized under that designation. It is presumed that Congress in using the word "arsenals ' in the compensation act intended it to cover only such establishments. A fort or military post does not become an arsenal by reason of the mere keeping of the arms and ammunition needed for current operations. Therefore it can not work to sanction the designation of such a place as an arsenal. VI. "NAVY YARDS." 1. A navy-yard employee, though injured while at work on a naval hospital outside the yard, is employed in a navy yard. [In re claim of Hlnton Blount, Oct. 17, 1908 ; No. 36.] I have examined the above claim, submitted to this ofBce with special reference to the question as to whether the class of work on which the claimant was engaged comes within the provisions of the act of May 30, 1908. The claimant is an employee of the United States, stationed at the Norfolk Navy Yard. His work is done under the direction of the oflScers in charge of the Norfolk Navy Yard. In reaching this department through regular official channels, the claim comes from the Norfolk Navy Yard. The claimant was employed as a laborer in a navy yard, within the meaning of the statute. The fact that at the time of the accident he was employed in construction work on the naval hospital, outside the limits of the navy yard, does not operate, in my opinion, to deprive him of the benefits of the act. 2. The Naval Academy at Annapolis, in accordance with the organization and nomenclature of the Navy Department, is a navy yard. [In re claim of E. L. Brown, Dec. 26, 1908 ; No. 34.] The above claim is submitted to this office with special reference to the question as to whether the work on which the claimant was engaged at the time of the accident comes within the provisions of the act of May 30, 1908. The claimant at the time of the injury, September 2, 1908, was employed by the United States as a laborer on the foundations of buildings which are being erected for shops at the Naval Academy at Annapolis. The injury was not due to his own negligence or mis- conduct, and he was incapacitated for a period of more than 15 days. The only branches of the service under the Navy Department to which the act can apply are "manufacturing establishments" and " navy yards." The character and location of the work on which the claimant was engaged precludes the possibility of its being in a " manufacturing establishment." The question presented, therefore, 138 wobkmen's compensation tjndek act of may 30, 1908. is whether the Naval Academy at Annapolis may be regarded as a ''navy yard" v^ithin the meaning of the term as used in the act. This question involves an understanding of the executive machinery of the Navy Department and the use of terms employed by that department in referring to its various branches. That this depart- ment might be reliably informed regarding these matters, a letter was addressed to the Secretary of the Navy requesting a statement in this regard. Under date of December IT, 1908, the Secretary of the Navy replied, giving a very lucid explanation of the workings of the department at large. It appears from this letter that the line of demarcation between a " navy yard," a " naval station," and some other branches of the service can not definitely be drawn. Referring to navy yards and certain places known as naval stations, the Secre- tary of the Navy says : They are governed by the same regulations, commanded by the same class of officers, have the same general organization, and are supported by appropria- tions made in the same manner. In a paragraph in the current act making ap- propriations for the naval service the establishment at New Orleans is referred to both as a naval station and as a navy yard. The phrase " naval station " is also applied to a place under naval jurisdic- tion where men are assembled for training or other purposes and military duties and discipline are imposed, as the naval training station at Newport, R. I., or North Chicago, 111. A coal depot has also been regarded as a naval station. ******* The Naval Academy is essentially an institution for the Instruction of mid- shipmen. The accommodation and repair of vessels and the laying up of war material form no part of its purpose, any facilities it may have to these ends being limited merely to its own needs. It is, however, regarded as a naval sta- tion in the sense in which that expression is applied to a place where persons in the naval service are assembled and are subject to military duties and disci- pline; and, as indicated above, this department believes it to be a navy yard within the meaning of the act of May 30, 1908. The Superintendent of the Naval Academy has been held by the department to be the commandant of a naval station within the meaning of the act of January 25, 1895 (28 Stat., 639), authorizing commandants of naval stations to administer oaths for certain naval purposes. I know of no better authority as to what constitutes a navy yard, as that term is used by Congress and the executive branch of the Government, than the head of the Navy Department, and, following the opinion expressed by the Secretary of the Navy, I have to advise that the Naval Academy at Annapolis is a navy yard within the meaning of the act of May 30, 1908. 3. A gardner at a naval training station is an employee of a navy yard. [In re claim of J. H. Pangburn, Dec. 26, 1908 ; No. 131.] The claimant is employed as a gardener at the naval training sta- tion. North Chicago, 111. On October 2, 1908, while in the perform- ance of his duties and without negligence on his part he received an accidental injury which incapacitated him for more than 15 days. His claim is submitted to this office with special reference to the ques- tion whether his employment at a naval training station brings his injury within the provisions of the act of May 30, 1908. In my opinion in the case of R. L. Brown (Dec. 26, 1908, C 34, Bu. No. 81), I quoted from a letter from the Secretary of the Navy OPINIONS OF SOLICITOE, DEPAETMENT OF LABOR. 139 to the effect that there is no definite and essential difference between a navy yard and a naval station, and in that part of the letter quoted is the following paragraph : The phrase " naval station " is also applied to a place under naval jurisdiction where men are assembled for training or other purposes and military duties and discipline are imposed, as the naval training station at Newport, R. I., or North Chicago, 111. A coal depot has also been regarded as a naval station. Here the naval training station at North Chicago, 111., is referred to as a naval station, and, following my opinion in the Brown case, .above referred to, I have to advise that the place of employment of the claimant herein brings his injury within the scope of the act. 4. A laundress at a naval home — an asylum for disabled Wavy officers, seamen, and m.arines — ^is not employed in a navy yard. [In re claim of Clara Carey, Jan. 5, 1909 ; No. 269.] The claimant was, on August 25, 1908, employed as a laundress at the United States Is aval Home, at Philadelphia, when, in the course of such employment and without negligence or misconduct on her part, she was accidentally injured by having her right hand drawn in between the rollers of a mangle. The claim is submitted to this office with special reference to the question whether the claimant's occupation falls within the scope of the act of May 30, 1908. This depends on whether the naval home may be regarded as being a part of or as belonging to a navy yard within the meaning of the term as used in the act. The naval home had its origin in the act of Februray 26, 1811. (2 Stat., 650; sees. 4810 and 4811, R. S.) It is an "asylum for disabled and decrepit Navy officers, seamen, and marines." It is governed in accordance with rules and regulations prescribed by the Secretary of the Navy as provided by section 4811 of the Revised Statutes. These rules and regulations place the naval home under the supervision and direction of the Bureau of Navigation, subject to the control of the Secretary of the Navy. The executive officer of the institution is the governor, who makes his reports direct to the Bureau of Navigation. The commandant of the Philadelphia Naval Station has no authority or jurisdiction over the naval home. So it appears that the home is no part of the naval station, and can not in any sense be regarded as a navy yard within the meaning of that term as used in the act. 5. An employee at a naval station, also designated a coaling depot, is employed in a navy yard. [In re claim of C. A. Burke, Jan. 16, 1909 ; No. 352.] The above claim is submitted to this office with special reference to the question whether the claimant's occupation falls within the scope of the act of May 30, 1908. There is no question but what the claimant is a laborer employed by the UnitSd States, that he was injured in the course of such employment without negligence or misconduct on his part, and that the injury continued for more than 15 days. The particular ques- 140 workmen's compensation under act of may 30, 1908. tion presented is, therefore, Does the naval coal station at California City Point come within the meaning of the term "navy yard" as used in the act? As stated in my opinion in the case of E. L. Brown (Dec. 26, 1908; C 34, Bu. No. 81 ) , " I know of no better authority as to what consti- tutes a navy yard, as that term is used by Congress and the execu- tive branch of the Government, than the head of the Navy Depart- ment." In the letter written by the Secretary of the Navy under date of December 17, 1908, and addressed to the Secretary of [Com- merce and] Labor, the Secretary of the Navy said : In response I have the honoi' to state that, as the act referred to is a bene- ficial statute and therefore to be construed liberally, this department does not regard the term " navy yard " as employed therein as having been used in a narrow or technical sense, but rather as applicable generally to stations under naval jurisdiction where artisans or laborers are employed in the prosecution of the worlc of the Naval Establishment. * * * A coal depot has also- been regarded as a naval station. Inasmuch as a coal depot is to be regarded as a naval station, and inasmuch as it is such a station as where artisans and laborers are employed in the prosecution of the work of the Naval Establishment, I am of opinion that the claimant's place of employment falls within the provisions of the act. 6. The naval experiment station at Annapolis is a navy yard. [In re claim of F. S. Bullard, Get. 29, 1909 ; No. 1853.] The above claim is submitted to this office with special reference to the question as to whether the service in which the claimant was employed is covered by the act of May 30, 1908. The claimant at the time the accident occurred was employed as a machinist at the United States Naval Experiment Station, which is located near Annapolis, Md., and was " unloading condenser from scow to wharf at experiment station." In the case of R. L. Brown (C 34, Bu. No. 81), where the question as to what constitutes a navy yard was considered, the Naval Academy was held to be a navy yard within the meaning of the law. However, as it was not clear that the United States Naval Experiment Station was a part of the Naval Academy it was thought proper to request the Secretary of the Navy to advise this ofiice whether it is regarded as a part of the Naval Academy by his department. The Acting Secretary, in his letter dated October 25, 1909, after reviewing sev- eral acts of Congress in which the experiment station is included in the appropriations for the Naval Academy, concludes as follows: In view of this legislation it would appear that the station, though appro- priated for under the Bureau of Steam Engineering, is intended by Congress to be n part of the Naval Academy, and in the administration' of its affairs it is considered and treated as such. This department Is accordingly of opinion that in the execution of the act of May 30, 1908, above cited, the naval experi- ment station should be regarded as a part of the Naval Academy. In the R. L. Brown case, supra, it was said : I know of no better authority as to what constitutes a navy yard, as that term is used by Congress and the executive branch of the Government, than the head of the Navy Department, and, following the opinion expressed by the OPINIONS OP SOLICITOR, DEPAETMENT OF LABOR. 141 Secretary of the Navy, I have to advise that the Naval Academy at Annapolis is a navy yard within the meaning of the act of May 30, 1908. As above indicated, I am of opinion that an employee of the United States Naval Experiment Station is an employee of a navy yard within the meaning of the law, and that the service in which the claimant was employed is covered by the act. VII. " IN THE CONSTEUCTION OF KIVEE, AND HABBOB OB FOETIFICATION WOBK." 1. An artisan repairing cables in the underground electric system at Fort Adams is engaged in the construction of fortification work, which refers to work authorized by the fortification appropriation acts. [In re claim of H. F. Buzby, Oct. 28, 1908 ; No. 70.] The above claim is submitted to this office with special reference to the question whether the claimant's occupation and his place of em- ployment bring him within the provisions of the act of May 30, 1908. By its terms the act applies to artisans employed by the United States in the construction of fortification worlc. The claimant was employed by the United States as an electrician, and at the time of the accident was engaged in repairing cables in the underground electric system at Fort Adams, E. I. This work was being done under the direction of the Engineer Office of the War Department, and, I assume, was work authorized by the fortifications appropria- tion act of May 27, 1908 (35 Stat., '392). The bill which finally became the act now under consideration did not, as it first passed the House, provide for employees on fortification work. It provided for employees in the construction of river and harbor work, and the Senate (p. 6986, vol. 42, Cong. Eecord) amended the bill by inserting the words " or fortification." The amendment was agreed to without debate. However, it is apparent that the purpose was to make the bill apply to those works provided for in the fortifications appro- priation acts as well as those provided for in the river and harbor appropriation acts. The word " construction " is broad enough to cover repairs. I am of opinion, therefore, that the benefits of the act extend to the occupation and place of employment of the claimant. 2. Carpenter work on an ice house for Fort Bobinson, a mile distant, is not done in the construction of fortification work; the " construction " of such work does not include the erection of an ice plant. [In re claim of J. P. Olson, May 19, 1909 ; No. 1112.] This case is submitted with reference to the question whether claimant's occupation comes within the scope of the act of May 30, 1908. Olson was a carpenter and was injured while employed in rebuild- ing a Government ice house about 11 miles from Fort Robinson, Nebr. ' 142 workmen's compensation under act op may 30, 1908. A fort is "a single inclosed work capable of independent defense, either a detached outwork of a fortress or a fortified inclosure mount- ing guns for the defense of a town or the command of an entrance or passage; any fortification having a scarp and ditch, parapet, stock- ade, or the like, held by a garrison." Fort and fortress are synony- mous. A fortress is " a large permanent fort or a fortified place " ; "castle, citadel, fortification, stronghold. Fortification is the gen- eral word for any artificial defensive work. * * * Fort is the common military term for a detached fortified building or inclosure of moderate size occupied or designed to be occupied by troops." "A fort is something more than a mere military camp, post, or sta- tion, such as are usually established and occupied for a few years on the border between new settlements and the wild Indian tribes." (U. S. V. Tichenor, 12 Fed., 415, 424.) The act of May 30, 1908, provides for compensation to artisans or laborers of the United States employed in its manufacturing estab- lishments, arsenals, or navy yards, or in the construction of river and harbor or fortification work, etc. This entitles all employees who work in the manufacturing establishments, arsenals, or navy yards of the Government to compensation for injuries, but does not pro- vide for compensation to employees in forts already constructed — merely to employees engaged in the construction of forts and forti- fication work. This carpenter was building an ice house a mile and a half from the post at Fort Kobinson, Nebr., a fort or military post already constructed. This" ice house can not he said to add anything to the fortification of the fort itself any more than the opening of a coal mine or the planting of a garden, for example, in the vicinity of the post, for the convenience or advantage of the garrison, would be considered fortification work. It is my opinion that claimant does not come within the scope of the act and should not be com- pensated. [In re claim of C. E. Cale, July 12, 1909 ; No. 1423.] This case is submitted with special reference to the question whether the service in which decedent was employed is covered by the compensation act. Cale was employed as an engineer of the ice plant at the military post of Camp Wilhelm, Tayabas, P. I. The compensation act specifically provides for compensation only to injured artisans or laborers employed by the United States in any of its manufacturing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortification work or in hazardous employment on construction work in the reclamation of arid lands or the management and control of the same, or in hazard- ous employment under the Isthmian Canal Commission, and, by inference, excludes all other classes of employees. In the case of Olson (C 1112, Bu. No. 3415), a carpenter engaged in building an ice house near Fort Robinson, Nebr., compensation was denied, and in rendering the opinion the following was said : The act of May 30, 1908, provides for compensation to artisans or laborers of the United States employed * * * in the construction of river and harbor or fortification work, etc. This entitles all employees who work in the manu- facturing establishments, arsenals, or navy yards of the Government to com- pensation (or injuries, but does not provide (or compensation to employees lu OPINIONS OF SOLICITOH, DEPARTMENT OF LABOB. 143 forts already constructed — merely to employees engaged in the construction of forts and fortification work. Cale was not engaged in construction work of a fort or fortifica- tion, and he can not possibly be classed among the others provided for in the act, and therefore it is my opinion that he should not be compensated. 3. A machinist working on gun carriages at a seacoast fortification, though under the Ordnance Department rather than the Engineer Department, is engaged in the construction of fortification work. [In re claim of J. B. Moore, Aug. 4, 1909 ; No. 1108.] The above claim was first considered by this office in an opinion dated June 5, 1909, in response to which additional information was obtained. From the evidence now presented, it appears that the claimant is a man over 54 years of age. He has for some years been employed under the Ordnance Department of the War Department, and during February of this year he was employed as resident ma- chinist on the seacoast fortifications at Fort Caswell, N. C, at a salary of $100 per month. The character of this work requires strength and agility, and it was realized that the claimant's physical condition, due partly, perhaps, to age, was gradually impairing his efficiency, and it was the intention of his superior officer to transfer him, when opportunity afforded, to a position less exacting as to strength and agility and at less pay. The claimant's conscien- tiousness and zeal are highly spoken of by his superior officer. On February 4, 1909, while engaged in taking measurements on gun carriage at Fort Caswell, he slipped and fell across a steel shaft, causing a hernia. He was unable to work any more that day. The next morning he returned to work, and he worked off and on until March 31, inclusive, but all the time lost from work, about six full days, was charged to annual leave, for which he received pay. There is nothing in the record to show that this leave was made necessary by the hernia. But whether it was or not, the fact remains that the claimant received full pay at $100 per month to and including March 31, 1909. On April 1, 1909, the claimant was transferred from his position as resident machinist on seacoast fortifications at Fort Caswell at $100 per month to machinist at the arsenal at Augusta, Ga., at $2.50 per day. This transfer and reduction of pay was not brought about directly or indirectly by lack of capacity which developed after Feb- ruary 4, 1909. On the one hand it appears that the official superiors of the claimant had long intended to make some such change when opportunity offered, the reason given being that the claimant, on account of his age and deafness, had for a year or more been re- garded as "physically unfit for the duties of resident machinist at $100 per month." On the other hand, the claimant states that he re- quested the transfer because he had to live at Southport ; that if he could liave lived at Fort Caswell he would not have asked for the transfer. However this may be, the change appears to have been mdependently of any incapacity caused by the agcident of February 4, 1909, or the hernia which resulted therefrom. 144 workmen's compensation tjndeb act oe may 30, 1908. The claimant did not begin actual work at the Augusta Arsenal until April 3. He was paid for April 1 as traveling under orders. For April 2 he was paid as part of annual leave. He worked on April 3, for which he was paid his per diem. He did not work or receive pay for April 4, as it was Sunday, and he was then being paid by the day. On the 5th and 6th of April he was absent from work, but was paid for both of these days as part of annual leave. He worked and received his pay for April 7 and 8, since which time he has neither worked nor been paid. He claims that his present incapacity is due to the accident at Fort Caswell on February 4, and asks compensation from April 9, 1909, inclusive, at $100 per month. It will be seen by the above statement that the accident which caused the injury occurred while he was working as an artisan on the seacoast fortifications at Fort Caswell, and that the injury caused immediate incapacity for work, lasting a portion of a day. Thus, notwithstanding the fact that no reduction in his pay was made on account of the time lost on the date of the accident, it was on that date that he received such an injury as is contemplated by the first section of the act of May 30, 1908. (See opinion of July 28, 1909, in the case of William Bowen, C 349, Bu. No. 1563.) As this injury has caused more than 15 days of incapacity it is suf&cient to bring the claim within the act, so far as the time is concerned, and it is not necessary to consider at this time whether the 6 days' absence from work which occurred in February and March, and for which he was paid, was caused directly by the injury or whether the leave was taken for other reasons. The claimant can not be paid compensation and salary for the same time. (See Comptroller's decision of Dec. 26, 1908, in the case of Patrick H. Shanley.) The only question remaining to be considered is. Was the claimant's occupation at the time of the injury such as is covered by the statute? In my opinion of June 5, 1909, in this case, I expressed a doubt as to whether work on the "seacoast fortifications" might be con- sidered as " construction of river and harbor or fortifications work " within the meaning of the act, and in response to an inquiry as to the character of the work on which the claimant was employed, the Acting Chief of Ordnance, in an indorsement under date of July 15, 1909, says: While the work of the claimant on " seacoast fortifications " is not considered in any way connected with construction of fortification work which is usually carried on under the direction of the Engineer Department, it is nevertheless true that his work was connected with that portion of the fortification work, i. e., armament work, which is usually carried on under direction of the Ordnance Department. The carriages upon which these heavy guns are mounted being permanently fixed to the fortifications form an essential part of such permanent fortifications, and it is believed that the claimant may properly be regarded as performing work on fortifications under the provisions of the act of May 30, 1908. It appears from the above statement that the gun carriages are permanent fixtures of a fort. The fortification construction work is not completed, therefore, until the gun carriages are placed in position. Although the placing of the gun carriages is under the Ordnance Department, it is as much a part of the construction work fis the stonework which is done under the Engineer Department. OPINIONS OF SOLICITOE, DEPABTMENT OF LABOR. 145 For the reasons above indicated, I have the honor to advise that, within the meaning of the law, the claimant was injured on Febru- ary 4, 1909, while employed by the United States upon construction of fortification work. 4. A laborer employed under the Army Quartermaster Department, haul- ing dirt in grading operations for new buildings for officers' quarters, is not engaged in the construction of fortification work. (See case of John T. Kearney, at p. 147, overruling this case.) [In re claim of James Ryan, Oct. 20, 1909 ; No. 1747.] The above claim was formerly submitted to this office with special reference to the question as to whether the service in which the de- ceased employee was engaged was covered by the act of May 30, 1908. At that time it was thought proper to request that additional infor- mation be furnished as to the character of the work upon which Mr. Eyan was employed at the time of the accident in order that no injustice might be done. The deceased employee was driving a dump wagon filled with dirt along the edge of a bank. The wagon slipped down the bank, and in attempting to jump he was caught underneath the wagon and crushed to death. The following is an indorsement from the Quartermaster Department : Respectfully returned to the chief quartermaster. Department of Missouri, Omaha, Nebr., with the information that the late James Eyan was employed as teamster in the Quartermaster Department at this post (Fort Leavenworth, Kans.), and his regular duties were driving team for Quartermaster Depart- ment. At the time of his death he was hauling dirt In connection with grading site for new buildings (officers' quarters) being erected. Employees in the War Department, to come within the scope of the act, must be employed in a manufacturing establishment, an arsenal, or in the construction of river and harbor work, or fortification work. It is very clear from the above indorsement that the decedent was not employed in a manufacturing establishment or an arsenal. In the case of John Bland Gray (C 234, Bu. No. 627), which is similar to this case,- it was said : The only branches of the service under the War Department to which the act can apply are manufacturing establishments, river and liarbor work, fortifica- tions work, and arsenals. The arsenals are a part of the Ordnance Department, and the river and harbor and fortifications work is done undei> the Engineer Department, so I conclude that a claim coming from the Quartermaster De- partment could not be connected with an arsenal or river and harbor or fortifi- cations work. Unless, therefore, the claimant was employed In a manufncturing establishment under the Quartermaster Department the act does not apply to him. Whether there may be a branch of the service under the Quarter- master Department which could be classed as a "manufacturing establish- ment " it is unnecessary to determine at this time. The record shows that the claimant was employed in "hauling and trucking hay and oats from car to dock " at the time of the accident. It is apparent from this that the work was not done at a manufacturing establishment or in connection with a manu- facturing establishment. I am therefore of opinion, as above indicated, that the service in which the deceased employee was engaged is not covered by the act and that the claim must be disallowed. 93364°— 15 10 146 workmen's compensation under act op may 30, 1908. 5. A military post, called a fort though, unfortified, is not a fortification. Work of maintenance end upkeep of a fort, such as painting, is not work of construction. (See case of John T. Kearney, at p. 147, over- ruling this case.) [In re claim of W. E. Burgess, Apr. 16, 1910; No. 2834.] The above claim is submitted to this office with special reference to the question whether the occupation of the deceased employee comes within the scope of the act of May 30, 1908. It appears from the record that Mr. Burgess was, at the time of the accident which caused his death, engaged in painting electric- light poles at Fort Meade, S. Dak. In order to bring this claim within the purview of the act, it must be held that Fort Meade is a fortification and that the painting of the electric-light poles there constitutes construction work of the fortification within the meaning of the statute. This claim, comes through the Quartermaster Department of the War Department, and the Quartermaster General, under date of February 5, 1910, wrote the following indorsement : The deceased was not employed in the construction of river and harbor work nor in an arsenal, nor does this office believe his employment in the post paint shop could be construed as being in a manufacturing establishment. Whether or not his employment could be considered as being in the construction of forti- fication work would depend, first, upon how far painting electric-light poles can be considered construction, and, second, upon how far a military post such as Fort Meade can be considered a fortification. Fort Meade is a military post. The record does not disclose that it is a fortified place, that there is any such thing as a moat, wall, or parapet in connection with it. According to Bouvier's Law Dictionary, a fort is — Something more than a military camp, post, or station; it implies a fortifica- tion or a place protected from attack by some such means as a moat, wall, or parapet. (See U. S. v. Tichenor, 12 Fed. Rep., 415-^24.) Standard Dictionary defines a fort as — A single inclosed work capable of independent defense, either a detached outwork of a fortress or a fortified inclosure mounting guns for the defense of a town or the command of an entrance or passage ; any fortification having a scarp and ditch, parapet, stockade, or the like held by a garrison. The same authority defines a fortification as — Any military defensive work, especially one having a ditch and a parapet; a fortified place; fort. Fortifications may be field or temporary (thrown up for use during particular operations), permanent (as for the defense of a town or port) . While it would appear from the definitions that the term " fortifi- cation " is more comprehensive than the term " fort " and may include something more than a fort, it would appear, further, that there can be no fortification without a fort. The mere fact that the military post in question is called " Fort Meade " does not imply that the place is a fort or fortification. Fort Meade is merely the name of the place, as Fort Myer and Fort Leavenworth are names of military stations and Fort Wayne is the name of a city in Indiana. But even if Fort Meade were a fortification within the meaning of the word as used in the act, it does not entitle the claimant to com- pensation unless it be shown further that the painting of electric- light poles at the place is construction of fortification work. OPINIONS OF SOLICITOE, DEPARTMENT OP LABOB. 147 Fortifications are constructed under the Engineer Department of the War Department and paid for out of the fortifications appro- priation. It is not necessary, of course, to decide that no work not done by the Engineer Department and paid for out of this appro- priation was intended by the Congress to be included within the term " Construction of * * * fortification work," but it is very probably that this was the main consideration. There occurs to me no reason for assuming that the Congress intended to include within the act those engaged in the care and maintenance of a fortification after it has been completed. Even though in the original construc- tion of a fortification by the Engineer Department the erection and painting of electric-light poles might be considered as part of the construction work, a different condition arises after the work is com- pleted and turned over to another branch of the service. In the present case it appears that the place was in charge of a quarter- ■ master, who employed the deceased to paint the poles. I have the honor to advise, therefore, that the deceased employee was not engaged in the construction of fortification work within the meaning of the act of May 30, 1908, and that the' claimant herein is not entitled to compensation under the statute. [In re claim of C. B. Schenk, Sept. 26, 1910; No. 4406.] The above claim is referred to this office with special reference to the question whether the service in which claimant was employed is covered by the act of May 30, 1908. It appears that claimant was employed as a teamster at Fort Totten, and was injured while so engaged. Under date of August 18, 1910^ the papers were returned to the War Department for advice as to the usual duties of claimant, and whether the place of employment was within the act. In response thereto the papers were returned with an indorsement by the Acting Quartermaster General, stating that the place of employment did not come under the act. No infor- mation is furnished which shows the character of work being carried on at that place, nor is there anything to show that Fort Totten is anything more than a military post or station. The question here presented is identical with the question con- sidered in the Burgess case (C 2834, Bu. 6408), in which case the claimant was employed at Fort Meade, S. Dak. In reaching a con- clusion in that case it was held that as Fort Meade was a military post and not a fort or fortification it did not come within the com- pensation act. As Fort Totten appears to be a military post, the same reasoning is applicable, and the claim is therefore not allowable. 6. Claimant was employed as carpenter in the Quartermaster Department of tlie War Department at Fort Clark, Tex., when his eyes were injured by the reflection of the sun from the white rocks and white sand. It was held that the place of employment properly came under the designation of "Construction of * * * fortification work." (This opinion alters the former holding on this subject as found in opinions at pp. 145, 14g in the cases of James Ryan and W. E. Bur- gess.) tin re claim of Jolin T. Kearney, Nov. 8, 1913.] This claim has been prepared for disapproval on the ground that the service in which claimant was employed is not covered by the compensation act. 148 workmen's compensation under act of may 30, 1908. It appears that during the period from November, 1907, to August, 1910, this claimant was employed as a carpenter in the Quarter- master Department of the War Department at Fork Clark, Tex.; that during this period he was engaged upon carpenter work on the quarters of the officers and enlisted men, sawmill, bridges, bakery, ice plant, hospital, and other buildings; and that while so employed the reflection of the rays of the sun from the white rocks and white sand injured the sight of his eyes to such an extent as to necessitate his resigning from the service, as he was then unable to perform work of that character. The action of preparing the claim for disapproval is in accord with previous decisions of the Solicitor for the Department of [Commerce and] Labor, as found at page 145, et seq., of the pub- lished opinions. There is, however, in this case an element which did not appear in any of the cases heretofore considered, which it is believed may have a tendency to place this claim in a different light from those pre-\'iously passed upon. This element consists of the various classes of work being performed at the place of employment, some of which work was carried on at such places as an ice plant, sawmill, and bakery, which places would in all probability be con- sidered as manufacturing establishments standing alone. Aside from this fact, there is in my mind a serious doubt as to the correctness of former opinions on this subject, wherein it has been attempted to differentiate between various kinds of forts and fortifications, as well as the numerous branches of the service under Avhich the work is being performed, as, for instance, whether it is under the Engineer, Quartermaster, Ordnance Officer, or some other bureau of the War Department. For this reason it has been deemed advisable to review the entire question involved, in order that all confusion may be eliminated in the future and the question definitely settled as far as it may be possible to do so. The provision of the compensation act covering the branches of the service included therein will be found in section 1, where it provides : Tliat wben * * * any person employed by the United States as an artisan or laborer in any of Its manufacturing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortification work * * * is injured in the course of such employment, such employee shall be entitled to receive for one year thereafter * * *. In order, therefore, for this claimant to be entitled to the com- pensation mentioned in the act it will be necessary to find that he was engaged as an artisan or laborer, either in a manufacturing establishment or in the construction of fortification work, as he is clearly not included in any othei' provision of the act in express terms. In the W. E. Burgess case (Op. Sol., 146) the claimant was em- ployed at Fort Meade, S. Dak., and it was said in the opinion that " Fort Meade is a military post. The record does not disclose that it is a fortified place, that there is any such thing as a moat, wall, or parapet in connection with it"; and it was further said, "But even if Fort Meade were a fortification within the meaning of the word as used in the act, it does not entitle the claimant to compensation unless it be shown further that the painting of elec- tiic-light poles at the place is construction of fortification work." OPINIONS OF SOLICITOE, DEPARTMENT OF LABOR. 149 The questions, What is a " fortification "? and What is " construc- tion work " ? should be answered in the light of the legislation under consideration, and, as has been repeatedly said in connection with the act under consideration, it is a benevolent statute and should be broadly and liberally construed. While Congress used the term "construction of * * * fortification work," it must not be con- strued as if the legislature had in mind only the employees of fortifications which were then under construction, or which were to be constructed in the future, for, eo instanti a fortification was completed the employees would then be removed from the pro- tection of the act and those engaged in the maintenance, repair, or reconstruction work would be deprived of the benefits thereof. In the New Standard Dictionary it is said that " Fortifications may be field or temporary (thrown up for use during particular operations), permanent (as for the defense of a town or post), offensive, arti- ficial, or natural," so from this definition it is not necessary that there be such a thing as a moat, wall, or parapet in order to con- stitute a place a fortification or fort. In the administration of the War Department it has become neces- sary to have military posts or forts scattered throughout the country, as well inland as on the coast. From the nature of the case no neces- sity exists in these inland forts to have moats, walls, or parapets, these matters depending on the character of the particular place where located. These forts are in some cases the headquarters of various divisions of the Army, having a supply depot and being occupied by troops, and can be used as places of defense and offense. In this country there are various places designated by the name of "fort," but of different character in construction. Forts situated along the seacoast and on rivers are usually the-class surrounded by a moat, walls, or parapets, as, for instance. Fort Monroe, Fort Washington, and Fort McHenry, while another class of forts are those in the interior, such as Fort Myer, Fort McPherson, and Fort Meade, where no necessity arises for such a character of construction. In this connection the thought occurs. What reason could Congress have had in mind to include the employees of one class of forts and to exclude those of the other class ? Surely no reason can be attributed to Congress for a discrimination of this character, and while it is not the province of this office to read into the act something ex- traneous, yet it is incumbent upon those construing acts of Congress to give such acts a reasonable instead of an unreasonable con- struction, so that the same may be read in the manner which Congress intended. In a recent case the Attorney General had under consideration the act of February 1, 1901, relating to the granting of leaves of ab- sence to — Each and every employee of the navy yards, gun factories, naval stations, and arsenals of the United States * * *. In ascertaining the applicability of the statute to the employees of the general depot of the Quartermaster Department at Phila- delphia, it became necessary to construe the use of the word " arsenal " as used in the act. The general depot is a place where clothing for the troops is made and stored, as well as other articles of camp and 150 workmen's compensation undeb act of may 30, 1908. garrison equipment, but no arms or ammunition are made or stored there. In a decision dated September 18, 1909, it was said : I am Informed tliat, while arms and ammunition are not made or stored at that depot, clothing for the troops Is made and stored there, and military clothing, tents, and other articles of camp and garrison equipment manufactured by others than the Government, and perhaps also other military supplies, are stored at such depot and distrihuted therefrom as needed at military posts These functions of the depot seem to make it an arsenal within the generally accepted meaning of that term and within the spirit of the legislation under consideration. In view of the benign intention of Congress in establishing this compensation act for injured employees I think that, whenever con- sistent with the language of the act, the scope should be given fuU latitude, so as to bring if possible the injured employee within the act. When the varied and multifarious questions which already have arisen in connection with the administration of the act have been considered, it is plainly evident that Congress could not possibly have gone into the byways and enumerated with certainty each and every occupation, each and every character of work as a class, nor each and every specific place where the employee was to be engaged. It must be assumed that Congress only intended to use general terms and to leave the application of the same to the rules of construction. As has been pointed out above, here is a fort or military post equipped with all the facilities, such as permanent buildings for officers and enlisted men, sawmill, bakery, ice plant, hospital, and other accessories usually found in a fortification. In this case, how- ever, there is probably no moat, or wall, or parapet, or heavy mounted guns, yet this to my mind does not prevent the place from coming within the designation of a fortification as contemplated by the act, and as the employee was engaged upon work connected with the maintenance, repair, and alteration of the buildings thereon I am of the opinion that the branch of the service in which he was em- ployed at the time of the injury is covered by the act. While the question has not been asked, it is also probable that as he was a carpenter and cabinetmaker he was also employed in a manufacturing establishment, since carpenter shops, blacksmith shops, and other such establishments where things are manufactured have been held to be manufacturing establishments within the mean- • ing of the act, notwithstanding the fact that the whole establishment may not be devoted to such work. In view of the foregoing I have the honor to recommend that the claim be approved. 7. /- laborer on the XT. S. dredge " Dalecarlia " while engaged in reclama- tion work in Anacostia River, funds for which were appropriated by Congress, the District of Columbia reimbursing the General Govern- ment for one-half the expenses of such work, was employed in the construction of river and harbor work within the meaning of the act. [In re claim of John P. Bristow, Oct. 6, 1914.] This claim is specially submitted to this office with the following inquiry : Is the service in which the claimant was employed covered by the compensa- tion act? OPINIONS OP SOLIOITOE, DEPARTMENT OF LABOE. 151 It appears from the injury report that claimant was an employee of the Engineer OiRce of the War Department, his particular place of employment being on the U. S. dredge Dalecarlia. It further ap- pears from a report of the engineer in charge that this dredge at the time of the injury was being used by the Engineer Office of the War Department in connection with some reclamation work in the Ana- costia Eiver, D. C, the funds for said work being appropriated by Congress and the District of Columbia reimbursing the General Government for one-half of the expenses of such work. The engi- neer in charge further reported that previously to undertaking the work on the Anacostia River the dredge had been engaged upon strictly Federal work and that it would so continue in the future, the Federal work referred to being river and harbor work; so accordingly the claimant appears to be an employee of the Engineer Office of the War Department,, engaged upon river and harbor work. The mere fact that the vessel he was engaged upon was used by the United States to perform work partly for itself and partly for the District of Columbia, of the same character which was performed regularly for the General Government, would not seem sufficient to warrant or justify the conclusion that the claimant was by that act taken from under the protection of the compensation act. Attention is directed in this connection to the case of Joseph W. Crawford, who was employed in the Reclamation Service as a team- ster. It became necessary in the reclamation work to build a trans- mission line to connect up the pumping plant of the Highline Canal Construction Co., which latter work devolved upon the construction company. This company was not prepared or equipped to do the work, so arrangements were made with officials of the Reclamation Service to provide a crew of Government employees to perform the same. The expense of this work was paid over to the officials of the Reclamation Service by the construction company; the men were carried on the Reclamation Service time books while performing this work ; were paid by and worked under the immediate supervision and direction of the Reclamation Service officials, and had no Imowledge whatever of the fact that they were supposed to be employed by another employer than the United States Government, they not hav- ing been notified to the contrary. In an opinion by this office under date of May 6, 1913, on the foregoing case it was concluded that at the time the employee was injured he was a " person employed by the United States as an artisan or laborer in hazardous employment on construction work in the reclamation of arid lands or the' manage- ment and control of the same." From a review of the facts and circumstances of both of these cases it appears that they are on all fours with each other, except that the present case has the advantage that the employee was actually paid out of an appropriation made by Congress while in the other case the funds were furnished by private individuals. In determining whether an employee is covered by the act in such cases, I do not think that the appropriation from which he may be paid should be the controlling factor in all cases, but that rather the branch of the service in which he is employed should be regarded. An employee working for the Government naturally feels that the obedience of orders of superior officers is the first principle in the 152 woekmbn's compensation under act of may 30, 1908. rules of duty, and when ordered to perform certain work which may- take him out of the protection of the compensation act his only alternative other than resigning is to perform the service required. Under such circumstances it would certainly appear not only a hardship but an imposition to hold that by carrying out the orders of his superior officer he had forfeited his right already acquired under his contract of employment. In view of the foregoing, I am of the opinion that the conclusion reached in Crawford's case is applicable to the present case and that the claim should be approved for payment. 8. Work or duties performed in an establisliment not expressly included in the act, though similar to those performed in an establishment which is expressly included, does not of itself bring the former place within its provisions. Engineer of steamer attached to Key West Barracks, Pla., not entitled to compensation as being engaged in construction of river and harbor or fortification work. [In re claim of Joseph Jerman, Jan. 22, 1915.] This claim is submitted with the inquiry whether the service in which the decedent was employed is covered by the act of May 30, 1908. The decedent was employed as an engineer on the Quartermaster's steamer Lieut. Edgar F. Koehler, which steamer is attached to the Key West Barracks, in the State of Florida. The department is advised by the Quartermaster General that the vessel is used almost exclusively for service in connection with Artillery drills and target practice, the Artillery service required of the vessel being for train- ing of men in use of the coast-defense guns at the fortification of Fort Taylor, defending the city of Key West. It is also said that his duties would be very similar to those of an engineer of a harbor tug, and bear a close relation to duties of tugs of the Engineer Department engaged in harbor and fortification work. If the branch of the service in which decedent was employed comes under the compensation act, that branch must be comprehended within that provision of the act which refers to "the construction of river and harbor or fortification work" in order to bring him within the act, so decedent must have been employed either on river and harbor improvement work or in the construction of fortification work or in some way incidental thereto. It is shown that the steamer Koehler is attached to the Key West Barracks, which place does not appear to be a fortification; conse- quently, the vessel was not connected with such a place as is desig- nated by the act, and therefore it must be concluded that decedent was not engaged upon construction of fortification work. Now, in re- gard to whether he was engaged upon the construction of river and harbor work, it will be seen that the only matter advanced to bring the service under the act is the fact that the duties performed by this employee were very similar to those of any engineer of a harbor tug, and for that reason bear a close relation to duties on tugs of the Engineer Department engaged in harbor and fortification work. In this connection attention is' invited to the fact, however unfortu- nate it may be, that because the work or duties performed in an establishment not expressly included in the act are similar to those OPINIONS or SOLIOITOE, DEPABTMENT OE LABOR. 153 jierformed in an establishment which is expressly included does not of itself bring the former place within its provisions. This is made so by the restrictions contained in the act, and it being clearly beyond the powers of the executive oiScers of the Government to extend the jurisdiction, as the decedent also was not employed in the construction of river and harbor work, it is plain that his case does not come within the benefit of the act. 9. The Washington (D. C.) Aqueduct, Great Tails, Md., though under con- trol and supervision of the Office of the Chief of Engineers, War Department, is not comprehended within the term " in the construc- tion of river and harbor or fortification work." [In re claim of James W. RoUins, Feb. 17, 1915.] This claim is submitted with the inquiry whether the service in which the claimant was employed is covered by the act of May 30, 1908. It is noted from the record that claimant was employed at the Washington (D. C.) Aqueduct, Great Falls, Md., which branch of the service is under the control and supervision of the Engineer's Office of the War Department. It further appears that this service is connected with the filtration plant from which is furnished the water used for the purposes of the General Government within the District of Columbia, and also the inhabitants of the District of Columbia, the cost of operating being paid one-half from the reve- nues of the District of Columbia and one-half from the revenues of the United States. While it is understood that certain work performed by this branch of the Engineer Office of the War Department is connected with the construction of river and harbor work, yet it does not appear that the particular service in which this claimant is employed is covered or included therein. It would appear, on the other hand, that the plant in which claimant was employed was the same place wherein J. W. Schlosser was employed, who filed a claim for inju- ries received at the Dalecarlia Reservoir of the Washington Aque- duct. In an opinion in that case (Op. Sol., 133) the question there considered primarily, was whether the plant was a manufacturing estabUshment. As it was held in that case that it was not such an establishment within the meaning of the act, I am of the opinion that it likewise is not covered by the construction of river and harbor work, for which reason the claim can not be approved, since it is not included in any other branch of the service mentioned in the act. 10. A laborer employed at Port Huachuca, Ariz., in a rock-crushing plant used to crush rock for the preparation of concrete required in new construction work at that post is engaged in the construction of fortification work. [In re claim of Juan Montes, Apr. 8, 1915.] This claim is submitted with the following inquiry : Was the claimant employed in a manufacturing establishment within the meaning of the act? It appears from the record that claimant is employed in the construction quartermaster's department at Fort Huachuca, Ariz., and that his services are rendered in connection with a rock-crushing 154 wobkmbjt's compensation ttndek act of may 30, 1908. plant which is used for crushing large bowlders into small rock for use in the preparation of concrete required in the new construction work at that post. While so employed the claimant was injured in the course of his employment, without negligence or misconduct on his part. Section 1 of the act of May 30, 1908, provides in part : That when * * * any person employed by the United States as an arti- san or laborer in any of Its manufacturing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortification work * * * is injured in the course of such employment, such employee shall be entitled to receive for one year thereafter * * *. As it is apparent from the character- of the work being performed by claimant, viz, " in the preparation of concrete required in the new construction work at the post," it would appear that he plainly comes within the benefits of the act. In view of this conclusion it is unr necessary to pass upon the particular inquiry presented, but in regard to the question of what is a fortification within the meaning of the act, attention is respectfully invited to an opinion of this office dated November 8, 1913, in the case of John T. Kearney, who was employed as a carpenter in the Quartermaster Department of the War Depart- ment, at Fort Clark, Tex. VIII. "HAZARDOUS EMPLOYMENT ON CONSTRUCTION WORK IN THE RECLAMATION OP ARID LANDS OR THE MANAGEMENT AND CONTROL OP THE SAME." 1. A ditch, rider required to ride at night and discover and attend to breaks in a canal is engaged in hazardous employment. [In re claim of Frank Eedburn, Sept. 8, 1909 ; No. 1708.] The above claim has been submitted to this office with special reference to the question as to whether claimant's occupation comes within the scope of the act of May 30, 1908. The reporting officer gives the following description of the acci- dent: The accident occurred near lateral 5 E while the rider was going from one lateral to another. About all that seems to be known of the accident is that Mr. Redburn's horse stumbled and fell on him. The accident was probably caused by overwork necessitated by an emergency caused by a break in the Interstate Canal That part of the act which relates to the present case reads as follows : Any person employed by the United States as an artisan or laborer * * * in hazardous employment on construction work in the reclamation of arid lands or the management and control of the same * * * is injured in the course of such employment, such employee shall be entitled to receive for one year thereafter, unless such employee, in the opinion of the Secretary of fCom- merce and] Labor, be sooner able to resume work, the same pay as if he con- tinued to be employed. The claimant was incapacitated for over 15 days and the injury was neither due to the negligence nor misconduct of the injured employee. He was certainly injured in the course of his employment while employed in the Reclamation Service, hence the only question that need be considered is whether he was engaged in "hazardous employment." The claimant had been on duty from 2 a. m. to 10 OPINIONS OF SOLICITOK, DEPARTMENT OF LABOE. 155 a. m., at -which time the accident occurred. He was employed as a "ditch rider,'' and the nature of his employment was such as re- quired the performance of similar work as he was engaged in when injured. The serious accident which he met with at least indicates that his employment was hazardous. It is more or less dangerous to be called out iit any time during the day or night to repair a break in a canal and other similar work. In the John P. Golden case (C 303, Bu. No. 1324) the meaning of " hazardous employment " as used in the act was considered, and the conclusion reached that a policeman in the Canal Zone was engaged in "hazardous employ- ment." I am therefore of opinion, as above indicated, that the occupation of the claimant comes within the scope of the act and that the claim should be allowed. 2. A machine attendant at the ice plant of the Boosevelt Dam is eng'aged in hazardous employment. [In re claim of C. H. Eiggs, Feb. 10, 1910 ; No. 2643.] The above claim is submitted to this office with special reference to the question whether the claimant's occupation comes within the scope of the act of May 30, 1908. The claimant was employed as an attendant in an ice plant at the Roosevelt Dam, in the Reclamation Service. At the time of the injury he was tending a machine and fell from a ladder. The act applies to artisans and laborers engaged in hazardous em- ployment on construction work in the reclamation of arid lands or the management and control of the same. The language is broad enough to cover all the employees of the Reclamation Service who are artisans or laborers and who are engaged in hazardous employ- ment, and who are paid from the funds accumulated under the act of June 17, 1902, setting aside the receipts from the sale of certain pubhc lands to be used in the construction and maintenance of irri- gation works (32 Stat., 388). I think it may reasonably be assumed that the claimant in this case was paid out of the fund indicated, and his designation and the work he was performing at the time of the accident are sufficient to indicate his status as a laborer or artisan. It only remains to consider whether his occupation is hazardous. He is an ice-plant attendant and the character of his work is stated to be " tending machine." From this it may be inferred that it was his duty to look after the machinery while it "was running. This class of work is usually regarded as involving considerable hazard. Although on the question of hazard the evidence may be wanting in fullness, I am of opinion, on the whole, that the claim may prop- erly be allowed. 3. A cook's helper, working in cooking quarters, is not engaged in hazard- ous employment. [In re claim of J. F. Jones, Feb. 25, 1910 ; No. 2849.] This case is submitted as a formal approval, but in view of a former decision of this office in the case of Reisinger (C 1113, Bu. No. 3226) the same appears to require a further consideration. 156 workmen's compensation under act of mat 30, 1908. Claimant is employed as a cook's helper in the Eeclamation Serv- ice, and while engaged in such work at the quarters provided for that purpose slipped on the floor and fractured his arm. There is no question but what the occupation, brings the claimant within the term laborer as used in the act of May 30, 1908, but before a laborer employed in reclamation work can come under the act he must be en- gaged " in hazardous employment on construction work in the recla- mation of arid lands or the management and control of the same." Congress evidently intended in this connection to refer to those occu- pations where the liability of accident was increased by reason of the nature of the work and the place of its performance, A cook in the Reclamation Service, performing work in quarters provided for that purpose, can hardly be said to be performing a more haz- ardous work than a cook employed at a hotel in some town; hence, if a cook at this latter place is not within the act, then a cook's helper in the Eeclamation Service would occupy the same position. In the case above cited Eeisinger was employed as a cook in La Boca Hotel, in the Canal Zone, and it was held that his occupation was not a hazardous one, in that he was exposed only to a minimum amount of danger by reason of his employment. In keeping with that deci- sion, I am of opinion that the occupation of claimant in this case is not hazardous within the meaning of the act. 4. Work authorized by act of March 1, 1907, to construct a reservoir for storing water for irrigating lands on an Indian reservation is con- struction work in the reclamation of arid lands. [In re claim of W. E. Arnold, July 9, 1910 ; No. 3898.] The above claim is submitted to this office with special reference to the question whether the service in which claimant is employed is covered by the act. An examination of the papers shows that claimant is employed as a gas-engine man under the superintendent of irrigation at Eoss Fork, Idaho, engaged upon construction work at the Blackf cot Marsh Dam, near Henry, Idaho, which work is being carried on under the provi- sions of acts of Congress approved March 1, 1907, and March 3, 1909 (34 Stat., 1024, and 35 Stat., 790). This work is prosecuted under the Indian Bureau of the Interior Department and those en- gaged upon the work are under that department. The above-mentioned acts provide appropriations for carrying on the work; therefore it clearly appears that the employees engaged upon the work " are employed by the United States," as required by the compensation act. Being such employees, it now becomes neces- sary to ascertain whether the work on which they are engaged comes within either of the classifications named in the said act. By refer- ence to section 1 it is found, among other places named, that those " in hazardous employment on construction work in the reclamation of arid lands or the management and control of the same " are cov- ered by the act. Again, referring to the act of March 1, 1907, it will be observed that the Secretary of the Interior was authorized to con- struct " a reservoir for storing water for the purposes of irrigating lands on the Fort Hall Indian Eeservation and those ceded by the OPINIONS OP SOLICITOE, DEPAETMENT OF LABOB. 157 Indians of the said reservation, and also the lands, rights, and prop- erty which he may deternaine to be necessary to the success of any plan or project for the said purpose; or he may cause the enlarge- ment to be made of any irrigating system in accordance with the laws of Idaho that circumstances may require." While the irrigation provided for therein does not belong to the general scheme of irrigation being carried on throughout the country, yet it appears to me to come within the character of work referred to jn the compensation act as " the reclamation of arid lands," and as the law authorizing this work antedated the law providing compensation for injured employees of the Government, and did not except such class of work from its provisions, I am of opinion that artisans or laborers engaged upon hazardous employment in connection with this irrigation work are covered by the provisions of the act of May 30, 1908. As the claim in all other respects appears to be a valid one, I have the honor to recommend its allowance. 5. Work in a quarry to obtain rock for damming the Colorado Kiver to protect a valley and supply water for irrigation is construction work in the reclamation of arid lands. [In re claim of J. W. SMll, Mar. 13, 1911 ; No. 5980.] The above claim is submitted to this office with special reference to the question whether the service in which claimant was employed is covered by the act of May 30, 1908. Under date of February 2, 1911, the Acting Secretary returned the papers to the Secretary of the Interior with a request for informa- tion showing the nature and general character of the work performed in the service in which claimant was employed at the time of the injury. In response to this request there is now furnished a statement which shows that clainiant was employed under the engineer in charge of the protection of lands and property in Imperial Valley, Cal., which work is being carried on under the Interior Department. The work upon which claimant was engaged at the time and the purpose and object of said work are clearly set forth in the following excerpt from the above-mentioned statement: When injured and throughout the course of his employment Mr. Skill was working at the rock quarry at Andrade, Cal., within the United States. The rock was being quarried in order that it might be transmitted to the trestle across the Abejas River, through which the Colorado Klver has been flowing, and there dumped into the river so as to dam that passage and force the Colorado back into its proper channel. In connection with the damming of the river a levee is being built under the supervision of the engineer in charge, but by contract, which will confine the Colorado Elver in its own natural channel when restored thereto, and all the work mentioned as aforesaid is designed for the protection of the Imperial Valley, Cal., by preventing overflows of the Colorado Elver into that valley and by raising the level of the water in the said river at the Imperial heading opposite Andrade, Cal., so that it will flow by gravity into the main irrigation ditch which supplies the said Imperial Valley with water for Irrigating purposes. It is upon the foregoing state of facts that the inquiry arises, and the question for settlement appears to hinge upon the answer to the question whether the work upon which claimant was engaged at the 158 workmen's compensation under act op may 30, 1908. time of the injury comes within that provision of the compensation act which refers to " hazardous employment on construction work in the reclamation of arid lands or the management and control of the same." Referring to the nature of the work upon which he was engaged, it is seen that he was assisting in, among other things, quarrymg rock which was used to dam the Colorado River so as to force it back in its proper channel, and that in connection with this work there was also being constructed a levee which would confine the said river in its natural channel, all of which work is designed for the protection of the Imperial Valley, Cal., and by raising the level of the water so that it will flow by gravity into the main irrigation ditch which supplies the valley with water for irrigation purposes. Thus, it is observed that the work has two objects in view, the protection of the valley from overflow and the supplying of the main irrigation ditch with water for irrigating purposes. To my mind this latter character of work brings the employment within the literal wording of the act. It is true that there is an establishment under the Interior Department known as the Reclama- tion Service, but nowhere in the act can it be found that Congress intended to limit the application of the act to the employees engaged in that service. In the absence of anything in the act to show such an intention so to limit its benevolent purposes, I incline to the opin- ion that the question should be answered in the affirmative, and when the affidavit has been made by claimant the claim should be approved for payment. 6. A clerk employed at a soda fountain in a store under the Beclamation Service is not engaged in hazardous employment. [In re claim of Pliny M. Arnold, Oct. 2, 1914.] The above claim was submitted to this office with special refer- ence to the question : Does the occupation of the claimant come within the scope of the act of May 30, 1908 i The following is the description of the accident as set foilh in immediate report of injury : Working at soda fountain. While washing glasses, one of them broke and he cut his finger on one of the pieces. In reply to a request from the department for a statement explain- ing fully the duties which it was necessary for the claimant to per- form as store clerk it was stated : At this time, and for some time past, he was employed at the Arrowrock mercantile store on work at the soda fountain. His duties in the store were the ordinary duties of dispenser at the soda fountain, mixing sirups, making simple sirup, assisting to carry ice cream in 5-gallon containers from the market to the store, a distance of about 100 yards, and keeping same packed with ice; serving customers at the soda fountain; and keeping the equipment in connec- tion with the soda fountain clean and in a sanitary condition. The compensation act provides for compensation to employees in the Reclamation Service if they are artisans or laborers engaged " in hazardous employment." " Hazardous " is defined by the Standard Dictionary as " exposed to, or exposing to, or involving danger, risk of loss, or calamity; OPINIONS OF SOLIOITOB, DEPAETMENT OP LABOR. 159 perilous, risky." The word should probably be taken in its ordinary or popular meaning of dangerous. It may be contended that the conditions in the Reclamation Service make the work more hazardous than the same class of work else- where, and that all work done should be classed as hazardous. How- ever this may be, Congress has limited the beneficiaries of this act under the Eeclamation Service to those engaged in hazardous em- ployment, and must have had in mind a distinction between hazard- ous and nonhazardous employment in that service. Hazard or risk in this case must be looked at relatively. There are, besides, a cer- tain class of employees who take little or no risk, are exposed to a minimum amount of danger in the pursuit of their daily work, and a clerk in a storeroom seems to me to be preeminently one of this class. From a consideration of the nature of the work performed by claimant I am unable to ascertain wherein any part of the same exposes him to any special danger. (See the cases of Pedro Traviso [C 938] and Jose Migeles [C 1240].) I am therefore of the opinion, as above indicated, that the claimant was not engaged in " hazardous employment." The conclusion here reached renders it unnecessary to consider whether the claimant's occupation comes within the scope of the act. IX. "HAZARDOUS EMPLOYMENT UNDER THE ISTHMIAN CANAL COMMISSION." 1. A policeman employed in the Isthmian Canal Zone is engaged in hazard- ous employment. [In re claim of J. P. Golden, Jan. 5, 1909 ; No. 303.] The claimant is a policeman employed in the Canal Zone under the Isthmian Canal Commission. On October 17, 1908, while on duty, he attempted to remove a box from the sidewalk when, without negli- gence or misconduct on his part, he slipped off the sidewalk and fell a distance of about 8 feet, and was so injured as to prevent him from resuming his duties for a period of more than 15 days. (As to whether a policeman is an artisan or laborer, see balance same opinion, p. 68.) The next question to be considered is whether the occupation of a policeman is a hazardous one within the meaning of the act. In the case of artisans and laborers in manufacturing establish- ments, arsenals, navy yards, and river and harbor and fortification work, the question of hazard is not involved. But in the case of artisans and laborers employed in construction work in the reclama- tion of arid lands, and under the Isthmian Canal Commission, it is necessary that the occupation be hazardous in order to bring it within the provisions of the act. The following definitions are taken from the Standard Dictionary : Hazard. Exposure to chance of loss or Injury ; risk ; peril. Hazardous. Exposed to, or exposing to, or involving danger, risk of loss, or calamity; perilous; risky. Not hazardous, hazardous, extra hazardous, and specially hazardous are terms used in insurance to designate comparative degrees of risk. According to these definitions, if the occupation of a policeman in- volves any risk or danger, it is hazardous; if not, it is "not hazard- 160 woekmen's compensation undek act of may 30, 1908, ous." Some occupations may be more hazardous than others, but unless they are " not hazardous " they are hazardous. An examination of the classifications of occupations according to risk as made by some of the leading accident insurance companies shows that there is no uniformity in the number of classes recognized nor the names given to the classes. However, the same comparative degrees of risk are recognized, ranging from select or preferred risks to extra perilous risks. These degrees of risk are determined by sta- tistics. As far as I have been able to ascertain the occupation of a policeman is placed about midway between those occupations which are supposed to involve no risk whatever and those of the most peril- ous nature. The classification above indicated has reference to the United States. The conditions which prevail in the Canal Zone are claimed by those familiar with them to be such as to make all work done there more hazardous than the same class of work done else- where, and it is contended by some that all work done there by arti- sans and laborers should be regarded as hazardous per se. However this may be, I feel justified in concluding that the occupation of a policeman under the Isthmian Canal Commission is hazardous. I have to advise, therefore, that the act of May 30, 1908, applies to a policeman in the Canal Zone. 2. A storeroom clerk is not engaged in hazardous employment, [In re claim of Dudley Inniss, May 20, 1909 ; No. 1019.] This claim is submitted with reference to the question whether the claimant's occupation falls within the scope of the act of May 30, 1908. Was claimant an artisan or laborer? Was his occupation haz- ardous ? Inniss was a clerk in a storeroom and was hurt by having his finger pierced by a nail while opening a barrel of coffee in the storeroom of the Isthmian Canal Commission hotel at Culebra. The compensation act provides for compensation to employees under the Isthmian Canal Commission if they are artisans and laborers engaged "in hazardous employment." (As to whether a storeroom clerk is an artisan or laborer, see balance same opinion, p. 81.) " Hazardous " is defined by the Standard Dictionary as " exposed to, or exposing to, or involving danger, risk of loss, or calamity; perilous; risky." The word should probably be taken in its ordinary or popular meaning of dangerous. Those who are familiar with conditions on the Canal Zone claim that the work done there is more hazardous than the same class of work done elsewhere, and it may be contended that all work done by artisans and laborers on the zone should be classed as hazardous. However this may be, Congress has limited the beneficiaries of this act under the Canal Commission to those engaged in hazardous em- ployment, and must have had in mind a distinction between haz- ardous and nonhazardous employment in that locality. Hazard or risk in this case must be looked at relatively. There are, besides, cer- OPINIONS OF SOLICITOE, DEPARTMENT OP LABOR. 161 tain classes of laborers who take little or no risk, are exposed to a minimum amount of danger in the pursuit of their daily work, and a clerk in a storeroom seems to me to be preeminently one of this class, so that, unless the word "hazardous" is entirely read out of this prpvision of the law, I am constrained to believe that claimant's occupation is not of such a nature as to be classed as hazardous, and I have to advise that he should not be compensated. 3. A cook in a hotel kitchen is not engaged in hazardous employment. [In re claim of C. L. Reisinger, May 29, 1909 ; No. 1113.] This case is submitted with special reference to the question whether the claimant's occupation, that of a cook in La Boca Hotel kitchen, may be regarded as hazardous within the meaning of the act of May 30, 1908. - Hazard or risk is a relative term. As stated in the case of Inniss, there are certain classes of laborers who take little or no risk, are exposed to a minimum amount of danger in the pursuit of their daily work, and I am of opinion that a cook in a hotel is of this class. Therefore I have to advise that the claimant should not be com- pensated. 4. A laborer employed in a mess hall under the quartermaster's depart- ment, Canal Zone, is not engaged in hazardous employment. [In re claim of Pedro TraTlso, June 9, 1909 ; No. 938.] The above claim is submitted to this office with special reference to the question whether the claimant's occupation falls within the scope of the act of May 30, 1908. The question here presented turns on the question whether the in- jured employee was in "hazardous employment under the Isthmian Canal Commission." The work carried on by the Isthmian Canal Commission in the Canal Zone is, I understand, under the direction of different depart- ments. The actual construction of the canal is under the engineer department, and the occupation of all laborers employed in this de- partment may, if the conditions under which work is done on the canal are properly understood, be regarded as hazardous unless there is something in the record to indicate otherwise. But in the quar- termaster's department the work is not necessarily hazardous. The claimant in this case was a laborer in the quartermaster's depart- ment and at the time of the accident was employed in the Gatun mess hall. He was carrying water to clean the floor and fell against a table. The place and character of the work here indicated does not, in my opinion, bring it within the scope of the term " hazardous employment " as used in the statute. I have to advise, therefore, that the claim here presented is not covered by the act of May 30, 1908, 93364°— 15 n 162 workmen's compensation under act of may 30, 1908. 5. A scytlieman in a grass-cutting gang is not engaged in hazardous employment. [In re claim of Jose Migelcs, Sept. 8, 1909 ; No. 1240.] This claim was formerly submitted to this office, at which time, however, no final decision was rendered, as it was thought best to request additional information in regard to the general character of the claimant's occupation. The further information shows that he was employed — as a scytheman in one of the grass-cutting gangs, whose duties consist of the cutting of grass in and around the various districts, and who are designated as " laborers." The nature of the work would be considered " hazardous " only in so far as the use of the scythe is concerned. Before the claimant can be granted compensation under the law it must be shown that the work upon which he was regularly engaged was hazardous, not merely that the particular act in question was dangerous. The statute does not provide that anyone injured shall receive compensation, but only those engaged in "hazardous em- ployment." In the case of Pedro Traviso (C 938, Bu. No. 2989) it was said: * * * In the quartermaster's department the work is not necessarily hazardous. The claimant in this case was a laborer in the quartermaster's department, and at the time of the accident was employed in the Gatun mess hall. He was carrying water to clean the floor and fell against a table. The place and character of the work here indicated do not, in my opinion, bring it within the scope of the term " hazardous employment " as used in the statute. As above indicated, I am of opinion that the claimant, whose duties consisted principally, if not altogether, in cutting grass, was not engaged in "hazardous employment" within the meaning of the statute and that the claim should be disallowed. 6. A laborer employed on a delivery wagon is not engaged in hazardous employment. [In re claim of Bloy Palacios, Sept. 9, 3909 ; No. 1717.] The above claim was submitted to this office with special reference to the question as to whether the claimant was engaged in " hazardous employment " within the meaning of the act of May 30, 1908. In the immediate report of the injury it is stated that the claimant was engaged in delivering medicines to the hospital, and the follow- ing is a description of the accident : In alighting from the delivery wagon his finger caught in a metal projection unseen by him, and as he was unable to arrest his fall the bone of his right ring finger was denuded of flesh and the finger fractured. Substantially the same description is given by the claimant in his affidavit. The facts in this case are similar to those in the recent case of Jose Migeles (C 1240, Bu. No. 3610), where it was said: Before the claimant can be granted compensation under the law it must be shown that the work upon which he was regularly engaged was hazardous, not merely that the particular act in question was dangerous. The statute does not provide that anyone injured shall receive compensation, but only those engaged in "hazardous employment" OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 163 The case of Pedro Traviso (C 938, Bu. No. 2989) is also similar to the present one, and was quoted in the one from which the above excerpt is taken. I am of opinion that claimant, whose duties consisted principally in " delivering medicines with delivery wagon," was not engaged in hazardous employment within the meaning of the law, and that his claim should.be disallowed. 7. A telephone operator is not engaged in hazardous employment. [In re claim of William Btlenne, Sept. 10, 1909 ; No. 1716.] The above has been submitted to this ofBce with special reference to the questions, Does the occupation of the claimant come within the scope of the act of May 30, 1908, and Was he engaged in hazardous employment? The following is the description of the accident as set forth in the immediate report of the injury : He had left the tower where he was telephone operator, and was passing through the cut going home. Some powder men set off a blast about 300 yards from him which also caused two old holes which had been loaded some time ago to go off, and he was struck on the right leg by a flying rock. Practically the same description is given by the claimant in his affidavit. The regular and usual duties of a telephone operator are not regarded as dangerous, hence an employee performing such work can not be considered as engaged in " hazardous employment." The claimant was on his way home when injured and the blasting was not in any manner connected with the place and character of his work. The cases of Pedro Traviso (C 938, Bu. No. 2989) and Jose Migeles (C 1240, Bu. No. 3610) are similar to the present case. In each one it was held that the injured employee was not engaged in " hazardous employment." I am therefore of opinion, as above indicated, that the claimant was not engaged in " hazardous employment." The conclusion here reached renders it unnecessary to consider whether the claimant's occupation comes within the scope of the act. 8. A water boy delivering water to grass-cutting gangs at work about various commission properties is not engaged in hazardous employ- ment. [In re claim of Stephen Price, Sept. 27, 1909 ; No. 1544.] The above claim is resubmitted to this office with special reference to the question as to whether the claimant was engaged in hazardous employment within the meaning of the act of May 30, 1908. When the case was first presented to this office the record showed that the claimant was employed as a water boy in the quarter- master's department, and was injured while delivering water to the laborers by running into a scythe which was hidden in the grass. It was noted that the record did not disclose what if any danger was connected with the usual duties of the employment; therefore it did 164 workmen's compensation under act of may 30, 1908. not appear that the claim could be approved unless there was addi- tional information furnished which would show that the employ- ment was hazardous within the meaning of the statute. The supplemental report in regard to the matter, under date of September 10, 1909, reads in part as follows : I have to advise that the regular duties of the position of this claimant con- sist in delivering drinliing water to the laborers who are engaged in cutting grass around the various commission properties. The position is free, f i»m the hazard of construction work and work around machinery, but it can not justly be considered altogether nonhazardous. As in the present case, it is possible that injury may result from coming in contact with a scythe which one of the laborers may have temporarily laid down and which may be hidden in the grass, or infection may arise from contact with poisoned weeds. In some places the ground is very Irregular, and, because of the dense vegetable growth, holes which may cause a serious fall can not always be seen and avoided. The chief quartermaster, in a letter to the claim officer, under date of August 24, 1909, states that the employment of the claimant " as water boy is not considered hazardous by this department." The only question to be considered is whether the regular duties of the claimant are to be regarded as hazardous within the meaning of the law. As no employment is absolutely safe at all times under any circumstances, it would certainly not seem proper to so construe the act as to include all employment with which there was connected the slightest danger. The mere fact that an accident occurs in the course of employment shows there is some danger incident to the work of the injured employee. In the recent case of William Etienne (C 1716, Bu. No. 4454) it was said : The regular and usual duties of a telephone operator are not regarded as dangerous ; hence an employee performing such work can not be considered as engaged in " hazardous employment." In the Traviso case (C 938, Bu. No. 2989), where the same point was under consideration, it was held: The claimant in this case was a laborer in the quartermaster's department, and at the time of the accident was employed in the Gatun mess hall. He was carrying water to clean the floor and fell against a table. The place and character of the work here indicated does not, in my opinion, bring it within the scope of the term " hazardous employment," as used in the statute. I am of opinion that the claimant was not engaged in " hazardous employment " within the meaning of the act, and that the claim for compensation should be disallowed. 9. A hospital orderly in attendance upon persons violently insane is en- gaged in hazardous employment. [In re claim of David Small, Oct. 13, 1909 ; No. 1882.] The above claim is submitted to this office with special reference to the question as to whether the occupation of the claimant at the time of the injury was hazardous within the meaning of the act of May 30, 1908. In the immediate report of the injury it is stated that the accident arose in the course of employment and was neither due to negligence OPINIONS OP SOLICITOE, DEPARTMENT OP LABOR. 165 nor misconduct on the part of the claimant, and the following is the description of the accident therein given: Willie catching an Insane man who had escaped from hospital and jumped into the sea, I was thrown on reef and sustained lacerated wound of right knee. In endeavoring to escape, the insane man bit the index finger of my right hand. Superintendent Leys, under date of August 30, 1909, wrote to the assistant chief sanitary officer a letter in regard to the duties of the injured employee which reads in part as follows : David Small's duties were those of an orderly at this hospital. It is the duty of an orderly to take care of patients. It can not be said that the work of all orderlies at all times is of a sort to be classed as hazardous. Orderlies are employed both in duties that are hazardous and in duties that are not hazardous. Some orderlies are detailed to duties which involve no hazard at any time. Some orderlie.s are detailed to duties which may be considered more or less hazardous at all times, and among these latter I would place orderlies constantly in attendance upon the violently insane. The work of an orderly, therefore, may be continuously hazardous, or never hazardous, or hazardous at times only. I am of opinion that the work in which David Small, orderly, was engaged at the time he received his Injury on July 20, 1909, of rescuing an insane patient from injury or death, was. work directly in the line of his duty at the time, and was of a hazardous nature. To be " in attendance upon the violently insane " is to be engaged in an employment which clearly appears to be hazardous. The con- duct of the insane person toward the injured employee shows that the former was a dangerous man. Attendants at hospitals for the insane have lost their lives in the performance of their duties and a number of others have been seriously injured. An employee is sub- jected to just as much danger when attacked by one bereft of reason as if he had been assaulted by a criminal. I am therefore of opinion that the claimant was engaged in haz- ardous employment within the meaning of the act, and the claim for compensation should be allowed. 10. An ambulance teamster in the Canal Zone is engaged in hazardous employment. [In ro claim of Samuel Thompson, Nov. 23, 1909 ; No. 2112.] The above claim has been submitted to this office with special refer- ence to the question as to whether the claimant was engaged in hazardous employment, at the time of his injury, within the meaning of the act of May 30, 1908. The following is a description of the accident as given in the im- mediate report of the injury : Was called to Colon police station to bring body of man to hospital; when lifting one end of stretcher into ambulance suddenly felt a sharp, stinging pain in left groin. The accident occurred about 11 p. m., August 18, 1909, and on the following day he went to the hospital where he was operated on, Au- gust 20, for acute inguinal hernia. There seems to be no question in regard to the accident having been received in the course of employ- ment, without negligence or misconduct on the part of the injured employee. The injury continued for more than 15 days and the only 166 WOEKMBn's COMPEKSATION UNDEB act of may 30, 1908. question to be considered is whether the claimant was engaged in " hazardous employment " within the meaning of the law. In the John P. Golden case (C 303, Bu. No. 1324) the following was said in considering the question as to whether a policeman was engaged in hazardous employment : The conditions which prevail in the Canal Zone are claimed by those familiar with them to be such as to make all work done there more hazardous than the same class of work done elsewhere, and It is contended by some that all work done there by artisans and laborers should be regarded as hazardous per se. However this may be, I feel justified in concluding that the occupation of a policeman upder the Isthmian Canal Commission is hazardous. Another case where the same point was considered is that of Frank Eedburn (C 1708, Bu. No. 4209) , where it was held : The claimant had been on duty from 2 a. m. to 10 a. m., at which time the accident occurred. He was employed as a " ditch rider " and the nature of his employment was such as required the performance of similar work to that he was engaged upon when injured. The serious accident which he met with at least indicates that his employment was hazardous. It is more or less dan- gerous to be called out at any time during the day or night to repair a break in a canal and other similar work. It is believed that this case is within the principle enunciated in the above cases. The accident occurred about 11 o'clock at night, from which it would appear that the injured employee was subject to be called out at any time during the night. The driver of an am- bulance may often be exposed to danger that an ordinary driver would not have to subject himself to, such, for instance, as being called out at night on an emergency case which probably would neces- sitate driving to and from the hospital at a rapid rate. The life of the patient frequently depends upon prompt treatment. It is true that the particular work in which the claimant was engaged at the time of the accident may not have been especially dangerous, yet it is to be remembered that the question does not depend upon whether the par- ticular act is hazardous, but whether or not the regular duties of the injured employee are properly to be considered as hazardous. I am therefore of opinion that the claimant was engaged in haz- ardous employment within the meaning of the law and that the claim for compensation should be allowed. 11. A water boy serving water to men employed in actual construction work of Isthmian Canal is engaged in hazardous employment. [In re claim of Adolphus Garsia, Jan. 6, 1910 ; No. 2365.] The above claim is submitted to this office with special reference to the question whether the claimant's occupation brings him within the scope of the act of May 30, 1908. The claimant's occupation is that of water boy in the construction and engineer department of the Isthmian Canal Commission. Un- der dateof September 27, 1909 (C 1544, Bu. No. 4090), I expressed the opinion that a water boy employed by the quartermaster's de- partment of the Isthmian Canal Commission was not covered by the OPINIONS OF SOLICITOR, DEPAETMENT OF LABOB. 167 compensation act for the reason that his occupation was not "haz- ardous " within the meaning of the term as used in the act. Last June there was presented the claim of Pedro Traviso, a laborer in the quartermaster's department of the Isthmian Canal Commission, who was injured while carrying water in the Gatun mess hall to clean the floor. At that time an effort was made by this office to learn something of the character of the work done under the several departments of the commission in the Canal Zone in order to give proper effect to the word " hazardous " as used in the act of May 30, 1908. While no written statement was made by any of the officers of the Canal Commission, it was learned from those officers and employees of whom inquiry was made that all work done in the Canal Zone is regarded by many as more hazardous than the same character of work done in the United States, but that those engaged in the actual construction work of the canal, which is carried on under the engineer department, are especially exposed to hazard. In view of this information I said, in discussing the merits of Mr. Traviso's claim (C 938, Bu. No. 2989) : The work carried on by tlae Isthmian Canal Commission in the Canal Zone is, I understand, under the direction of different departments. The actual construction of the canal is under the engineer department, and the occupation of nil laborers employed in this department may, if the conditions under which worli is done on the canal are properly understood, be regarded as hazardous unless there is something In the record to indicate otherwise. But in the quartermaster's department the wort is not necessarily hazardous. In the case now under consideration the claimant belongs to the laboring class, and, being employed in connection with the actual construction of the canal, he is entitled to the presumption that his occupation is hazardous. Furthermore, it appears that at the time of the accident in the performance of his duties he was standing on a wall 10 or 12 feet high. From this the inference is drawn that it was his duty, in serving the worlonen with drinking water, to go wherever such workmen were employed, and that he was subject to many if not all of the hazards to which other laborers engaged under the engineer department were exposed. I have the honor to advise, therefore, that the claimant's occupa- tion brings him within the scope of the act of May 30, 1908. 13. A plumber and tinner working on roofs and stacks is engaged in hazardous employment. [In re claim of Joseph Thennard, Jan. 19, 1910; No. 2426.] The above claim is submitted with special reference to the fol- lowing questions : 1. Is there sufficient evidence of connection between the alleged accident and the claimant's incapacity? 2. Was the claimant's employment hazardous within the meaning of the act? In regard to the first question the record discloses that about Janu- ary 1, 1909, claimant received an injury while lifting a piece of rail weighing about 200 pounds. On the day of injury the same was re- ported to the master plumber in charge, John F. Catto, but Then- 168 workmen's compensation under act of may 30, 1908. nard continued on at his work until August 12, 1909, at which time he went to a hospital and was operated on for left inguinal hernia. Under date of November 6, 1909, the papers were returned by the Acting Secretary for more definite information as to the date and circumstances connected with the alleged accident, and there are now furnished affidavits of the claimant and John F. Catto and statement by the chief quartermaster. The statement made under oath by Mr. Catto, the foreman in charge, seems to clearly show the connection between the^ accident and the incapacity and is in part as follows : Deponent further says that while Thennard was doing this work and while lifting the rail up on the bench he received the injury for which the claim for compensation was filed. That on the day Thennard received his injury he informed this deponent of the manner in which he received the injury and complained of sharp pain in his left side, and on several occasions after the accident Thennard complained of severe pain in his groin. Deponent further says that for several months prior to the injury Thennard was working under him, and he saw claimant every day at his work, and that Thennard was able to do a full day's work, lift heavy weights without any trouble, and that he never heard of any injury to Thennard prior to the one in question, and never heard Thennard complain of any weakness of the char- acter of a rupture. In support of the claim that the accident was the direct cause of the incapacity, Thennard states in an affidavit dated November 24, 1909: I was never affected with hernia in the least before this injury. In the physician's certificate, dated October 2, 1909, is found the following under the heading " Eemarks " : Findings at operation not inconsistent with statement of patient. In view of the foregoing it appears that all the evidence in the record tends to establish the connection between the accident and the incapacity, there being no evidence whatever to contravene the same. In regard to whether claimant's employment is hazardous, it ap- pears from the statement furnished by the chief quartermaster, dated November 29, 1909, that the general character of his duties are as follows : This man is employed as general plumber and tinner; his duties as tinner require him to repair roofs and stacks. At the time of his injury he was doing some plumbing work, and in lifting a heavy piece of rail he sustained a rupture. In the opinion of this department his employment is considered largely haz- ardous. As the general character of the duties performed by Thennard are those of a plumber and tinner, repairing roofs, gutters, and staclcs, there seems to be no doubt that his employment is hazardous within the meaning of the act of May 30, 1908. I am therefore of opinion that there is sufficient evidence of con- nection between the accident and the incapacity and that claimant's employment is hazardous. OPINIONS OP SOLICITOE^ DEPARTMENT OP LABOR. 169 13. A time inspector required to attend men occupied in actual construction work of Isthmian Canal is engaged in hazardous employment. [In re claim of H. H. Van Slttert, Mar. 5, 1910; No. 2946.] The above claim is submitted to this office with special reference to the question whether the occupation of the claimant comes within the scope of the act. Claimant was employed as time inspector at the rate of pay of $112.50 per month and was injured while checking employees in Ancon quarry. The immediate report gives the following description of the accident : He was checking a gang that was at work on a narrow ledge, about 20 feet below the track, on which a train was being loaded by steam shovel 153. A rock on the dipper teeth fell as It was being dumped in a car and rolled over the embankment, striking him on the right side. This blow knocked him over the embankment, down which he fell to the track below,- a distance of about 4o feet. Engineer Gray saw the rock falling and called to him, but there was not sufficient time to get out of the way. He only succeeded in turning part way around when the rock struck him in the side. In regard to the nature of the services performed by the claimant, the examiner of accounts, who is his superior officer, furnishes the following statement : This Is the first claim that has been presented by an employee engaged in the work of time inspection, and because of .that fact I have considered it proper to point out with some particularity the duties of a time inspector, in order that the Secretary of [Commerce and J Labor may be in possession of all the facts incident to the work of that class of employees. The duties of a time inspector are similar in the manner of their perform- ance to those of a policeman, and men in the latter position have been held by the Solicitor of the Department of [Commerce and] Labor to be laborers within the meaning of the act of May 30, 1908. Like the policeman, the time inspector is assigned to a particular territory each day for the purpose of seeing that the men in his district are being properly timed; to investigate the use of property; to handle and examine property abandoned or discarded, etc. He is frequently required to carry heavy packages of metal checks and to deliver them to the men, and is called upon to check inventories, which necessitates the handling of numerous articles kept in the several storehouses of the com- mission. His work is entirely on the outside, and is hazardous because he Is required to go among those who work around dynamite and machinery and is obliged to walk on the railroad tracks in the canal and on the Panama Railroad. The inspector must be everywhere the construction men are and is in more hazard- ous employment than they are, because he is not handling the machinery and explosives and in his work can not as well see and avoid trouble. A time Inspector has no desk or office; his work requires no clerical experi- ence or training, and he has no supervising duties. The Civil Service Commis- sion excludes time inspectors from the classified service because their duties are not clerical. The occupation calls for strong men, who can walk and climb through the cut and hills 10 to 13 miles a day and in the mud and rain con- tinue to make progress. Their work is entirely outside work, calling for some manual labor as well as considerable physical exertion. In my opinion a time Inspector Is a laborer within the meaning of tha act of May 30, 1908. That he is at all times engaged in a most hazardous employ- ment there can be no question. The statement of the superior officer shows very clearly that the work performed by claimant almost continually required him to be exposed to various sorts of dangers. The manner in which the injury occurred indicates the hazard involved in his employment. On the whole, I am of the opinion that the occupation of the claim- 170 workmen's compensation undeb act of may 30, 1908. ant brings him within the scope of the act and that such occupation is hazardous within the meaning thereof. The claim should there- fore be allowed. 14. A machine printer operating a roller press is engaged in hazardous employment. [In re claim of Allen Rawlins, Apr. 26, 1910 ; No. 3200.] This claim is submitted with special reference to the question whether claimant's occupation comes within the scope of the act of May 30, 1908. The occupation of claimant is shown to be that of a laborer and the place of employment under the Isthmian Canal Commission. It is necessary, therefore, in addition to being an " artisan or laborer," that the employment be hazardous. The claimant was employed at the Mount Hope depot printiug plant, under the quartermaster's department, ^nd was injured, while removing a piece of paper from the rollers of the press, by his hand getting caught between the printing table and the bed of the press, mashing the thumb and back of right hand. In Traviso's case (C 938, Bu. 2989) it was said that the occupation of all laborers under the engineer department may "be regarded as hazardous unless there is something in the record to indicate otherwise. But in the quartermaster's department the work is not necessarily hazardous." As the claimant in this case was employed under the latter-named department, no presumption of hazard arises in his favor. It is noted that Rawlins was working at a printing press, and his duties required him to attend and look after the same while in motion, and that he was injured while attending to such duties. In the case of Charles H. Kiggs (C 2643, Bu. 5538), who was an ice-plant attendant in the Reclamation Service, engaged in "tending machine," it was said: He is an ice-plant attendant, and the character of his work is stated to be " tending machine." Prom this it may be inferred that it was his duty to looli after the machinery while it was running. This class of work is usually regarded as involving considerable hazard. The claim was allowed in that case. As the conditions of the employment in the present case are somewhat akin to the conditions in that case, I am of the opinion that the same principle applies and that the claim should be allowed. 15. A scavenger occupied in collecting garbage and hauling it away in carts is not engaged in hazardous employment. [In re claim of Henry Gill, May 19, 1910; No. 3503.] The above claim is submitted to this office with special reference to the question whether the occupation of claimant comes within the scope of the act of May 30, 1908. The occupation is shown to be that of " scavenger " in the depart- ment of sanitation under the Isthmian Canal Commission, and the foregoing question is raised because of the fact that in order to en- title claimant to compensation under that service he must, under the provisions of section 1 of the said act, in addition to being an artisan or laborer, be engaged in hazardous employment. As the branch of OPINIONS OP SOLIOITOB, DEPAETMBNT OP LABOB. 171 the service in which he is employed is not connected with the con- struction department, no presumption of hazard arises ; therefore it is necessary to ascertain whether the work upon which claimant was employed is hazardous in its nature. The character of the work performed by GUI is shown from the letter of the health officer, dated April 4, 1910, wherein he makes the following statement concerning the same : Collecting garbage from the various properties in the city and emptying same into the garbage carts ; going with the carts to the dump and helping to unload. The last half hour of the day, from 4.30 to 5, the scavenger assists in putting the dump in proper shape for speedy cremation of the garbage. At times the scavenger is called upon to clean houses that have been reported as insanitary by our inspectors, but ordinarily he is confined to collecting can garbage. The question of hazard has been considered by this office in a number of cases, among which are the following : Pedro Traviso (C 938, Bu. No. 2989), a laborer in the Canal Zone, who was injured while engaged in cleaning the floor of the mess hall, which employment was considered as not hazardous. Jose Migeles (C 1240, Bu. No. 3610), a scytheman in the Canal Zone, who was injured while engaged in cutting grass, which em- ployment was also considered as not hazardous. Stephen Price (C 1544, Bu. No. 4090), a water boy in the Canal Zone, was injured while delivering drinking water to the laborers by running against a scythe which was hidden by the grass. It was held in this case that such employment was not hazardous within the meaning of the act. In the case of Eloy Palacios (C 1717, Bu. No. 4463) there is some slight resemblance to the present case, in that the claimant in that case was engaged in delivering medicines to the hospital by use of a horse and wagon, while in this case it was necessary for claimant to go " with the carts to the dump and helping to unload." The claim- ant in the case cited was held not to be engaged in hazardous em- ployment. From a consideration of the duties performed by the claimant in this case it does not appear that any of the same involve any degree of hazard hot involved in the following of every occupation. No part of the work exposes the performer to any especial danger, and the mere fact that an accident happened is not sufficient to bring the occupation within the class of hazardous occupations. In view of the foregoing, I am of the opinion that the claimant was not engaged in hazardous employment within the meaning of the law, and that the claim should be disallowed. 16. A laborer with a gang at work clearing ground, using a machete in cutting trees, is engaged in hazardous employment. [In re claim of Blias Peaez, Dec. 17, 1910 ; No. 4217.] The above claim is submitted to this office with special reference to the question whether the claimant's occupation is hazardous within the meaning of the act of May 30, 1908. 172 workmen's compensation under act op may 30, 1908. The occupation of claimant is shown to be that of a laborer in the quartermaster's department, and at the time of the accident he was engaged with a grass-cutting gang clearing ground for the sanitary department and was using a machete in cutting down a small tree, when the instrument slipped and cut his right knee. The foregoing statement of the case includes practically all the information furnished, upon which this office is requested to decide whether or not the occupation is hazardous. In construing the terms "hazardous" and "extra hazardous" as used in an insurance policy in the case of Russell v. Manufacturers, etc. (50 Minn., 409), the court held that the terms had no technical meaning and that they must be taken in the ordinary and popular sense of dangerous and extra dangerous. The word "dangerous" is said (2 Cyc, 1827) to mean the opposite of the word " safe." The particular class or character of work Congress intended to indi- cate by the term " hazardous " is not clear. Since the word has been used in the act, it can not be said that Congress did not intend to draw some distinction. Why an artisan or laborer in the Reclama- tion Service and in the Isthmian Canal Commission must be en- gaged in hazardous employment in order to obtain the benefits of the act while similar employees in manufacturing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortification work are not required to be engaged in hazardous employment is not apparent. It may be that the legislature con- sidered the employment of all artisans or laborers in these latter places as dangerous or hazardous per se and merely intended that the employees in the first-named places should be engaged in simi- larly hazardous or dangerous employment. In the present case it will be noted that the general' character of the work performed by claimant included, among other work, the cutting down of small trees. By reference to the classification of risks in the case of acci- dent insurance it is found that persons following the occupation of " wood chopper " are regarded as being engaged in extra hazardous employment. While the occupation of claimant in this case may not be in exactly the same class with regard to the hazard involved as a person whose occupation is that of a wood chopper, yet the general nature of the work is so similar that for the purpose of construing the compensation act the occupation may be said to come within the general classification. In view of the foregoing I am of opinion that the claim should be allowed. 17. A hospital attendant performing the manual service usual about a hospital is not engaged in hazardous employment. [In re claim of Altman Renwlck, Jan. 19, 1911 ; No. 5576.] The above claim is submitted to this office with special reference to the question whether the occupation of claimant comes within the scope of the act of May 30, 1908. The occupation of claimant is shown to be that of a hospital at- tendant, and the duties of the occupation consist of lifting patients OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 173 on and off operating tables and assisting in carrying them to the rail- road station from the hospital. Under the provisions of section 1 of the act of May 30, 1908, it is necessary, in order to entitle a claim- ant under the Isthmian Canal Commission to compensation for in- juries received, that the employee be an artisan or laborer engaged in hazardous employment. In view of this provision of the law, the following question, therefore, arises in this case : Is the employment of claimant hazardous ? An examination of the duties performed by claimant fails to show that there is any amount of hazard involved, since the major part of the duties performed consists of lifting patients and assisting in carrying them on a stretcher from the hospital to the railroad sta- tion. From a consideration of the nature of the work performed by claimant, I am unable to ascertain wherein any part of the same ex- poses him to any especial danger. The mere fact that claimant suf- fered a strain would not of itself constitute sufficient evidence to prove that the employment was hazardous. As I am unable to find any hazard involved in the employment, I am of the opinion that the occupation does not come within the scope of the compensation act, for which reason the claim can not be allowed. 18. A cemetery laborer, wheeling stone in a barrow, is not engaged in hazardous employment. [In re claim of John Carney, Mar. 27, 1911 ; No. 6006.] From an examination of the papers in this case it appears that claimant was employed as a laborer under the sanitary department of the Isthmian Canal Commission at Cristobal, Canal Zone, and that he was injured on December 14, 1910, in the course of employ- ment and without negligence or misconduct on his part while using a wheelbarrow in Mount Hope Cemetery. There was one eyewitness to the accident, whose name is given in the report. The case is sub- mitted to this office with special reference to the question whether the claimant's occupation comes within the scope of the act. The official superior, in the immediate report of injury, describes the accident as follows : WMle pushing wheelbarrow uphill at Mount Hope Cemetery, slipped and fell down, the wheelbarrow falling pn right arm, spraining It. In compliance with the request of the Acting Secretary of Febru- ary 2, 1911, for a statement as to the nature of the work and general duties performed by the claimant with special reference to the ques- tion as to whether he was engaged in hazardous employment within the meaning of the act, the assistant chief sanitary officer, under date of February 14, 1911, says : * * * The chief sanitary officer directs me to say that the duties of John Carney are using machete or scythe whenever necessary in grass cutting or brush removal and assisting in cemetery work generally. In the particular work being performed at the time of injury he was compelled to wheel crushed rock up one of the steep hiffs in the cemetery. 174 workmen's compensation undbk act op may 30, 1908. Section 1 of the compensation act provides that compensation shall be paid on account of injury or death of an artisan or laborer en- gaged in " hazardous " employment under the Isthmian Canal Com- mission, and it is therefore necessary to consider, in each instance, the general nature of the claimant's employment in order to deter- mine whether it is " hazardous " within the meaning of the act. In the case of Jose Migeles (C 1240, Bu. 3610), whose duties consisted principally if not altogether of cutting grass, and who was injured while sharpening a scythe, it was held that he was not engaged in "hazardous" employment within the meaning of the statute. The same conclusion was reached in the case of Guiseppe AUione (C 5294, Bu. 11298), who was injured while using a scythe. In the opinion I said : As he was employed under the quartermaster's department, it is assumed that he belonged to that class of employees under that branch of the service who are engaged in cutting grass and underbmsh and clearing the ground for sanitary purposes. This being assumed to be the case, it would appear that the occupation of claimant is in all respects identical with the occupation of claim- ant in the case of Jose Migeles (C 1240, Bu. 3610). The general nature of the claimant's work as shown in the report of his official superior is quite similar to that of the laborers in the cases above mentioned. It is seen that he was employed in the sani- tary department; that his employment consisted in cemetery work generally; and that when injured he was wheeling crushed stone up one of the steep hills of the cemetery. The mere wheeling of stone is not in itself a hazardous occupation unless it is necessary to trav- erse dangerous runs or ways, as is usually the case in the work of construction, where a person in the performance of the ordinary duties of his occupation is constantly exposed to imminent danger or peril. In this instance such is not the case, and from the evidence contained in the record it is clear that the claimant's work is identical with that of the laborers in the cases above quoted. I am there- fore of the opinion that his occupation is not covered by the act, for which reason the claim should be disallowed. 19. A janitor rendering services chiefly of a domestic character is not engaged in hazardous employment. [In re claim of Alexander Jarvis, May 25, 1912 ; No. 8119.] This claim is submitted with the inquiry whether the occupation of claimant comes within the scope of the act of May 30, 1908. The occupation of claimant is shown to be that of janitor, but the particular place of his employment is not given. It is shown that he was eiriployed at the time of the injury under the quartermaster's department, and as ths work under that department is not presumed to be. hazardous, it is necessary for the employees who are injured while employed therein to show that the nature or character of their work is hazardous. OPINIONS OF SOLICITOR, DEPARTMENT OP LABOR. 175 In explanation of the character of the work performed by claimant the district quartermaster has this to say in a letter dated April 11, 1912: At the time of Jarvls's injury he was working as janKor, and his worls con- sisted of sweeping and scrubbing floors, making beds, filling water coolers, and such general work as comes under janitors' duties. At the time of this injury of May, 1910, Jarvis had filled a large glass bottle with water and in lifting it to put it into the body of the cooler where the ice is contained the bottle broke in his hand, causing the injury as noted in the reports. From a consideration of the class of work performed by claimant it does not appear that any portion thereof is hazardous, and there is nothing in the record to show that the particular place of his em- ployment involved anything hazardous. In this case the duties to be performed, as enumerated, appear to be more in the nature of those usually performed by a housemaid or domestic. In view of the foregoing, it is concluded that the occu- pation in this case is not shown to be hazardous. I have the honor to recommend that the claim be disapproved. X. " FORESTRY SERVICE." 1. Claimant was employed in a branch, of the forestry service under the Indian Office of the Interior Department. Held to be covered by the act. [In re claim of Wesley Gulley Ires, Mar. 10, 1915.] This claim is submitted to this office with the inquiry whether the service in which the decedent was employed is covered by the act of May 30, 1908. It appears from the record that decedent was an employee of the Klamath Indian Eeservation, which service is under the Indian Office of the Interior Department, he being engaged as a timber cruiser in the branch of the forestry service under that department. By reference to the original act of May 30, 1908, it will be found that the place of employment is neither specifically mentioned therein nor could it be brought thereunder by implication or inference. However, by an amendment approved March 11, 1912 (37 Stat., 74) , it was provided that in addition to the classes of persons designated in the original enactment it should also "be held to apply to any artisan, laborer, or other employee engaged in any hazardous work under the Bureau of Mines or the forestry service of the United States." Since that time all employees under what is loiown as the Forest Service of the Department of Agriculture engaged upon haz- ardous employment have been held to be within the provisions of the amendment. It will be noted that the designation "forestry service of the United States " is very broad and general in its mean- ing, with no qualification whatsoever. While the Forest Service of the Department of Agriculture appears to be of a more comprehen- sive character in its area than that of the Interior Department, yet in a letter from the Assistant Commissioner of Indian Affairs dated March 5, 1915, he states that the duties performed in the forestry branch of the Indian Service are subs);antially the same as those of men employed as forest guards and rangers in the Forest Service 176 workmen's compensation under act of may 30, 1908. of the Department of Agriculture. It appears, then, that the act pro- vides compensation for all employees engaged upon hazardous em- ployment under the forestry service of the United States, and that there is no limitation whatever in regard to which executive branch of the Government performs the work of that character. Since there appear to be no logical grounds upon which to draw a distinction between a branch of the service designated in the act simply because it may be smaller in size than another, I am of the opinion that this branch of the service may properly be declared to come within the provisions of the act as amended. This conclusion, it is believed, is in harmony with that reached in cases found at pages 156 and 157 of the pftblished opinions of the Solicitor for the Department of [Commerce and] Labor. In those cases the nature of the work be- ing performed consisted in the reclamation of arid lands, but the work was not being prosecuted imder the Reclamation Service of the Interior Department. It was held, however, in those cases that the language of the act was broad enough, in view of the benevo- lent purpose of the act, to include such branches of the service, and the claims were approved for payment. I therefore have the honor to recommend that this claim be approved, thereby bringing this branch of the service under the protection of the compensation act. XI. SERVICES AND EMPLOYMENTS WITHOUT THE ACT. 1. A carpenter working on improvements to the water-supply system at West Point is not entitled to the benefits of the act. [In re claim of Finlay Mackay, Oct. 14, 1908; No. 22.] The claimant in this case is a carpenter, and at the time of the injury, August 27, 1908, was employed hj the United States in the construction of an arch bridge in connection with improvements in the West Point water-supply system. The injury was not due to any negligence or misconduct on the part of the claimant, and no doubt is entertained as to the justice of the claim if the terms of the statute may be construed to cover the particular work on which he was engaged and the place of his employment. By its terms the statute applies to (a) " any person employed by the United States," {h) " as an artisan or laborer," (c) " in any of its manufacturing establishments," {d) " arsenals," (e) " or navy yards," (f) " or in the construction of river and harbor or fortification work," \g) " or in hazardous employment under the Isthmian Canal Com- mission." The claimant was employed by the United States as an artisan, but does the statute embrace such a person working on the improvement of the water-supply system at West Point ? Certainly not, unless the West Point Military Academy may be regarded as an " arsenal " or the work on the water-supply system there may be regarded as the " construction of river and harbor or fortification work." Eemedial statutes of the character of the act under consideration are to be construed liberally in favor of the class of persons whom they were intended to benefit. The executive officers of the Government, how- ever, are not justified in going beyond the terms of the statute to include cases not covered thereby. 177 In construing the act of February 1, 1901, granting leaves of absence to employees of the navy yards, gun factories, naval stations, arsenals, etc., the Attorney General held (23 Op. At. Gen., 443) that the word " arsenal " covered ordnance depots and the national armory. But the Military Academy is in no sense an " arsenal," even though arms and ammunition may be kept there. It is not a place for their storage. It can not be regarded as an arsenal any more than any military camp where arms and ammunition are kept may be so regarded. The particular work on which the claimant was engaged at the time of the injury happened to be on the river bank or over the water of the river. But this does not, in my opinion, bring the case within (he language "construction of river and harbor or fortification work." This language evidently has reference to the work contemplated and provided for in the river and harbor appropriation acts. I am of opinion, therefore, that the terms of the injured employees' compensation act are not broad enough to cover the claim here pre- sented, and recommend that it be disallowed. 2. A rural mail carrier is not entitled to the benefits of the act. [In re claim of D. H. Morgan, Nov. 5, 1908 ; No. 90.] It appears from the papers submitted that William C. Morgan, while carrying the United States mail on a rural free- delivery route out of Venedocia, Ohio, on August 31, 1908, attempted to cross a railroad track and was run over and instantly killed by the cars. His brother, D. H. Morgan, on behalf of the widow and children of the deceased, sent in a report on Form C. A, 3, and in a letter ad- dressed to the Secretary of Commerce and Labor, under date of October 26, 1908, asked what assistance the Government could render to the family. The injured employees' compensation act of May 30, 1908, does not apply to a rural mail carrier, and I know of no law of Congress which authorizes the payment of compensation to the family of the deceased under the circumstances reported. S. An employee engaged in repairing a lighthouse beacon is not entitled to the benefits of the act. [Law since amended.] [In re claim of August Michel, Not. 16, 1908; No. 144.] The above claim is submitted to this office with special reference to the question whether the work on which the claimant was engaged at the time of the injury brings his claim within the provisions-of the act of May 30, 1908. The claimant was engaged in repairing the structure of a beacon light, which is a part of the Lighthouse Establishment and is under the control of the Lighthouse Board. Unless the employment may be regarded as " in the construction of river and harbor or fortifica- tion work," it is clear that the language of the act does not cover it. I am of opinion that the words " river and harbor or fortification 93364°— 15 12 178 WOBKMBn's compensation under act op may 30, 1908. work," as used in the act, refer to work authorized by the river and harbor and fortification appropriation acts, which is done by the En- gineer Department of the War Department. At least this is the work which the Legislature seems to have had in mind when the act was under discussion. In reporting the bill to the House the Com- mittee on the Judiciary said : The Government in its river and harbor worlt employs approximately 12,800 artisans and laborers, their wages ranging from $400 to $3,600, with an ap- proximate average of $1,280. The perfect machinery and the discipline exer- cised over the employees have resulted in a very few accidents, 75 approxi- mately having occurred since and including the year 1894. Of those injured, only two were killed and one died. This language shows that the committee could not have had in mind any and all work done upon the rivers and harbors of the United States, regardless of where it was done, how authorized, and under whose direction. The reference to the machinery and discipline sug- gests at once the machinery and discipline of the War Department. AVhether the act would apply to work done by the Engineer Depart- ment under a special act and special appropriation for the construc- tion of a bridge across navigable water, or other work of a similar nature, it is not necessary to determine at this time. I am satisfied, however, that the act of May 30, 190S, was not intended to apply to construction or repair work in the Lighthouse Establishment. [In re claim of August Michel, Nov. 23, 1908 ; No. 144.] In accordance with laj memorandum of November 16, 1908, there is now submitted to this office a formal disapproval of the above claim, in which the reason given for the disapproval is that the " act of May 30, 1908, does not apply to construction or repair work in the Lighthouse Establishment." Lest this may be misunderstood as referring to all work in the Lighthouse Establishment, I return to you all the papers in the case with the recommendation that the reason for the disapproval be stated on Form C. A. 6 as follows: "Act of May 30, 1908, does not apply to employees engaged in constructing or repairing light- house or beacon stations under the Lighthouse Establishment." The memorandum of November 16, supra, had reference only to such work, and the question of employees in a manufacturing estab- lishment under the Lighthouse Board was not Considered. 4. A lineman employed by the Signal Corps of the Army is not entitled to the benefits of the act. [In re claim of A. J. Lawrence, Nov. 18, 1908 ; No. 117.] This claim, made on Form C. A. 4, is based upon a ruptured eye- ball incurred on September 1, 1908, while the claimant was engaged in making a stake for staking part of the right of way for a Govern- ment telegraph line in Alaska. The act of May 30, 1908, grants relief only to " any person em- ployed by the United States as an artisan or laborer m any of its OPINIONS OF SOLICITOK, DEPARTMENT OF LABOR. 179 manufacturing establishments, arsenals, or navy yards, or in the con- struction of river and harbor or fortification work or in hazardous employment on construction work in the reclamation of arid lands or the management and control of the same or in hazardous employ- ment under the Isthmian Canal Commission." The law is specific in including the above classes of employees and excludes, by inference, all others. It is my opinion, therefore, in the absence of any evidence showing that a lineman in the Signal Corps of the Army is employed in the construction of " fortification work," that this case does not come within the scope of the act. 5. A seaman employed on a lighthouse tender is not entitled to the benefits of the act. [Iiaw since amended.] [In re claim of O. R. Hansen, Not. 23, 1908; No. 65.] I return herewith the papers in the above case, consisting of a letter from the Lighthouse Board, under date of October 16, 1908, the letter of the inspector of the twelfth lighthouse district, and the report of Form C. A. 1, referred to therein, and a report of Form C. A. 2. The character of Mr. Hansen's employment as seaman on a light- house tender does not bring him withm the scope of the act. The question aslred by the Lighthouse Board as to whether Mr. Hansen may be paid as seaman for any part of the time of incapacity involves considerations altogether foreign to the act of May 30, 1908. He is subject to the same rules and regulations and practice which govern other seamen on lighthouse tenders when absent from duty by reason of sickness or accidental injury. [In re claim of William A. Britt, Nov. 21, 1911 ; No. 7537.] This claim is submitted with the inquiry whether the work upon which decedent was employed at the time of his death is covered by the act of May 30, 1908. From the record in the case it is noted that decedent was employed as a seaman on the tender Snowdrop, which vessel is connected with the Bureau of Lighthouses, and was at the time engaged on con- struction and repair work on the Savannah River lights. The question here presented for determination has been heretofore considered by this office in a number of cases, wherein it has been held that an employee on a lighthouse tender is not engaged in a branch of the service covered by the compensation act. (See the following cases: O. Rudolph Hansen, C 65, Bu. 724; August Michel, C 144, Bu. 535 ; Joseph Lambert, C 937, Bu. 2908 ; and John A.. Veseth, C 2206, Bu. 4875.) As there is nothing in the record which would distinguish the facts in this case in regard to the branch of service in which the employee was engaged from those in the above-cited cases, I am of the opinion that the conclusion there reached is applicable here. 180 WOEKMEn's compensation under act of may 30, 1908. 6. An elevator conductor in a local Federal building is not entitled to the benefits of the act. [In re claim of James Cassidy, Dec. 11, 1908 ; No. 259.] This claim is founded upon an injury received October 16, 1908, by claimant while on duty in an elevator in a Federal building used principally as a local post office. The act of May 30, 1908, grants relief only to " any person em- ployed by the United States as an artisan or laborer in any of its manufacturing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortification work, or in hazard- ous employment on construction work in the reclamation of arid lands or the management or control of the same, or in hazardous employment under the Isthmian Canal Commission." The law is specific in including the above classes of employees and excludes by inference all others. It is my opinion, therefore, that this case does not come within the scope of the act. 7. An electrician's helper employed in an executive department at Washington is not entitled to the benefits of the act. [In re claim of A. W. Fowler, Dec. 24, 1908; No. 290.] The above claim is submitted to this office with special reference to the question whether the claimant's occupation falls within the scope of the act of May 30, 1908. The claim comes through the office of the Secretary of Agriculture and the certificate of official superior is signed by chief engineer and captain of watch. The claimant, it appears, was assisting in stringing telephone wires in an alley in the block occupied by the Department of Agriculture. It seems clear, therefore, that the claimant is an employee of the department at Washington. There is nothing in the act which can justify the conclusion that it was intended to apply to the execu- tive departments at Washington, as such, and I have to advise, therefore, that the claim does not come within the scope of the act. 8. A stevedore employed In the Army transport service is not entitled to the benefits of the act. [In re claim of Michael Hogan, Dec. 24, 1908 ; No. 291.] The above claim is submitted to this office with special reference to the question whether the act of May 30, 1908, applies to the Army transport service and depot quartermaster's office at San Francisco, Cal. The claim is made by a letter written by the claimant under date of December 2, 1908, and the question above indicated is asked by the depot quartermaster at San Francisco, in an indorsement thereon. It appears that the claimant was engaged in putting coal aboard the tug Slocum, when, by reason of the apron extending over the rail- OPIlSriONS OF SOLiClTOE, DEPARTMENT OP LAIBOE. 181 ' ing of the vessel not being properly adjusted, he was thrown violently against the deck house and severely injured. So far as the War Department is concerned, the act can apply only to manufacturing establishments, arsenals, and river and harbor and fortification work. The transport service comes under neither of those heads. The case here presented is similar to that of John Bland Gray (Bu. No. 627), discussed in mj opinion of December 11, 1908, where I held that " hauling and trucking hay and oats from car to dock " did not come within the scope of the act. I am unable to say at this time whether any branch of the service under the Quartermaster's Depart- ment may be classed as a "manufacturing establishment." This matter will be considered when a case is presented showing that the location and character of the work raises the question. In the present case there is no circumstance indicating that the work was in any way connected with a manufacturing establishment, and I have to advise that it does not come within the scope of the act/ 9. A laborer employed in a local customhouse is not entitled to the benefits of the act. [In re claim of N. C. Washington, Jan. 8, 1900 ; No. 313.] The collector of customs, Galveston, Tex., forwarded to the Treas- ury Department a report of an accidental injury to N. C. Wash- ington, a laborer employed in the customs service, and, in his, letter of transmittal, requests that the injured employee be given compen- sation under the act of May 30, 1908. The matter is submitted to this office with special reference to the question whether the occupa- tion of the injured man falls within the scope of the act. In an opinion of December 11, 1908 (Bu. No. 670), in the case of James Cassidy, a laborer injured in the United States Government building, Rochester, N. Y., I stated that the act grants relief only to " any person employed by the United States as an artisan or laborer in any of its manufacturing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortifica- tion work, or in hazardous employement on construction work in the reclamation of arid lands or the management or control of the same, or in hazardous employment under the Isthmian Canal Commission," and that the law is specific in including the above classes of employees and excludes, by inference, all others. I am of the opinion that the laborer injured in this case is not entitled to compensation under the act. 10. A pilot in the service of the ftuartermaster's Department of the War Depart- ment is not entitled to the benefits of the act. lln re claim of T. C. Pent, Jan. 9, J.909 ; No. 312.] The papers submitted show that the claimant was the pilot on a launch belonging to the Quartermaster's Department of the War Department, in service at Key West, Fla., and that on November 182 workmen's compensation under act op may 30, 1908. 10, 1908, while taking certain necessary prompt action for the pro- tection of the launch, by hauling heavy anchors, which enlisted men who were seasick at the time would otherwise have been required to handle, he sustained the injury complained of. The claim has been submitted to this office Avith special reference to the question whether the claimant's occupation falls within the scope of the act. This case is similar to that of John Bland Gray (Bu. No. 627), dis- cussed in my opinion of December 11, 1908, where I held that " haul- ing and trucking hay and oats from car to dock " for the Quarter- master's Department of the War Department did not fall within the scope of the act. So far as the War Department is concerned, the act can apply only to manufacturing establishments, arsenals, and river and har- bor and fortification work. The claimant was not engaged in work of this kind, and his occupation did not, therefore, fall within the scope of the act. 11. A painter employed by an Indian agent at an Indian school is not entitled to the benefits of the act. [In re query of Ray Cadwalader, Feb. 15, 1909 ; No. 515.] In a letter addressed to Senator T. P. Gore under date of Feb- ruary 3, 1909, Ray Cadwalader stated that while employed by the Indian agent to do some painting at the Indian school he fell and broke a leg, and asked if he was entitled to any damages. Senator Gore referred this letter to the Department under date of February 8, 1909, and asked if the injury referred to came within the provisions of the injured employees' compensation act. The correspondence is submitted to this office with special reference to the question raised by Senator Gore. The act referred to applies only to artisans and laborers employed by the United States in any of its manufacturing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortification work or in hazardous employment on construction work in the reclamation of arid lands or the management and control of the same, or in hazardous employment under the Isthmian Canal Commission." An Indian school does not belong to any of the branches of the public service covered by the terms of the statute, and I have to advise, therefore, that the injury received by Mr. Cadwalader does not entitle him to compensation. 12. A lighthouse keeper is not entitled to the benefits of the act. [Law since amended.] [In re claim of Samuel Jewell, May 12, 1909 ; No. 1085.] This claim is founded on an injury to the heart caused by over- exertion in hurrying up the lighthouse tower to give a badly burn- ing light proper attention. Claimant is the keeper of a lighthouse, and, as such, is not entitled to compensation under the act of May OPINIONS OF SOLICITOR, DEPARTMENT OP LABOR. 183 30, 1908, because said act provides for compensation specifically only for artisans or laborers in any of the manufacturing establishments, ai-senals, or navy yards of the United States, or for laborers engaged in the construction of river and harbor or fortification work, or in hazardous employment on construction work in the reclamation of arid lands or the management and control of the same, or in haz- ardous employment under the Isthmian Canal Commission. By inference all other classes are excluded from the benefits of the act. The keeper of a lighthouse can not be regarded as coming within any of the above designations, and it is my opinion that his daim should be disallowed. 13. A laborer employed in painting at an Army barracks Is not entitled to the benefits of the act. rin re claim of J. A. I'osey, June 3, 1909 ; No. 1046.] This claim is submitted to this office with special reference to the question whether the claimant's occupation falls within the scope of the act of May 30, 1908. The claimant's occupation is given as master of launch C apron, but the injury was sustained while he was at work painting door on engine storehouse at the Washington Barracks. As I stated in my opinion in the case of John Bland Gray (C 234, Bu. No. 627), "the only branches of the service under the War Department to which the act can apply are manufacturing estab- lishments, river and harbor work, fortifications work, and arsenals." The word " barrack " is defined by the Standard Dictionary as " a permanent structure for the lodgment of soldiers, as distinguished from a hut or tent ; generally in the plural." The record does not disclose that any manufacturing is carried on at the Washington Barracks, and I do not understand that any such work is done there. It can not, therefore, be regarded as a manu- facturing establishment. There is no river and harbor work or forti- fications work done there, and unless the place may be regarded as an arsenal the claim can not be brought within the terms of the statute. In the case of Finlay Mackey (C 22, Bu. No. 272), coming from West Point Military Academy, I considered the question of what might be regarded as an arsenal within the meaning of the statute, and held that the Military Academy at West Point is in no sense an arsenal, even though arms and ammunition may be kept there. " It is not a place for their storage. It can not be regarded as an arsenal any more than any military camp where arms and ammunition are kept may be so regarded." Following this course of reasoning, I reach the conclusion that the Washington Barracks is not within the scope of the act of May 30, 1908. 14. A launch operator in the ftnartermaster's Department of the War Department is not entitled to the benefits of the act. [In re claim of Joseph Eaton, Oct. 27, 1909 ; No. 1379.] The above claim was before this office on July 28, 1909, and on September 15, 1909, with special reference to the question whether the service in which the deceased employee was engaged is covered 184 workmen's compensation under act op may 30, 1908. by the act of May 30, 1908, but before rendering a final opinion further information was desired. Accordingly, under date of Sep- tember 25, 1909, the Acting Secretary of Commerce and Labor re- auested the War Department to advise this department as to whether le usual duties of the deceased at the time of the accident were connected with a manufacturing establishment, arsenal, navy yard, or in the construction of river and harbor or fortification work or with work of some other character. In response to this request, the Deputy Quartermaster General a,t San Francisco makes the follow- ing statement under date of October 11, 1909 : Mr. Eaton's duty at the time of his death being that of navigating and super- intending launch in the harbor of San Francisco, it should be apparent that he was not " connected with a manufacturing establishment, arsenal, navy yard, or In construction of river and harbor or fortification work." This statement makes it clear that the occupation of the claimant is not covered by the statute, and I have the honor to advise that the claim be disallowed. 15. A deck hand on a vessel attached to Governors Island, N. Y,, is not entitled to the benefits of the act. [In re claim of A. J. Cowan, Nov. 8, 1909 ; No. 1878.] The above claim is submitted to this office with special reference to the questions as to whether the service in which the claimant was employed is covered by the act of May 30, 1908, and whether the accident was due to negligence or misconduct on the part of the claimant. The injured employee, while engaged in the usual duties of his employment as a deck hand, fell through an open hatchway on the vessel Armistead, at Governors Island, N. Y. When the claim was first submitted to this office it did not appear that the claim could be allowed. However, in order that no injustice might be done the claimant, it was suggested that the War Department be asked whether, in its opinion, " the particular place of employment of this claimant may properly be regarded as a ' manufacturing establish- ment,' or an arsenal, or whether he was employed in the construction of river and harbor or fortification work," before action was taken by this office. The indorsement of the Acting Quartermaster General, dated October 28, 1909, reads in part as follows : In the opinion of this office, the place of employment of this applicant can not properly be regarded as a manufacturing establishment, or as an arsenal, or in the construction of river and harbor and fortification work. The above statement and the other evidence in the case very clearly show that the claim does not come within the scope of the act. lia view of the conclusion herein reached it is not necessary to consider the question of negligence or misconduct. I am therefore of opinion, as above indicated, that the service in which the claimant was employed is not covered by the act, and the claim for compensation should be disallowed. OPINIONS OF SOLICITOR, DEPAETMENT OE LABOR. 1S5 16. A quartermaster on a lighthouse tender Is not entitled to the benefits of the act. [Law since amended.] [In re claim of J. A. Veseth, Dec. 11, 1909 ; No. 2206.] The above claim has been referred to this office with special refer- ence to the question whether the claimant's occupation comes within the scope of the act of May 30, 1908, and whether the service in which he was emi)loyed is covered by the act. _ The official superior, Capt. Thomas, states that the claimant at the time of the accident was on deck of the tender Gardenia hoisting the anchor. The following is the description of the accident as given by the official above referred to : The anchor was being hoistecl on a whip when the anchor hook broke and a piece flew back striking Veseth in the left leg below the knee, inflicting a com- pound fracture of the tibia. This case is similar to the case of John Lambert (C 937, Bu. No,. 2908), who was also employed on the lighthouse tender Gardenia at Tompkinsville. After reviewing the other cases that had been re- ferred to this office for opinions in regard to claims on account of injuries to employees under the lighthouse depot at Tompkinsville, it was held : But in the case now under consideration the claimant is a cook on the tender Gardenia. His occupation seems to be in no way connected with the manu- facturing pursuits carried on at the Tompkinsville depot. His designation as a cook, and the fact that at the time of the accident he was " coming on board with the milk and bread," shows that his occupation was independent of the manufacturing carried on there. It was the same as It might be at the " other lighthouse depots," which " seem to be used only as storage and distributing points for the various supplies needed in the lighthouse service and can not be properly classed as manufacturing establishments." Ordinarily lighthouse depots are not considered manufacturing estab- lishments. However^ as there is considerable manufacturing in the Tompkinsville depot, it has been held that that part of it where the manufacturing is done is a " manufacturing establishment " within the meaning of the law. But as the claimant in the case now under consideration was not employed in that part of the depot where the manufacturing is performed, his claim does not come within the scope of the statute. In view of the fact that the claim can not be allowed for the reason that the service in which the claimant was engaged is not covered by the act, it is not necessary to consider whether his occupation comes within the scope of the act. 17. A laborer employed at a national park is not entitled to the benefits of the [In re claim of Albert Johnson, Mar. .3, 1910 ; No. 2904.] There is referred to this office a letter from E. E. Betts, engineer of the Chickamauga and Chattanooga National Park, addressed to Col. John T^eedale, acting chairman and secretary, Washington, D. C., reporting that Albert Johnson, a laborer employed by the Chickamauga and Chattanooga National Park Commission, was in- capacitated for a period of nine and three-fourths working days in December and January last by reason of an injury received in the course of his employment and suggesting that he be paid for the 186 workmen's compensation under act op may 30, 1908. time lost. The War Department, in referring the letter to the De- partment of Commerce and Labor, asks whether the injury is covered by the act of May 30, 1908, and the matter is submitted to this office for advice. There is nothing in the record, as it now stands, to indicate that the injured employee was employed in any branch of the Govern- ment service mentioned in the act. Furthermore, even if it were shown that the place of employment was covered by the act, it ap- pears from the record that the injury did not continue for 15 days, which the statute requires in order to bring an injury within its beneficent terms. I have the honor to advise, therefore, that the injury sustained by Mr. Johnson does not entitle him to the benefits of the act of May 30, 1908. Whether he may under any other statute or under any rule or regulation of the War Department or the Chickamauga and Chat- tanooga National Park Commission be paid his wages or salary for the time lost is not considered. 18. A laborer employed in the construction of a power plant in the congressional hnildings is not entitled to the beneiits of the act. [In re claim of G. H. Smith, Mar. 17, 1910; No. 3088.] The letter of Hon. George A. Pearre, M. C, addressed to the As- sistant Secretary of Commerce and Labor under date of March 10, 1910, asking whether, under the act of May 30, 1908, Mrs. Loretta E. Smith is entitled to compensation on account of the death of her hus- band, George H. Smith, is referred to this office. It appears from the papers submitted that the deceased was employed by the United States as an artisan or laborer in the construction of the new heating, lighting, and power plant for the congressional buildings at Wash- ington, D. C., and that while so employed he was accidentally killed on September 8, 1909. The act of May 30, 1908, which authorizes the payment of compen- sation on account of the injury or death of an employee of the United States, applies only to artisans or laborers employed by the United States in any of its " manufacturing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortification work, or in hazardous employment on construction work in the reclamation of arid lands or the management and control of the same, or in haz- ardous employment under the Isthmian Canal Commission." The place where Mr. Smith was killed does not, as far as the record discloses, belong to any of the branches of the Government service enumerated in the act, and I have the honor to advise that his widow is not entitled to the benefits therein provided for. 19. A powder man employed by the Government Road Commission of Alaska Is not entitled to the beneiits of the act. [In re claim of M. D. McCormlck, Oct. 31, 1910 ; No. 4905.] There is submitted to this office an inquiry whether the service in which the above-named employee was engaged comes within the scope of the act of May 30, 1908. The question is presented by a OPINIONS OF SOLICITOK, DEPARTMENT OP LABOE. 187 letter from the injured man, addressed to the Secretary of Commerce and Labor. Beyond stating that he was designated a " powder man " and was " employed by the Government Eoad Commission in Alaska in the building of a wagon road between Valdez and Fairbanks," the writer does not otherwise describe his employment. The compensation act is limited in its application to persons em- ployed by the United States as artisan or laborer "in any of its manufacturing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortification work or in haz- ardous employment on construction work in the reclamation of arid lands or the management and control of the same, or in hazardous employment under the Isthmian Canal Commission." From the meager description of the writer's occupation above re- ferred to it does not appear that he was employed in any of the capacities specified by the act. Unless he was so employed, he is of course excluded from the benefits thereof. 20. A laborer employed by the TTnited States in the work of raising the " Maine " is not entitled to the benefits of the act. [In re query by Manuel Fernandez, Not. 8, 19H ; No. 7512.] There is submitted correspondence relating to an injury to Manuel Fernandez, a laborer engaged upon the work of raising the Maine, in the harbor of Habana, Cuba. This work is being done under the direction of the Secretary of War and the Chief of Engineers by authority vested in them by the act of Congress approved May 9, 1910, whereby the sum of $100,000 was appropriated for that purpose. The title of this act is as follows : An act providing for the raising of the United States battleship Maine, in Habana Harbor, and to provide for the Interment of the bodies therein. The act of May 30, 1908, providing compensation for injured em- ployees requires that such person be employed in a manufacturing establishment, arsenal, navy yard, or in the construction of river and harbor or fortification work, or in hazardous employment on con- struction work in the reclamation of arid lands or the management and control of the same^ or in hazardous employment under the Isthmian Canal Commission before he can be entitled to compensa- tion for injuries received in the course of the employment. As the work upon which Fernandez was employed does not appear to come within any of the branches of the service enumerated in the act, I have the honor to advise that no claim for compensation can be approved. 21. A seaman on a vessel of the Naval Auxiliary Service is not entitled to the benefits of the act. [In re claim of Sigurd Bvenson, Apr. 30, 1912 : No. 8431.] Claim in this case is filed by the parents of decedent, and the ques- tion is submitted whether the service in which he was employed is cov- ered by the act of May 30, 1908. ISS workmen's compensation UiSfDER ACT OP MAY 30, 190S. From the papers in the case it appears that claimant was employed as a seaman on the U. S. S. Neptune, which vessel is in a branch of service under the Navy Department known as the " Naval Auxiliary Service," and decedent was injured while the vessel was being coaled at the United States naval coal depot at Melville, E. I. By reference to the provisions of the act of May 30, 1908, it is found that the employees referred to are those engaged in " manufac- turing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortification work, or in hazardous employment on construction work in the reclamation of arid lands or the manage- ment and control of the same,", and, as amended by the acts of March 4, 1911, and March 11, 1912, respectively, " to all employees under the Isthmian Canal Commission," and to employees engaged in any hazardous work under the Bureau of Mines or the Forestry Service." An examination of the branches of the service expressly mentioned in the act fails to show that it was the intention of the legislature to extend the benefits of the act to the " Naval Auxiliary Service," under the Navy Department. As this employment is not named in the act, it is clear that it is excluded, unless by the terms of the act it can be implied that it was intended to be covered therein. Such implica- tion, however, could only arise by determining that the above service was a part of or attached to one of the branches of the service under the Navy Department, which is expressly named in the act. From a caref"ul consideration of the same, I am unable to find from the record that there is any connection or association which would justify such a conclusion. In view of the foregoing, I am of the opinion that the service in which the decedent was employed at the time of his death is not cov- ered by the compensation act, for which reason the claim can not be approved for payment. XII. " IS INJURED." " WHENEVER AN ACCIDENT OCCURS." 1. An accident arises from something: unforeseen, unexpected, or unusual, and is not the natural result of ordinary means, voluntarily employed, in a not unusual or unexpected way. 2. But an effect which does not ordinarily follow the use of familiar means, and which can not reasonably he anticipated, is an accident. 3. The statute, if not restricted to injuries of an accidental nature, is at least confined to injuries which are referable to some particular event capable of being .fixed in point of time. 4. Within the language of the statute an employee may be injured without hav- ing suffered a definite accident. 5. A plate printer following his usual occupation and sustaining a sprain of the wrist and a rupture of the synovial sac is injured within the meaning of the statute. [In re claim of A. E. Clark', Doc. 17, 190S ; No. 92.] The papers filed with the above claim show that the claimant has been employed in the Bureau of Engraving and Printing as a plate printer for several years, his pay being measured by the piece or quantity of work. In his claim for compensation he gives as the OPINIONS OF SOLICITOH, DEPARTMENT OF LABOR. 189 " date of accident " September 3, 1908. He worked on September 2, 1908, printing 1,100 sheets. On September 3, 1908, the day he alleges he was injured, he printed 1,050 sheets. On September 4, 1908, he printed 1,000 sheets, and on Septeinber 5, 1908, 500 sheets. He was then absent until September 11, 1908. From this date he worked until September 18, 1908, when he consulted a physician, who found his wrist badly sprained and ordered a complete rest for at least one month. The claimant now claims that the injury was due to the bad condition of the ink furnished him on September 3, but up to the time of filing the claim no complaint was made to his superior officer, and no immediate report of injury has been filed up to this time. However, the director of the bureau, under date of October 17, 1908, addressed a letter to the Secretary of the Treas- ury giving an excellent statement of the whole case, discussing the application of the law to it, and expressing the opinion that the claim is not one which can properly be brought within the provisions of the act of May 30, 1908. This letter, together with the claim and all other papers in the case, is referred to this office, with special reference to the questions raised therein. This case presents a number of very important questions relative to the apjDlication of the act of May 30, 1908. (As to whether the Bureau of Engraving and Printing is a manu- facturing establishment, see part of same opinion, p. 120. As to whether a person paid by the j)iece is an employee of the Govern- ment or merely a contractor, see part of same oi)inion, p. 49. As to determination of rate of compensation in the case of pieceworkers, see part of same opinion, p. 381.) Does the act contemplate the payment of compensation on account of an injury which develops gradually as the result of long-continued overwork or strain, making it difficult or impossible to fix the time of its beginning, or does the act apply only to accidental injuries or those which begin with the happenmg of a particular event. And in the latter case, was the injury of the claimant an injury by accident? The second question presents many difficulties. It is not easy to draw the line between what may and what may not be considered injuries within the meaning of the act. A person whose duty requires him to lift heavy weights may, in so doing, overstrain himself and cause a rupture. Even though the rupture be due, in some degree, to the naturally feeble condition of the employee, he would, without doubt, be entitled to the benefits of the act (See opinions in the cases of Franli T. Osgood, Nov. 25, 1908, Bu. No. 132, and John F. Mulverhill, Nov. 30, 1908, Bu. No. 1020, and authorities there cited.) On the other hand, a person not overstrong may, in an effort to keep up with stronger persons engaged on the same work, so ex- haust his physical energies as to finally render him unfit for full duty. Again, a person may, in consequence of the strain or pressure his employment puts upon him, become gradually weakened, and by virtue of an accumulation of trifling hurts, each insufficient of itself to incapacitate him, finally become worn out and unfit for work. The injuries thus resulting would be injuries sustained in the course of employment; but are they to be regarded as injuries within the purview of the act? A negative answer must be giveij to this ques- tion if the act applies only to injury by accident. 190 woekmen's compensation under act of may 30, 1908. The first section of the act of May 30j 1908, provides that when a person employed by the United States is " injured in the course of such employment, such employee shall be entitled to receive for one year thereafter, unless such employee, in the opinion of the Secretary of Commerce and Labor, ie sooner able to restmie work, the same pay as if he continued to ie employed.''^ While the word " accident " is not used in this section, the words " sooner able to resume work " and " as if he continued to be employed " indicate that the injury con- templated must be one which, while it occurs in the course of employ- ment, is such as to incapacitate the injured employee. Furthermore, the words " for one year thereafter " indicate that the injury con- templated must be one that occurs at a definite point of time, and not an injury which develops gradually. The second section provides for the payment of compensation to the widow, children, and dependent parents of an employee who shall die " during the said year by reason of such injury received in the course of such employment." The words " the said year," referring to the " one year thereafter," in the first section, support the view that the legislature had in mind only such an injury as had a definite and fixed beginning as to time. The third and fourth sections prescribe the procedure for reporting the accidents which result in death or probable incapacity for work and the presentation of claims for compensation. The provisions in these sections do not refer to another class of injuries than those pro- vided for in the first and second sections. The legislature is all the time referring to the same injuries. It is significant, therefore, that the word " accident " is persistently and consistently used all through the third and fourth sections referring to the cause of th^ injury which is to entitle the injured person to compensation. Thus, m the sections referred to, will be found such phrases as " whenever an accident occurs," " report such accident and the injury resulting therefrom,^'' " the nature of the accident and injury, ^^ " whether the accident arose," " whether the accident was due," " m the case of any accident,^'' etc. I do not overlook the fact that the legislature might and probably would have provided for compensation on account of some injuries not caused by accident if its attention had been directed to them. But we have no right to consider what the legislature might have done in regard to any matter not brought to its attention. It can not be pre- sumed that the legislature intended to legislate in respect to a matter which was not in the legislative mind. A legislature may, because of a lack of consideration of the effect of language used, do things it does not intend to do, but it can never be presumed to have done a thing not contemplated unless the language is so clear as not to be " open to construction." I think, therefore, the language of the statute clearly justifies the conclusion that the legislature had in mind only such " injuries as may result from accident, or, at any rate, only such injuries as are directly referable to some particular event capable of being fixed in point of time." In this respect the present act is no more limited in its application than are the workmen's com- pensation acts of many of the chief countries of Europe. Undoubt- edly these latter acts were freely referred to in framing the present law. In the compensation acts of Great Britain, France, Germany, and many other countries the injuries compensated are expressly OPINIONS OP SOLICITOK, DBPABTMENT OF LABOR. 191 restricted to " injuries by accident." (See summary of foreign acts in Bull. No. 74, Bu. Labor.) Indeed, it is not improbable that injuries to employees, not due to accident, but involving rather a gradual brealdng down and wearing out of the workman, though arising in the course of emploj^ment, are generally regarded by legislators as niore properly constituting a subject matter of legislation wholly distinct from the theory on which workmen's compensation acts are founded, and as bearing closer relation to the plan of old-age pensions and similar measures. Is, then, the claimant's injury attributable to accident, as that word is used in workmen's compensation acts and in employers' liability statutes ? The injury which is the basis of the claim consists of a condition of relaxation of the posterior ligaments of the right wrist, commonly Imown as a sprain. The claimant attributes it to the bad condition of the ink furnished him for use on September 3. The character of the ink furnished is immaterial, except in so far as it may tend to show the origin of the injury. The director of the bureau says that the claimant's statement that the ink used on September 3 was thicker than that used on other days is not borne out by the statements of other printers who used the same ink upon that day. The origin of the injury can not, therefore, be fixed by the character of the ink. In the physician's certificate the character and extent of injury is given as a rupture of synovial sac on dorsal surface of wrist, with great pain upon use of tendons around wrist," and the subjective sj'mptoms or signs are given as " swelling, due to rupture above stated, and weakness of flexor and extensor muscles." In a written state- ment under date of September 23, 1908, filed with the claim, the at- tending physician says : I have made careful examination of the right wrist of Mr. Alfred E. Clark, and find a condition of relaxation of the posterior ligaments, commonly known as a sprain. This condition is complicated by a rupture of the synovial sac surrounding the ligaments leading from the back part of the forearm to the fingers. These conditions have without doubt been the result of the severe work Miv Clark has been performing. It will be noted that in each of the statements quoted from the attending physician the word " rupture " is used; also that the injury is further described as a "sprain." A rupture, according to the Standard Dictionary, is " the act of rupturing ; a breaking asunder ; bursting; also, tlie state of being broken apart or burst "; and a sprain is defined as a violent strainmg or twisting of the ligaments sur- rounding a joint, sometimes producing partial rupture but not dislo- cation ; the condition due to such strain.'' The bursting of the syno- vial sac is a specific event, which must have happened at some par- ticular point of time, and the same may be said of the violent strain- ing or twisting of the ligaments which constitutes the sprain and which apparently produced the rupture. Neither the rupture nor the sprain immediately resulted in incapacity for work, but the continued use of the wrist or the mere efflux of time did result in incapacity, which continued for " more than 15 days." The injury was caused by the work which the claimant was doing — ^in inking the plates, in wiping the plates, or in pulling the prrss. In Mutual Accident Association v. Barry ^131 U. S., 100) a jury had found in favor of the insured, who had injured himself fatally in 192 workmen's compensation under act of may 30, 1908. jumping off a platform some 4 or 5 feet high. There was a motion for a new trial on the ground of misdirection. The trial court re- fused to disturb the verdict and was sustained by the Supreme Court of the United States, the latter holding " that the jumping off the platform was the means by which the injury, if any was sustained, was caused ; that the question was whether there was anything acci- dental, unforeseen, involuntary, unexpected in the act of jumping from the time the deceased left the platform until he alighted on the ground; that the term 'accidental' was used in the policy in its ordinary, popular sense as meaning ' happening by chance ;_ unex- pectedly taking place ; not according to the usual course of things or not as expected '^; that if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it can not be called a result effected by accidental means ; but that if, in the act which precedes the injury, something unforeseen, unex- pected, unusual occurs which produces the injury, then the injury has resulted through accidental means." In its opinion two cases were cited with approval, as follows: In Martin v. Travelers' Insurance Co. (1 Foster and Fin., 505) the policy was against any bodily injury resulting from any accident or violence, " pro- vided that the injury should be occasioned by any external or material cause operating on the person of the insured." In the course of his business he lifted a heavy burden and injured his spine. It was objected that he did not sustain bodily injury by reason of an accident. The plaintiff recovered. In North American Insurance Co. v. Burroughs (69 Penn. St., 43) the policy was against death " in consequence of accident," and was to be operative only in case the death was caused solely by an " accidental injury." It w;is held that an accidental strain, resulting in death, was an accidental injury within the meaning of the policy, and that it included death from any unexpected event happening by chance and not occurring according to the usual course of things. The best discussion which has been found of the meaning of the term " accident," as used in connection with injuries to employees in cases arising under compensation' and liability statutes, appears in the several opinions of the judges in the English case of Fenton v. Thor- ley & Co. (19 T. L. E.., 684.) The claimant was a workman who had been employed to look after a machine used in preparing a cattle food. The machine was a combination of kettle and press. In op- erating it the man in charge moves a lever and turns a wheel, and the contents are taken out, dried and pressed. On the day of the injury, after operating the machine many times without difficulty, the wheel would not turn, and in endeavoring to make it do so the claimant felt what he described as a " tear " on his " inside," and it was found that he was ruptured. The claimant was a man of ordinary health and strength. There was no evidence of any slip or wrench or sud- den jerk. " It may be taken," says the report, "that the injury oc- curred while the man was engaged in his ordinary work, and in doing or trying to do the very thing which he meant to accomplish." Com- pensation was allowed. Lord Lindley observed that^— The word " accident " is not a technical legal term with a clearly defined mean- ing. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause, and if the cause is not known the loss or hurt itself would cer- tainly be called an accident. The word " accident " is also often used to de- note both the cause and the effect, no attempt being made to discriminate be- tween them. The great majority of what are called accidents are occasioned by carelessness, but for legal purposes it is often important to distingttisb care- OPINIOKS OF SOLICITOK, DEPAETMENT OF LABOR. 193 less from other unintended and unexpected events. • • ♦ The governing section is section 1, 1, which runs thus : " If in any employment to wliich this act applies personal Injury by accident arising out of and in the course of the employment Is caused to a workman," his employer shall be liable to pay compensation. What is meant by personal injury by accident? Mr. Powell, in his very able argument, contended that there must be, first, a personal injury ; secondly, that there must me an accident causing it ; thirdly, that such accident must be the proximate cause of the injury, and that nothing more remote than the proximate cause can be properly taken into account. My Lords, I can not accede to this contention. Assuming that there must be something unintended and unexpected besides the personal injury sustained, or, in other words, assum- ing that there must be a personal Injury and an accident causing it, I can not agree with Mr. Powell that this statute ought to be construed as if it were a pol- icy of insurance against accidents. In an action on a policy the cause proxima is alone considered in ascertaining the cause of loss; but in cases of other contracts and in questions of text the causa causans is by no means disregarded. * * * The rule that in contracts of insurance the proximate cause of loss can alone be regarded is carried so far that if it were rigidly applied to this act of Par- liament its evident object would in many cases be clearly defeated. No doubt the rupture in this case was the result of an effort voluntarily and strenuously made, and it may be that a policy of insurance against accidents might be so worded as not to cover an injury so caused. * * * It is not straining lan- guage, but using it in Its ordinary sense, to describe the personal injury as caused by an accident. The personal injury was the rupture; the cause of it was the unintended and unexpected resistance of the wheel to the force applied to it. Such a case appears to me to fall within the act. * * * If personal injury is caused to a workman, and it arises out of and in the course of an em- ployment to which the act applies, it appears to me that prima facie the act entitles him to compensation, but that this inference may be displaced by proof that the injury is attributable to his own serious and willful misconduct, or to some other cause which shows that the injury was not accidental. Lord Shand, with whom Lord Powell concurred, said that — The word " accident " in the statute is to be taken in its popular and ordinary sense. I think it denotes or Includes any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence. Lord Macnaghten, who delivered the leading judgment, referring to the decision of the lower court as having held " that there was no accident, because there was an entire lack of the fortuitous element; that what the man was doing he was doing deliberately, and in the ordinary course of his work, and that which happened was in no sense a fortuitous event," rejected this view, and, after quoting the language of the act, proceeded in part as follows : The expression " injury by accident " seems to me to be a compound expres- sion. The words " by accident " are, I think, introduced parenthetically, as it were, to qualify the word " injury," confining it to a certain class of injuries and excluding other classes, as, for instance, injuries by disease or Injuries self- inflicted by design. Then comes the question. Do the vvords " arising out of and in the course of the employment " qualify the word " accident " or the word "injury" or the compound expression "injury by accident"? I rather think the latter view is the correct one. * * * The truth is that in the act, which does not seem to have had the benefit of careful revision, " accident " and " in- jury " — that is, injury by accident — appear to be used as convertible terms. * * * I come, therefore, to the conclusion that the expression " accident " is used in the popular and ordinal^ sense of the word, as denoting an unlooked- for mishap or an untoward event which is not expected or designed. In support of the general conclusion reached. Lord Macnaghten referred as follows to a decision of the Court of Session in Scotland, in which he said he agreed entirely : It is the case of Stewart v. Wilsons & Clyde Coal Co. (Limited) (1903-1905 F., 120). A miner strained his back in replacing a derailed coal hutch. The 93364°— 15 13 194 WOBKMEn's compensation UNDBK act of may 30, 1908. question arose, Was that an accident? All the learned Judges held that it wag. True, two of the learned judges expressed an opinion that it was " fortuitous," but they could not have used that expression in the sense in which it was used in Hensey v. White (sup.). What the miner did in replacing the hutch he certainly did deliberately and in the ordinary course of his work. There was nothing haphazard about it. Lord McLaren observed that it was impossible to limit the scope of the statute. He considered that "if a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in, * * * this is accidental injury in the sense of the statute." Lord Kinnear observed that the injury was "not intentional," and that " it was unforeseen." " It arose," he said, " from some causes which are not definitely ascertained, except that the appellant was lift- ing hutches which were too heavy for him. If," he added, " such an occurrence as this can not be described in ordinary language as an accident, I do not know how otherwise to describe it." Without undertaking at this time to say what injuries should, in all cases, be regarded as accidental injuries, or injuries resulting from accidents, within the meaning of the present act, and without en- deavoring to lay down any rule by which accidental injuries may be invariably distinguished from injuries due to other causes, I am of opinion that it may be safely concluded, for the reasons given and on the authority of the cases cited, that the injury in the present case should be classed as an accident or the result of an accident. [In re claim of A. E. Clark f supplementary opinion), Apr. 1, 1909; No. 92.] The injury which is the basis of the claim consists of " a condition of relaxation of the posterior ligaments (of the right wrist), com- monly known as a sprain." In the physician's certificate the charac- ter and extent of the injury is given as " a rupture of synovial sac on dorsal surface of wrist, with great pain upon use of tendons around wrist," and the subjective symptoms or signs are given as " swelling due to rupture as above stated, and weakness of flexor and extensor muscles." In a written statement, under date of September 23, 1908, filed with the claim, the attending physician says: I have made careful examination of the right wrist of Mr. Alfred B. Clark, and find a condition of relaxation of the posterior ligaments, commonly known as a sprain. This condition is complicated by a rupture of the synovial sac surrounding the ligaments leading from the back part of the forearm to the fingers. These conditions have without doubt been the result of the severe work Mr. Clark has been performing. As a result of this injury the claimant's wrist had to be placed in a plaster cast and allowed to have complete rest for a month or more. The injury is alleged to have occurred while the claimant was work- ing at his press, printing the face of $5 silver certificates." The operations of a plate printer are fully illustrated by photographs filed by the Director of the Bureau of Engraving and Printing, who describes them as follows: As the exhibits show, the duties of the plate printer are to place ink upon the plate, wipe it off, polish it with his hand, and then placing the plate upon the bed of the press pull it through by the handlebars. All these different processes requiring physical exertion, it necessarily appears, where an attempt Is made to print a large number of impressions, that the exertion expended would be greater than where a smaller number is printed. * • * Mr. Clark, who had for years worked as a plate printer, had pulled a hand plate-printing press in the pursuit of his daily vocation on an average this year 950 times a day, besides performing the other work incidental to plate printing. There was necessarily a great strain upon the tendons of the wrist, and they could not etand it longer. Hence they gave way. OPINIONS OF SOLICITOE, DEPAIJTMENT OF LABOR. 195 The occasion of the injury is thus described in the claimant's affidavit : On or about September 3, 1908, I sustained an injury to my wrist while working as plate printer in the Bureau of Engraving and Printing, which at that time I thought was merely a slight strain and treated it accordingly, using liniments and wrapping it in bandages while working. The following week I was granted leave of absence for three days, thinking a rest would improve the condition of my wrist. I returned to work on the 11th of September and worked until the 18th, when I was compelled to consult a physician, who, after examination, found a rupture of the sac containing the secretion for lubricating the joint at the wrist. He then placed it in a plaster cast and informed me that it would require complete rest for at least one month. I further state that I believe the injury was caused by a bad condition of ink which necessi- tated extra exertion to fill in and wipe from the plate. Touching the condition of the ink, the director of the bureau states: The fact that the ink upon the day when Mr. Clark alleges he received his injury was thicker than on other days is not borne out by the statements of other printers who worked the same ink upon that day, nor has this bureau received complaints of the thickness of the ink upon that particular day. Indeed, admitting, for the sake of argument, that the ink on that particular day was thicker than it should have been, Mr. Clark could have relieved himself of any extra strain thus occasioned by cutting down the number of impressions which he usually printed. In this same connection the claimant in his letter to the Solicitor of the Treasury above mentioned states : It is certainly a fact that a number of printers in my section, and it is reason- able to suppose in other sections, complained of and were affected to such an extent that it was necessary for them to bandage their wrists and paint with iodine, but I believe none were affected so seriously as myself, and that a com- mittee of our union, recognized as such by the officials of the bureau, did com- plain of the bad condition of the ink at that time and were told that it was some left from the last year's supply, and that as soon as it was used up the ink would be better. In my former opinion it was first concluded that the injuries men- tioned in the act referred only to " such injuries as may result from accident, or, at any rate, only such injuries as are directly referable to some particular event capable of being fixed in point of time." In the opinion of the Solicitor of the Treasury, it is held that — The act was intended to apply only to those cases in which the injury was the result of an accident. In both opinions the question considered was whether the claim- ant's injury was attributable to accident. The difference in the con- clusions reached is due to different understandings of the import of the word as used in workmen's compensation acts and in employers' liability statutes. The Solicitor of the Treasury restricts the mean- ing of the term " accidental injury," or " injury by accident," to in- juries which result solely from something extraordinary, unusual, or unexpected, as well as involuntary, in the preceding action or con- duct of the person injured or from some unforeseen, unexpected, or unusual occurrence preceding the injury. Thereupon he argues: There was nothing whatever out of the ordinary in his operations on Septem- ber 3, except a number of Impressions considerably beyond his average and what he calls " the bad condition " of the ink he was using. There was no defect or imperfection in the lever of his press or in the handles of his roller, the only instruments which require any material exertion of his wrists in the several processes of plate printing. Neither was there any sudden and violent movement 196 woekmen's compensation under act of may 30, 1908. of his body or limbs, voluntary or Involuntary, such as might accidentally result In a sprain. * * * There was no cessation of his work nor complaint of injury by him on the day he claims to have been injured, and all the facts of the case Indicate that the strained condition of the wrist came about by slow and im- perceptible degrees. Everyone will agree, I think, that the act does not apply to a case in which the bodily powers of the employee give way under normal conditions without any defect or imperfection in the machinei-y \^hich he oper- ates, nor to a case in which his labors aflfect his general health so as to incapaci- tate him for work. * * * An accident can not be made of Mr. Clark's injury by saying that it was unusual, unforeseen, and unexpected by him. The cause of the injury, as well as the injury itself, must have been unusual, unforeseen, and unexpected. * * * Adopting Mr. Clark's theory as to the cause of the injury, what was the act preceding his injury within the meaning of the above definition? Obviously it was the act of pressing the roller on and passing it over the plate, the act which produced the strain upon his wrist. Was there anything unusual, unforeseen, or unexpected In that act? Certainly there would have been if the handles of the roller had suddenly given way, .thrqjvlng the weight of his body on his wrists as his hands came in contact with the table below. If it should be said that the " bad condition " of the ink and the increase of exertion necessary on that account were unusual and unexpected, the reply is that they might have been so when he began his work that day but could not have been so 10 minutes thereafter, and, of course, could not have been so when his exertions had gone far enough to result in injury to his wrist. * * * If Mr. Clark had by a single, sudden, or violent exertion sprained his wrist, so as to make it necessary for him to quit work immediately, it might be that his case could be brought within the principles of this decision. But the fact being that his injury was the result of many hundreds of separate exertions of his wrist, all alike in kind and character, there is no room whatever in this case for the application of that decision and many others of the same class, for it could not possibly be said that there was any unforeseen or involuntary turn or twist, or other movement of his body or limbs, which resulted in the injury to his wrist. As authority for the foregoing view of injuries by accident and for the argument based thereon, the Solicitor of the Treasury relies on the case of Mutual Accident Association v. Barry ( 131 U. S., 100) , which was also cited in the former opinion rendered by this oiEce. In that case three physicians jumped from a platform, some 4 or 5 feet high, at the same time and place. Two of them alighted in safety, while the third suffered a stricture of the duodenum, which produced a disease from which he died. The Supreme Court affirmed the judgment founded upon a verdict that his death was the result of bodily injuries effected through external, violent, and " accidental means," and approved an instruction which had been given by the trial court to the jury : That the jumping off the platform was the means by which the injury, if any was sustained, was caused ; that the question was, whether there was any- thing accidental, unforeseen, involuntary, unexpected, in the act of jumping, from the time the deceased left the platfoi'm until he alighted on the ground; that the term " accidental " was used in the policy in its ordinary, popular sense, as meaning " happening by chance ; unexpectedly taking place ; not ac- cording to the usual course of things ; or not as expected " ; that, if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it can not be called a result effected by accidental means ; but that if, in the act which precedes the injury, something unforseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means. It seems to me that too much emphasis has been placed upon that portion of the passage cited which says that " if the result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it can not be called a result effected by accidental means,?' and that too little emphasis has been placed upon the further OPINIONS OP SOLICITOR, DEPARTMENT OF LABOR. 197 statement that " if, in the act which precedes the injury, something un- foreseen, unexpected, unusual occurs, which produces the injury, then the injury has resulted through accidental means," inasmuch as the court m the same passage expressly states that the " jumping off the platform was the means by which the injury, if any was sustained, was caused," and since whatever there was in the act of jumping, "from the time the physician left the platform until he alighted on the ground," which was " unforeseen, unexpected, or unusual," it must of necessity have been inherent in the man himself. There was certainly nothing " unusual," " unexpected," " extraordinary," or " involuntary " in the act of jumping. So, in the present case, the unforeseen, unex- pected, and unusual occurrence which led to or constituted the in- jury was inherent in the man himself and did not take place while he was engaged in the performance of any unusual or involuntary act. In my opinion, also, too much importance has been attached to the reference by the court in the passage cited to " the act which pre- cedes the injury," because no note is thereby taken of the fact that the injury itself may be an accident, or rather, that the accident and Ihe injury may be one and the same thing. It should also be noted that in the passage quoted the Supreme Court was not framing a definition of its own of the term " accidental means," but was simply paraphrasing the instruction given by a trial court, whose judgment it refused to disturb. It is accordingly believed that in speaking of the result which follows the use of " ordinary means, voluntarily employed, in a not unusual or unexpected way," the court had ref- erence to the natural and probable consequence which the use of such means would reasonably be expected to cause, and which could not, therefore, be regarded as an accident ; while the " something unfore- seen, unexpected, unusual," referred to, was intended to indicate an effect which does not ordinarily follow the use of familiar means, which can not reasonably be anticipated, and which, therefore, is an accident. That this, in substance, is the real purport of the passage quoted is indicated by the cases cited in support of the position taken by the court: Martin v. Travelers Insurance Co. (1 Foster and Fin., 505), where the person concerned, in the course of his employment, lifted a heavy burden and injured his spine; North American In- surance Co. V. Burroughs (69 Penna. St., 43), where it was held that a strain, incurred while helping to unload hay, resulting in death, was an accidental injury. This, too, is clearly the view taken by the circuit court of appeals of the eighth circuit in Western Travel- ers' Association v. Smith (85 Fed. Kep., 401), in which the decision of the Supreme Court was quoted and relied upon, and in which it was stated: The significance of this word " accidental " is best perceived by a considera- tion of the relation of catises to their effects. The word is descriptive of means which produce effects which are not their natural and probable consequences. The natural consequence of means used is the consequence which ordinarily follows from their use — the result which may be reasonably anticipated from their use, and which ought to be expected. The probable consequence of the use of given means is the consequence which is more likely to follow from their use than it is to fail to follow. Au effect which is the natural and probable consequence of an act or course of action Is not an accident, nor is it produced by accidental means. It is either the result of actual design or it falls under the maxim that every man must be held to intend the natural and probable consequence of his deeds. On the other hand, an effect which is not the natural or probable consequence of the means which produced it, an effect which does 198 workmen's compensation undee act op may 30, 1908. not ordinarily follow and can not be reasonably anticipated from the use of those means, an effect which the actor did not intend to produce and which he can not be charged with the design of producing under the maxim to which we have adverted, is produced by accidental means. It is produced by means whidi were neither designed nor calculated to cause it. Such an effect is not the result of design, can not be reasonably anticipated, is unexpected, and is produced by an unusual combination of fortuitous circumstances; In other words, it is produced by accidental means. In the latter case it was held that where blood poisoning results from an abrasion of the skin of the toe, occasioned by wearing a new shoe, and death follows, the death is properly attributable to an injury effected by " accidental means." The abrasion of the skin of the toe of the deceased was unexpectedly caused, without design on his part, by unforeseen, unusual, and unexpected friction in the act of wearing the shoe which preceded the injury. It was not the natural or probable consequence of that act, and it was therefore produced by acci- dental means. The doctrine of these cases, as I read them, fully supports the view that Mr. Clark's injury was an accidental injury. In the case of the physician " the jumping off the platform was the means by which the injury, if any was sustained, was caused." In the case of Mr. Clark the movements of the body in the operation of printing constituted the means by which the injury was caused. If the phy- sician had alighted as he intended, and as he thought he would, and as his two companions did alight, there would have been no accident. So in the case of Mr. Clark, if each separate movement had been made just as he intended and expected, and just as he had made hundreds of other similar movements, they would have been attended by no accident or injury. But in each case something unforeseen, unexpected, and unusual occurred, and an injury resulted. In the case of the physician it was a displacement, constriction, or occlusion of the duodenum. In the case of Mr. Clark it was a straining of the ligaments about the wrist and a rupture of the synovial sac. So in the case of the man who died from blood poisoning, which resulted from an abrasion of the skin, caused by wearing new shoes: "An abrasion of the skin," said the court, " is not the probable consequence of the use of new shoes, for it can not be said to follow such use more frequently than it fails to follow. Nor can such an abrasion be said to be the natural consequence of wearing such shoes — ^the consequence which ordinarily follows or which might be reasonably anticipated." In like manner, a strain of the ligaments about the wrist and a rup- ture of the synovial sac is not the natural and probable consequence of the manipulation of a printing press — ^that is to say, the conse- quence which ordinarily follows or which might be reasonably antici- pated. " How, then," to use the language of the court, " can it fail to be the chance result of accidental means — ^means not designed or calculated to produce it? " But even if the ruling of the Supreme Court in the Barry case, properly understood, sustains the view of the Solicitor of the Treas- ury, which is not conceded, it is not necessarily controlling in the present case, nor was it chiefly relied upon in the former opinion of this oiSce. Main reliance in that opinion was placed on the House of Lords case of Fenton v. Thorley & Co. (19 T. L. E., 684), construing the British workmen's compensation act, in which the in- juries compensated thereby are restricted in terms to " injuries by OPINIONS OP SOI.ICITOE, DEPARTMENT OF LABOR. 199 accident." In the Supreme Court case the phrase " accidental means " was construed as employed in an accident insurance policy. In the English case the term " injury by accident " was construed as used in a statute identical in purpose with the statute under considera- tion. It may be that the word " accident," or " accidentally," as employed in insurance policies, has acquired in the course of adjudi- cation a meaning more restricted than it ordinarily has and less comprehensive than properly attaches to it when employed in statutes like the present one. For these reasons it was thought that the English case furnished the true rule of interpretation. The facts in that case, so far as the principle involved is concerned, can scarcely be distinguished from the facts in the present case. In that case the claimant was a workman who had been employed to manipulate a machine used in preparing a cattle food. The ma- chine was a combination of kettle and press. In operating it the man in charge moves a lever and turns a wheel and the contents are taken out, dried and pressed. On the day of the injury, after op- erating the machine many times without difficulty, the wheel would not readily turn, and in endeavoring to make it do so the claimant felt what he described as a "tear on his inside," and it M'as found that he was ruptured. The claimant was a man of ordinary health and strength. There was no evidence of any slip, or wrench, or sud- den jerk. " It may be taken," says the report, " that the injury oc- curred while the man was engaged in his ordinary work and in doing or trying to do the very thing which he meant to accomplish." The views of the court in this case were fully set forth in my former opinion. At the present time it will be sufficient to quote the dcGni- tions of the word " accident " given by the several judges who par- ticipated in the decision : The word accident in the statute Is to be taken In its popular and ordinary- sense. I thinl£ it denotes or includes any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence. ^ The truth is that in the act, which does not seem to have had the benefit of careful revision, " accident " and " Injury," that is, injury by accident, appear to be used as convertible terms. * * * j come, therefore, to the conclusion that the expression " accident " is used in the popular and ordinary sense of the word, as denoting an unlooked-for mishap or an untoward event which is not expected or designed. ' The word " accident " Is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an acci- dent means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause, and if the cause is not known the loss or hurt itself would certainly be called an accident. The word " accident " is also used to denote both the cause and the effect, no attempt being made to discriminate between them. * * * i can not agree with Mr. Powell that this statute on.s;ht to be construed as If it were In a policy of insurance against accidents. If any weight is to be given to this decision, it would seem to be decisive of the present case. It is interesting to note that the decision of the Supreme Court in. the Barry case was cited with approval in the opinion of the House of Lords, and as lending authority to the conclusion reached. Touching the suggestion of the Director of the Bureau of En- graving and Printing, quoted in the letter of the Secretary of the Treasury, returning the claim to this Department, " that if compen- 200 WOKKMEn's compensation under act OJ.'' MAV 30, 1908. sation can be allowed in that class of cases the current appropriation will be insufficient to carry on the work of his bureau," the observa- tions of the Comptroller of the Treasury, in his opinion of March 25, 1909, are pertinent : The act Is a beneficial and humane one, and ought not to fail on account of a technical construction of the use of an appropriation. I have previously held, and I think correctly, that the appropriation available to pay the employees or laborers while at work was intended by Congress to pay them the compen- sations provided when injured, and the beneficiaries named when death results from injuries received under the terms of this law. It is quite evident such was the congressional intent, however injurious such construction may prove in the performnnce of the obJ«cts for which these appropriations were primarily made. It will no doubt prove, in certain cases, extremely difiicult, if not im- possible, to do the things for which the appropriations were made and use a considerable portion of it to pay disabled employees and the beneficiaries of those who die from injuries. (In re claim of A. E. Clark; No. 92.) OPINION OF THE ATTORNEY GENERAL. 127 Op. At. Gen., 340.] The vrord "injury" is employed compreliensively to embrace all the cases of incapacity to con- tinue the work of employment, including: aU cases where as a result of the employee's occupation he becomes unable to carry on his "nrork. Sir: I have the honor to aclmowledge receipt of your request of the 13th ultimo for an opinion, as follows : There has been presented to me for approval or disapproval, in accordance with the act of Congress approved May 30, 1908 (35 Stat., 556), a claim for compensation based on the following facts: The claimant, Alfred E. Clark, a person employed by the United States as a plate printer in the Bureau of Engraving and Printing, was injured in the course of his employment on September 3, 1908. His employment at the time of the injury consisted in working a hand press, which involved the five opera- tions of inking the plate with a hand roller, wiping the surplus ink off the plate with a rag, polishing the plate with the hands, placing the plate on the bed of the press, and pulling it through by the handlebars. This had been the claimant's occupation for several years, and he had been accustomed to per- form the various operations mentioned on an average of about 950 times a day. During the day and at the time of the injury the physical conditions of his employment were as usual, except that the ink used was probably some- what thicker than it should have been. The injury sustained by the claimant consisted of a condition of relaxation of the posterior ligaments (of right wrist), commonly known as a sprain, complicated by a rupture of the synovial sac surrounding the ligaments leading from the back part of the forearm to the fingers, of which the subjective symptoms were a swelling, due to the rup- ture, and a weakness of the flexor and extensor muscles. The injury con- tinued (for more than fifteen days), inasmuch as it had to be treated by plac- ing the wrist in a plaster cast and allowing it to rest for several weeks. The injury did not, however, immediately result in incapacity for work. The claimant continued to work on the day of the injury and on the day following, as well as during a part of the next day. He was then absent from work on account of the injury for six days, when he returned to work and worked for seven days. Thereafter he was absent from work on account of the injury for several weeks. In view of the importance of securing a correct interpretation of the statute, and in view of the diverse conclusions reached by the Solicitors of the Treas- ury and of this Department, respectively, I liave the honor to request an ex- pression of your opinion as to whether the injury sustained by Mr. Clark is an injury within the meaning of the act of Congress approved May 30, 1908, on account of which compensation may be paid. The opinions of two solicitors which you send me chiefly discuss the question whether Mr. Clark's injury was caused by an "acci- OPINIONS OF SOLICITOTi, DEPARTMENT OP LABOE. 201 dent" or came on by slow and imperceptible degrees, without there having been something unforeseen, unexpected and unusual " in the act which preceded the injury." One solicitor holds against Mr. Clark, saying that to allow him compensation during absence would be equivalent to giving sick leave with pay, and likening his case to that of a man whose physical powers give way after a time because the work is too severe for him, and to the case of a watchman suffer- ing from pneumonia brought on by exposure to drafts of air, and that of an engraver suffering as a result of the constant and severe strain upon his eyes. The act referred to is entitled "An act granting to certain employees of the United States the right to receive from it compensation for injuries sustained in the course of their employment." Section 1 reads as follows : That when on or after August first, nineteen hundred and eight, any person employed by the United States as an artisan or laborer in any of it,s manufac- turing establishments, arsenals, or navy yards, or in the construction of river and harbor or Vortiflcation worli, or in hazardous employment on construction work in the reclamation of arid lands, or the management and control of the same, or In hazardous employment under the Isthmian Canal Commission, is injured in the course of such employment, such employee shall be entitled to receive for one year thereafter, unless such employee, in the opinion of the Secretary of Commerce and Labor, be sooner able to resume work, the same pay as if he continued to be employed, such payment to be made under such regulations as the Secretary of Commerce and Labor may prescribe: Provided, That no compensation shall be paid under this act where the injury is due to the negligence or misconduct of the employee injured, nor unless said injury shall continue for more than fifteen days. All questions of negligence or mis- conduct shall be determined by the Secretary of Commerce and Labor. The first few lines of section 3 are as follows : That whenever an accident occurs to any employee embraced within the terms of the first section of this act, and which results in death or a probable Incapacity for work, it shall be the duty of the official superior of such em- ployee to at once report such accident and the injury resulting therefrom to the head of his bureau. The first few lines of section 4 are as follows : That in the case of an accident which shall result in death, the person enti- tled to compensation under this act or their legal representatives shall, within ninety days after such death, file with the Secretary of Commerce and Labor an affidavit setting forth their relationship to the deceased and the ground of their claim for compensation under the provisions of this act. The question involved in your inquiry is whether or not the purpose of the act, as expressed in the first section and as indicated by the title, viz, to secure to employees of the United States, of the class specified, the right to receive compensation for injuries sustained in the course of their employment, is controlled and narrowed by the use in sections 3 and 4 of the word " accident." It will be observed that in the first and second sections of the act, which confer the right, the language employed refers broadly to injuries received by an employee in the course of his employment. This is safeguarded by the proviso in the first section that no com- pensation shall be paid where the injury is due to the negligence or misconduct of the employee injured, " nor unless the said injury shall continue for more than fifteen days." By section 2, if such employee shall die during the year by reason of such injury received in the course of his employment, leaving a widow or relatives of the desig- 202 workmen's compensation under act oe may 30, 1908. nated class, the amount which would have been paid to such employee during the remainder of the year is required to be divided among and paid over to such widow or other relatives in the manner provided in the act. The word " accident " is only employed in the third and fourth sections, the third section relating to the report of the occur- rence of the accident and the character or such report, and the fourth section referring to " the case of any accident which shall result in death," and providing for the affidavit of claim and other proofs. Later on in the fourth section occurs this paragraph : In the case of incapacity for work lasting more than fifteen days, the injured Barty desiring to take the benefit of this act shall, within a reasonable period after the expiration of such time, file * * * an affidavit setting forth the grounds of his claim for compensation, to be accompanied by a certificate of the attending physician as to the cause and nature of the injury and probable duration of the incapacity. * * * In other words, the statute quite consistently provides for the cases of injuries in the course of the employment, and accidents resulting in death or otherwise. The word " injury " is employed comprehen- sively to embrace all the cases of incapacity to continue the work of employment, unless the injury is due to the negligence or misconduct of the employee injured — ^and including all cases where as a result of the employee's occupation he, without any negligence or miscon- duct, becomes unable to carry on his work, and this condition con- tinues for more than 15 days. The word " accident " is employed to denote the happening of some unusual event, producing death or injury which results in incapacity for work, lasting more than 15 days. That is to say, within the language of the statute an employee may be injured in the course of his employment without having suf- fered a definite accident. This is a beneficent statute, in the nature of an act granting pen- sions of limited duration and of special application. The language employed appears to me to be clear and unambiguous, and should not be so construed as to exclude from its benefits any of those cases which it fairly includes. I therefore deem it unnecessary to enter upon an extended discussion of the authorities which have dealt with the definition of the word " accident " as distinguished from " injury," although there are many interesting precedents dealing with such definitions ; and the modern tendency of courts has been to apply the term " accident " to include all injuries arising out of the pursuit of claimant's employment which, without his own fault, incapacitate him from carrying on his labor. The case of Fenton, pauper, v. Thorley (19 Law Times R., 684), arising under the British compensation act, and decided by the House of Lords, was as follows : On December 3, 1901, Fenton was at work at his machine. He had got through the operation of that day a good many times without hitch or diffi- culty ; but about 9 p. m. or a little later, when tlie time came for opening the Tessel, the wheel would not turn. He then called a fellow workman to his assistance, and the two men together set to work to move the wheel. Suddenly Fenton felt something which he describes as a " tear " in his " inside," and it was found that he was ruptured. Fenton was a man of ordinary health and strength. There was no evidence of any slip, or wrench, or sudden jerk. It may be that tlie Injury occurred while the man was engaged in his ordinary work, and in doing or trying to do the very thing which he meant to accomplish. There is evidence that the wheel was short of one spoke or handle, which may have made it more diffl- OPINIONS OF SOLICITOR, DEPARTMENT OP LABOR. 203 cult to grasp than usual, and it was discovered afterwards tliat there was a leak in the kettle which let moisture into the vessel below, gluing its con- tents together, and so causing the lid to stick. I mention these circumstances merely for the purpose of putting them aside. * * * Founding themselves upon that expression, the learned judges of the court of appeals held in Hensey v. White, as they have held here, that there was no accident, because there was " an entire lack of the fortuitous element." What the " man was doing," it was said, " he was doing deliberately, and in the ordinary course of his work," and that which happened was in no sense a fortuitous event. * * * If a man, in lifting a weight or trying to move something not easily moved, were to strain a muscle, or rick his back, or rupture himself, the mishap in ordinary parlance would be described as an accident Anybody would say that the man had met with an accident in lifting a weight, or trying to move something too heavy for him. One other remark I should like to make. It does seem to me extraordinary that anybody should suppose that when the advantage of the insurance against accident at their employers' expense was being conferred on workmen. Parliament could have intended to exclude from the benefit of the act some injuries ordinarily described as accidents which beyond all others merit favorable consideration in the interest of workmen and employers alike. A man injures himself by doing some stupid thing, and it is called an accident and he gets the benefit of the insurance. It may be even his fault, and yet compensation is not to be disallowed unless the injury is attributed to " serious and willful misconduct " on his part. A man injures himself suddenly and un- expectedly by throwing all his might and all his strength and all his energy into his work by ^oing his very best and utmost for his employer, not sparing himself or taking thought of what may come upon him, and then he is to be told that his case is outside the act because he exerted himself deliberately, and there was an entire lack of the fortuitous element. * * * There is, however, a recent decision of the Court of Session in Scotland to which I would like to call your lordships' attention, and in which I agree en- tirely. It is the case of Stewart v. Wilson's and Clyde Coal Company (Lim- ited) (5 Praser, 120). A miner strained his back in replacing a derailed coal hutch. The question arose. Was that an accident? All the learned judges held that it was. True, two of the learned judges expressed an opinion that it was " fortuitous," but they could not have used that expression in the sense in which it was used in Hensey v. White. What the miner did in replacing the hutch he certainly did deliberately and in the ordinary course. There was noth- ing hazardous about it. Lord McLaren observed that it was impossible to limit the scope of the statute. He considered that " if a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in * * * this Is accidental injury in the sense of the statute." Lord Kinnear observed that the injury was " not intentional," and that " it was unforeseen." It arose, he said, " from some causes which are not definitely ascertained, except that the appellant was lifting hutches which were too heavy for him." " If," he added, " such an occurrence as this can not be described in ordinary language as an accident I do not know how otherwise to describe it." * * * Lord Shand, in the course of a judgment, which was read by Lord Mac- naghten, said : " I shall only add that, concurring, as I fully do, in holding that the word 'accident' in the statute is to be taken in its popular and ordinary sense, I think it denotes or includes any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence." These are very authoritative declarations of the meaning of a law whose rule of compenslition expressly concerned injuries by accident. Certainly no greater weight or narrower meaning should be given to that word in the case of the statute in question than ought to have been given by the Hovise of Lords in the case just mentioned. On a day which seems to be fixed Mr. Clark's wrist was sprained and the synovial sac ruptured. After working off and on for a few days he was absent from work on account of this injury for several weeks, the injury having to be treated by placing the wrist in a plaster cast. He was injured in the course of his employment as a 204 workmen's compensation under act op may 30, 1908. plate printer. The conditions of his employment on the day in ques- tion were as usual, except that the ink used was probably somewhat thicker than it should have been. When injured he was working a hand press involving five operations, which he had been .accustomed to perform for years on an average of 950 times a day. The statement of facts shows that the man's wrist was sprained by something involved in his exertions in doing his work, and I shall assume that no further information exists concerning the cause of the injury. I assume, moreover, an absence of misconduct or negli- gence on his part, as nothing of the kind is suggested, and shall also assume that you consider the Bureau of Engraving and Printing as a manufacturing establishment within the meaning of the act of May SO, 1908. The purpose of the law was not to set in motion an interminable series of technical inquiries, such as would puzzle the minds of learned and profound judges, but to provide immediate pecuniary relief by giving leave of absence with pay, from the time when the incapacity for work occurred, to person receiving injuries under the circumstances mentioned in section 1, taking the language of that section in its obvious sense and as intended to be addressed to admin- istrative officers. In my opinion, for the reasons that I have attempted to indicate, the injury as you set it forth is " an injury " within the meaning of the act of Congress approved May 30, 1908, on account of which com- pensation may be paid. KespectfuUy, Geo. W. Wickeesham, Attorney General. The honorable the Secretary oe Commerce and Labor. 6. A disease contracted in the course of employment is not an injtiTy within the act, as the act was intended to apply to injuries of an accidental nature resulting from employment in hazardous occupations and not to the elects of disease contracted in the course of employment, although directly attributable to the conditions thereof. (See case of Willard E. Jule, at p. 261, overruling this case.) lln re claim of John Treiman, Jan. 19, 1909 ; No. 310.] The above claim is submitted to this office with special reference to the question whether the act of May 30, 1908, applies to cases of disability resulting from disease due to the occupation. It appears that the claimant was employed as laborer in the Boston Navy Yard, and that it was his duty to scale lead-painted compart- ments on ships. He continued in his work until October 28, 1908, when he became incapacitated by reason of lead poisoning con- tracted in the course of his employment. The incapacity lasted more than 15 days, and the official superior certifies that the injury was not due to the negligence or misconduct of the injured employee. In my consideration of the case of Alfred E. Clark (Dec. 17, 1908, Bu. No. 628) I reached the conclusion that the act of May 30, 1908, applied only to such injuries as resulted from accident or to such injuries as are directly referable to some particular event capable of being fixed in point of time, and in the case of Olin P. OPINIONS OF SOUCITOK, DEPARTMENT OF I.ABOK. 205 Wells (Dec. 15, 1908, Bu. No. 135) I expressed the opinion that the injury contemplated by the statute must be such as to cause inca- pacity for work. Every injury received by an employee does not entitle such employee to receive compensation under the act. Whether the claimant in this case is entitled to compensation depends upon whether the nature and character of his injury brings it within the class of injuries contem- plated by the statute. From the papers submitted it appears that the primary cause of the incapacity was lead poisoning, and that the direct cause was weakness, anemia, and pain in bowels. This is what is commonly known as " painter's colic." The disease is " lead poisoning " ; the colic " is a symptom of the disease. From Twentieth Century Practice of Medicine, volume 3, pages 355 to 367 and 593 to 605, it is learned that lead poisoning usually occurs among those who work in or with lead. When a certain amount of lead has been absorbed into the system, the colic follows. This may be absorbed in one dose, but it is usually absorbed in very small quantities, requiring many weeks, months, or even years to ac- cumulate the quantity necessary to produce colic. The intoxication begins when the first quantity is absorbed, but the symptoms do not appear until a considerable amount of lead (estimated by some au- thorities to be about 1 ounce) has been taken into the system. From page 596 of the volume above referred to I quote the following: Among the earliest symptoms of chronic lead poisoning we must place severe paroxysmal abdominal pain " lead colic." It is generally referred to the region of the umbilicus, coming on in paroxysms of varying duration, from minutes to hours or even several days. The pain is usually of an intense character and relieved by pressure. In the intervals between the paroxysms relief may be complete or incomplete, when incomplete a dull "wearing " pain being com- plained of by many patients. Thus it appears that the incapacity is the result of the colic, which is one of the symptoms of a disease which is usually of gradual de- velopment, and which in the present case did actually develop gradually. It is impossible to state when the intoxication first began. There is no element of an accident either in the blood poisoning or the colic, unless we may consider the taking of the lead into- the system as a series of trivial accidents not noticeable at the time of happening. It can not for a moment be contended that such accidents, if they may be called accidents, are such as are contemplated by the act. It would be impossible to report each of these accidents and to state the time, cause, etc., as provided by the act. The colic is not an acci- dent in any sense. It is simply a symptom of a disease. The disease was most likely contracted in the course of employment, but even this is not capable of absolute proof. The case is very much like a case of consumption or pneumonia, which may have been caused by being frequently exposed to draft while at work. In my opinion in the Clark case, above referred to (Dec. 17, 1908. Bu. No. 628),' I said: On the other hand, a person not overstrong may, in an eflfort to keep up with stronger persons engaged on the same wort, so exhaust his physical ener- gies as to finally render him unfit for full duty. Again, a person may, in conse- quence of the strain or pressure his employment puts upon him, become gradu- ally weakened, and by virtue of an accumulation of trifling hurts, es^ch insuffi- cient of itself to incapacitate him, finally become worn out and unfit for work. The injuries thus resulting would be injuries sustained in the course of employ- 206 workmen's oompensation under act op may 30, 1908. meat. But are they to be regarded as injuries within the purview of the act? A negative answer must be given to this question if the act applies only to Injury by accident. Indeed, it is not improbable that injuries to employees, not due to accident but Involving rather a gradual breaking down and wearing out of the work- man, though arising in the course of employment, are generally regarded by legislators as more properly constituting a subject matter of legislation wholly distinct from the theory on which workmen's compensation acts are founded, and as bearing closer relation to the plan of old-age pensions and. similar measures. The naval constructor makes the following indorsement in connec- tion with this claim : Under the English "workmen's compensation act" of 1906, it is understood that there is a schedule of occupational diseases, and the workman who is incapacitated by any of the diseases in that schedule has the same right to compensation that he would have had he met with an accident, but, of course, the man's disease must be one directly caused by his trade. None of the compensation acts passed hj the British Parliament prior to 1906, made any reference to an injury caused by a disease. The acts referred to " personal injury by accident." In a case arising in 1903 under British workmen's compensation act of 1897 (Fenton y. Thorley & Co., 19 T. L. K.^ 684), Lord Macnaghten, in delivering the leading opinion, said : The expression " injury by accident " seems to me to be a compound expres- sion. The words " by accident " are, I think, introduced parenthetically as it were to qualify the word " injury," confining it to a certain class of injuries, and excluding other classes, as for instance, injuries by disease or injuries self-inflicted by design. Then comes the question, do the words "arising out of and in the course of the employment " qualify the word •' accident " or the word "injury" or the compound expression "injury by accident"? I rather think the latter view is the correct one. * * * The truttj is that in the act, which does not seem to have had the benefit of careful revision, " accident " and " injury " — that Is, injury by accident — appear to be used as convertible terms. * * * i come, therefore, to the conclusion that the expression " accident " is used in the jwpular and ordinary sense of the word, as denoting an unlooked for mishap or an untoward event which is not expected or designed. Here it is held in effect that the British law as it then stood did not apply to injuries by disease or injuries self-inflicted by design. The act of 1900 did not affect the class of injuries already included in the act of 1897. In 1901 an act was passed for the purpose of protecting the workmen in factories and workshops against accidents and disease due to their employment. This act provided for the in- spection of factories and workshops by inspectors and for the exami- nation of employees by physicians, and prescribed what should be done in certain cases. Among other provisions was one to the effect that if a physician found a patient to be suffering from certain diseases, among which was lead poisoning, he must report the same. Then in the compensation act of 1906 a '"third schedule," embracing certain occupational diseases, among which is lead poisoning, is added to the law, and it is further provided that where the certifying surgeon appointed under the factory and workshop act of 1901 certifies that a workman is suffering from a disease mentioned in the " third schedule," or where a, workman has been suspended on account of such disease, etc., such workman may, under certain conditions, participate in the benefits of the act. OPINIONS OP SOLICITOR, DEPARTMENT OF J.ABOR. 207 So it appears that the act of 1897 was not regarded as having any application to injuries by disease, and that in order to make the law apply to a case of lead poisoning it was necessary to enact a special provision naming that disease. In the act of May 30, 1908, there is no such special provision made, and I can find nothing which would, in my judgment, justify its application to a case of lead poisoning or '' painter's colic," and I have to advise that the claim be disallowed. [Tn re claim of John Sheeran; No. 3131.) OPINION OF THE ATTORNEY GENERAL. |28 0p. At. Gen., 254.) An artisan or laborer eniployed by the XTnlted States in the construction of river and harbor -work, who contracted a severe cold In the course of his employment resulting: in pneumonia and "which Incapacitated him for duty for a period lasting* more than 16 days, is not entitled to compensation under the act of May 30. 1908 (35 Stat., 656). The word "injury" as used in the above statute Is in no eense suggestive of disease, nor has it ordinarily any such significance. Opinion of May 17, 1908 (37 Op. At. Gen., 346), reviewed. Sir: I beg to aclniowledge the receipt of your letter of the 18th instant, as follows: Application for compensation has been made under the act of May 30, 1908 (35 Stat, 556), by Mr. John Sheeran, an artisan or laborer employed by the United States in the construction of river and harbor work. Immediately prior to becoming Incapacitated, Mr. Sheeran was employed at Saint Marys Falls Canal, Sault Ste. Marie, Michigan, in cleaning a building, attending to the heating plant, and removing ashes. In the course of his employment, y/hiie removing ashes from the furnace room to a pile outside the building, he con- tracted a severe cold, which resulted in pneumonia, and was incapacitated for duty for a period lasting more than fifteen days. Mr. Sheeran's disability was in no way due to negligence or misconduct on his part. Inasmuch as this is the first claim squarely presenting the question whether the word " injury," as used in the statute, is broad enough to include diseases contracted in the course 'of employment and directly attributable to conditions of employment, or whether it should be limited to include only such cases of incapacity as may result from some wound or hurt received in the course of employment, I have the honor to request _your opinion as to whether Mr. Sheeran is entitled to the benefits of the act. The act of May 30, 1908 (35 Stat., 556), is entitled "An act grant- ing to certain employees of the United States the right to receive from it compensation for injuries sustained in the course of their employment." The applicable provisions of the act are set forth in the opinion rendered you on May 17, 1909 (27 Op., 346), and there- fore need not be repeated here. There is nothing either in the language of the act or its legislative history which justifies the view that the statute was intended to cover disease contracted in the course of employment, although di- rectly attributable to the conditions thereof. On the contrary, it appears that the statute was intended to apply to injuries of an accidental nature resulting from employment in hazardous occupa- tions—not to the effects of disease. Thus, the report of the Judiciary Committee of the House accompanying this bill states (H. Eept. No. 1669, 60th Cong., 1st sess.) : The purpose of this bill is to compensate Government employees engaged In hazardous occupations. Such employment is practically confined to arsenals, navy yards, manufacturing establishments (such as armories, clothing depots, shipyards, proving grounds, powder factories, etc.), to construction of river a nd har bor worlj, and to work upon the Isthmian Canal. The bill provides that thif^i^^f such an employee who is injured in the course of such employment, 208 workmen's COMPENSAl-ION UNDER ACT OF MAY 30, 1908. without contributory negligence or misconduct, shall be continued for one year unless he Is sooner able to resume work. ******* The principle of this measure is not new to our Government. For five years railway postal clerks have been thus compensated, and since May 4, 1882, members of the Life-Saving Service have enjoyed similar benefits. • * * ■ * * * • There is insufficient data as to the number and character of accidents occur- ring to Government employees upon which to base an accurate estimate of the cost under this bill. In the Railway Mail Service there are 14,347 postal clerks, and last year it cost the Government $98,143.95 because of accidents. The Life- Saving Service employs 1,898 surfmen, and the Government during the last year paid for accidents and deaths $41,270.51. This amount also includes suins paid for sickness contracted in the service. There are approximately 6,600 artisans and laborers employed in arsenals, armories, and other manufacturing establishments of the War Department, and during the past ten years 8 were killed and 41 more or less seriously injured. The average absence from work because of these injuries was about two and one-half months. Under this bill the Government would have paid during the ten years a total of about $20,000, or an average of $2,000 a year. It ought to be added that the fewness of the accidents arising in the workshops of the War Department is largely due to the excellent condition of the machinery and the discipline exercised by the officers in charge. ******* This plan, uniformly advocated by such employees of the Government as appeared before the committee, seems to be much more satisfactory because it gives food to the family at a time when the employee can not earn wages. Indeed, a strong feeling was evidenced at the hearings that some less expen- sive system of compensating accidents should be adopted than the lawsuit, which involves delay, produces uncertainty, withholds money when most needed, and works other hardships. What the injured employee seems to desire is to have his family supported while he is unable to earn wages, and he seems to prefer to take a less amount, to be used at such a time, than to wait the result of a slow lawsuit, even though it may, if he succeeds, bring him two or three times as much. The Senate committee reporting this bill adopted the House report (S. Kept. No. 670, 60th Cong., 1st sess.). It will be observed that the statute relating to the Life-Saving Service expressly covers " any wound or injury received or disease contracted " therein (22 Stat., 57). The provision as to the Railway Mail Service, on the other hand, applies simply to " any railway postal clerk who shall be killed while on duty, or who, being injured while on duty, shall die within one year thereafter as a result of such injury" (32 Stat., 759; 33 Stat., 414; 34 Stat., 474, 1213; 35 Stat., 413, 667;). In the opinion of May 17,' 1909, above cited, it was held that a plate printer in the Bureau of Engraving and Printing whose wrist was sprained in the course of his employment, which hurt was com- plicated by rupture of the synovial sac surrounding the ligaments leading from the back part of the forearm to the fingers, had " suf- fered an injury " within the meaning of the act of May 30, 1908. In considering- the scope of the statute attention was called to the fact that the first two sections thereof used the word " injury," while the word " accident " did not occur until the third section ; and it was said (27 Op., 350) : In other words, the statute quite consistently provides for the eases of in- juries in the course of the employment and accidents resulting In death or other- wise. The word "injury" is employed comprehensively to embrace all the cases of incapacity to continue the work of employment unless the ininrv is due to the negligence or misconduct of the employee injured and inrtlP»IpUl OPINIONS OF SOLICITOK, DBPAKTMBNT OF LABOE. 209 cases where as a result of the employee's occupation he, without any negligence or misconduct, becomes unable to carry on his work and this condition con- tinues for more than fifteen days. The word " accident " is employed to denote the happening of some unusual event, producing death or injury which results in incapacity for work lasting more than fifteen days. That is to say, within the language of the statute an employee may be injured in the course of his em- ployment without having suffered a definite accident. That opinion, however, was not intended to create the impression that the statute in question covered diseases contracted in the course of employment. The language of the opinion is perhaps broader than it should be, in the Tight of the committee report on the bill above quoted, which indicates that only injuries of an accidental nature were in mind. As, however, the statute is remedial, it should be generously construed, and so construed it might be held to include injuries of the character there referred to, although, strictly speaking, no definite accident had occurred which gave rise to the injury. The word " injury," however, as used in the statute, is in no sense sug- gestive of disease, nor has it ordinarily any such signification. I am therefore of the opinion that the case of Mr. Sheeran, as stated by you, is not covered by the act of May 30, 1908. Respectfully, Geokge W. Wickersham, Attorney General. The Secketaey of Commerce and Labor. riu re H. A. Ourand, Nov. 22, 1910 ; No. 5064.] The above claim is submitted to this office with special reference to the question whether there is sufficient evidence of connection be- tween the alleged accident and the claimant's incapacity. In his affidavit, dated October 14, 1910, claimant gives the cause of the injury as follows: My duties were to lift heavy material, put it on the truck, and move it to different sections of the bindery, unload and return for more. On the 28th of September, help being short, I was overworked. From the certificate of the attending physician, it is seen that the incapacity is caused by reason of " cystitis and prostatitis," and the objective symptom was an inability to void urine without the use of a catheter. No immediate report of the injury has been made by the superior officer of claimant, which omission is probably explained because of the fact that claimant did not meet with an accident in the common acceptance of that term. This presumption is strengthened by a statement contained in a letter from Dr. Manning to the Public Printer, wherein he says: Two visits were made to this man during illness, after written notice had been received that he intended to bring claim. It is evident from this language that the superior officer was not aware of the claimant having been injured in the course of his em- ployment, and knew nothing of such claim prior to the receipt of the above-mentioned notice. It is further noted from the above-mentioned letter of Dr. Manning that " claimant is a very weak man," and that he failed to pass the physical test required by the Civil Service Commission previous to his appointment three years ago. The section foreman states that 93364°— 15 14 210 woekmen's compensation under act of may 30, 1908. the work performed by claimant could have been done by an ordiifaiy boy 10 years of age. In Borland's Medical Dictionary " cystitis " is defined as " inflam- mation of the bladder," and " prostatitis " is said to be " inflammation of the prostate gland." Thus it is observed that the cause of the incapacity is inflammation of the bladder and of the prostate gland. The present incapacity, therefore, appears to be the result of an inherent weakness or ailment with which claimant has, no doubt, been afflicted for a number of years, and which incapacity is a result naturally to be expected under the circumstances. Speaking of the existing condition from a medical standpoint, Dr. Manning, in his letter of October 26, 1910, states that " the physical conditions from which .this claimant, Harry A. Ourand, sutlers, cystitis and pros- tatitis, are not usually ascribed to laborers' work or heavy lifting of any character." It will be seen that claimant was, on the day of the alleged accident, following his usual employment, there was nothing unusual about the character of the work or the implements used therein, and nothing unforeseen occurred. It is clear, however, that his condition comes within the definition of the word " disease," as given by Dorland, viz : Any departure from a state of health ; an illness ; more frequently the genus or kind of disturbance to health to which any particular case of sickness may be assigned. As the incapacity is due to a disease, it seems that the principles laid down in the Sheeran case by the Attorney General, in his opinion of April 25, 1910, are applicable, wherein he held : It appears that the statute was intended to apply to injuries of an accidental nature resulting from employment in hazardous occupations. From a consideration of the foregoing, I am of the opinion that there is no evidence of connection between the happening of an acci- dent and the claimant's incapacity, but that such incapacity is the result of the constitutional condition of claimant. As claimant has failed to establish by sufficient evidence that he has sustained an injury in the course of his employment, the claim can not be allowed. 6a. Acute lead poisoning' contracted in course of employment held to be a disease and not an injury within the meaning of the act. (See case of Willard E. Jule, at p. 261, overruling this case.) [In re claim of C. L. Schroofler, Mar. 25, 1911 ; No. 5378.] The question in this case is whether acute lead poisoning contracted in the course of employment is an injury within the meaning of the compensation act on account of which compensation may be paid. Acute lead poisoning is undoubtedly a disease ; and diseases con- tracted in the course of employment, as distinguished from injuries of an accidental nature, have been held to be not covered by the com- pensation act. Thus, it has been held that pneumonia contracted in the course of employment and directly attributable to the conditions thereof was not within the act (28 Op. At. Gen., 254) ; so in a case of inflammation of the bladder (Op. Sol., C 5064, Nov. 22, 1910) ; of abscess on the prostate gland and inflammation of the testicles (Op. Sol., C 1698, Sept. 3, 1909) ; of inflammation of the intestines OPINIONS OF SOLIOITOE, DEPARTMENT OF LABOE. 211 gradually contracted (Broderick v. London County Council, 24 T. L. E., 822). The fact is, however, that,' although the claimant's disability may be occasioned by a disease, his ailment may be due to an injury of an accidental nature, in which case he would have sustained an " in- jury " within the meaning of the compensation act. Thus, to quote the language of Lord Chancellor Halsbury in Brintons, Limited, v. Turvey (92 L. T., 578) : I think that, in popular phraseology, from which we are to seek our guidance^ It (the phrase "injury by accident") excludes, and was intended to exclude, idiopathic disease. But, then, if some part of our physical frame is in any way injured by an accident we must be on our guard that we are not misled by medical phrases to alter the proper application of the phrase " accident causing injury," because ttie injury inflicted by accidents sets up a condition of things which medical men describe as a disease. Suppose, in this case, a tack or some pois- oned substance had cut the skin and set up tetanus. Tetanus is a disease, but would anybody contend that it was an accident causing damage? * * * It does not appear to me that by calling the consequences of an accidental injury a disease one alters the nature or the consequential" results of the injury tliat has been inflicted. Many illustrations of what I am insisting on might be given. A workman in the course of his employment spills some corrosive acid on his hands. The injury caused thereby sets up erysipelas — a definite disease. Some trifling injury by a needle sets up tetanus. Are these not within the act because the immediate injury is not perceptible until it shows itself in some morbid change in the structure of the human body which, when shown, wecall a disease? I can not think so. In the same case Lord Macnaghten said : The accidental character of the Injury is not, I think, removed or displaced by the fact that, like many other accidental injuries, it set up a well-known disease, which was immediately the cause of death and would no doubt be certified as such in the usual death certificate. The House of Lords did not decide in this case that all diseases caught by a workman in the course of his employment are to be regarded as accidents within the meaning of the workman's com- pensation act. Lord Lindley expressly said that such was far from being his view of the act, adding : In this case your lordships have to deal with death resulting from disease caused by an injury which I am myself unable to describe more accurately than by calling it purely accidental. The fact that an accident causes injury in the shape of disease does not render the cause not an accident. Whether in any particular case an injury in the shape of disease is caused by an accident or by some other cause depends on the circumstances of that case and on the meaning to be attributed to the word " accident" It has accordingly been held that a man employed as a trimmer in the stokehold of a steamer, who was suddenly overcome by the heat, and who suffered a " heat stroke " from which he died in a few hours, had suffered an injury by accident. (Ismay, Imrie & Co. v. William- son, 99 L. T., 595.) In that case Lord Ashbourne observed: Although a heat stroke may be called a disease, it is in this case, in my opinion, a disease directly caused by an accident arising out of or in the course of an employment, particularly dangerous to Williamson, in consequence of his weak state of health. * * * I do not at all say that all diseases arising out of or in the course of employment should be regarded as a personal injury by accident, but I am of opinion that, under the circumstances of this case and its facts, Williamson was killed by a personal injury by accident, and that the appellants are accordingly liable. So it has been held that a seaman engaged in painting a vessel while lying in a port on the coast of Mexico, who was incapacitated 212 workmen's compensation under act of may 30, 1908. by sunstroke, had suffered an injury by accident. (Morgan v. S. S. Zeriaida, 25 T. L. E., 446.) In the case of Brintons, Limited, v. 'Purvey, supra, a workman was employed sorting wool in a factory, and, according to the medical evidence or theory, a bacillus passed from the wool to the eye of the workman and infected him with anthrax, of which he died. It was held that these facts disclosed a personal injury by accident. In the present case, therefore, it is necessary to consider whether the claimant, whose incapacity is directly due to acute lead poison- ing incurred in the course of his employment, has been " injured " within the meaning of the compensation act, notwithstanding the fact that acute lead poisoning is a disease. In the case of Treiman (0 310, Jan. 19, 1909) this office held that the claimant, who was incapacitated by reason of lead poisoning brought on gradually while is the course of his employment, was not entitled to compen- sation. In the course of the opinion it was pointed out that the act applies only to such injuries as result from accident or to such inju- ries as are directly referable to some particular event capable of be- ing fixed in point of time; that, although a person not overstrong may, in an effort to keep up with stronger persons engaged on the same work, so exhaust his physical energies as to finally render him unfit for duty, and though a person, in consequence of the strain or pressure his employment puts upon him, may become gradually weakened and, by virtue of an accumulation of trifling hurts, each insufficient of itself to incapacitate him, finally become worn out and unfit for work, the injuries thus resulting would not be regarded as injuries within the purview of the act ; that in the case under consid- eration the disease developed gradually, so that it was impossible to state when the intoxication began, and that since it was impossible to fix the date of the injury, the element of accident was lacking and the claim could not be allowed. This conclusion is fully sustained by the case of Steel v. Cammell, Laird & Co. (93 L. T., 357), where the court said, speaking by Collins, M. E. : The poisoning came on gradually, not suddenly, and it is impossible to say at what particular time the accident in this case can be said to have happened. It seems to me that, whatever may be the proper definition of " accident " in this act, it must be something the date of the happening of which can be fixed. It seems to me impossible in this case to say when the Alleged accident happened. It was said for the workman that there was a series of accidents, an accident every time that lead was taken into the man's system in any one of the ways described. That does not seem to me to meet the diflSculty that the act points to an accident happening on a particular date which the workman must specify. Putting myself, therefore, in the position of the man in the street, I come to the conclusion that the circumstances of this case can not properly be described as an accident The same principle was applied in the case of Broderick v. London County Council (24 T. L. E., 822), where a workman employed by a sanitary authority in the London sewers, by reason of the continual inhalation of sewer gas, contracted enteritis or inflammation of the intestines, and where it was pointed out that it was an incident of the man's work that noxious gases should be present in the atmosphere, and that his employment in the sewers necessarily exposed him to the risk of poisoning thereby and it was held that injury by disease alone, not accompanied by an accident, is excluded from the purview of the act. OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 213 In the present case, however, we are dealing with acute lead pois- oning, not chronic lead poisoning. If the poisoning was not the re- sult of a gradual intoxication, but developed rapidly, and if the lead was taken into the system within so brief a space of time that the date of the intoxication can be fixed, how may the case be distin- guished from the above-mentioned case of the workman afflicted with anthrax caused by a sudden inoculation by a bacillus passing into the eye from wool which he was sorting, or that of the workman afflicted with tetanus resulting from a cut on the sldn by a poisoned tack, or from the cases of sunstroke or heatstroke also above mentioned? The distinction, however, is probably to be found in the fact that the element of accident in some way entered into all of the cases last cited. Doubtless, as said in the case of Stewart v. Wilsons & Clyde Coal Co. (5 F., 120), " if a workman, in the reasonable performance of his duties, sustains a physiological injury as the result of the work he is engaged on, this is an accidental injury in the sense of the statute." But there the accident consisted in the unexpected straining of the workman's back in lifting heavy articles. So, in Minten-Senhouse, Accidents to Workmen, page 2, it is said that the term " personal injury" would include "not only corporal injury by breaking, wounding, or physical shock, but also injury to health by inhaling noxious gases. But if the inhalation of noxious gases is a neces- sary incident to the worlanan's employment, there can be nothing accidental in the injury resulting therefrom. (Broderick v. London County Council, supra.) This latter consideration, namely, the ab- sence of any accidental element in the cause of the injury, disposes of the present case. The claimant was a general helper employed in the Brooldyn Navy Yard. He was engaged in burning out water- tight compartments, loiown as " coiferdams," in the coal bunkers of the U. S. S. Ohio, using an acetylene burner. The acute lead poison- ing from which he suffered was caused by inhaling fumes of lead re- sulting from so burning the lead paint. It can not be said that these fumes were inhaled by accident. The fumes were necessarily pro- duced by the work he was engaged upon. The inhalation of such fumes was to have been expected, and probably could not have been avoided. Lead poisoning, under the circumstances, was the natural, if not the inevitable, result. The claimant's injury, there- fore, was not an injury of an accidental nature, and hence not an in- jury within the meaning of the act. [In re claim of Andrew Wilkes, July 21, 1911 ; No. 6875.] The above claim is submitted to this office with special reference to the question whether the disability of claimant is due to an injury within the meaning of the act of May 30, 1908. There has not been filed an immediate report of the injury for the reason that there was apparently no definite accident, and the cause of the incapacity, as shown by claimant's affidavit, is as follows : Caused from sitting on cold iron, causing a rectal abscess, for which I was treated by 0. E. McDonald, post surgeon. Fort Mott, N. J. ; still being treated by him (Surg. McDonald) at the present time. The certificate of the attending physician gives the character and extent of the injury as " rectal abscess and blind fistula." 214 wobkmen's compensation under act of may 30, 1908. It willbe seen from the foregoing that the incapadty of claimant arose fi-om the fact that while in the course of his employment it was necessary for him to sit on cold iron and that as a result of this he developed a rectal abscess and a blind fistula. No doubt appears to be raised by anything in the record that the incapacity arose from the conditions surrounding the employment, but even admitting this to be true, the question then to be determined is as follows: Is the incapacity due to an " injury " received in the course of employment within the meaning of that word as used in the compensation act? The conditions found to exist in this case are, in a manner, due to causes similar to those which produced incapacity in the cases of Charles L. Schroeder (C 5378, Bu. 11266), Mary A. CrelUn (C 6084, Bu. 12458), and John Sheeran. In the Schroeder case claimant de- veloped an acute case of lead poisoning while engaged in burning out water-tight compartments in a vessel, using an acetylene burner for that purpose. In that case it was held that the injury was not of an accidental nature and hence not an injury within the meaning of the act. In the Crellin case the claimant developed a cystic growth on her hand, supposed to have been due to constant use of the hand in folding heavy paper in the course of her employment, but there was no evidence that claimant had received a contusion or blow at any definite time, and it was held that the disability was not due to an injury within the meaning of the compensation act. In the Sheeran case the employee contracted a severe cold, result- . ing in pneumonia, which was traceable to a condition incident to his employment. This case was referred to the Attorney General for an opinion on the question whether the act was intended to extend to diseases contracted in the course of employment and directly at- tributable to the conditions of employment, and in an opinion dated April 27, 1910, it was said : There is nothing either in the language of the act or its legislative history which justifies the view that the statute was intended to cover disease con- tracted in the course of employment, although directly attributable to tlie con- ditions thereof. On the contrary, it appears that the statute was intended to apply to injuries of an accidental nature resulting from employment in hazard- ous occupations, not to the effects of disease. From a consideration of the manner in which the incapacity arose in this case, as compared with the facts in the Sheeran case, it appears that the reasoning in the latter case is applicable herein, and that it must be accordingly held that the disability in this case is not due to an injury within the meaning of the compensation act, for which reason this claim should be disapproved. 7. Evidence that employee was strong and healthy up to time he complained of a hurt received while ^at work on heavy lifting, and that he died suddenly a few days thereafter for no other assignable cause is sufficient to show that he had sustained some internal injury, though there were no external manifestations thereof. [In re claim of S. A. Powers, Feb. 16, 1909 ; No. 416.] The papers in this case have been submitted to this office with special reference to the question whether the evidence of accidental OPINIONS OF SOLICITOR, DEPARTMENT OP LABOR. 215 injury contained therein is sufficient to establish the right to com- pensation. The papers submitted show that the deceased, S. A. Powers, was employed as a carpenter of the United States on river and harbor work, and that some time during the latter part of August, 1908, he complained to a Mr. Thomas H. Murray that he had sustained an injury while lifting a piece of timber through the failure of the men who were helping him to lift as much as they should. This Mr. Murray has stated that Mr. Powers " did not seem very bad oflF at the time he said he was hurt, and I don't think he laid off ; I think he kept at work." Mrs. Callie N. Powers, widow of the deceased, states : He (Mr. Powers) started to work for the Government a stout, healthy man, and they were short of hands and he done some very heavy lifting Friday, Saturday, and Monday before he met his death Tuesday. He was complaining for several days, and I am sure the heavy work caused his death. Mrs. Mary Peterson states: I saw Mr. Powers on Friday, August 21; he told me was not well and feel- ing badly. Mr. Peterson was sick at the time was why he was telling me his complaint. He was a healthy man when he went to work for the Government. He was a good, temperate man, and I believe he come to his death from his work. Mrs. Delia Parks states : I received your notice this morning, wanting me to tell how Mr. Powers was complaining. I was at Bis house August 24. He told me how he felt. He said he had been sick three or four days and kept going. He felt just like his sides and chest was all crushed In. He was trying to eat his supper ; he would stop eating and say " I have to rest " ; he was in so much misery. I have known him for four years and six months, and he was a stout, healthy man until he went to work for the Government, and I think that Is the cause of his death. Mrs. Andrew Dickey states: I got your notice this morning, wanting me to tell you how Mr. Powers felt a few days before he died. I lived next door to him on August 23 ; from that time on he was complaining, and I heard him throwing up, and he seemed to be so sick and sore; he was all blistered on his arms and shoulders — eat up with the creosote — and I think he come to his death from the Government work, as he was a very stout, healthy man when he went to work. ' I have been knowing him for 13 months. I never heard him complain until the date I stated. The surgeon in command, Eugene Wasdin, stated that nothing is known of the man's history; that Acting Asst. Surgeon Palmer did not sign the death certificate and does not attempt a diagnosis. He says: As to heavy lifting, it must remain in doubt as being the cause, in view of the fact that death was sudden and at a time somewhat remote from any straining. From all the evidence submitted, it appears that Mr. Powers did sustain an injury in the course of his employment somewhat between August 21 and August 24, 1908; that he was sick and complaining during that time, and that he died August 25, 1908. Mr. Murray did not take up the matter when the injured man re- ported his injury, and it appears that the acting assistant surgeon did not make a very far-reaching examination, i. e., beyond finding that Mr. Powers was dead and that his body bore no visible marks of in- jury. This probably explains the lack of more inforaaation on the matter. The widow. and child of the deceased can not be expected to 216 workmen's compensation under act of may 30, 1908. know all their rights in the premises and should not be charged with any dereliction on account of any failure to proceed as prescribed. The surgeons mentioned in the record have not given their opin- ions as to the cause of the death of Mr. Powers, nor have they given their opinion that his death was not a result of the injury sustained in the course of employment. Inasmuch as there were no visible marks of injury on the dead man, according to the statement of Acting Asst. Surg. Palmer, it may be assumed that he died from the effects of some internal dis- order of which there were no external manifestations. The only question to be determined, then, is whether the internal disorder whidi caused death was a result of the injury which Mr. Powers sustained in the course of his employment. On this point the papers contain only the testimony of tiie women above mentioned, and their testi- mony shows that Mr. Powers was strong and healthy before he went to work for the Government; that he was ill and complained that it was the result of the injury he received while at work for the Gov- ernment lifting heavy timbers ; and that he died unexpectedly within a few days after he said he was injured. I do not lose sight of the possibility that some other cause of death may have intervened or been the direct cause of the death and invite attention to the point. It is noted also that Mrs. Dickey said that Mr. Powers's arms and shoulders were blistered by creosote, but I do not look upon that as important, as no stress seems to have been laid on that point ; and, apparently, whatever effect the creosote from the timbers he was handling had upon him, it was not regarded by the doctor as a mark of injury. Though the evidence submitted is not sufficient to establish beyond peradventure that Mr. Powers came to his death as the result of an injury sustained in the course of his employment, it does, however, leave the impression that such was probably the case, and that the claim for compensation has been made in good faith. In this con- nection attention is invited to the provision in section 4 of the act of May 30, 1908, which reads: If the Secretary of Commerce and Labor shall find from the report and fiffidavit or other evidence produced by the claimant or his or her legal repre- sentatives, or from such additional investigation as the Secretary of Commerce and Labor may direct, that a claim for compensation is established under this act, the compensation to be paid shall be determined as provided * • *. It will be readily seen that the Secretary of Commerce and Labor is not bound by any prescribed form, quality, or quantity of evidence in cases of this kind, and whether the evidence submitted in tiiis case is sufficient to establish a right to compensation depends solely upon whether the Secretary of Commerce and Labor finds from such evi- dence that the death of Mr. S. A. Powers was the result of the in- jury sustained by him in the course of his employment. It is thought that the nonproduction of the certificate of the at- tending physician setting forth the fact that the cause of death is satisfactorily accounted for, as required by section 4 of the act, by the presence in the record of the statement of the surgeon that the cause of Mr. Powers's death remains a matter of doubt with him. I am of opinion that this case is a worthy one, and such a case as the statute, ii> its very remedial nature, is intended to embrace ; that it is probable that Mr. Powers met his death as a result of a strain. OPINIONS OP SOLICITOB, DBPAETMENT OP LABOR. 217 sustained in the course of his employment; and that the doubt ex- pressed by the surgeon on this point is not sufficient to offset the testimony of those who appear to be cognizant of the circumstances surrounding the illness and death. 8. Evidence of slight blow on jaw is not evidence that tuberculosis of the cervical glands causing incapacity is an injury within the act. [In re claim of Richard Hicks, May 15, 1009 ; No. 1063.] Claimant was struck a slight blow on the right side of the face by the flat side of a small box which was skidded down a slightly in- clined gangway. He claims that there was some hurry to unload the boxes from the boat, and that the boxes were thrown by two men too fast for him to catch, and a box struck him in the jaw, dislocating the same. His superior officer states that from information obtainable it is not believed that the man is entitled to any compensation, and that no immediate report of the accident has been made, as it is believed that the claimant's ailment is not due to the accident received. The physician, in his certificate, although he states that Hicks was in- capacitated from February 26, 1909, to April 9, 1909, and would probably be incapacitated for from 60 to 90 days longer because of a " lump size of hickory nut in jaw and swelling,^'' certifies as well that he did not examine claimant until March 15, 17 days after the accident. It is hard to tell how he could certify that claimant had been incapacitated for work for the 17 days prior to his first exam- ination, and hard to believe that a small lump on the jaw could be the sole cause of keeping a man from his work for from 102 to 132 days. J. W. Kite, surgeon. United States Navy, who examined Hicks, states that : This man (Hicks) has been coming to the dispensary at different times for the past month. He has a lump under the jaw which he states came from being hit by a box at some time past, but he has no definite recollection of the time. He did not apply here for treatment at time of alleged injury, and there is no record of his injury. This man has a tumor under the jaw, which, I think, is due to some constitutional disease, and I do not think it is due to injury. He is also exaggerating his trouble, as he has been seen walking in the yard with his head perfectly straight, but when he is watched he holds his head to one side. Paymaster Blscoe can verify this latter statement. I believe the man can work now if he wanted to, but in my opinion he is trying to work up a claim. I do not think he deserves any compensation whatever. Paymaster Biscoe, United States Navy, states in a memorandum dated April 3, 1909 : The witnesses, Mr. O'Connor and Mr. Munden, state that the accident was so slight as to amount to practically nothing. In fact, the only remark that Hicks made at the time was, " Be more careful, and don't pile that stuff too high and let it come down on a fellow." Shortly after this, Mr. Munden asked Hicks if he was hurt, to which he replied, " No, sir ; I am all right." Mr. Munden further told him that if he was hurt that he had better go and see the doctor, to which Hicks replied, " that he was aU right." Mr. O'Connor and Mr. Munden both state that the matter was so trivial that neither one thought of reporting same, and it was soon forgotten. On, March 30 Hicks came to this office of the general storekeeper holding his head slightly Inclined to the left side, with what appeared to be a very bad condition. The general storekeeper went with him to the dispensary, and was informed that Hicks had been in there be- 218 workmen's compensation under act oe may 30, 1908. fore, and it was highly improbable that Hicks's condition was due in any way to the very slight injury received on February 26. Upon leaving the dispensary the general storekeeper told Hicks to go back to the general storekeeper's office and get a few names he had left there, and the general storekeeper then went around the corner of building No. 32. As soon as it was thought that Hicks had been alone long enough to be off his guard, the general storekeeper, who was on his wheel, rode back to see how Hicks was walking when he thought he was not under observation. When the general storekeeper caught sight of Hicks he was walking briskly up the street, with his head erect and his general ap- pearance being that of a man in fairly good physical condition. The general storekeeper's opinion is that Hicks is endeavoring to obtain wages from the Government under false pretenses. From the evidence it does not appear that claimant received such an injury as he describes, nor such a one as would incapacitate him during the time stated, if during any time, and it is scarcely to be be- lieved that the slight injury that he did receive was of a nature to cause the tumor or swelling under his jaw. I am of opinion that he should not be compensated. [In re claim of Richard Hlclis, Feb. 7, 1910 ; No. 1063.] The above claim was first considered by this office in an opinion dated May 15, 1909, in which it was recommended that the claim be disallowed, which action was taken on June 4, 1909. Subsequently the claimant presented himself at the office of the Bureau of Labor and requested that his claim be reconsidered. As the man appeared to be in bad physical condition the whole matter was put in the hands of a special agent for investigation, and the claim is again referred to this office together with the results of the investigation. It appears that on February 26, 1909, while the claimant was hand- ling some boxes which were being loaded on a boat, one of the boxes struck him on the right jaw. The injury, if any, appeared slight at the time, for the employee continued at his work for several days. However, in the course of a few weeks there developed a tumor or swelling under the right jaw, which caused incapacity for work. The claimant attributed the trouble with the jaw and the subsequent incapacity to the blow from the box. In order to determine this matter the man was examined by Dr. Neil F. Graham, of Washington, D. C., on December 14, 1909. Prior to this examination, however, the claimant had been in the Freed- men's Hospital, where he was operated upon for suppurating sub- maxillary glands. At the time of his examination Dr. Graham had not been informed of the findings at the hospital. He found that the man was incapacitated and would probably remain so for 30 days, and expressed the opinion that the incapacity was due to the injury described. However, under the head of " Eemarks," he said : If the glands removed were not tubercular, then I should say that no doubt remains in my mind as to the correctness of the opinion that his disability was due to the Injury. I was unable to get a history of tuberculosis in his family. Thus it appears that Dr. Graham's opinion that the incapacity was due to the accident was based upon the supposition that the removed glands were not tubercular. Dr. Balloch, who removed the glands and made an examination thereof, in his report says: In the matter of Richard Hicks I beg to say that In my opinion the condi- tion found at operation, tuberculosis of the cervical glands, had no connection with any injury to the jaw, but was entirely Independent thereof. OPINIONS OF SOLICITOE, DEPAETMENT OP LABOE. 219 In view of the conclusions reached by Drs. Graham and Balloch 1 have to advise that the claimant has failed to establish that his inca- pacity is due to the alleged injury received on February 26, 1909, and to recommend that the previous action of the department disallowing the claim be adhered to. 9. Frozen feet constitute an injury within the act. [In re claim of T. F. Luttrell, May 21, 1909 ; No. 852.] It appears that the claimant, whUe employed as a laborer on river and harbor work, on January 11, 1909, was standing on lock wall giving signals for operating cable carrier, when both his feet were frozen. Notwithstanding this, he continued work for two days be- fore the soreness and swelling compelled him to quit work. The official superior reports that the accident arose out of and in the course of his employment, and that he did not think it was due to his negligence or misconduct, " as he did not realize they were fi'ozen until he got to the fire." The claim is submitted to this office with special reference to the question whether the claimant was injured in the course of his employ- ment within the meaning of section 1 of the act of May 30, 1908. The attending physician, although he did not examine the claimant until February 4, certifies that the man's feet were frozen and that the injury had incapacitated him from January 11, 1909, to February 17, 1909. This, considered in connection with the statement of the superior officer that while standing on top of the concrete lock waU giving signals in the operation of the cable carrier the claimant's feet were frozen, makes it reasonably clear that the injury was sus- tained in the course of employment. This being the case, it oiuy remains to be considered whether or not the injury is such as is covered by the terms of the statute. The Attorney General, in an opinion rendered on May 17, 1909, in the case- of Alfred E. Clark (C 92, Bu. No. 628), referring to the word " injury " as used in the act of May 30, 1908, said : The word " injury " is employed comprehensively to embrace all the cases of incapacity to continue the work of employment unless the injury is due to the negligence or misconduct of the employee injured, and including all cases where as a result of the employee's occupation he, without any negligence or miscon- duct, becomes unable to carry on his work, and this condition continues for more than 15 days. In view of this opinion of the Attorney General, the injur}"^ on which the present claim is based seems to come clearly within the scope of the act. 10. A physical injury which aggravates a previous ailment so as to disable an employee, where disability would not have been caused but for such pre- vious ailment, is an injury within the act. [In re claim of Philip Jarvls, Sept. 11, 1909 ; No. 1699.] From the papers submitted with the above claim it appears that for several years prior to April 14, 1909, the claimant had a tumor on his left side. On the date mentioned he was handling some ropes 220 woeicmen's compensation undeb act op may 30, 1908. when he was struck by a rope or hook immediately over the tumor, causing a contusion and bleeding. He went to the hospital for treat- ment and was operated upon. The claim is submitted with special reference to the question whether the incapacity was due to an injury received in the course of employment. In the immediate report of injury the naval constructor reported that the accident arose in the course of the employment and that it was not due to negligence or misconduct on the part of the injured employee, but in his certificate attached to the claim he says that " the injury suffered in the yard was not serious." Dr. Kite, the yard surgeon, in a letter addressed to the commandant under date of July 7, 1909, says that the injury to Jarvis was not severe, being only a slight contusion of the abdomen, and adds : The seat of Injury was on the abdominal wall immediately over a tumor as large as a coconut This tumor had been present for years, according to the patient's statement, and had so encroached on the slvin of the abdomen as to cause it to slough away, and there was considerable bleeding from the surface of the tumor. As the tumor appeared to be vascular, and as dangerous or fatal hemorrhage might have taken place at any moment, Jarvis was advised to have an operation done without delay. The injury did not cause the conditions requiring operation. Dr. Old, the attending physician, in his formal certificate certified that the claimant was incapacitated for duty from April 19, 1909, to May 24, 1909, by reason of an accident received at the Norfolk Navy Yard on April 14, 1909, and in response to an inquiry from this department in regard to the necessity for the operation on claimant, he said, in a letter to the naval constructor dated August 6, 1909 : Referring to your letter of August 3, in the case of Philip Jarvis, I can state positively that the operation performed on the claimant April 19 was made necessary by reason of the injury incurred a few days previous. Tumors of this class are very vascular, and the bruise to the tumor abraded the sldn and punctured one of its blood vessels. The bleeding from this at the time it came under my observation was being controlled by gauze packing and pressure. The treatment indicated was this surgical operation as performed. No question is raised as to the fact that the claimant had a tumor prior to April 14, or the fact that on that date he met with an acci- dent which aggravated the tumor. If he had not had a tumor, the accident would not have been serious. But, having the tumor, and being more liable to injury than he would have been otherwise, the accident proved more serious. The yard surgeon is of opinion that the operation which was performed was not made necessary by reason of the accident — that it was. advisable independent of the accident. On the other hand. Dr. Old states positively that the operation was made necessary by reason of the accident. The question is not whether the operation was made necessary by the accident, but whether the incapacity was caused by the accident. The question as to the operation is important only in so far as it may affect the question as to the incapacity. An operation may have been advisable long before the accident,, and it may be that, independent of the accident, it would have been necessary sooner or later to op- erate upon the claimant in order to save his life or to enable him to continue his work. Assuming that, independent of the accident, an operation was advisable, still it seems that the claimant was able to work up to the time of the accident, and probably he would have OPINIONS OF SOLICITOB, DEPARTMENT OP LABOR. 221 been able to continue work for some time if the accident had not occurred. There is no question in regard to the fact that the claimant, while in the course of his employment, was injured without any negligence or misconduct on his part. The only question is whether the inca- pacity was directly due to the accident or to the tumor. While the yard surgeon is of opinion that " the injury did not cause the con- ditions requiring operation," he recognizes that the claimant did, on April 14, 1909, sustain an injury which, as he says, " was not severe." Dr. Old, the surgeon who removed the tumor, states positively that the operation was necessitated by reason of the injury. The claim- ant in his affidavit, which was made before the statement of the surgeon just referred to, also says the operation was rendered nec- essary by the accident. If due weight is given to these statements, the accident was the proximate cause of the incapacity. It is im- material whether an operation would ultimately have been performed on account of the tumor. It has been held that an injury which augments a previous ailment so as to produce incapacity where incapacity would not have been caused but for such previous ailment comes within the law. (C 230, Bu. No. 1020; C 265, Bu. No. 709; C 266, Bu. No. 1099.) I am, therefore, of opinion that the claimant's incapacity was due to the injury received in the course of his employment within the meaning of the act of May 30, 1908, and that the claim should be allowed. [In re claim of J. S. K. Wite, Nov. 3, 1910 ; No. 1308.] This case has heretofore been thoroughly considered in the light of the evidence furnished, which was not deemed sufficient for the pur- pose of reaching a conclusion. In an opinion under date of August 6, 1910, I recommended that claimant be examined by Dr. S. J. Hunkin, a specialist in orthopedic surgery. The claimant was then directed to report to Dr. Hunkin for examination, and the papers in the case were forwarded to him for his information and consideration. Under date of August 29, 1910, Dr. Hunkin makes the following report : In the matter of Jolin S. K. Wite, laborer, Mare Island, referred to me for examination, I have examined the man and taken my own radiogram, and from the purely medical standpoint the case is quite clear. The man has had badly deformed feet, which are and were mechanically Inefficient, and are and were maintained able to do any reasonable amount of ' work only by the greatest effort of the organism. This condition is practically the same in both feet, and the slightest extra strain or a simple injury at any time would precipitate his lameness and would give him a similar trouble in the other foot when it occurs. "Without an injury, an attack of rheumatism, pneu- monia, or typhoid fever would be followed by lameness and soreness in both feet. Medically, therefore, there can be no question; the man, outside of any injury, had potentially bad feet, which sooner or later would go lame. Judicially, of course, the injury precipitated the pain and lameness, and with- out some mechanical aid the foot was not able later to properly functionate, but with a simple wedge was as well, or better, than before. As a matter of fact, some such aid should be worn by him in the other shoe, or trouble will almost inevitably occur there also. The condition is rather closely analagous to that of a man whose eyes are optically in error, but who at the expense of some strain finds them approximately efficient, until some extra strain, sickness, or accident makes the error somewhat suddenly apparent and corrective glasses are necessary. 222 wokkmen's compensation under act of may 30, 1908. I must therefore express the opinion that, although the Injury damaged the foot temporarily, It was the old condition which interfered with the usual recov- ery and is responsible for the present state and the necessity of wearing a brace. It is, of course, observed that Dr. Himkin expresses the opinion "that although the injury (of May 1, 1909) damaged the foot tem- porarily, it was the old condition which interfered with the usual recovery," but the real essence of the matter contained in his report is found in the following statement : Judicially, of course, the injury precipitated the pain and lameness, and with- out some mechanical aid the foot was not able to properly functionate. A plain reading of this statement indicates that while the claimant had defective feet, one of them was injured in such a manner as to produce incapacity. This appears to be a case where an existing ail- ment was so augmented that incapacity was produced by reason of an injury received in the course of the employment, where otherwise the incapacity would not have arisen. In speaking of the condition 6f the feet, it is noted that Dr. Hunkin says: This condition is practically the same in both feet, and the slightest extra strain or simple injury at any time would precipitate his lameness and would give him a similar trouble in the other foot when It occurs. This statement appears to strengthen the claim that the present incapacity is due to the injury. It is worthy of note that before the accident claimant experienced no difficulty in performing the regular duties of his employment, while since the accident he has been a con- stant sufferer and unable to follow the duties of his employment. Dr. Plunkin says that if he should meet with a similar accident to the other foot he would have the same trouble with that foot. In substance, the case amounts to this : The fact that the claimant met with an accident which caused incapacity is not questioned. The accident might not have caused incapacity but for the flat foot, which had existed for a long time. But this has been held to be immaterial. Therefore compensation was properly granted in the first place. Having been granted, the claimant is entitled to it until he is able to resume work. He is entitled to compensation for all time lost on account of incapacity due to the original accident. If he had not had flat foot, the accident would probably not have incapacitated him 15 days, and he would have been entitled to no compensation at all. If he did not have flat foot now, he would not be incapacitated, be- cause the original injury would have healed. But it is the flat foot that caused the incapacity to extend beyond 15 days, and it is the flat foot which retards or prevents complete recovery. So, if the man was entitled to any compensation at all on the ground that his condition plus the accident caused the incapacity for more than 15 days, it seems clear that for the same reason he is entitled jto com- pensation as long as his condition plus the injury caused by the ac- cident prevents him from returning to work. The flat foot alone does not incapacitate him; it did not before the accident, and the flatness of the left foot does not. It is the right flat foot, plus the accidental injury, which has created all the incapacity which has occurred. This office has heretofore passed on a number of cases wherein the same question was involved and it has been invariably held that such OPINIONS OF SOLICITOH, DEPARTMENT OF LABOK. 223 an injury is within the law. (See case of Philip Jarvis, C 1699, Bu. 3203, and cases cited therein.) In view of the foregoing, I am of the opinion that there is estab- lished by sufficient evidence the connection between the accident of May 1, 1909, and the incapacity beginning August 17, 1909, and I have the honor to recommend that the claim be allowed. [In re claim of August Pohl, June 27, 1911 ; No. 6709.] The above claim is submitted to this office with special reference to the question whether there is sufficient evidence of connection between the accident and the incapacity. The immediate report gives the following description of an acci- dent which happened to claimant on May 2, 1911 : While at work on the Missouri he was hit by a steel plate on the right lower quarter of the abdomen. The nature and extent of the injury as shown by the immediate report is given as follows : Medical officer of yard reports he has symptoms of appendicitis, temperature 100.2 and pulse 104 on May 8, 1911. Claimant was treated at the Boston City Hospital from May 9 to 29, 1911, and the diagnosis is given as appendicitis. There is furnished with the record a copy of a statement made by the medical officer of the yard, wherein he makes the following state- ment: I am inclined to think it improbable that the appendicitis was the result of injury, although the injury may have aggravated an already diseased appendix. From the foregoing it appears to be satisfactorily established that on May 2, 1911, claimant met with an accident in the course of em- ployment by being struck on the right lower quarter of the abdomen by a steel plate; at that time it is presumed that he had a diseased appendix and that the blow on the abdomen so aggravated the ap- pendix as to produce incapacity. The facts in this case are similar to those found in the case of Milford E. Lusby (C 3105, Bu. 7347). In that case claimant was em- ployed in the Government Printing Office and received a severe strain of the abdominal muscles, with a possible rupture of some of the niuscle fibers, and the physician's certificate showed " chronic appen- dicitis, undergoing an acute exacerbation." It was further stated by the physician that — This man had had a chronic appendicitis for two to three years. It was, in my opinion, probably lighted up by his accident in winter. In reaching a conclusion upon a consideration of the facts it was held that the condition of claimant at the time of the operation was due to the original injury, and payment of compensation was accord- ingly approved. The principle involved in cases of this character is that where an existing ailment is aggravated or augmented by an injury received in the course of employment so as to produce incapacity, where in- capacity would not otherwise have occurred, then the incapacity is the result of the accident. (See in this connection cases of Jarvis, C 1699, Bu. 3202; Mulverhill, C 230, Bu. 1020; Quinn, C 265, Bu. 709; and Anderson, C 266, Bu. 1099.) 224 workmen's compensation under act of may 30, 1908. In view of the foregoing, I am of the opinion that the inquiry must be answered in the affirmative and the claim approved. [In re claim of William Bunce, Jan. 9, 1912 ; No. 7031.] This claim is submitted with the inquiry whether payments of compensation should be continued after December 9, 1911. On June 9, 1911, while in the course of his employment, claimant stumbled and fell across a manhole on the U. S. S. Ghattwnooga, and the attending physician certified that he was immediately there- after incapacitated on account of a " fractured rib, with considerable bruises and contusion of back." The claim was then approved for a period of six months ending December 9, 1911. Claimant was ex- amined by the yard surgeon on November 13, 1911, who reported that the incapacity still existed and would probably continue for 21 days longer. Application having been made for a continuance of compensation after the expiration of the period of approval, claimant was on December 16, 1911, examined by Dr. Samuel J. Holmes by direction of the Secretary. The result of this examina- tion shows that at that time there were no objective symptoms of the injury, but that claimant " complains of pain over the lower ribs (posteriorly) and pain over heart with shortness of breath." In answer to inquiry number 4 of the physician's report, as to whether claimant is still unable to resume work, the physician says, " It would seem not." The answer would indicate that if he was not nnoible to resume work he must be able to resume work, but a reply to that effect evidently was not intended, for in the next inquiry the phy- sician says, " allow 90 days," in answer to the query, " How long will the disability probably continue? " This latter statement un- doubtedly means that claimant was incapacitated at the time of the examination and would probably so continue for 90 days longer. Under the heading of " Eemarks " the physician makes the following statement : It would be difficult to state definitely how much the symptoms due to organic heart disease had been aggravated by the fall which he sustained. He is a heavy man, and the concussion must have been considerable. He will never be in condition to perform any hard manual labor. Denies rheumatism as a cause for heart disease. From the report of the examining physician it is observed that in addition to the injury to the rib, from which claimant says he still suffers, it also develops that he apparently has organic heart disease, and that it is probable that this condition was aggravated by the severe fall which claimant sustained. From. the observations made at that time the physician was of the opinion that claimant was permanently incapacitated for performing hard manual labor. Upon a consideration of the record in the case as now presented it appears that there is ample evidence to establish the fact that claimant is, and has been ever since the accident and injury of June 9, 1911, incapacitated for performing the usual duties of his occupa- tion, and that such incapacity is directly due to said accident and injury. I have the honor to recommend that the claim be approved for a further period of six months from December 9, 1911. OPINIONS OP SOLICITOR, DEPARTMENT OF LABOR. 225 11. An employee who, without negligence or misconduct on his part, is struck hy his foreman in a fit of anger and has his arm broken, is injured in the course of his employment. [In re claim of Cornelius Flemmtags, Nov. 24, 1909 ; No. 2086. J The above claim has been submitted to this office with special ref- erence to the question whether the accident occurred in the course of employment. The following is the description of the accident as given in the im- mediate report of the injury : On May 26, about 9 a. m., the boiler maker he was working with as helper asked him why he did not come to work the night before. He told him that he had been sick. The boiler maker got mad and hit him with a piece of iron across the left arm, breaking It. Patrick Moran, the boiler maker who struck the claimant, admits in his affidavit, under date of June 11, 1909, that he struck him. Moran apparently attempts to justi'fy his action in this manner by saying that he " thought he (the injured employee) intended to strike me." The affidavit of Cecil Carter, the only eyewitness, is as follows : Personally appeared Cecil Carter, No. 31622, who on oath deposes and says: I was in blacksmith shop at Porto Bello when Moran struck Fleming, and saw and heard what passed between themi. On nlghj; of May 25 Mr. Moran, a boiler maker, sent me to get helpers to come to work. I told Fleming what Mr. Moran had said, and Fleming replied he was feeling sick and could not come. Fleming came to work next morning at usual time, and about 9 o'clock Mr. Moran asked him why he hadn't come to work the night before. Fleming replied, " Was sick." Then Moran said, " Shut up and go to work." Fleming started to work and said, " You can't make me shut up," and then Moran struck him across the arm with bar of iron. I was closer to them than anyone else. The sworn statement submitted by Cornelius Flemmings reads in part as follows : The boiler maker I was working with asked me why I did not come to work the night before. I told him that I had been sick. He got angry and hit me with a piece of Iron across the left arm, breaking it. In ordinary cases of this kind between private employer and em- ployee the so-called fellow-servant rule would probably apply, which is stated as follows : Where a master used due diligence in the selection of competent and trusty servants, and furnishes them with suitable means to perform the service in which he employs them, he Is not answerable, where there is no countervailing statute, to one of them for an Injury received by him in consequence of the carelessness of another while both are engaged In the same service. (Vol. 12, Am. and Eng. Encyl. Law, 2d ed., p. 897.) It is apparent from the case of Mclntyre v. Eodgers (6 F., 176; see Dawbarn on Employers' Liability and Workmen's Compensa- tion, p. 188), where compensation was granted to a claimant notwith- standing the accident resulted from the negligence of a fellow work- man, that the fellow-servant doctrine has no application under the English compensation act, and I am of opinion that it is not ap- plicable to the act of May 30, 1908. The right or remedy created by this act is not in the nature of a claim for damages at common law. The record in the case under consideration clearly shows that the injured employee was engaged in his regular duties at the time his 93364°— 15 15 226 WOEKMBn's compensation under act op may 30, 19U». arm was fractured by being struck with the iron bolt, and the evi- dence further shows that 'he did not provoke the assault nor con- tribute in any way to the same, and that he was therefore not guilty of negligence or misconduct. In the case of Elmer E. Bailey (C 1300, Bu. No. 2753) the point as to whether an employee who was bitten by a mad dog was injured " in the course of employment " was con- sidered at some length. The conclusion therein reached was that, while the accident probably did not arise out of and in the course of employment, which would be necessary in order to grant compensa- tion under the English act, yet it did arise " in the course of employ- ment." The principle involved in the Bailey case applies to this case. I am therefore of opinion, as above indicated, that the accident did occur in the course of employment within the meaning of the law, and that the claim for compensation should be allowed. 12. An employee obeying orders of his superior and submitting to an operation (vaccination) ordinarily harmless, who is disabled thereby, is injured within the act. [In re claim of C. B. Flora, May 25, 1910 ; No. 3338.] The above claim is submitted to this office with special reference to the question, " Was the employee ' injured ' within the meaning of the act?" The nature and extent of the " injury " is shown to be " vaccina." This condition was brought about by reason of claimant's having been vaccinated. He submitted to this vaccination because of an order issued by the commandant of the yard requiring all employees to furnish a certificate showing that they had been vaccinated sub- sequent to February 15, 1910, and those failing to produce such cer- tificate were not to be placed at work except oh written authority from the yard surgeon. It is true that the injury here was not directly attributable to the employment, nor was it of that accidental nature which was found in the Clark case (C 92, Bu.No. 628). In that case the incapacity was directly traceable to an injury received by the employee while engaged upon the work of his employment. The Attorney General held in that case, in an opinion dated May 17, 1909, that — The statute quite consistently provjdes for the cases of Injuries In the course of the einploymeat and accidents Resulting In death or otherwise. And that — Within the language of the statute an employee may be injured in the course of his employment without having suffered a definite accident. While the happening of a definite accident is unnecessary, an acci- dental element is present in this case, since the malady caused by vaccination in a form severe enough to incapacitate is an occasional rather than a usual result of the process in question. The injury in this case was the direct result of submitting to an operation. Such submission was, in turn, directly due to the issuance of the order by the superior officer of claimant and his obedience to such order. From this aspect of the case it then appears that the incapacity arose by reason of an injury, hurt, or wound received by the employee while OPINIONS OF SOLICITOE, DEPAETMENT OF LABOR. 227 obeying the orders of his superior ofl&cer. Failure on his part to observe such order presumably meant his discharge from the service. Numerous cases have arisen where laborers and other inferior ser- vants were injured while performing service under orders of those in charge of the work, which service was not that which they were employed to perform. In Dawbarn on Employer's Liability and Workmen's Compensation (p. 186) it is said that in such cases : The courts will not scrutinize too closely whether such orders were exactly those they were engaged to obey. Again, in Dresser's Employer's Liability (vol. 1, p. 508) it is said: In a case where a blacksmith was sent out of his employment to make repairs in a mine and fell into an unprotected shaft it was said: While the service can not be compulsory in the sense that the employee can be compelled to work against his will, yet the very nature of the relation existing between the parties carries with it the irresistible inference of dependence upon the one side. It may be said that compliance with an order under these condi- tions is ,a compliance under duress, and if in obeying such orders the employee suffers an injury, without negligence or misconduct on his part, then the loss, if any, is. properly chargeable to the authority responsible for increasing the risk of the employment. There is another view which may be taken of this case, whereby it might be said that the order of the commandant was in the nature of one requiring the employees to properly qualify from a medical standpoint in order to continue the employment. It may be admit- ted that the commandant could make such requirements in the case of persons seeking employment without laying the Government liable to the payment of compensation in case of injury, but after the con- tract of employment has been made the matter is otherwise. For the reasons given I am of the opinion that the claim should be allowed. 13. Injuries within the act are injuries to the person, or bodily injuries, and hence the breaking of an artificial leg is not covered by the statute. [In re claim of Eulogio Rodriguez, Oct. 29, 1910 ; No. 3992.] The above claim is submitted to this office with special reference to the question as to whether the employee was injured within the meaning of the act of May 30, 1908. The accident arose in the course of an employment covered by the act, without negligence or misconduct on the part of the employee, and the incapacity resulting therefrom continued for more than 15 days. The accident or cause which resulted in the claimant's incapacity consisted of the breaking of an artificial leg, without which the claimant was unable to perform the duties of his employment. The question, therefore, is whether the breaking of an artificial leg is an injury such as is contemplated by the compensation act. Under this act compensation is payable whenever an employee of the United States, of one of the classes specified, sustains an " injury " in the course of his employment. The word " injury " was not used in the technical sense as denoting a wrong or tort. The right to compensation conferred by the act is not predicated upon any theory of a legal wrong or injury suffered by the employee and imputed to the United States. Compensation is not allowed as damages for the 228 workmen's compensation under act of may 30, 1908. violation of some private right, but is in the nature of a gift or grant. (Opin. Solr., June 2, 1909, No. 661.) "This is a beneficent statute in the nature of an act granting pensions of limited duration and of special application." (27 Op. A. G., 347.) It is necessary,, therefore, to reject the strictly legal and technical meaning of the word and to give to it the meaning which belongs to it in common speech. As popularly understood, a workman is said to be injured in the course of his employment when he suffers some bodily hurt or damage, and since it is to " any person * * * injured in the course of his employment" to whom compensation is specifically allowed by the act, it seems to me that the injury jpust be to the person of the claimant in order to entitle him to compensation. The breaking of an artificial leg is certainly not a bodily injury; neither is it an injury to the person in any proper sense. It is not for every happening which may result in incapacity for labor and occasion loss or damage to an employee that compensation is provided, but only the happening of an injury. In my opinion, the accidental breaking of an artificial leg in the course of employment is a happening which does not fall within the scope of the act. 14. An accidental injury received in the conrse of employment bnt arising In consequence of a disease is an injury witMn the act, the accident being regarded as the proximate, and the disease as the remote, cause. [In re claim of E. B. Clements, Nov. 7, 1910 ; No. 4680.] The claimant in this case was employed as a night watchman in the camp of the Eeclamation Service at Jackson Lake Dam, in Wy- oming. At 4 a. m. on the morning of September 8, 1910, while stand- ing or leaning over a camp fire to get warm, the night being very cold, he lost consciousness from epilepsy and fell into the fire, sus- taining a " third-degree burn of left arm, extending from shoulder to middle of forearm." The medical certificate states the severe injury will be slow to heal, probably resulting in permanent disability from extreme contracture of scar tissue. If pneumonia or nephritis inter- vene it will not be well with him." The real question, involved in this case is whether the claimant was injured within the meaning of the compensation act. It is first to be observed that the word " injury " as used in the statute does not include diseases contracted in the course of employ- ment, although directly attributable to the conditions of employment (Case of Traiman, C 310, Jan. 19, 1909 ; case of Sheeran, 28 Op. At. Gen., 254.) As said by the Attorney General in the case last cited: There Is nothing, either in the language of the act nor Its legislative history, which justifies the view that the statute was Intended to cover diseases con- tracted In the course of employment, although directly attributable to the con- ditions thereof. * • * The word " injury," however, as used in the statute is In no sense suggestive of disease, nor has It ordinarily any such significance. On the other hand, where an artisan or laborer is afilicted with some latent disease or ailment, but is not incapacitated thereby, and sustains an injury in the course of employment by which such disease or ailment is so developed or aggravated as to incapacitate him, he is held to have been injured within the meaning of the act. (Case of OPINIONS OP SOLICITOE, DEPARTMENT 03? LABOR. 229 Osgood, C 62; Smith, C 2325; Boyce, C 4045, and cases there cited.) But in the present case, while the claimant is shown to be suffering from the disease of epilepsy, his incapacity or disability is not due to any aggravation of that disease resulting from an injury received in the course of employment, nor is the disability or incapacity in question the immediate result of the disease, but of an injury in the shape of a severe burn. As shown by the record, and, indeed, as is apparent from the nature of the case, the burn was received in the course of employment and without negligence or misconduct on the part of the claimant. On the other hand, the burn or injury which directly and immediately resulted in the claimant's disability or in- capacity is in turn ultimately attributable to the disease of epilepsy, with which he is afflicted. The precise question, then, would appear to be whether an injury arising m consequence of a disease and not out of the employment, although happening in the course thereof, is an injury within the meaning of the act. The British workmen's compensation act provides compensation only in the case of injuries by accident arising " out of and in the course of employment." The statute in the present case, however, applies to injuries received " in the course of employment " simply, and, as pointed out in the case of Bailey (0 1300), there would be no justification in holding that the injury giving rise to compensation must result from an accident which arises out of, as well as in the course of, employment, and it will suffice if the injury occurs in the course of employment, provided it be an injury within the meaning of the act. ISj then, an injury received in the course of employment, but aris- ing in consequence of a disease, an injury within the meaning of the act? In Winspear li. Accident Insurance Company, Ltd. (6 Q. B. Div., 42) , the question was whether the insurance company was liable under a policy in which the amount thereof was made payable in the event that the insured sustained " any personal injury caused by accidental, external, and visible means " not being an injury " caused by or arising from natural disease or weakness, or exhaustion conse- quent upon the disease." In a case where the insured, while fording a stream, was seized with an epileptic fit and, while in such fit, fell down in the stream and was drowned, Lord Coleridge, C. J., Bag- gallay and Brett, L. J. J., concurring, held : It appears to be clear from the statement in this case that the insured died from drowning In the waters of the brook whilst in an epileptic fit, and drown- ing has been decided to be an injury caused in the words of this policy " by accidental, external, and visible means." I am therefore of opinion that the injury from which he died was a risk covered by this policy, and the only question then remaining is whether the case is within the proviso which provides that the insurance " shall not extend to death by suicide, whether felonious or otherwise, or to any injury caused by or arising from natural disease, or weakness or exhaustion consequent upon disease." It is certainly not within the first part of this proviso, because the death was not so occa- sioned; neither does it appear to me that the cause of the death was within those latter words of the proviso. The death was not caused by any natural disease or weakness or exhaustion consequent upon disease, but by the acci- dent of drowning. I am of opinion that those words in the proviso mean what they say, and that they point to an injury caused by natural disease, as If, for instance, in the present case, epilepsy had really been the cause of the death. The death, however, did not arise from any such cause, and those words have no application to the case, and therefore the judgment of the Exchequer Divi- sion must be affirmed. 230 workmen's compensation undek act of may 30, 1908. The case of Wicks v. Dowell & Co. (Ltd.) (2 K. B. Div., 225) arose under the British workmen's compensation act. The claimant was employed in unloading coal by means of a hydraulic crane from a ship lying at defendant's wharf. His duty was to stand on a stage close to the edge of a hatchway leading into the hold and there to regulate the descent of a bucket into, and its ascent out of, the hold by means of a long pole, and also to give the necessary signals to. the man who was working the crane. While thus engaged he was seized with an epileptic fit and fell through the hatchway into the hold and sustained serious injuries. The question was whether the accident arose out of, as well as in, the course of employment. The court held in favor of the claimant, Collins, M. K., saying in part : A man is picked up at tie bottom of the hold of the ship suffering from Injuries. What is the cause of his condition? The proximate cause, obviously, is that he has fallen from a height. But it is suggested that if the occurrence is analyzed it will be seen that the accident was caused by the idiopathic disease from which the man was suffering, and that, therefore, the accident did not arise out of his employment. At that point the authorities come in (Winspear v. Accident Insurance Co., supra ; Reynolds v. Accidental Insurance Co., 22 L. T. N. S., 820) , to the effect that, although the cause of the fall was a fit, the cause of the injuries was the fall itself, and they are direct authorities that the Injury in the present case was caused by an accident. Then did the accident arise out of the man's employment? When we get rid of the confusion caused by the fact that the fall was originally caused by the fit and the confusion involved in not dissociating the injury and its actual physical cause from the more remote cause — that is to say, from the fit — ^the . difficulty arising from the words " out of the employment " is removed. How does it come about In the present case that the accident arose out of the employment? Because by the conditions of his employment the workman was bound to stand on the edge of what I may style a precipice, and if in that posi- tion he was seized with a fit he would almost necessarily fall over. Mathew, L. J., concurring, in part said : The case affords an illustration of the rule that one should look to the imme- diate, and not to the remote, cause. In this case the immediate cause of the injury was the fall. I see no reason why we should hold that there was not an accident within the meaning of this statute. * * * In my opinion we ought not to go back along the train of circumstances and trace the accident to some remote source when it is plain that the man was In fact Injured by falling from the place where he was standing and where it was his duty to stand in discharge of his duty to his employer. Cozens-Hardy, L. J., also concurring, said in part : If I could adopt the view that has been pressed upon us, that the employer is not liable for the remote consequences of a disability which the workman brings with him to his work, I should come to a different conclusion ; but I think the truer view Is that a man always brings some disability with him. It may be a disability arising from age; it may be of some other nature. * * » The same consideration applies to a tendency to illness or to a fit, and If a man with such a tendency is told to go to work In a dangerous position and there meets with an accident, the accident none the less arises out of his employment because its remote cause is to be found in his own physical condition. * • • It Is also plain, and indeed is not contested, that the accident happened in the course of the employment. (See also Meyer v. Fidelity Co., 96 Iowa, 378 ; Interstate Casualty Co. v. Bird, 18 Ohio Cir, Ct., 488.) These authorities, it seems to me, are decisive of the question pre- sented in the present case. The claimant's injury consists of a severe burn and the proximate and direct cause of this injury was the fall into the fire. But for the fact that the fall was caused by loss of consciousness due to a disease, there would be no question but that he OPINIONS OP SOLICITOR, DEPARTMENT OP LABOR. 231 was injured within the meaning of the act. If the cause of the injury is an accident, the injury, without question, is an injury within the meaning of the act. In ascertaining the cause of an injury, on the authority of the cases cited, we are to look for the proximate cause and not for the remote cause, and on the authority of the same cases the faU of the injured man is the proximate cause of the injury in such cases as the present, while the disease with which he is suffering is a remote cause. The claimant's injury, therefore, being an acci- dental injury received in the course of employment, is an injury within the meaning of the compensation act, notwithstanding the fact that but for the disease with which he suffered he would, in all probability, have escaped the particular injury which resulted in his incapacity. I do not lose sight of the fact that the conclusion in the present case is inconsistent with the reasoning contained in the opinion of this office in the Lowd case (C. 440), rendered February 4, 1909, but the question involved has now been carefully reexamined in the light of authorities not then available, and I am now satisfied that the reason- ing employed in the earlier case was erroneous. 15. The fact that an injury may he classed as a disease does not take It out of the statute. Sunstroke, though classed as a disease, is not such a disease as may be contracted in the same sense as ordinary diseases may he, hut is an injury of an accidental nature, and is covered by the act. tin re claim of J. J. Walsh, Mar. 16, 1911 ; No. 4585.] When my opinion of December 19, 1910, in reference to the above claim, was rendered, I had not been able to find any judicial deci- sion applying the English or any other workman's compensation act to the case of an incapacity caused by a sunstroke. As coming closest to a consideration of the principles involved, the cases of Sinclair v. Maritime Passengers' Assurance Co. (3 El. and El., 4Y8 ; 30 L. J. Q. B., 77; 7 Jur., 367; 4 L. T., 15; 9 W. E., 342), Dozier v. Fidelity and Casualty Co. (46 Fed. Eep., 446), and the Attorney General's opinion of April 25, 1910, in the Sheeran case (28 Op. At. Gen., 254), were relied upon and the conclusion reached that a sunstroke was not such an injury as is covered by the compensation act. Since writing that opinion, however, I have found two late cases in which the English compensation act has been applied to the case of a heat stroke or sun- stroke, and in each of these cases it was held that the workman was entitled to compensation. In view of these later decisions I feel con- strained to reconsider my former opinion in the matter of the above claim. In the cases of Sinclair and Dozier, supra, the courts were constru- ing accident insurance policies. In the Dozier case, and possibly in the Sinclair case, the policy expressly provided that it did not cover "any disease or bodily infirmity." While our compensation act merely refers to " injuries," and does not mention " diseases," the Attorney General, in the Sheeran case, supra, expressed in the follow- ing language his view of the meaning to be given the word " injury " : There is nothing either in the language of the act or its legislative history which justifies the view that the statute was intended to cover disease con- 232 workmen's compensation under act of may so, 1908. traded in the course of employment, although directly attributable to the con- ditions thereof. On the contrary, it appears that the statute was intended to apply to injuries of an accidental nature resulting from employment in hazard- ous occupations — not to the effects of disease. After referring to the committee report and his opinion in the Clark case (27 Op. At. Gen., 350), the Attorney General continued: That opinion, however, was not intended to create the impression that the statute in question covered diseases contracted in the course of employment. The language of the opinion is perhaps broader than it should be, in the light of the committee report on the bill above quoted, which indicates that only injuries of an accidental nature were in mind. It is clear from this that if the nature of a disease is such that it is or may be contracted in the course of employment, and is not an in- jury of an accidental rmture, the statute does not cover it. If, on the other hand, the injury is of an accidental nalnire, it is covered by the statute. The fact that an injury may be classed as a disease does not take it out of the statute. Sunstroke is classed among diseases, it is true, but I do not understand it is such a disease as may be contracted in the same sense that pneumonia or typhoid fever may be con- tracted. Furthermore, in the late cases above referred to (Ismay, Imrie & Co., 99 L. T., 595 ; A. C, 437 ; 24 T. L. E., 881 ; 77 L. J. P. C, 107; 52 Sol. Jo., 713; and Morgan v. Owners of S. S. Zenaida, 25 T. L. E., 446) it was held that incapacity caused by a sunstroke was covered by the English compensation act, which by its terms applies only to injuries by accident and to certain occupational diseases. In both these cases it was, in effect, held that a sunstroke was an accident. In the Ismay, Imrie & Co. case, it appears that a man, weak from hunger ,went to work as a trimmer on a steamship to work his passage from New York to England. It was his duty to rake out the ashes that fell from the furnace. While thus engaged he suffered a heat stroke which caused his death. Speaking for the court. Lord Chan- cellor Lorebum said : To my mind the weakness of the deceased which predisposed him to this form of attack is immaterial. The fact that a man who has died from a heat stroke was by physical debility more likely than others so to suffer can have nothing to do with the question whether what befell him is to be regarded as an accident or not. In the case of Penton v. Thorley (89 L. T. Rep., 314; 1903, A. O., 443), the meaning of the word accident was very closely scrutinized. That case stands as a conclusive authority, and I would not depart from it if I could, nor need I repeat what was there said. The only question is of ap- plying the law there laid down to the particular facts of this case. In my view this man died from an accident. What killed him was a heat stroke coming suddenly and unexpectedly upon him while at work. Such a stroke Is an unusual effect of a known cause, often, no doubt, threatened, but generally averted by precautions which experience in this instance had not taught. It was an unlooked-for mishap in the course of his employment In common language, it was a case of accidental death. In the same case, Lord Ashbourne said : Although a heat stroke may be called a disease. It Is In this case, in my opinion, a disease directly caused by an accident arising out of or in the course of an employment, particularly dangerous to Williamson in consequence of his weak state of health. Its not being scheduled as an Industrial disease in the act of 1906 does not affect the question, for the act expressly provides that "nothing shall affect the rights of a workman to recover compensation in respect of a disease to which the section does not apply if the disease is a ■personal injury by accident within the meaning of the act." I do not at all say that all diseases arising out of or in the course of employment should be regarded as a personal injury by accident, but I am of opinion that under the OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 233 circumstances of this case and its facts Williamson was killed by a personal Injury by accident, and that the appellants are accordingly liable. In the Morgan case, the workman was incapacitated by a sunstroke while exposed to the hot rays of the sun as he was painting the side of a vessel. The court, following the decision in the Ismay, Imrie & Co. case, held that the " injury arose by accident within the meaning of the workmen's compensation act, 1906." In view of the foregoing, I have the honor to advise that the ac- tion of the department in the matter of the above claim be recon- sidered, and that the claim be allowed. 16. An Injury caused by continuous strain due to the nature of the work, and which develops gradually, with no element of accident, is not an injury covered by the act. (See case of Margaret B. Sargent, at p. 275, overruling this case.) [In re claim of M. A. Crellin, June 21, 1911 ; No. 6084.] The sole ^[uestion involved in this case is, Was the claimant " injured " within the meaning of the act of May 30, 1908 ? The immediate report describes the injury as follows: Ganglion or cystic growth, probably due to continuous strain, causing a degeneration. and cystic formation of the tendon sheath. Dr. Dunnigan, who treated the claimant at the time, certified the character of her injuries to be as follows : Contusion of carpal bones of left hand causing a cystic growth, which in- capacitated patient from attending to her duties. In a report relative to the case submitted to the Public Printer by the medical officer of the Government Printing Office, the latter said : Authorities usually ascribe this swelling or tumor to excessive use or con- tinuous heavy strain or motion. This is the first case that I ever observed or noticed among folders, until I examined a number of skilled female laborers employed in this office upon the same vocation — that of folding sheets of paper — of which five presented a simi- lar condition as described, but of such size as not to interfere with the manipula- tion of the hand, as was the case with Miss Crellin, and for which she was obliged to seek surgical relief in the removal of the cyst. Her physician, in his certificate attached to the claim, states that it arose from a contusion of the carpal bones of the left hand, but I am unable to get any specific history of a contusion or blow, and I am rather of the opinion, as given above, 1. e., that it is the result of the degeneration of the tendon itself, due to excessive use. It is to be noted that for some time previous to her leaving the office the claimant was employed at folding heavy sheets of paper in which the wrist and fingers were involved almost continuously. In response to a request from the Bureau of Labor as to whether, in his opinion, the condition of Miss Crellin was caused by a definite injury or whether it was the result of a gradual development due to a continuous strain causing a degeneration and cystic formation of the tendon sheath. Dr. Dunnigan stated : In reply to your letter of February 20, 1911, regarding Miss Mary H. Crellin, I would state that I had never seen the claimant prior to January 15, 1911. From the history of the case, given to me on that date by Miss Crellin, I would say iu addition to my previous statement that there was a definite injury on January 13, 1911. The foregoing embraces all the material evidence contained in the record of the case. The attending physician, in an opinion based 234 workmen's compensation tjndeb act of may 30, 1908. upon a history of the case given by the claimant, says that the latter suffered a definite injury on January 13, 1911. The medical oiBcer of the Government Printing Office takes issue with the claimant's phy- sician upon this statement and gives it as his opinion that the cystic growth which incapacitated the claimant was the result of a gradual development due to a degeneration of the tendon sheath caused by a continuous strain. An investigation conducted by the last men- tioned officer failed to furnish any information of a definite acci- dental injury, contusion, or blow sustained by the claimant which might have caused the cystic growth, but brought to light the fact that five other employees engaged in the same vocation as was the claimant (folding heavy sheets of paper) were afflicted with similar cystic formations, but not of such size as to interfere with the manip- ulation of the hand or to necessitate a recourse to surgical relief, as was the case with the claimant. As none of the said five employees had sustained any accidental injury, contusion, or blow to produce the cystic formation — the latter being plainly the result of tendon degeneration due to excessive use — and as, aside from the opinion of the claimant's physician, no evidence of the claimant's having re- ceived any such injury, contusion, or blow has been revealed, al- though an investigation of the case was made, I think it but reason- able to assume that the claimant's incapacity originated in the same manner as that of the five others mentioned ; in other words, that the ganglion or cyst was a thing of gradual growth or development. In so far as claimant's disability is due to a gradual breaking down ("degeneration ") of the tissues-, the claim falls within the principle stated in the case of Treiman (C 310, Jan. 19, 1909), in which it was held that the claimant, who was incapacitated by reason of lead pois- oning, brought on gradually while in the course of his employment, was not entitled to compensation. In the course of the opinion it was pointed out that the act applies only to such injuries as result from accident or to such injuries as are directly referable to some particular event capable of being fixed in point of time ; that although a person, not overstrong, may, m an effort to keep up with stronger persons engaged on the same work, so exhaust his physical energies as to finally render him unfit for full duty, and if a person, in conse- quence of the strain or pressure his employment puts upon him, may become gradually weakened, and, by virtue of an accumulation of trifling hurts, each insufficient of itself to incapacitate him, finally becomes worn out and unfit for work, the injuries thus resulting would not be regarded as injuries within the purview of the act; that, in the case under consideration, the disease developed gradually, so that it was impossible to state when the intoxication began, and that, since it was impossible to fix the date of the injury, the element of accident was lacking, and the claim could not be allowed. This con- clusion is fully sustained by the case of Steel v. Cammell, Laird & Co. (93 L. T. E., 357.) In so far as the claimant's disability is the natural result of the work upon which she was engaged, the claim falls within the prin- ciple stated in the case of Schroeder (C 5378, Mar. 25, 1911), in which it was held : This latter consideration, namely, the absence of any accidental element in the cause of the injury, disposes of the present ease. The claimant was a general helper in the Brooklyn Navy Yard. He was engaged in burning out water-tight OPINIONS OP SOLICITOE, DEPAETMENT OP LABOE. 235 compartments known aa " cofferdams " in the coal bunkers of the U. S. S. Ohio, using an acetylene burner. The acute lead poisoning from which he suffered was caused by Inhaling fumes of lead resulting from so burning the lead paint. It can not be said that these fumes were inhaled by accident. The fumes were necessarily produced by the work he was engaged upon. The Inhalation of such fumes was to have been expected and probably could not have been avoided. Lead poisoning under the circumstances was the natural, if not the inevitable, result. The claimant's Injury therefore was not an injury of an accidental nature, and hence not an injury within the meaning of the act. For the reasons stated, I am of opinion that claimant's disability was not due to an injury within the meaning of the compensation act, and hence that the claim can not be allowed. 17. A severe accidental injury which, though it does not incapacitate the em- ployee, exposes him to an infectious disease, and so weakens him that he is unable to withstand it, may thus give rise to a disability for which compensation is payable. [In re claim of J. B. Atkinson, June 24, 1911 ; No. 668T.] The above claim is submitted to this office with special reference to the question whether there is sufficient evidence of connection be- tween the accident and the death. The accident happened on October 1, 1910, and the death occurred on April 4, 1911. The question submitted is raised because of the fact that the record shows that the immediate cause of the death was typhoid fever. This statement of the case standing alone would bar the claim, since it has been held that diseases contracted in the course of employment are not within the compensation act. In order that the circumstances of the case leading up to typhoid and the resulting death may be thoroughly understood, a short history of the case may be given, together with excerpts from statements made by various physicians who are conversant with the case. While in the course of his employment on October 1, 1910, without negligence or misconduct, the decedent came in contact with a live electric wire, causing him to fall from the ladder on which he was working a distance of about 32 feet. The nature of the injury is shown by the immediate report as follows : Back badly bruised; unable to use lower limbs; ligament on right shoulder torn loose: bruised all down right side. Notwithstanding the seriousness of his injury, decedent continued at work until March 28, 1911, when he was compelled to give up, at which time his condition was diagnosed as typhoid infection. From that date he received the necessary treatment for that disease until his death on A^^ril 4, 1911. In an affidavit dated April 8, 1911, Dr. D. L. Connor makes the following statement bearing on the case : Upon examination of Mr. Atkinson on November 10, 1910, I found the tenth rib fractured at the angle on the right side and concussion of. the spine at that point, causing partial paralysis of the lower limbs. The right hip joint was very stiff from the injury of the acetabulum, and various other injuries along the spine. His injuries had improved materially, though the weakness in the lower extremities and back was causing his vitality to be low. About three weeks ago he was stricken with typhoid fever, and on March 28 Mr. Jay D. Stannard, of the Reclamation Service, telephoned me that Mr. 236 workmen's compensaoion under act op may 30, 1908. Atkinson was sick and asked my advice. I advised him to be brought to Phoenix and placed in the hospital, which they did at once. I secured a room In the hospital for him and visited him about 7 p. m. I diagnosed his case as typhoid infection, knowing his vitality was low from the paralysis of his injuries. I asked for another physician, and Dr. John Wix Thomas was called to assist me In the case. On April 3 the perforation of the bowel occurred. An operation was performed by Dr. Willard Smith and two perforations repaired. About 24 hours later he died. His bowels moved involuntarily from the time he took his bed until he died. In my opinion the low vitality caused by his Injuries, the paralysis, and the weakness in the bowels from the concussion of the spine caused him to be sus- ceptible to typhoid infection and lessened his chances for recovery. In an affidavit made on April 5, 1911, Dr. Willard Smith makes the following statement, which explains his connection with the case : At your request, I wish to make the following statement of my Impression of the case of Mr. J. B. Atkinson. Some months ago he received a severe Injury as a result of a fall from one of the poles In the Reclamation Service trans- mission line. This injury was so severe that he was under professional treat- ment by Dr. D. L. Conner, of Phoenix, Ariz., from that time to the time of his death, which occurred last night at 6.20 o'clock. At the same time that he was under treatment for the injuries resulting from his accident he continuously performed his work, although his condition was such that by so doing he sapped his strength and resisting power to the utmost. About three' weeks ago he fell a victim to typhoid infection. About one week ago he was brought to Phoenix and placed under the care of Dr. D. L. Conner, who called In consulta- tion Dr. J. W. Thomas, and was attended at St. Joseph's Hospital and had the advantage of the best nursing which the city of Phoenix can produce. On the afternoon of April 3 I was called to operate for typhoid perforation. I operated at 5.30 p. m. and found two typhoid ulcers had perforated. These perforations were closed and the wound closed with drainage. The operation was quickly done and the patient had practically recovered from the aniesthetic by the time he was placed back in bed. The shock was, however, severe, and every practical means known to combat shock was employed, but Mr. Atkinson had not sufficient reserve vitality to carry him past the critical period, and death ensued about 24 hours after the operation. It Is my opinion that the fatal result was largely brought about by the fact that the typhoid infection occurred in a man whose resisting power was at a low ebb, and it is also my opinion that this low resist- ing power can be traced directly to the severe injuj? which he had sustained a few months previously. Had he not been so Injured, his chances of recovery from the perforation would have been infinitely Increased. Also, had he not been so injured, he would have been less liable to have acquired a typhoid Infection. In an affidavit dated April 11, 1911, Dr. A. E. Harden, of the In- dian Service, gives his opinion in the following language : Mr. Atkinson's vitality was undoubtedly greatly lessened by this accident, and it is my opinion that he never recovered from the effects of the same and would therefore be very susceptible to infectionr from typhoid fever, his system not being able to withstand an attack of that disease. In this case the decedent met with a severe accident which greatly debilitated him and lowered his vitality, as well as led to a paralysis and weakness of the bowels, all of which rendered him peculiarly susceptible to typhoid infection, which shortly supervened, and which resulted in his death. The compensation act provides that " if any artisan or laborer so employed shall die during the said year by reason of such injury " compensation shall be paid. The principle on which this case turns' is laid down in the case of Ystradowen Colliery Co. v. Griffiths (2 K. B. (1909), 533), arising under the British workmen's compensation act. In that case the worknian was injured by a stone falling on his knee. On the day of the accident the weather was very cold, and the workman, in his injured state, took over two hours to OPINIONS OP SOLICITOR, DEPARTMENT OF LABOR. 237 get to his home. He suffered a severe chill. Chest trouble and pneu- monia supervenedj and ultimately he suffered from chronic bronchitis, which rendered him unable to work. The master of the rolls held: Given an admitted accident, It Is not the law to say that the disease which has been accelerated — still more if produced by the accident — is not a matter which comes within the four corners of the act of Parliament. * • * The workman is now admittedly unable to work; he is unable to work by reason, I think it is said, among other causes, of chronic bronchitis; and as there is evidence which is worthy of attention — I say no more than that, because it is not a question for me to deal with — that this disease was brought about by reason of the weakened condition of the man. The state of debilitation, if I may say so, which was immediately caused by the accident, so affected the workman that he was some two or three hours in getting from the colliery to his own home on the very night of the accident. In those circunistances he con- tracted a chill, which in his debilitated condition has led to the consequences to which I have referred. * * * The test is not whether the present condition of the workman is the natural result of the injury, but we must consider the result. It may be an improbable result — I will even go so far as to say, as Lord Collins said, possibly even an unnatural result — but he must consider the result. The question is whether the workman's present condition is the result of the accident in this sense — that his present condition was occasioned by the debilitated state of the workman immediately after the accident and originated by the accident which he has met with. With this authority, and following the previous opinions of this office in the case of McAllister, C 76, and of Boyce, C 4045, I think that the decedent died by reason of his injury, and that the claim should be allowed. 18. An infection of the hand and a secondary infection of the leg, resulting from an abrasion of the skin and the accidental introduction of a foreign substance, is an injury within the act. [In re claim of L. B. Green, Aug. 16, 1911 ; No. 6668.] This case has heretofore been considered by this office, and under date of June 16, 1911, it was held that there was not sufficient evidence in the record to establish the fact that the incapacity was due to an injury received in the course of employment, and the claim was ac- cordingly disapproved. The case is now resubmitted for considera- tion with the following inquiry: Does the additional evidence warrant a reconsideration of the Secretary's action of June 24, 1911, disapproving claim? The record as originally presented gave the cause and nature of injury as follows: While overhauling pump from the U. S. S. Vigilant, claims he had both his hands infected. The attending physician stated that he had made an incision and removed pieces of hard material resembling spicula of coral. There was nothing further in the record to explain the presence of this hard material in the finger and it was consequently supposed to have been some sort of a growth or formation therein. It now appears from the additional evidence furnished that the pump claimant was working on did not belong on the tug Vigilant, which vessel was for local use, but belonged to the tug Iroquois, which boat had been in service in oriental waters. 238 workmen's COMPlTNSATIOHr UNDEB ACT OF MAY 30, 1908. This additional information would apparently explain the pres- ence of pieces of coral in the pump upon which claimant was working and the manner in which the pieces were communicated to the hand will be best understood from the statement of claimant dated August 6, 1911, the material part of which is as follows : I Injured my right thumb and second finger of left hand on or about January 2, 1911, while assembling fire and wrecking pump off tug Iroquois, J. 0. 1020-144. In the many years of my employment as machinist have had many abrasions of hands with no serious ill effects. I remained to work, although hands were ■ very sore, and on January 9, 1911, I visited Dr. Dempsey ; he dressed my hands and I worked with gloves until January 14, at 4 p. m., and suffered great pain all night. On January 15 Dr. Dempsey cut thumb and extracted some hard substance, warning me to not touch other parts of my person. Later my face became infected. On January 18 he cut thumb again, removing another piece. On January 18 I visited injury officer and explained my condition and case. He at that time, I claim, not giving me a fair hearing, saying (not pleasantly), " Why did you not report your case when you got hurt?" I told him if I and all men reported such trivial cuts and abrasions the clerical force would not be able to handle them. After much unnecessary bluster the first thing he did was to telephone to Chief Clerk Davis and " held up " the three days with pay I had been granted, and as my year was up March 13 I have not got them yet and they are lost to me. • • ***** On January 18 he (injury officer) sent me to Dr. Kelly, yard surgeon, for ex- amination. Up to and at much later date my leg was in a healthy condition. I visited Dr. Kelly as often as asked until February 9. On February 15 I wrote to Dr. Kelly that my leg was so bad I could not come, as I was unable to get out of the house. Some days later he visited me at my home, saying, " When I order you over there, you understand, you have got to come." I insisted upon his looking at my leg to verify my statement, but he said, " I have no time." I insisted he take time, which he did, and before leaving told me to come as soon as I was able, which I did. In Dr. Kelly's statement, which is not true, he says I tried to deceive him as to the previous condition of my leg. How could I deceive a physician and cover a scar that extended from my ankle to my thigh from an operation performed four years ago in September? My leg had not caused me to lose an hour's time or any trouble thereafter until this infection, which was on the ofitside of leg in fleshy part, whereas the scar was on the inside part of leg. Dr. Kelly or Kindleberger never intimated to me that I tried to deceive them. Dr. Kelly did offer to treat me, but said I would have to come on the yard to be dressed at least two times a week, but the pain, swelling, and torture, any man that could ask another to make those trips from my house to his office and have to wait hours to see him at times was inhuman in my condition. I asked if I came and could not come again would he visit me at my house, but he said " No." I told him that I would then be compelled to call another doc- tor, who would bear the expense. Dr. Dempsey said, " Stay off your leg." Kelly, a physician, too, said; " You are fit to go to work ; that is the trouble, you are not on it enough." In support of his statement that he suffered an injury of an acci- dental nature claimant has furnished statements from several fellow employees, including the leading machinist. The one most germane to the question of injury by accident is that of W. E. Manning, dated August 4, 1911, which, m part, is as follows : On or about January 2, 1911 — not later — Mr. Green, while at work on a pump In the shop in which he works, did in some manner cause an abrasion of his thumb and also of one finger, in which the substance which caused the trouble entered, causing him intense pain, and he called my attention to the fact and also showed me his thumb, which had commenced to look sore. He got a pair of gloves, and throughout the job he wore then continually and did all he could to. keep to work, but to no avail, for he soon had to give up. I afterwards visited him at his home, and he showed me his hands, which were in a terrible conuitlon. OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 239 There is also furnished the following additional statement from the attending physician, dated August 4, 1911 : In a report I submitted to the Bureau of Commerce and Labor regarding tlie condition of Mr. L. B. Green, lie Informs me that I said he had an abrasion on his left thumb. This is wrong. It was his right thumb that was infected, as the scars will show. I incised it to the bone twice and each time removed pieces of a hard substance which I believed to be coral, which no doubt ac- counted for tJie infection of his thumb and hand. He also reinfected himself by scratching his right leg and face with the finger of the infected hand. That Mr. Green received this infection while working at his trade there is no reasonable room for doubt, as those abrasions took place while at his work, and the pieces of coral were forced into his thumb while working on an old pump that had been used in oriental waters. It is unfortunate that Mr. Green should be put to the necessity of proving an^ obvious fact, and my personal belief in the matter is that the surgeon mak- ing his report purposely misstated the facts because he (Green) refused to allow himself to be treated by him when it was necessary to walk nearly a mile and a half to see him at his office. Green was unable to leave his room. It is not my desire to make this statement, but such I believe to be the truth, and I do not hesitate to so state them. When the case was previously under consideration by this office it was assumed that the condition of claimant was similar to that found in a case of eczema or lead poisoning, there being no evidence at that time that there had been an abrasion of the skin or that a foreign body had penetrated the opening thus caused. It was therefore upon this ground that the conclusion was reached that there had not been a definite accident. The additional evidence furnished, however, throws a new light on the case, in that it shows that on or about January 2, 1911, claim- ant met with an injury of an accidental nature, as above described, in view of which I have the honor to recommend that the previous action of June 24, 1911, be rescinded and that the claim be now approved for payment. 19. A disease, not contracted, but caused by physical means, under circum- stances iuTolving an element of accident, is an injury within the act. Idiopathic and traumatic diseases distinguished. [In re claim of Wm. Murray, Nov. 3, 1911 ; No. 7051.] The claimant in this case is a laborer employed by the Eeclamation Service, at Arizona shaft, Colorado River siphon. The claimant's duties required him to work in compressed air. In consequence he was attacked with " a severe case of ' bends,' " which " settled in nearly all parts of the body." When originally presented, the claim was disallowed on the ground that the " bends " is a disease, and diseases contracted in the course of employment as distinguished from injuries of an accidental nature are not within the operation of the compen- sation act. A reconsideration of this action " with a view to the allowance of the claim, if the same is deemed to come within the letter of the statute as it seems to come within its spirit," is now requested by the Secretary of the Interior, who writes that a refusal • to approve this claim may cause a number of the men to leave the work, as, on account of the " bends," it is generally regarded as very hazardous. He further states that the " bends " is in the nature of a rupture or lesion of some of the internal organs, due to the change /between high and normal atmospheric pressure. 240 wokkmen's compensation under act of may 30, 1908. The " bends," or caisson disease, is defined as " a paralysis of the lower limbs which sometimes attacks those who have worked under high atmospheric pressure, as in subaqueous caissons " ; also as " a term used by miners and caisson laborers for a condition produced by too sudden a reduction of the high air pressure ; it is indicated by swell- ings or small bubbles under the skin." It is described as " occurring after the return to a normal atmosphere from work under compressed air exceeding three atmospheres." It is further said " that the lesion in the caisson disease is a destructive or necrotic one. This is most probably due to a deprivation of blood and must be accounted for on some mechanical principle." (Lippincott's Medical Dictionaiy, Gould Medical Dictionary, Twentieth Century Practice of Medicine.) It is undoubtedly true, as held by the Attorney General (28 Qp, At. Gen., 254), that— there is nothing, either in the language of the act or its legislative history, which justifies the view that the statute was intended to cover disease con- tracted in the course of employment, although directly attributable to the conditions thereof. On the contrary, it appears that the statute was intended to apply to injuries of an accidental nature. It is also clear, however, that the fact that an injury may be classed as a disease does not take it out of the statute; and that, although a claimant's disability or incapacity for work may be due to a disease, the disease, in turn, may be due to an injury of an ac- cidental nature. An injury of an accidental nature does not cease to be such because it gives rise to a disease. (Opin. Solr., Nov. 3, 1911, and cases there cited.) But what is a disease " contracted " in the course of employment; and is the " bends " a disease of this character ? It is certain tiiat the " bends " is not a disease which may be contracted, in the same sense that pneumonia or typhoid fever may be contracted. It occurs suddenly at a fixed and definite tiflie and is brought about as a result of the body being subjected to the action of physical or mechanical forces, in precisely the same way as suffocation may be brought about by the physical or mechanical process of strangling or of confinement in a closed chamber without air. The phrase " diseases contracted in the course, of employment," used by. the Attorney General in his opinion to designate diseases not within the act, would appear to be well chosen. The distinction is well brought out in the House of Lords case of Brintons v. Turvey (92 L. T., 578). In that case a workman was ernployed sorting wool in a factory, and according to the medical evidence or theory a bacillus passed from the wool to the eye of the workman and infected him with anthrax, of which he died ; and it was held that these facts disclosed a personal injury by accident. The lord chancellor said, among other things : I think that in popular phraseology, from which we are to seek our guidance, it (the phrase "Injury by accident") excludes and was intended to exclude idiopathic diseases. But, then, if some part of our physical frame is in any way injured by an accident, we must be on our guard that we are not misled by medical phrases to alter the proper application of the phrase " accident caus- ing injury," because the injury Inflicted by accident sets up a condition of things which medical men describe as a disease. Suppose in this case a tack or some poisoned substance had cut the skin and- set up tetanus. Tetanus is a disease, but would anybody contend that it was not an accident causing damage? The " idiopathic " diseases referred to in this opinion, as I under- stand it, are precisely those diseases which may be " contracted." A OPIJSriONS OF SOLICITOR, DEPAETMElSrT OF LABOR, 241 disease is contracted when it develops gradually or at least imper- ceptibly, and while it may be attributable to external conditions, it is also dependent, in part, on conditions inherent in the individual. The word " idiopathic" is used in medicine to indicate that which is " self-originated ; neither sympathetic nor traumatic." " Traumatic," on the other hand, means " of or pertaining to or caused by an injury; of or pertaining to trauma, i. e., any injury to the body caused by vio- lence; a wound; also the violence that causes it," (Borland's Medi- cal Dictionary; Standard Dictionary.) Traumatic diseases, there- fore, are not "contracted," but are caused by some physical injury. There is, therefore, no reason to suppose that a physical injury re- sulting in a traumatic disease is not an injury within the meaning of the act. The " bends " is obviously a traumatic disease caused by physical injury produced by suddenly passing from a high to a nor- mal atmospheric pressure. It is believed that this is an injury within the meaning of the act for which compensation may be paid. The fact is not overlooked that the act is said to apply only to injuries of an accidental nature. It is to be remembered, however that the application of the compensation act is not in terms limited to injuries of an accidental nature. "Injuries of an accidental nature " is a convenient expression to indicate a class of injuries other than idiopathic diseases or diseases contracted in the course of employ- ment ; and this is probably all that was meant by the Attorney Gen- eral when the phrase was used. The great majority of injuries to which the act clearly applies are, in fact, accidental injuries. But it would scarcely seem necessary, in view of the fact that the operation of the statute is not expressly limited to accidental injuries or in- juries of an accidental nature, that a definite accident in the strictest sense of the term must be shown in every case to bring it within the act. It would suffice if an element of accident were clearly to appear. In Morgan v. Zenaida (25 T. L. E., 446) it was held that disability due to sunstroke was covered by the British workmen's compensation act, which by its terms applies only to injuries by accident. In Ismay, Imrie & Co. (99 L. T., §95) it was held that disability caused by a heat stroke was within the operation of the British act. It there appeared that a man, weak from hunger, went to work as a trimmer on a steamship to work his passage from New York to England. It was his duty to rake out the ashes that fell from the furnace. While thus engaged he suffered a heat stroke which caused his death. The court said : In my view this man died from an accident. Wliat killed him was a heat stroke coming suddenly and unexpectedly upon him while at work. Such a stroke is an unusual effect of a known cause often, no douht, threatened, but generally averted by precautions which experience in this case had not taught. It was an unlooked-for mishap in the course of his employment. In common language, it was a case of accidental death. If the House of Lords was justified in holding heat stroke to be covered by the English act^ which applies in terms only to injuries by accident, it would certamly seem that this department would be justified in holding the " bends " to be covered by our compensation act, which refers to injuries simply. The element of accident is certainly no less involved in an attack of the " bends " than in a heat stroke. While the danger of such attacks appears always to be present under the conditions surrounding work where the atmospheric pressure is 93364°— 15 16 242 workmen's compensation under act of may 30, 1908. high, such attacks do not always follow. Many men engaged on such work escape such attacks altogether; other men come and go from such work many times before an attack seizes them. Moreover, it would appear that by the exercise of proper care in " locking out," whereby the pressure of air is graduajjy reduced, the danger of such attacks is greatly minimized. When, therefore, a laborer is seized Avith the " bends," it can not be said that the element of accident is altogether lacking. For the reasons given, in my opinion the injury in the present case is an injury within the meamng of the act, for which compensation should be paid. [In re claim of E. L. Hill, Nov. 3, 1911; No. 7163. J The claimant in this case is a shipfitter employed at the Puget Sound Navy Yard. From July 12 to July 19, 1911, he was working in the fire and engine rooms of the U. S. S. St. Louis, engaged in placing floor plates therein. While so engaged, red and white lead paint was being applied in the bilges of the vessel. As a result of this exposure to lead fumes, a sufficient amount of lead was taken into claimant's system to produce " toxic amblyopia, both eyes," from which he became incapacitated for work on the thirteenth day follow- ing the date he was first exposed to the fumes. Amblyopia is defined as " dimness of vision from imperfect sensation of the retina, without organic lesion of the eye " (Borland's Medical Dictionary) ; and toxic amblyopia is amblyopia " due to poisoning " (Borland). From the work of de Schweinitz on toxic amblyopias, it appears that this affection is frequently the result of lead poisoning and also that toxic symptoms may appear after 12 days' exposure (p. 154). The case is submitted to this office with special reference to the question as to whether the claimant's disability was due to an injury within the meaning of the act. This question is raised because diseases contracted in the course of employment, as distinguished from injuries of an accidental nature, have been held to be not cov- ered by the compensation act (Opin. Solr., Jan. 19, 1909; 28 Op. At. Gen., 254) . But the fact that an injury may be classed as a disease does not take it out of the statute (0pm. Solr., Mar. 16, 1911), and although a claimant's disability or incapacity for work may be due to a disease, the disease itself may be due to an injury of an accidental nature. " It does not appear to me that by calling the consequences of an accidental injury a disease one alters the nature or the conse- quential results of the injury that has been inflicted. A workman in the course of his employment spills some corrosive acid on his hands. The injury caused thereby sets up erysipelas — a definite disease. Some trifling injury by a needle sets up tetanus. Are those not within the act because the immediate injury is not perceptible until it shows itself in some morbid change in the structure of the human body, which, when shown, we call a disease? I can not think so. The fact that an accident causes injury in the shape of disease does not render the cause not an accident." (Brintons v. Turvey, 92 L. T. R., 578.) In the case of Treiman (Opin. Solr., Jan. 19, 1909), this office held that the claimant, who was incapacitated by reason of lead poisoning brought on gradually while in the course of his employment, was OPINIONS OF SOLICITOK, DEPAETMENT OF LABOR. 243 not entitled to compensation, the reason being that the act applies only to such injuries as result from accident or to such injuries as are directly referable to some event capable of being fixed in point of time, and that since it was impossible to fix the date of the injury, the element of accident was lacking, and the claim could not be al- lowed. (See also Steel v. Cammell Laird & Co., 93 L. T. R., 357, and Broderick v. County Council, 24 T. L. E., 822.) In the case of Schroeder_(Opin. Solr., Mar. 25, 1911) it was held that the claimant, who was incapacitated by reason of acute lead poisoning, was not entitled to compensation, the reason being that the element of accident was entirely lacking because of the fact that lead fumes were neces- sarily produced by the work the claimant was engaged upon, and that the lead poisoning, instead of being an accidental result, was the natural if not the inevitable result of such work. In the course of that opinion, however, it was said: In the present case we are dealing with acute lead poisoning, not chronic lead poisoning. If the poisoning was not the result of a gradual Intoxication, but developed rapidly, and if the lead was taken into the system within so brief a space of time that the date of the intoxication can be fixed, how may the case be distinguished from the above-mentioned case of the workman afflicted with anthrax, caused by a sudden inoculation by a bacillus passing into the eye from wool which he was sorting, or that of a workman afflicted with tetanus, result- ing from a cut on the skin by a poisoned tack, or from the cases of sunstroke or heat stroke, also above mentioned? The distinction, however, is probably to be found in the fact that the element of accident in some way entered into all of the cases last cited. x * ***** But if the inhalation of noxious gases is a necessary incident to the work- man's employment, there can be nothing accidental in the injury resulting therefrom. This latter consideration, namely, the absence of any accidental element in the cause of the injury, disposes of the present case. The claimant was a general helper employed in the Brooklyn Navy Yard. He was engaged In burning out water-tight compartments known as " cofferdams " in the coal bunkers of the U. S. S. Ohio, using an acetylene burner. The acute lead poison- ing from which he suffered was caused by inhaling fumes of lead resulting from so burning lead paint. It can not be said that these fumes were inhaled by accident. The fumes were necessarily produced by the work he was engaged upon. The inhalation of such fumes was to be expected, and probably could not have been avoided. Lead poisoning, under the circumstances, was the natural, if not the inevitable, result. The claimant's Injury, therefore, was not an injury of an accidental nature and hence not an injury within the meaning of the act. But the objections which were found to be fatal in the two cases mentioned do not arise in the present case, which is clearly distin- guishable from both. In the first place, it appears definitely when the intoxication began, namely, during the brief period intervening between the 12th and the 19th of June. It is accordingly possible to refer the claimant's injury to an event capable of being fixed in point of time. In the second place, the injury to the claimant's eyes was neither reasonably to be expected nor the natural or inevitable consequence of the work he personally was engaged upon. The injury must, therefore, be ascribed to accident. The claimant's par- ticular work had nothing to do with the painting operations going on about him. His work as a ship fitter related to the laying of plates in the boiler room ; the painting was being done by others. That, in attending to his particular work as a ship fitter, his eyes should be injured as a result of the presence of lead paint in his vicinity, and because he chanced to absorb sufficient of the lead fumes to produce 244 "workmen's compensation under act of may 30, 1908. toxic amblyopia, was something that neither he nor anyone else could reasonably be expected to foresee. Considering all the circum- stances, it seems to me clear that the injury to the claimant in the present case can only be regarded as an injury of an accidental nature. The fact that the injury eventually took the form of a dis- ease of the eye does not alter its essential character. As said in Brintons (Ltd.) v. Turvey (supra), "The accidental character of the injury is not, I think, removed or displaced by the fact that, like many other accidental injuries, it set up a well-known disease," and, as was said in the same case, " We must be on our guard that we are not misled by medical phrases to alter the proper application of the phrase ' accident causmg injuryj' because the injury inflicted by accident sets up a condition of things which medical men describe as a disease." When employed in statutes like the compensation act, the word " accident," it has been held, is used " as denoting an un- looked-for mishap or an untoward event, which is not expected or designed." (Fenton v. Thorley & Co., 19 T. L. R., 684.) The injuiy to claimant's eyes in the present case clearly falls within this defini- tion. It is accordingly recommended that the claim be approved. 20. An employee overtaken while at work by a disability due to some unascer- tained internal disorder, not shown to have been caused by any accident or occurrence in the course of employment, is not injured within the act. [In re claim of J. V. Trammell, Nov. 9, 1911 ; No. 7494.] This claim is submitted with the inquiry whether there is suffi- cient evidence of connection between the alleged accident and the incapacity. No immediate report of the injury has been made, which failure, as explained in a letter of October 26, 1911, is due to the fact that the Public Printer is not satisfied that claimant was injured in the course of his employment. In a statement dated October 23, 1911, the medical officer of the Printing Office makes the following explanation of the case from his point of view: The man stated that he was at work in a sitting position at a table and sud- denly was seized with a pain in the left abdominal region, for which he received treatment as reversely described on the copy of the medical case record card attached hereto. Only an exploratory cut or Incision in the abdomen will reveal the true character of this infliction. All else is guesswork, and he was urged by me, through his physician, to have this done, especially as he still continues in ili health as the possible sequel of the conditions from which he suffered. It is impossible for any physician to state with a certainty whether It was volvulus (twist in intestines) or a floating kidney, or whether it was some other abnormal condition that would arise from natural causes, whether at home or at work, or whether it was due to excessive strain at his work as the exciting cause, which the history taken at the time of the onset does not show existed. Claimant in his affidavit, dated October 19, 1911, gives the follow- ing description of the accident : Accident was caused by moving and lifting book covers from a platform to tables. In moving same I experienced a sharp and severe internal pain in- my left side, apparently causing an internal strain or rupture. OPINIONS OF SOLICITOB, DEPARTMENT OF LABOR. 245 The certificate of the attending physician giving the nature of the disability as "volulus [probably meaning volvulus], or dislocation of kidney," and the objective and subjective signs and symptoms he describes as follows : Suffering with great pain ; was weak and pale. In addition to the foregoing, the physician further states that it Is his opinion that " ttils injury was due to lifting bookcase." It appears from the record in this case that while claimant was engaged at his work in a sitting position at a table he was seized with a pain in the left abdominal region and that he was immediately treated for the same at the emergency room of the Government Print- ing Office, at which time he made the statement as above set forth describing his condition. It does not appear from the record that anything was said at that time about receiving a strain, and appar- ently nothing unusual occurred at that time. The medical officer of .the Government Printing Office, who first treated and examined claimant, says the true character of the condition can only be ascer- tained by an exploratory cut or incision, and that all else will be guesswork in finding the real cause. On the other hand, the attend- ing physician states that, in his opinion, the condition is due to the alleged injury,'although at the same time he states that the disability is either volvulus (twist in the intestines) or a dislocated kidney, which plainly shows that the physician does not know the true con- dition, and it would therefore be impossible for him to ascribe a cause in such a case with assurance. In view of the lack of certainty from a medical standpoint of the nature of the disability and the absence of evidence of an injury re- ceived in the course of employment, I am of the opinion that the inquiry must be answered in the negative. 21. Disability resulting from a disease directly due to a physical injury of an accidental nature, or lighted up thereby, is an injury within the act. [In re claim of Washington EUmore, Apr. 13, 1912 ; No. 8291.] This claim is submitted with the following inquiry : Is there sufBcient evidence of connection between the alleged accident and the claimant's incapacity? The circumstances connected with the fall which is made the basis of the claim are thus stated in a joint affidavit of the three witnesses who were present at the time : Mr. Ellmore, about 9 a. m. on the morning of February 21, 1912, was engaged on the spreading machine on the third floor of 5A building. He was opening the cloth as it passed over the spreader of the machine. He suddenly seemed to sink down, his knees giving way, and he then toppled over the bottom shelf of the machine. He was immediately raised up and was seen to be in a dazed condition, but not unconscious. He was put in a chair near a window and given aromatic spirits of ammonia. He rested for half an hour. He was asked by Mr. Christie to go home, but said he could not afford to lose the tune. He resumed work, but on a different kind of job, one where he could sit down and turn the handle of a sponging machine. He worked the day out. It seemed that he had been attacked with vertigo when he collapsed and fell forward. 246 workmen's compensation tjndeb act of may 30, 1908. The next day it appears the claimant was confined to his bed and called in a physician. The certificate of the attending physician is as follows: At first patient felt sore and had pains over back and shoulders, which seemed to be due to the fall. He had also a contusion or bruise over lumbar region. Later the pains spread to other parts of the body, and it seemed as ir the acci- dent or fall had started these myalglc pains. In answer to the question whether the condition described was due to the injury, he said : In my opinion It could be due to injury. If the man had a latent rheumatism the fall could make it active. The nature of the disability is given as " inflammatory rheumatism following a fall." While it may not be easy to trace the inflammatory rheumatism, which is the immediate cause of the incapacity, to me fall which marked the beginning of the man's unfitness for the work he was doing, the record discloses the following pertinent facts: Up to the time of the fall he had discharged his regular duties. Immediately after the fall he " rested for half an hour." He was advised to go home, but said that he could not afford to lose the time and remained at the establishment the rest of the day, though he was given other work in order that he might be seated. There is no evidence that any contusions or bruises were noticed that day, and the man's disability seems to have been regarded as slight and as likely to be of short duration. But on the following day he was unable to get up, and called in a physician, who found that he had a contusion or bruise over the lumbar region and felt sore and had pains over the back and shoulders. Later these pains, which seem to have been started by the faU, spread to other parts of the bodyj and inflammatory rheiunatism developed; and the attending physician states that if the man had latent rheumatism the fall could make it active. There is no evi- dence of rheumatism prior to the fall, and there is no suggestion in the record of any other circumstance or event which might have caused the incapacity. Following the reasoning in the Clements case (C 4680, Bu. No. 10296), if the man was injured by the fall his injury is within the act, even though the fall may have been caused by vertigo or epilepsy. That the man was injured by the fall may reasonably be inferred from the fact that on the day following the fall he was unable to get up, and the physician who was caUed found a contusion or bruise, and the record discloses no suggestion of a cause of these conditions other than the fall. This inference is strengthened by the fact that the man had to stop work for half an hour after the fall, and then only resumed work at which he could remain seated. True, the record does not show that any contusion or bruise was noticed on the day of the fall or that the man had any pains that day, but it can not be inferred from this that a contusion or bruise or pains did not exist. Assuming, then, that the claimant received such an injury as is contemplated by the statute, we have only to determine whether the incapacity which lasted more than 15 days was due to that injury The record suggests no other cause for the incapacity. Every condi- tion which contributed to it was such as might result from such an injury as the claimant received. It would be necessary to go outside OPINIONS OF SOLICITOE, DEPARTMENT OF LABOB. 247 the record to account for the incapacity on any theory other than that it was the natural result of the fall. It seems to me, therefore, that the record justifies the conclusion that the incapacity of the claimant is due to the injury received in the course of employment, and I have the honor to recommend that the claim be allowed. [In re claim ol Wm. M. Lloyd, May 6, 1912 ; No. 8152.] This claim was submitted under date of March 1, 1912, with an inquiry as to the sufficiency of the evidence to establish a connection between the accident as alleged by claimant and his subsequent in- capacity. As the evidence did not appear to be complete, the papers were returned with a suggestion that further efforts be made to secure a statement from John W. Strobel, who was said by claimant to have been a witness to the accident. Such statement has now been obtained wherein it is shown that Strobel was present at the time of the injury on July 18, 1911, and he gives the following ex- planation of the accident : At the time that Lloyd was injured I was working on the opposite side of the bench from him. A pipe wrench was leaning against the side of the bench and tipped over, striking his instep. I saw Lloyd's foot at the time, and the only mark visible was a slight abrasion about one-eighth inch around. He made no complaint of injury at the time and came to work the next day, work- ing on the ventilator job. He told me that he had sprained his ankle, and the following day he stayed away from work. I saw him on the street later, and Lloyd told me that he thought his Injury was from the sprain, but that the doctor said it was from a blow on the instep. This statement supports the contention of claimant that he was injured as alleged by him, and there is no evidence to the contraiy in the record. It is shown by the certificate of the attending physi- cian that he treated claimant continuously from the date of the acci- dent to the date of the certificate, and that the incapacity still con- tinued at the latter date. The nature of the disability he gives as " tuberculosis of the os calcious," which condition he says, under the heading of remarks, was due to the injury received, which was the exciting cause of the development of tuberculosis. In further ex- planation of his conclusion the attending physician says in a letter dated January 30, 1912 : * * * my reason for believing that the tubescular condition resulted from the injury Is that he gives no previous history of tuberculosis, nor has there been anything wrong with this foot until after the injury sustained at the navy yard. Since this injury he has been lame on this foot, until finally the OS calcious manifested itself as being diseased, suppuration and abscess formed, and now we have a fistula track reaching to this necrosed bone. The bone has been curetted three different times and Beck's bismuth paste is being injected twice a week. The condition is now looking very favorable. My reason for assigning the injury as the cause of precipitating this tuber- culous condition is that he positively had no symptoms or any indication of this disease prior to this injury. However, I am aware that the tubercular germ must necessarily have existed in the system prior to this injury to make It possible for this condition to have resulted In a tubercular state. Apparently he is a healthy young man. In this connection it is noted that the only matter in the record which throws ^ny doubt on the statement of claimant that he was injured as alleged by him in his affidavit is a statement made by the acting construction officer wherein he says that " the first official 248 workmen's compensation under act of may 30, 1908. notice of a claim of injury was about November 1, when Lloyd came personally to the yard and told the chief clerk of his injuries." This statement of the construction officer, however, is refuted by claimant in his letter of January 25, 1912, where he states that when he was compelled to lay up he notified his foreman by telephone, which was on the day after his injury on July 18. Upon investigation by the yard officials it is now admitted by the construction officer in a state- ment dated February 2, 1912, that claimant phoned to the time- keeper a few days after his injury, stating that he was sick. It now appears to be established by affirmative evidence in the form of the letter from J. W. Strobel, an eyewitness, that claimant met with an injury on July 18, 1911. There being no evidence to the contrary, no other conclusion can be reached than that claimant was injured as alleged. From the foregoing it is noted that claimant was injured on July 18, 1911, by chain tongs falling on his foot; that he has been under the treatment of his physician ; and that as a result of the injury he developed tuberculosis of the os calcious. This latter condition is said by the attending physician to be directly attributable to the said injury, which, according to his statement, may have existed, but was lighted up by the injury. It may be that the tuberculosis condition was present, but before the injury it had caused no incapacity, and by reason of the injury this condition became aggravated so as to pro- duce incapacity for resuming work. The question of aggravation of an existing condition by an injury has been frequently considered by this office in connection with claims of this character, and it has been consistently held that where an ail- ment existed which caused no incapacity of itself, but which was aggravated by an injury received in the course of employment, thereby causing incapacity, such incapacity was due to the injury and a result of the accident. See the following cases: John Guinan (C 7017, Bu. 13680) ; William Bunce (C 7021, Bu. 14038) ; August Pohl (C. 6709, Bu. 13553). In view of the foregoing I am of the opinion that a claim for com- pensation has been satisfactorily established in this case. 22. A disability referable to no definite accident or occurrence, though arising in the course of employment, involving chiefly a gradual weakening, wear- ing out, or hreaking down of the employee, is not an injury within the act. [In re claim of Elizabeth Hewitt, May 21, 1912 ; No. 8558.] This claim is submitted with the inquiry whether there was an accidental injury within the meaning of the act of May 30, 1908. It appears from the papers that the incapacity was due to a " nervous collapse superinduced bj^ overexertion." The cause of the incapacity is shown in the immediate report to have been due to the following circumstances : While engaged In making ponchos had carried a number to operatives; was taken sick. Brought to open window and had a fainting spell; was uncon- scious about five minutes. Forewoman states that Miss Hewitt has previously had Dervous collapse while working on comparatively light work — embroidery. OPINIONS OF SOLIOITOE, DEPARTMENT OF LABOP. 249 Thus it is observed that the incapacity is due to a nervous collapse, brought on by reason of the fact that the work upon which the claimant was engaged required an amount of overexertion on her part in its performance. Under the provisions of the act of May 30, 1908, it is necessary, in order to entitle an employee to compensation, that he be " injured " in the course of his employment. The question, therefore, arises, Was this claimant "injured"? So far as the de- scription of the disability goeSj it does not appear that the same arose out of any definite injury received in the course of employment. On the other hand, it appears that while performing her usu,al work in the customary manner she became exhausted and suffered a collapse. This condition was apparently due to causes inherent in the indi- vidual, resulting in a gradual weakening and breakdown. There was no event or occurrence at any definite time which can be referred to as the cause of the collapse. It does not appear that the condition was caused by anything unusual in the character of the work, but that it is attributable to a constitutional weakness of the claimant. Under these circumstances there is no evidence to show that claimant was " injured " as contemplated by the statute. As was said in the Clark case (C 92) : A person not overstrong may, in an effort to keep up with stronger persons engaged on the same work, so exhaust his physical energies as to finally render him unfit for fuU duty. Again, a person may, in consequence of the strain or pressure his employment puts upon him, become gradually weakened, and by virtue of an accumulation of trifiing hurts, each insufficient of itself to inca- pacitate him, finally become worn out and unfit for work. The injuries thus resulting would be injuries sustained in the course of employment; but are they to be regarded as injuries within the purview of the act? A negative answer must be given to this question if the act applies only to injury by acci- dent. * * * Indeed, it is not improbable that injuries to employees not due to accident, but involving rather a gradual breaking down and wearing out of the workman, though arising in the course of employment, are generally re- garded by legislators as more properly constituting a subject matter of legis- lation wholly distinct from the theory on which workmen's compensation acts are founded and as bearing closer relation to the plan of old-age pensions and similar measures. For the reasons given I am of opinion that within the meaning of the act no injury has been shown for which compensation may be paid. 23. A bodily affliction occasioned without a definite accident, though arising out of the employment and brought about by external causes, which is not the result of a gradual process or slow accumulation of trifling hurts, n6r due to a constant repetition of known or anticipated injurious elfects, if it develops rapidly and is referable to a fixed time, and if, though a natural result of surrounding conditions, it is neither a. necessary result nor a result reasonably to be feared, is an injury within the act. 24. To constitute an injury within the act, it will sufAce if an element of acci- dent clearly appears, or if the injury is of a type which, in the interpreta- tion of statutes of similar scope and purpose, has been accepted as properly included in the class comprehensively known as accidental in- juries. [In re claim of J. B. Irving, Aug. 3, 1012 ; No. 8937.] The question in this case is whether claimant's injury is one on account of which compensation may be paid under the act of May 30, 1908. 250 wobkmen's compensation under act oe may 30, 1908. Claimant is a plate printer employed on the night force of the Bureau of Engraving and Printing. It appears that in March last the officials of the Bureau of Engraving and Printing temporarily installed in a section of the establishment where claimant was Work- ing a new type of electric lights, the object being to test the lights and determine their suitability for installation in the new building of the bureau. These lights were in use on the nights of March 26 to 27, inclusive, and have not since been in use. Claimant's duty required him to look at a bright engraved plate a few seconds during the operation of printing a sheet, and at such times the rays of the new light were reflected from the plate into his eyes. The operation of printing a sheet is repeated about 900 times m the course of an ordmary night's work. According to claimant's affidavit, these reflections caused a " watering and burning of the eyes and inability to keep eyes open under the lights." On the night of the 27th he was forced to quit work, and on March 29 he consulted a physician and oculist, who has since been treating him. According to this physician's certificate, claimant's injury consists of " retinitis, con- junctivitis, both eyes," which the certificate further describes as "retina congested; blood vessels of eyeballs and lids swollen; asthe- nopia marked, inability to keep eyes open in bright or moderate light." The physician further expresses the opinion that the con- dition described was due to the cause assigned by claimant, adding, "retinitis is frequently produced by the bright light described by patient." The director of the bureau expresses the opinion that " if the claim- ant had any trouble with his eyes it was not caused by the lights as alleged," and files with the claim statements from the chief of engi- neering and machine division of the bureau, from the Supervising Architect of the Treasury, and from the sales manager of the General Electric Co., which installed the lights in question. The chief of the engineering and machine division regards the claim that the new lights could injure anybody's sight in three nights as preposter- ous, inasmuch as their intensity was less and they were lower in ultra-violet rays than the mercury vapor lights previously in use. The Supervising Architect discusses the physical qualities of tung- sten lights (the kind complained of) in comparison with like quali- ties of mercury lights (the kind previously in use), and expresses the opinion that the claim in question is "without foundation, in fact.'' The communication from the General Electric Co. is to the effect that lights which are deficient in violet rays and in which the yellow rays predominate are less hard on the eyes than lights of oppo- site . characteristics. Against these opinions must be set, in addition to the opinion of the attending physician, above quoted, and the affi- davit of the claimant, the testimony of three fellow workmen, as follows: In regards to a statement about the new lights which was being tried out In the bureau, I will say while it did not affect the work the reflection and glare was pretty hard on the eyes. One of the printers asked to have the new lights turned off, and as soon as they turned on the old lights it was a great relief. In my opinion the old lights were not so hard on the eyes and are much easier to work under. In answer to your request in regards to the new lights installed in section 2, I wish to state that the position I was working in gave me n blue light whUe filling In the plate, but when I turrled around to put the plate in the press I OPINIONS OF SOLICITOE, DEPARTMENT OP LABOR. 251 found the glare from the new lights very strong, causing my eyes to bum and feel heavy. In my opinion the new lights were much harder on the eyes than the old lights. I have never had any trouble with the old lights. At the request of Mr. Irving I wish to make the following statement in regards to the lights they tested in the Bureau of Engraving and Printing. The Ughts were so strong and cast such a direct reflection that they burned my eyes to such an extent that I was forced to get glasses. I never was troubled with my eyes before, but had trouble from the start with the new lights. One hour after I complained of the lights they were turned ofC, although I think it was the Intention of the officials to conduct the experiment for a few days longer. Everyone working around me complained of the lights, as the effect on the eyes was so very bad. Direct testimony as to actual conditions and experiences is to be pre- ferred to opinions based on theoretical considerations. The director of the bureau further states: In his division Mr. Irving is usually not considered of robust body, and especially as to his eyes, which opinion is supported by the fact that he has lost considerable time on this account for several years, during which he also has been continuously wearing spectacles and eye shades. This statement was investigated by a representative of this depart- ment, who reported that the bureau had certificates from Dr. Ruedy, given in March and October, 1910, and January and June, 1911, and a certificate from Dr. Hodges, given in May, 1910, stating that claim- ant had been incapacitated for work by reason of iUness. Both phy- sicians on being mterviewed stated that on none of these occasions had the claimant been treated for eye trouble. Dr. Polkinghom, the physician who treated the claimant for the injury here in question, stated that the condition of claimant's eyes was the same as in snow blindness or blindness caused by looking at the sun, and was due to the reflection of some bright light and, further, that the condition in question could be brought about in the manner described by the claim- ant. Claimant and his mother both stated that he had never lost time from work on account of his eyes, and claimant also stated that he had worn glasses for several years, but that they had never inter- fered with his work. The only conclusion deducible from the evidence presented is that the injury to the claimant's eyes was caused by the lights in use in the bureau on the 25th, 26th, and 27th of March last. No other cause of injury is anywhere suggested in the record. The only question pre- sented is whether the disability suffered is to be regarded as a dis- ease contracted in the course of employment and so without the op- eration of the act, or as an injury of an accidental nature and so within the act. The distinction between diseases contracted in the course of employ- ment for which no compensation is payable and injuries which, though taking the form of disease or resulting in disease, are to be ascribed to accident, or at least are to be regarded as of an accidental nature, because incapable of any other classification and obviously of a type intended to be covered by the statute, was brought out in two former opinions. In the case of Hill (Nov. 3, 1911, No. 7163) the claimant's injury was an affection of the eyes known as " toxic amblyopia," caused by acute lead poisoning, which in turn resulted from inhaling lead fumes which happened to be present where the claimant was working. In that opinion it was said in part ■ The case Is submitted to this office with special reference to the question whether the claimant's disability was due to an injury within the meaning of 252 woekmen's compensation under act of may 30, 1908. the act. This qinestton is raised because diseases contracted in the course of employment as distinguished from injuries of an accidental nature have been held to be not covered by the compensation act. (Opin. Solr., Jan. 19, 1909; 28 Op. At. Gen., 254.) But the fact that an injury may be classed as a disease does not take It out of the statute (Opin. Solr., Mar. 16, 1911), and although a claimant's disability or incapacity for work may be due to a disease, the dis- ease itself may be due to an Injury of an accidental nature. " It does not appear to me that by calling the consequences of an accidental injury a disease one alters the nature or the consequential results of the injury that has been in- flicted. A workman in the course of his employment spills some corrosive acid on his hands; the injury caused thereby sets up erysipelas — a definite disease; some trifling injury by a needle sets up tetanus. Are these not within the act because the immediate injury is not perceptible until it shows itself In some morbid change in the structure of the human body which, when shown, we call a disease? I can not think so. The fact that an accident causes injury in the shape of disease does not render the cause not an accident." (Brintons v. Turvey, 92 L. T. E., 578.) In the first place, it appears definitely when the intoxication began, namely, during the brief period Intervening between the 12th and the 19th of June. It is accordingly possible to refer the claimant's injury to an event capable of being fixed in point of time. In the second place, the injury to the claimant's eyes was neither reasonably to be expected nor the natural or inevitable consequence of the work he personally was engaged upon. The injury must therefore be ascribed to accident. The claimant's particular work had nothing to do with the painting operations going on about him. His work as a shipfitter related to the laying of plates in the boiler room ; the painting was being done by others. That in attending to his particular work as a shipfitter his eyes should be injured as a result of the presence of lead paint in his vicinity and because he chanced to absorb sufficient of the lead fumes to produce toxic amblyopia was something that neither he nor anyone else could reasonably be expected to foresee. Considering all the circumstances, it seems to me clear that the injury to the claimant in the present case can only be regarded as an injury of an accidental nature. The fact that the injury eventually took the form of a dis- ease of the eye does not alter its essential character. As said in Brintons (Ltd.) V. Turvey, supra, "The accidental character of the injury is not, I think, removed or displaced by the fact that, like many other accidental in- juries, it set up a well-known disease," and, as was said in the same case, " We must be on our guard that we are not misled by medical phrases to alter the proper application of the phrase ' accident causing injury,' because the injury inflicted by accident sets up a condition of things which medical men describe as a disease." When employed in statutes like the compensation act, the word "accident," it has been held, is used "as denoting an unlooked for mishap or an untoward event which is not expected or designed." (Fenton, Thorley & Co., 19 T. L. K., 684.) The injury to claimant's eyes in the present case clearly falls within this definition. In the case of Murray, November 3, 1911, No. 7051, the injured man was stricken with the " bends," or caisson disease, produced by a too sudden reduction of high air pressure, and said to be due to a de- privation of blood and to be accounted for on some mechanical prin- ciple. In that opinion it was said : It is undoubtedly true, as held by the Attorney General (28 Op. At. Gen., 254), that " there is nothing, either in the language of the act or its legislative history, which justifies the view that the statute was intended to cover disease contracted in the course of employment, although directly attributable to the conditions thereof. On the contrary, it appears that the statute was intended to apply to Injuries of an accidental nature." It is also clear, however, that the fact that an injury may be classed as a disease does not take it out of the statute, and that, although a claimant's disability or incapacity for work may be due to a disease, the disease in turn may be due to an injury of an accidental nature. An injury of an accidental nature does not cease to be such because it gives rise to a disease. (Opin. Solr., Nov. 3, 1911, and cases there cited.) But what is a disease " contracted " in the course of employment ; and is the "bends" a disease of this character? It is certain that the "bends" is not a disease which may be contracted in the same sense that pneumonia or typhoid fever may be contracted. It occurs suddenly at a fixed and definite time, and la OPINIONS OF SOLIOITOK, DEPARTMENT OF LABOR. 253 brought about as a result of the body being subjected to the action of physical or mechanical forces, In precisely the same way as sufCocation may be brought about by the physical or mechanical process of strangling or of confinement in a closed chamber without air. The phrase " diseases contracted in the course of employment," used by the Attorney General in his opinion to designate dis- eases not within the act, would appear to be well chosen. The distinction is well brought out in the House of Lords case of Brintons v. Turvey (92 L. T., 578). In that case a workman was employed sorting wool In a factory, and, according to the medical evidence or theory, a bacillus passed from the wool to the eye of the workman and infected him with anthrax, of which he died; and it was held that these facts disclosed a personal Injury by accident. The Lord Chancellor said, among other things: " I think that, in popular phraseology, from which we are to seek our guid- ance, it (the phrase 'injury by accident') excludes, and was intended to ex- clude, idiopathie diseases. But then, if some part of our physical frame is In any way injured by an accident, we must be on our guard that we are not mis- led by medical phrases to alter the proper application of the phrase ' accident causing injury,' because the Injury inflicted by accident sets up a condition of things which medical men describe as a disease. Suppose in this case a tack or some poisoned substance had cut -the skin and set up tetanus. Tetanus Is a disease, but would anybody contend that It was not an accident causing damage? " The " Idiopathic " diseases referred to In this opinion, as I understand It. are precisely those diseases which may be " contracted." A disease is contracted when it develops gradually, or at least imperceptibly, .and while it may be at- tributable to external conditions, it is also dependent, in part, on conditions In- herent In the Individual. The word " Idiopathic " is used In medicine to indi- cate that which Is " self -originated ; neither sympathetic nor traumatic." "Trau- matic," on the other hand, means " of or pertaining to or caused by an Injury ; of or pertaining to trauma, i. e., any injury to the body caused by violence ; a wound; also the violence that causes it" (Borland's Medical Dictionary; Standard Dictionary. ) Traumatic diseases, therefore, are not " contracted," but are caused by some physical injury. There is, therefore, no reason to sup- pose that a physical Injury resulting in a traumatic disease is not an Injury within the meaning of the act. The " bends " Is obviously a traumatic disease, caused by physical injury produced by suddenly passing from a high to a normal atmospheric pressure. It is believed that this is an Injury within the meaning of the act, for which compensation may be paid. The fact is not overlooked that the act is said to apply only to injuries of an accidental nature. It Is to be remembered, however, that the application of the compensation act Is not in terms limited to injuries of an accidental nature. '•Injuries of an accidental nature" is a convenient expression to Indicate a class of injuries other that idiopathic diseases or diseases contracted in the course of employment, and this is probably all that was meant by the Attorney General when the phrase was used. The great majority of Injuries to which the act clearly applies are, in fact, accidental injuries. But it would scarcely seem necessary, In view of the fact that the operation of the statute is not expressly limited to accidental injuries, or injuries of an accidental na- ture, that a definite accident, in the strictest sense of the term, must be shown In every case to bring it within the act. It would suffice if an element of accident were clearly to appear. In Morgan v. Zenaida (25 T. L. R., 446) it was held that disability due to sunstroke was covered by the British work- men's compensation act, which by its terms applies only to Injuries by accident. In Ismay, Imrie & Co. (99 L. T., 595) it was held that disability caused by a heat stroke was within the operation of the British act. It there appeared that a man weak from hunger went to work as a trimmer on a steamship, to work his passage from New York to England. It was his duty to rake out the ashes that fell from the furnace. While thus engaged he suffered a heat stroke which caused his death. The court said : " In my view, this man died from an accident. What killed him was a heat stroke coming suddenly and unexpectedly upon him while at work. Such a stroke is an unusual effect of a known cause, often, no doubt, threatened, but generally averted by precautions which experience. In this case, had not taught. It was an unlooked-for mishap In the course of his employment. In common language, it was a case of accidental death." If the House of Lords was justified in holding heat stroke to be covered by the English act, which applies in terms only to injuries by accident, it would cer- 254 workmen's compensation under act of may 30, 1908. tainly seem that this Department would be justified in holding the " bends " to be covered by our compensation act, which refers to injuries simply. The ele- ment of accident is certainly no less involved in an attack of the •' bends " than in a heat stroke. While the danger of such attacks appears always to be pres- ent under the conditions surrounding work where the atmospheric pressure is high, such attacks do not always follow. Many men engaged on such work escape such attacks altogether ; other men come and go from such work many times before an attack seizes them. Moreover, it would appear that by the exercise of proper care in " locking out," whereby the pressure of air is gradu- ally reduced, the danger of such attacks is greatly minimized. When, there- fore, a laborer is seized with the " bends " it can not be said that the element of accident is altogether lacking. The distinction above pointed out applies in the present case. The claimant's affliction was not the result of any gradual process or slow accumulation of trifling injuries, nor was it due to a constant repeti- tion of known or anticipated hurts or of other damaging influences. It developed rapidly and is referable to a fixed and definite period of time or short duration. If a natural result of surrounding condi- tions, it was in no sense a necessary result, nor even a result reason- ably to be feared. It was brought about by causes external to the man himself, the operation of which, if not identical with, is at least analogous to, the operation of physical or mechanical forces. Sub- jecting the organs of sight to the action of brilliant and concentrated waves of light can not be essentially different in a physical sense from subjecting the organs of hearing to concentrated waves of sound pro- ceeding from an explosion, which may rupture the ear. The damage to the eyes caused by heat waves, if sufficiently intense, would be ob- viously physical. The damage caused by light waves of high in- tensity would seem to be no less so. In so far, therefore, as claimant's affliction is a disease it is a traumatic disease, i. e., a disease caused by some physical injury. Since the operation of the statute is not expressly limited to acci- dental injuries or injuries of an accidental nature, it is not necessary that a definite accident, in the strictest sense, must be shown in every case to bring it within the act. It will suffice if an element of accident clearly appears, or if the injury is of a type which, in the interpreta- tion and application of statutes having the same general scope and purpose as the one here in question, has been accepted as properly included in the class comprehensively known as accidental injuries. That the injury in the present case is of such a type I think may be regarded as authoritatively settled. (Traveler's Asso. v. Smith, 85 Fed. Eep., 401; Brintons v. Turvey, 92 Law T., 578; Morgan v. Zenaida, 25 T. L. E., 446; Ismay, Imrie & Co., 99 Law T., 595; Opin. Solr., Mar. 16, 1911, No. 4585.) The type of injuries referred to is illustrated by the case where a workman was incapacitated by a sun- stroke while exposed to the hot rays of the sun as he was painting the side of a vessel (Morgan y. Zenaida, supra), and also by the case where a workman employed in sorting wool in a factory, and where, according to the medical evidence or theory, a bacillus passed from the wool to the eye, infecting him with anthrax. (Brintons v. Tur- vey, supra.) In both of these cases it was held that the workman had suffered an injury by accident, although the element of accident was present in no greater degree than in the present case. I am of opinion that the claimant here was " injured " in the course of his employment within the meaning of the act of May 30, 1908, and is entitled to compensation. OPINIONS OP SOLICITOR, DBPAKTMENT OF LABOK. 255 25. Employee vaccinated by direction of superior officer upon reconxmenda- tion of local health authorities and the Public Health Service is injured within the act if incapacity follows. [In re claim of Joseph D. Haley, June 18, 1913.] The above-described claim is specially submitted to this office with the inquiry whether the incapacity was due to an injury received in the course of employment as contemplated by the provisions of the compensation act of May 30, 1908. It appears from the record that under date of March 18, 1913, the Secretary of the Treasury promulgated the following order: It has been reported to me offlciaUy, through the health authorities of the District of Columbia, that a genuine case of smallpox has developed in the Bureau of Engraving and Printing and that a large number of employees have been exposed to the contagion. Based upon the recommendation of the local health authorities and the Sur- geon General of the Public Health Service, it is hereby ordered that all persons In the room where the patient was located shall be immediately subjected to vaccination, either by the surgeons of the Public Health Service, the local health authorities, or the family physicians, and in cases where vaccination is done by family physicians certificates must be furnished by such employees to the Director of the Bureau of Engraving and Printing showing successful vaccl nation. Any employee so exposed and who refuses to submit to vaccination must take the necessary leave of absence prescribed by the local health authori- ties for persons exposed to smallpox contagion, such leave to be without pay. The claimant in this case was one of the employees who came within the purview of the order. In compliance therewith he ap- parently chose the course of being vaccinated, in preference to the only other alternatives which were left him, viz, to take enforced leave of absence without pay or to be discharged for failure to com- ply with the requirements of the order. As a direct result of the vaccination made on March 18 claimant became incapacitated for performing his usual duties on March 24, 1913, and so continued until April 11, 1913, being a period of more than 15 days. Claimant therefore presents a claim for the payment of compensa- tion on the ground that the incapacity was due to an injury arising in the course of his employment, and the claim is accordingly submit- ted with the above-mentioned inquiry. Section 1 of the act of May 30, 1908, provides, inter alia : That when, on or after August 1, 1908, any person employed by the United States as an artisan or laborer * * * is injured in the course of such em- ployment, such employee shall be entitled to receive for one year thereafter * * *_ It is to decide, then, whether an incapacity arising as in this case is due to an injury as comprehended by the foregoing provision of the statute that the question is submitted. The sense of the term " is injured " as used in the statute undoubt- edly contemplates a condition defined in Borland's Medical Dic- tionary as " harm or hurt ; a wound or maim," and vaccination is de- scribed by the same author as the " placing of lymph from the vac- cinia-vesicles of a cow or of a man upon the denuded or scarified skin." It therefore appears that in order to perform the operation of vac- cination it is first necessary to denude or scarify the skin, which, when done, brings the condition thus produced within the definition of an injury as defined above. 256 woRKMEnr's compensatiok under act of may 30, 1908. This fact being definite!}^ ascertained, we must next discover whether this condition or injury arose "in the course of such em- ployment," as required by the statute. Before proceeding to a consideration of this point it may be well to invite attention to a marked difference in the wording of the English workmen's compensation act and that of the United States. In the former it is provided that — If in any employment personal injury by .accident arising out of and in the course of the employment is caused to a workman * * * — While in the latter it is not stated that the injury must be " personal " nor " by accident," nor must it arise out of the employment. While a similar case does not appear to have been considered under the English law, still the difference between the two laws are worthy of note, since the United States act appears in this respect to be more comprehensive and of broader scope. The point to be settled and determined in this case appears to be this : Is an employee entitled to compensation for incapacity arising from an injury, which injury was caused or produced through obedi- ence to the orders of a superior official? Attention is here again invited to the order of the Secretary of the Treasury of March 18, 1913. Here, it will be observed, an emer- gency arose requiring certain action, and the emergency may well be regarded as affecting not only the employees of the bureau and the business thereof, but also the public generally. In this emergency the Secretary issued an order to all employees affected. Ordinarily it is the primary duty of the employee to obey orders, and this rule is especially true between the Government and its employees. It is not meant by this to say that an employee is bound to obey every order of the master, but it is intended to indicate that within the scope of the employment the servant is expected to obey all reasonable orders. He is not, of course, expected to obey orders which mean certain injury or death, though where he is sent into dangerous places or to do dangerous work outside the scope of his usual employment the master is not relieved because of the assumption of the risk by the employee. Keferring to services outside the scope of the employment Dresser, in his Employers' Liability, at page 489 of volume 1, has this to say: If, however, the master acquiesces in the act, it would seem that it became part of the employment, and duties were imposed upon the master. Again, at page 492 of the same work, it is said : When a servant is thus, by orders of the master, put at work outside of his employment and is injured * * * without his fault, the master is liable regardless of the care he may have exercised * * *. Bailey, in his work on Personal Injuries, volume 2, page 1261, lays down the following doctrine, which he says, hoAvever, does not gen- erally prevail, though it has a respectable following : In some jurisdictions it has been declared that a servant performing a service outside the scope of his employment may be relieved from an assump- tion of the risk, even though its perils are known, where he protests against performance of the particular work and performs it unwillingly, and also where he performs the service within or without the scope of the employment under fear of discharge if he disobeys the direction of his superior. OPINIONS OF SOLICITOE, DEPARTMENT OF LABOE. 257 It is admitted that, where not modified by statute, generally an employer is not liable for the wrongful act of a fellow servant in the same employment ; that as between himself and the employer the servant takes upon himself all the risks of the employment, and neither is the employer liable when the injury is due to the contribu- tory negligence of the servant. On the other hand it is equally clear, as will be observed from the cases following, that if the employer wrongfully sends his employee into a dangerous place or exposes him to a risk not connected with the service, in consequence of which he is injured, the rule which exempts the master from responsibility has no application, because it is not a risk contemplated at the time of the employment. In 37 Michigan, 205, an ordinary laborer was ordered by his superior to apply the brakes on a train, and while so doing he was injured. At page 210 of the opinion the court said : When one person engages in tlie employment of anotlier he undertakes to obey all lawful orders, and he subjects himself for any failure to do so to the double linbility of being expelled from the employment and of being required to pay damages. It is true the master had no right to direct him to do any- thing not conteinplated in the employment, but when one thus contracts to submit himself to the orders of another there must be some presumption that the orders he receives are lawful, the giving of the orders being of Itself an assumption that they are lawful ; and the servant who refused to obey would take upon himself the burden of showing a lawful reason for the refusal. This of itself is suflicient reason for excusing the servant who declines the i-esponsibility In any case in which doubts can possibly exist. Again, at page 213; it was further said : But we also think that where the superior servant, by means of an authority which he exercises by delegation of the master, wrongfully exposes the inferior servant to risks and Injury the master must respond. It is only where the risks properly pertain to the business and are incident to it that the master is excused from responsibility. The principles thus laid down were adhered to in a later case found in 49 Michigan, 573. In this later case the employee was a passenger brakeman, and while so employed he was ordered by his superior to perform yard switching. He objected to this new and more danger- ous work, but through fear of discharge went on with the work until he was injured. In reaching a conclusion in this case the court said : I am of the opinion, therefore, that the case comes within the rule laid down in 37 Michigan, 205, and that much of the reasoning in the opinion in that case is equally applicable here. In 44 Texas Civil Appeals, 635, the employee was injured while doing work with which he was not familiar, by order of his foreman, and upon these facts it was held that: I-Iis unfamiliarity with work of this kind was a factor to be considered ; also the fact that he was ordered to engage in this work by his master, and he was expected to do it under pain of discharge for disobedience. Another case wherein the question of assumption of risk was con- sidered is that of P. C. C. & St. L. Ey. v. Adams, found in 105 Indi- ana. The employee was engaged to perform work as a section hand and was put to work of a more hazardous nature, viz, that of a 93364°— 15 17 258 woekmen's compensation undeb act of mat 30, 1908. brakeman, and the court, referring to the liability of the master, had this to say at page 166 : As we have said, when by the order of the master the servant Is carried beyond his employment he is carried away from his implied undertaking to assume the risks incident to the employment. Hence it is that when a servant is thus by orders of the master put at work outside of his employment and is injured by reason of defective machinery, railroad track, etc., without his fault the master is liable, regardless of the care he may have exercised to keep the machinery, railroad track, etc., in a safe condition. In Brazil Block Co. v. Hoodlet, 129 Indiana, 336, the following general rule was laid down : When a master orders a servant to do something which involves encountering a risk not contemplated In his employment, although the risk is equally open to the observation of both, it does not necessarily follow that the servant either assumes the increased risk or is negligent in obeying the order * * *. But unless the apparent danger is such as to deter a man of ordinary prudence from encountering it, the servant will not be compelled to abandon the service or assume all additional risk, but may obey the order, using care in proportion to the risk apparently assumed, and if he is injured the master must respond in damages. In Ruegg's Employers' Liability and Workmen's Compensation, at page 348, a case is referred to wherein a workman whose duty it was to carry reports from one place to another was injured while so doing, the injury arising from the fact that the horse drawing a truck upon which the employee was riding, in contravention of . special rules of the employer, bolted and the workman jumped off to attempt to stop the horse. While so doing -he was injured and brought suit for compensation. The trial court awarded a verdict for the employee and upon appeal the verdict was sustained, the appellate court declaring that : Where a workman, for the protection of his master's interests, took upon himself in an emergency to do something outside his general employment, nn arbitrator was justified in finding that an accident occurring to him at such time arose out of and in the course of the employment. While the facts in the present case may not be on aU fours with those in the cases cited above, yet the same principle appears to be involved. In this case the claimant was ordered by his superior to be vaccinated or to submit to the other alternatives. Following out the directions of his superior as he understood them he thereby be- came injured and incapacitated. It seems to me that there is very little, if any, distinction between a case of this character and one wherein the employer directs the servant to perform some service outside of the scope of the employment. In fact, it would appear that the relationship here would be analo- gous to a case wherein the superior officer had ordered claimant to assist in extinguishing a conflagration which had broken out in the building. Assuredly no one would seriously contend that an employee injured in this latter instance was not injured in the course of his employment, and this being conceded I am of the opinion that the principle laid down in the above-cited cases is applicable to the facts involved herein. I am further strengthened in this view by reason of the fact that the compensation act is a more beneficent and broader provision of ' law than is found in the law of damages, as well as by the further fact that the Government failed to reserve to itself the benefit of 259 such defenses as assumption of risk, fellow servant's acts, and con- tributory negligence of the employee. The controlling idea which seems to permeate the provisions of the law as enacted was one of benevolence, and to attempt to say that an employee within its provisions incapacitated through compliance with the orders of his superior was not injured in the course of his employment would be to my mind a narrow and restricted construc- tion and not at all in harmony with the purposes of the law. In view of the foregoing, I have the honor to advise that, in my opinion, the claimant herein is entitled to recover for the period of incapacity. i26. Incapacity caused by the inhalation of fine dust into the lunges in the course of employment is held to be an injury under the act. [In re claim of Edward Edmonds, June 23, 1913.] It appears from the papers herewith presented that on August 19, 1912, the decedent became incapacitated for performing the work of his employment, the incapacity being due to the inhalation of fine dust into the lungs. This condition arose from the fact that in the course of the occupation as boiler maker it was necessary for the employee to work inside of boilers which were being scaled and cleaned, which process filled the boiler with particles of scale and dust. It is stated in the immediate report that the decedent had worked under these conditions on many occasions and had complained at various times of something wrong with his lungs. Upon the facts as shown in the record the claim filed by decedent before his death was on January 18, 1913, disapproved by the Acting Secretary of the Department of [Commerce and] Labor on the ground that the incapacity was not the result of an accidental injury within the meaning of the act. Since that time the employee has died, and the claim is now sub- mitted to this office for an expression of opinion in regard to whether the action in disapproving the claim should be reconsidered and the case accordingly reopened. The incapacity, as above shown, arose from the inhalation of small particles of dust and scale while the employee was engaged upon the regular work of his occupation, with the result that death ensued several months after the beginning of the incapacity. The post- mortem examination revealed the fact that "No tubercular process [was] found." The simple question here is this: Was the decedent "injured" within the meaning of that term as used in the compensation act of May 30, 1908? _ In the Clark case (27 Op. At. Gen., 346) the question was con- sidered as to what was comprehended by the word " injury " as used in the act, and in defining the same the Attorney General said : The word " injury " is employed comprehensively to embrace all the cases of incapacity to continue the work of employment. * * * And further on in the same opinion he had this to say : That is to say, within the language of the statute an employee may be injured in the course of his employment without having suffered a definite accident. 260 woekmen's compensation under act of may 30, 1908. A careful reading of what may be considered the granting clause of the act shows that Congress used as broad and comprehensive a term as could well be found, viz : That when, on or after August 1, 1908, any person employed by the United States as an artisan or laborer * * * is injured in the course of such em- ployment, such employee shall be entitled to receive * * *. This language is apparently clear and unambiguous, and the only interpretation of which it is susceptible is that meaning which the term carries in its ordinary and common usag«. No distinction whatever was made in the act between the nature and character of the injuries; there is no requirement in the act that the injury shall be received one way or another, the only essential being that the em- ployee is injured in the course of such employment without negli- gence or misconduct on his part, and that the incapacity exist for a period of more than 15 days. . Undoubtedly the manifest idea of the legislature was to compen- sate those employees who should be incapacitated from causes and effect arising out of their employment, regardless of the manner and nature of its origin. I am sure that no one will contend that an employee is not "in- jured " within the meaning of the act who while in the course of employment is subjected to the inhalation of fumes from gas or gasoline or other such matter, or who while so situated takes into his body or system, either externally or internally, some minute particles of the material used in his work. The incapacity in this case was first thought to be due to tubercular process, but upon the post-mortem examination this was found not to be true, so the affection of the lungs may be said to have been caused by the inhalation of the scale and dust and not to tubercular disease. This fact being clearly established, the question then to be determined is whether the employee was " injured " in the course of the employment. Wliile the Attorney General has said that an employee may be injured without having suffered a definite accident, as stated above, he has also said in the Sheeran case that : There is nothing either in the language of the act or its legislative history which justifies the view that the statute was intended to cover disease con- ti-acted in the course of employment, although directly attributable to the con- ditions thereof. In this last-mentioned case the Attorney General had under con- sideration the question of whether the disease of pneumonia con- tracted in the course of employment was an injury within the mean- ing of the act, so the opinion expressed in that case can have no application to the facts found in this case, for there is nothing in the record to show that this employee contracted a disease of any kind in the course of the employment nor that his death was due to any disease. The facts as disclosed show that his lungs were in- jured from causes arising in the employment. The fact that the incapacity did not arise instanter does not suffice, in my mind, to distinguish it from an incapacity which is produced in that way, for it is evident that Congress intended to provide for all injuries to employees, and as was well said by the Attorney General in the Clark case, supra : OPINIONS OF SOLICITOR, DEPAKTMENT OF LABOE. 261 The purpose of the law was not to set in motion an Interminable series of technical inquiries, such as would puzzle the minds of learned and profound judges, but to provide immediate t)ecuniary relief by giving leave of absence with pay from the time when the incapacity for work occurred to persons receiving injuries under the circumstances mentioned in section 1, taking the language of that section in its obvious sense and as intended to be addresspd to administrative officers. It will be remembered that in cases arising under this act there is quite a distinction with cases triable in the courts before a jury and with learned attorneys to advocate the cause. In the first place, as said by the Attorney General in the Clark case, " This is a beneficent statute in the nature of an act granting pensions of limited duration and of special application," and that it was intended " to provide immediate pecuniary relief by giving leave of absence with pay," which applied to all cases wherein the em- ployee was injured in such employment without negligence or mis- conduct on his part. The law is administered solely by the Government officials; the claimant has no personal representative to prosecute his claim, con- sequently a liberal policy of construction should be adopted, and wherever a meritorious case can be consistently brought within the spirit of its provisions it should be the duty of the officials adminis- tering the law to do so, instead of drawing technical distinctions which only have place in the courts. From a consideration of the facts as shown herein, I am unable to reach any other conclusion than that the decedent was injured within the meaning of the act, for which reason I have the honor to recom- mend that the disapproval of the claim be canceled and that it also be approved for payment up to the date of the death. An original death claim should then be submitted by the widow for the balance of the year. 27. Claimant was a painter and in the course of his employment contracted lead poisoning', an occupational disease. Distinguishing this disease from pneumonia, malaria, typhoid, or the like, it was held that the incapacity was due to an injury in the course of employment. (This opinion alters the previous ruling in the John Treiman and C. L. Schroeder cases on this subject, found at pages 204, 210.) [In re claim of Willard E. Jule, July 28, 1913.] This claim has been prepared for disapproval on the ground that the incapacity " is due to lead poisoning, which is a disease and not an injury within the meaning of the act." This action was taken in keeping with recommendations found in Opinions of the Solicitor of the former Department of Commerce and Labor, wherein it was decided that lead poisoning which arose in the course of employment " was not an injury of an accidental nature, and hence not an injury within the meanihg of the act." (Op. Sol.,20i, 210.) An examination of these opinions reveals the fact that they were based upon the ground that the incapacity in each case arose by a gradual process of development over a long period of time instead of arising at some particular point of time capable of being fixed. From this viewpoint it was considered that the element of accident 262 wokkmen's compensation under act of may 30, 1908. was lacking, and that because lead poisoning was classified as a dis- ease the claim should not be allowed, especially as the Attorney Gen- eral had held in the Sheeran case (28 Op. At. Gen., 254) that the disease of pneumonia contracted in the course of employment was not an " injury " within the meaning of the act. As stated above, the occupation of claimant herein was that of a pamter, and the incapacity beginning April 8, 1913, is shown to be due to lead poisoning arising in the course of the employment, the record showing that he had been employed in the yard at various periods since September, 1908. It therefore appears in substance that as a result of causes. arising directly out of the pai:.ticular character of work upon which he was engaged claimant became incapacitated for performing his usual work, which incapacity was produced by taking into the system the fumes arising from the material he was using, thus injuring him in- ternally so as to preclude the continuation of his employment up to the date of the filing of claim. It is evident from the foregoing that the incapacity arises from what is known as vocational or occupational disease and is easily distinguished from such diseases as pneumonia, malaria, typhoid, or the like, which latter class of cases the Attorney General had under consideration in the Sheeran case, supra. Undoubtedly it was the intention of Congress to provide compensation for the employees embraced within the act who should be incapacitated from causes connected with the employment, without regard to the maimer in which it arose. Indeed, the Attorney General took this view of the matter in the Clark case (27 Op. At. Gen., 346) when he said: The word " injury " is employed comprehensively to embrace all the cases of incapacity to continue the work of employment, unless the injury is due to negligence or misconduct of the employee injured, and including all cases where as a result of the employee's occupation he without any negligence or misconduct becomes unable to carry on his wort and this condition continues for more than 15 days. It is, in fact, difficult to find any good substantial reason why Con- gress should have desired to make a discrimination as to the manner in which the incapacity arose. The intention was clearly to provide compensation for loss of time caused by incapacity arising from the employment in a similar manner to which the States and United States are requiring private employers to respond, so that all injuries shall be compensated for out of the business or industry in which sustained instead of requiring the employee to bear this burden. In using such a broad term as that found in section 1 of the com- pensation act, viz, " is injured," it is fair to presume that Congress had in mind the fact that under the British workmen's compensa- tion act occupational diseases were not included as the law was originally passed. This was due to the peculiar wording of the law, which required, in order to recover, that there be a " personal injury by accident." This weakness of the law was later overcome by amendment, whereby certain industrial diseases were included, and authority was conferred upon the Secretary of State to add others, which was done by orders dated May 22, 1907, and December 2, 1908. As the English law thus stood at the time our law was enacted, the industrial diseases mentioned in the act and the order of May OPINIONS OF SOLICITOR, fiEfAIl't&iEN* Of LABOE. 263 22, 1907, were included therein, yet our Congress made no distinction between injuries hy accident and injuries by industrial disease. Those having the preparation of the bill in charge can not be pre- sumed to have been ignorant of the provisions of the English act as originally passed and as afterwards amended, so it would seem fair to assume that by insetting in the act the words " is injured " it was contemplated that such a term was broad enough to cover all cases of incapacity arising in the course of employment, and more particularly those arising directly out of the employment and attributable thereto. In "Words and Phrases the term " injury to the person " is defined as follows: To injure is to do harm; to hurt; to damage; to hurt or wound the person. It indicates a hurting or wounding which does not result fatally. I am unable to see any marked difference between the foregoing term and that used in the act, and there is nothing in the definition quoted which would indicate that it was necessary for a person to sustain a visible external injury in order to be "injured" within the meaning of the act. Minten-Senhouse, at page 2, says that personal injury as used in the English act — Is an injury to the person as distinct from an injury to estate. It would include not only corporal Injury by breaking, wounding, or physical shock, but also injury to health hy inhaling noxious gases, and nervous shock produced by excitement and fright. It also appears that a person overcome by heat connected with the employment in which engaged suffered a personal injury by acci- dent (Ismay, Imrie & Co. v. Williamson, 99 T. L. R., 595), and that one who received a sunstroke while at work was likewise injured (Morgan v. Zenaida, 25 T. L. E., 446). Again under our act it has been decided that an employee is injured who sustained toxic amblyopia from red and white lead paint which was being applied in the vicinity of the place where he was working (Op. Sol., 242), and that a plate printer whose eyes were injured because of a certain kind of artificial light used in the building where he worked was entitled to recover (Op. Sol., 249). From a consideration of the foregoing it is plainly to be seen that ample authority exists for holding that an injury to the person may occur otherwise than by the application of physical external force to the body, and I am unable to discern any appreciable difference between an incapacity which arises from oil or gas fumes and one which arises from heat or light rays, whether natural or artificial, as the injury accomplished is the same in both cases, and the appar- ent object of the act was to compensate employees for time lost due to an incapacity which arose in the course of employment. In the construction of this benevolent statute the greatest care should be observed lest we draw too fine a distinction, for from the final action of the Secretary the claimant has no appeal, and the beneficent purpose of the act may be frustrated, as was said by Lord Loveburn in Ismay, Imile & Co., cited above, "by excess of subtlety, which I am anxious to avoid." 264 workmen's compensation undeb act op may 30, 1908. From the view of the law as I construe it, it appears to me that the incapacity herein is due to an injury received in the course of employment within the meaning of the act, and the claim otherwise appearing to be a proper one I have the honor to recommend its approval. 28. The employee developed a case of acute bronchitis and lead poisoning as a result of the inhalation of gas fumes from an oxyacetylene-buming machine, and it was held that the incapacity was due to an injury. [In re claim of C. M. Arata, Dec. 31, 1913.] The above-mentioned claim has been specially submitted to this office with the inquiry whether the claimant's disability was due to an injury sustained in the course of his employment as contemplated by the provisions of the act of May 30, 1908. It appears from the record that claimant was employed as an oxyacetylene welder at the Mare Island Navy Yard, and that on or about October 10, 1913, he became incapacitated for performing his usual duties, which incapacity continued until December 8, 1913, on which latter date he returned to work. An examination of the record as presented reveals the fact that there is a conflict of opinion between the yard surgeon and the at- tending physician as to the cause of the incapacity, the former hold- ing to the opinion that the incapacity was due to acute bronchitis, and that there was "no evidence of lead poisoning or any other poisoning due to his occupation on this yard," while the latter is of the opinion that cause of the incapacity was " anemia, plumbism (lead poisoning), and broncho-pneumonia from poisonous gases." It further appears that on November 19, 1913, claimant was ex- amined by a physician designated by the department, but the cir- tificate furnished by this physician gives practically no information which will assist in reaching a conclusion. He does say. however, that claimant was not then able to work; that he was not able to say definitely what was the cause of the condition found by him, while in his conclusion he says he " believes his recent work did it." In view of the unsatisfactory condition of the medical evidence it becomes necessary to consider the history of the case as well as the nature and character of the work performed by claimant in order to get a better understanding of the cause of the disability. This information is fully shown by a sworn statement of claimant under date of October 21, 1913, and it is believed that with 'other matter in the record the connection between the character of work performed and the incapacity will more clearly appear. While the statement is somewhat lengthy, yet, in view of the conflict of opinion, it is thought advisable to incorporate it as a whole so that the sur- rounding circumstances may be seen. The statement follows. I have been in the Government service a number of years with very little lost time, but in the Inst year have lost quite a number of days, due to sickness. This sickness has been coming on me very sUiwly, but surely. The nature of my sickness is better explained by my doctor. Dr. B. J. Klotz. In slight detail my work has been in the oxyacetylene welding plant, and in welding the operator comes in contact with the fumes and gases, and some of Opinions of solioitob, department of labor. 265 these are very poisonous, especially brass, galvanized Iron, and metal with red lead. And in the last year I have had just such a proposition to worii to. Dr. Klotz tried every way possible to keep me at my work, but in August, 1913, he said I had to quit the burning plant for a while, as it was getting the better of me. The latter part of August, 1913, I wrote Mr. Ruhm a letter of my condition and also the statement made by Dr. Klotz. Mr. Ruhm took up my request at once and transferred me to the sheet-metal shop. I was supposed to stay in the sheet-metal shop from two to four months, but was transferred back to the burning plant in a little over one month. On September 29 I was sent to the welding plant to do an urgent job, and by the time I completed this job I wns feeling very bad again. The next morning, when I reported back to Mr. Cilley, I could hardly speak, but nevertheless I was transferred back to the welding plant on October 1. I put up some objection, but owing to conditions I had to go back. I went to work, and by 2 o'clock in the afternoon I was compelled to report to Mr. Stevens, master ship fitter, a very sick man. I was off a couple of days, then went back and tried it again, but it made me worse, so on October 10, 1913, I had to give it up. The statement of Dr. Klotz, referred to in the above, was sworn to under date of October 21, 1913, and follows: B. J. Klotz, being duly sworn, deposes and says: That he is a licensed phy- sician, residing in the city of Vallejo, county of Solano, State of California ; that 0. M. Arata was under his care for several months prior to the month of August, 1913; that during the latter part of the month of August, 1913, he ordered C. M. Arata to quit the oxyacetylene welding plant at which he was employed, as the illness which was caused by inhaling fumes and gases from various metals would continue to get worse If he did not quit. It also appears that claimant was examined by the assistant surgeon of the yard, who, under date of November 4, 1913, made the follow- ing report on the case : C. M. Arata is at present confined to his home and is unable to report at the navy -yard dispensary for examination.. He wns examined at his home and found to be suffering from a severe pulmonary condition, the exact nature of which was not determined. Sputum examination for tuberculosis was negative. At present he does not show evidence of poisoning by metals or by oxyacety- lene gas. In my opinion his present condition is not due to poisoning by metals or to the inhalation of fumes, although the lung trouble may have been aggravated by work in the oxyacetylene welding plant. In further explanation of the cause of his condition, claimant also says in his claim affidavit : In welding with a torch in oxyacetylene mode the metal is fused together, and if it contains any form of lead the welder can not get away from it, so in this way I was injured. The fumes went direct to my lungs. My lungs were filled with the fumes, giving me a bad dose of lead poison and a complete wreck of my entire system. From a consideration of the foregoing evidence as presented by the record it is shown that claimant has been employed upon the work mentioned for a number of years, and that within the last year he has lost considerable time on account of sickness previous to his in- capacity beginning October 10, 1913 ; that in the course of this work there arises gaseous fumes from the burner used by him, as well as poisonous fumes from the various kinds of metals being worked upon ; that as early as August, 1913, his attending physician realized, or thought he did, that the sickness was caused by the conditions sur- rounding the work, and consequently directed the claimant to quit the burning plant, as it was getting the better of him. 266 workmen's compensation under act op may 30, 1908. This information, he says, he imparted to Mr. Kuhm, presumably his superior officer, who in turn transferred him to another shop, where it was expected he would remain for four months. However, within one month he was returned to the burning shop, when he again became affected, and after several efforts he was compelled to give up the work on account of incapacity. Keferring now to the report of the assistant surgeon of the yard as set forth above, it will be seen that on November 4, he found claimant suffering from a severe pulmonary condition the exact nature of which he was unable to determine, but examination for tuberculosis showed a negative condition. He further reported that at that time he showed no evidence of poisoning by metals or by oxy- acetylene gas, but he does say that the lung trouble may have been aggravated by work in the oxyacetylene welding plant. In addition to this it is shown that the superior officer must have recognized the fact, as reported by the attending physician, that the work was injuring claimant, for he transferred him to other work which did not affect him, and upon being returned to his former work he again became affected and in a short while became completely incapacitated. On the other hand, there is an entire absence of evi- dence to show that claimant was suffering from any other cause, notwithstanding the fact that he was examined by the assistant surgeon of the yard, by the physician designated by the department, and apparently by the yard surgeon, who certified under date of December 6, 1913, that the cause of incapacity was "acute bronchitis," but the cause or presumed cause of this condition was not stated. From a consideration of the facts and circumstances connected with this case it seems clear beyond all peradventure that the condition producing the incapacity arose as a direct result of the work upon which claimant was employed and is traceable thereto. The nature of the injury herein is similar to that which was found in the claim of Edward Edmonds, opinion of this office, June 23, 1913. There the lungs of the employee became affected from par- ticles of fine dust inhaled by him while at his work, while in this case the injury arose from the inhalation of poisonous fumes, producing lead poisoning and acute bronchitis. As it may be said that the evidence satisfactorily establishes the fact that the incapacity arose in the course of the employment, and as it was decided in the Edmonds case that his incapacity was due to an injury within the meaning of that word as used in the compen- sation act, it is the I opinion of this office that a claim for compensa- tion has been established and that the claim should accordingly be approved for payment. 29. Claimant was engaged in scaling the inner plating of a caisson. Par- ticles of the red lead being scaled became embedded in sore spots on the face or were inhaled into the system, causing incapacity. Held to be an injury. [In re claim of Randolph A. Thayer, Jan. 12, 1914.] This claim is submitted with the inquiry whether the disability was due to an injury in the course of employment. OPINIONS OF SOLICITOR; DEPAETMEBTT OF LABOR. 267 It appears that the incapacity was due to an irruption on the face of claimant, which he alleges arose from the conditions surrounding his work; The conditions under which he had been working just previous to the beginning of the incapacity are explained by the fore- man as follows : Randolph Tbayer was working in caisson of Dry Dock No. 1 from about Octo- ber 10, 1913, to November 3, 1913. During the major portion of this time scalers were at work scaling inner plating of caisson. This scaling caused the air within the caisson to be permeated with minute particles of red lead which were in- haled by all working within the caisson. During this time also several rivet forges using coal for fuel were in use. The ventilation being poor the air within the caisson was very bad. It is probable that the above conditions caused the Incapacity of Randolph A. Thayer. The yard surgeon also states that claimant had been working in the caisson and that the left cheek probably became infected from the dust, which was probably caused by scratching the face with dusty hands or by dust getting in after the face had been scratched. On the other hand, the attending physician appears to believe that the incapacity arose from the dust being swallowed while at work. While there is nothing definite or positive in the record to show the exact manner in which the injury arose, yet all the evidence sub- mitted indicates that it was caused by the conditions under which the work of claimant was being performed. Whether the affection arose from external or internal sources, however, does not make any mate- rial difference to the question at issue, since an injury under the com- pensation act may arise in either way. In view of the foregoing, I am of the opinion that the inquiry should be answered in the affirmative. 30. An injury by a fall which, lights up or aggravates a previous ailment causing incapacity was held to be an injury within the act. [In re claim of Everett Springer, Feb. 2, 1914.] This claim is submitted to this office with reference to the question whether the disability beginning August 26, 1913, was due to an in- jury received in the course of employment. Claimant alleges in his affidavit, dated October 31, 1913, that at 8 o'clock a. m. on August 26, 1913, while in the act of going down a lad- der between decks on a vessel where he was worldng, he slipped on a round of the ladder and injured his left leg. He also gave the name of a " Mr. Green " as a witness to the occurrence. There is furnished a statement from this party wherein he says that while he did not actually see the fall he did see claimant lying on the deck. After claimant got up witness says he asked him if he was hurt, when claimant informed him that he had fallen down the ladder. He also states that he saw the leg and it looked as if it had been bruised. If the statement of this witness is worthy of credence it would cer- tainly appear to substantiate the contention of claimant with refer- ence to his fall, so assuming this fact to be established, in the absence of anything to the contrary in the record, it would seem that the next question which presents itself is this : Was the disability from August 26 to October 1, 1913, the result of the fall and traceable thereto? 268 workmen's compensation undee act of may 30, 1908. It is noted from therecord that claimant sustained a fracture of the left leg in June, 1899, while serving in the United States Army, and that he was subsequently given a disability discharge for deformity of the leg. It is also stated in the record that claimant was at some time, not stated definitely, rejected for employment at the Philadelphia, Navy Yard on account of the old fracture; but it is also apparent that he was subsequently given employment, notwithstanding the previous rejection. At any rate, on August 26 and for several months previously the claimant had been employed as a painter in that yard, and so far as the record shows he performed the work of his trade satisfactorily, otherwise it is fair to assume that he would not ha,ve been retained in the service. It is therefore clear that the old injury did not prevent him from giving satisfactory service until the time of his alleged fall. Immediately after the fall he claims that he went to the yard dispensary, and after waiting there for about four hours was refused treatment by the official in charge, when he then went to a physician who treated him from that date until October 1, 1913. Claimant was afterwards examined by the department physician, who, on September 15, certified that the disability still continued; that he could find no external evidence of any injury at that time; and that the recent injury (evidently the injury of Aug. 26, 1913) . may have been the exciting cause of lighting up the specific cause (said to be syphilis) at the seat of the old fracture. "While there is an intipiation of syphilitic history, still the claim- ant denies that he ever had this disease, and the attending "physician also denies knowledge of same. In view of the foregoing it would appear reasonable to assign the incapacity to the fall, even though the fall by itself would not have caused incapacity to a perfectly well and sound man; and the principle which has been laid down in cases of this character, that an aggravation of an existing condition is an injury, would seem to be applicable. See cases of William Bunce (Op. Sol., 224), Philip Jarvis (ibid., 219), and August Pohl (ibid., 223). I therefore have the honor to recommend that the claim be ap- proved. 31. Claimant was struck in the eye by a piece of steel, causing the loss of eye. The injury, while permanent, was stated by the United States hospital service physician to have no bearing on the physical condi- tion. Held that he was entitled only for time physically incapacitated by the injury. [In re claim of Walter H. Holden, Feb. 25, 1914.] This claim is submitted with the inquiry whether claimant is en- titled to additional compensation under the provisions of the act of May 30, 1908. It appears that on June 3, 1913, claimant was injured while in the course of his employment, caused by a piece of steel striking his left eye, finally resulting in the loss of the sight and the enucleation of the eye. OPINIONS OF SOLICITOR, DEPAETMBNT OF LABOE, 269 On July 8, 1913, a claim was approved for payment in favor of claimant for the period ending December 3, 1913, and payments were made thereunder up to and including August 31, 1913. At that date the superior officer of claimant was of the opinion that he was then able to resume his usual duties, so far as the injury was con- cerned, and he accordingly directed that payments be stopped. Claimant and his physician contended that the incapacity still existed, so the former was directed to be examined by Dr. Wakefield, of the United States hospital service, who made an examination, and under date of September 11, 1913, he reported that " the extraction of the eye has no bearing on his present physical condition." The attend- ing physician then certified, under date of October 11, 1913, that claimant was under his care from the aftereffects of loss of left eye and malarial fever, and that he was in no condition to work. Another physician who had attended claimant certified under date of October 17, 1913, that in his opinion — Mr. Holden's ability to labor is decidedly and permanently impaired as a result of his injury, and I have advised him to try to obtain some employment which would not offer the danger of an injury to his sole remaining eye which his past occupation would involve. There is also furnished under a blank date of October still another certificate from a physician, wherein it is stated : This is to certify that Mr. W. B. Holden has suffered the loss of the left eye on or about June, 1913. The shock and loss of same has rendered him quite nervous, and he is not now able to pursue his usual duties. The attending physician again certified as follows, under date of January 8, 1914 : This is to certify Walter E. Holden is still under my professional care for an injury to his left eye, which had to be enucleated and incapacitates him for his general employment and will in all probability remain so indefinitely. On January 29, 1914, claimant wrote that he had been under the care of competent doctors ever since the accident occurred. On February 3, 1914, claimant was directed by this department to report to Dr. H. N. Chapman, of St. Louis, for examination, and in a certificate bearing date of February 7 this physician states that the " socket of eye seems to be in good condition at this time," and that claimant stated to him that he suffers from pains in socket and these pains extend through into back of the head. The physician also gays, in response to the inquiry whether claimant was then able to resume work, that he does not think he should take up work of a calker, at which trade he was working at the time of tha injury. Further, under " Remarks," the physician says that claimant fears accident to other eye if he goes back to old employment. He also adds that — He should be able to go back to work at his business, but he is so fearful of accident to other eye. Has been clerk (bill) and cashier in dry goods store before he became calker. A man less nervous than this claimant might go back to his old occupation, but such a course might be disastrous to this man. The question thus presented by the facts in the case is whether the claimant was incapacitated after August 31, 1913, as a result of his injury, and whether such incapacity prevented him from performing the usual duties of his occupation as a calker. 270 workmen's compensation tjndee act of mat 30, 1908. From a consideration of the medical evidence submitted, it ap- pears that the condition of claimant since August 31, 1913, prevent- ing him from returning to work, is in the nature of a mental as dis- tinguished from a physical condition. It is apparent that claimant is now and has been for some time in physical condition to resume his work, and the mental condition can not be said to be a direct result of the injury. While claims have been approved in cases where insanity arose as a direct result of the injury (see cases of John E. Hill and John Haly, Opinions of Solicitor for Department of Commerce and Labor, dated, respectively, Dec. 5, 1910, and Jan. 29, 1913, not published) , yet in such cases the insanity was attribut- able and directly traceable to the original injury. In this case, how- ever, there is no such actual incapacity, but what incapacity exists is in the nature of fear of further injury; and while this fear may be well founded it is not believed that Congress contemplated incapacity of this character when it said, in section 1 of the compensation act, " unless such employee, in the opinion of the Secretary, * * * be sooner able to resume work." It is clear that the right to compensation continues until the in- jured employee is able to resume work, and no longer, and as the evidence plainly indicates that this claimant was able to resume work on or about September 1, 1913, the conclusion must be reached that he is not entitled to further compensation than has already been paid him. While the claimant was undoubtedly injured in the course of his employment, without negligence or misconduct on his part, and the injury will probably handicap him in his occupation for the balance of his life, yet it does not appear possible within the provisions of the act of May 30, 1908, or the amendments thereto, to compensate him for the remainder of the* year ; so if any further relief is to be obtained, it should be secured by application to Congress in that behalf. 32. Employee developed cardiac hypertrophy, causing death, as a result of the inhalation of the fumes of ether in the course of employment in a " mixing house " at the Naval Proving Ground at Indianhead, Md. Held that his death resulted from an injury. [In re claim of Basil B. Clark, Apr. 11, 191*.] This claim is submitted with the inquiry whether the disease which caused death is an injury within the meaning of that word as used in the act of May 30, 1908. It appears from the record that the deceased employee had been, since July 21, 1904, employed at the Naval Proving Ground at Indian- head, Md. It further appears that for the four years immediately preceding his incapacity he was engaged upon work in the " mixing house," which work consisted of the operation of machines in which ether was mixed with powder mass. It is stated by the superior officer that on account of the volatile nature of ether there is some evaporation, and odor of ether is noticeably strong while a machine is being filled or emptied, and that one former complaint had been made by another employee that his health was affected by the ether, who was then given a different kind of work. OPIHriONS OP SOLIOITOE^ DEPARTMENT OF LABOB. 271 On February 12, 1912, the decedent found it necessary to quit work on account of his physical condition, and on, September 3, 1913, he died as a result of that condition, never having resumed work after the former date. The certificate o^f the attending physician gives the direct cause of the death as follows : Cardiac hypertrophy following continued inhalation of ether; hepatic cir- rhosis; mitral regurgitation. A statement dated February 24, 1914, by the visiting physician to the Washington Asylum and Jail sets forth that decedent was ad- mitted to that institution on March 19, 1913, suffering with valvular disease of the heart and dilatation and that he left there on April 11 following. In reply to a request from the department for further information the attending physician stated under date of March 12, 1914 : Regarding cause of death in case of Basil E. Clark : Heart probably affected first, cirrhosis following. Am unable to state positively that ether caused cirrhosis directly. I base my opinion on eight years' experience here with this class of laborers. Many cases among employees of the " ether house." In response to a letter of inquiry from the department concerning the case the visiting physician of the Washington Asylum and Jail has this to say under date of March 14, 1914 : In reply to your communication, under date of March 7, concerning Basil Clark, who was admitted into the Washington Asylum Hospital on March 18, 1913, and discharged at his own request on the 11th day of April, 1913, and giying me certain data concerning his occupation, and desiring an opinion from me whether such occupation could be a causative factor in his death, I desire to inform you that I have not given the subject of occupational diseases any special study or consideration, but from the conditions of afCairs, as I under- stand them from your statement, I should think that the conditions under which this man was compelled to work were seriously at fault, and that the con- struction of the plant should be so arranged as to -convey the fumes of ether away without permitting the workmen to Inhale them; furthermore, it is a well-known fact that ether produces an acceleration of the heart's action, especialy when inhaled, and this overstimulation, occurring many times every day over a number of years, it would be reasonable to suppose that organic valvular lesions of the heart would follow just as functional conditions appear In time to cause organic lesions. Again, we know that alcohol, which Is also a cardiac stimulant, will produce functional acceleration of the heart at first and finally be a decidedly causative factor in producing an organic disease. In fact the condition of Clark, as stated by the attending physician, shows a cirrhosis of the liver, a condition very frequently found in chronic alcoholics. I do not feel, however, that I could give a decided opinion in this case unless the question of alcoholism could be definitely excluded, as the condition for which he was treated in the Washington Asylum Hospital, and as set forth by Dr. Bicknell as the direct cause of death, could be caused by the excessive and continued use of alcohol as well as ether; in fact, the action of both of these drugs on the heart are clinically about the same, only that ether Is much stronger and certain in its action. Eegarding the use of alcohol as raised by the foregoing letter, the immediate superior officer of decedent has this to say under date of March 24, 1914: Clark was not addicted to use of alcoholics so far as can be determined from his condition while at work. The man under whom he worked (first man at mixing house) states he never came to work under the influence of liquor and he never smelled liquor on his breath. This agrees with the leading man's and my own observations. • 272 workmen's compensation under act of may 30, 1908. It therefore appears that the question of alcoholism as the cause of the condition is eliminated, and as it is also stated in the official reports that decedent- never lost any time from his work, it is reason- able to conclude from the positive evidence in the case that his death resulted from the fumes of ether inhaled during, the course of his employment. This fact being ascertained here, it would appear that the same principle is involved as was found in the case of Edward Edmonds. In that case the employee died as a result of the inhalation of small particles of dust and scale in the course of his employment. In an opinion of this office under date of June 23, 1913, it was held in that case that the decedent was " injured within the meaning of the act,"- and the claim was accordingly approved for payment. Since there is very little, if any, distinction to be drawn between a case where an employee is incapacitated by the inhalation of small particles of dust and scale and a case where he is disabled by in- haling fumes from the material with which he is working, I am of the opinion that the conclusion reached in the Edmonds case is ap- plicable herein and that the claim should be approved for payment. 33. The employee in this case developed typhoid fever, which turned into pneumonia and empyema. It was claimed that the typhoid was caused by drinking water which had been contaminated and which was furnished by the Government. It was decided that the cause of incapacity was not of an accidental nature and therefore not an injury within ^he meaning of the act. [In re claim of Robert K. Potter, Aug. 12, 1914.] This claim is submitted with the inquiry whether the incapacity is due to an injury within the meaning of that term as used in the act of May 30, 1908. The nature and cause of the incapacity is given in the record as follows : In September, 1913, he (claimant) was assigned to duty on a mountain creek near New Castle. While there he drank contaminated water, resulting in typhoid, from which he states that he suffered until November, when he again leturned to work before he was in condition so to do and broke down with pneumonia and empyema the latter part of November or the first of December. He states that his resident physician in Glenwood did not diagnose the empyema. It is possible that this was true and that the empyema was of later development. From this condition he grew steadily worse until I saw him first in February, when he was sufl'ering and nearly In extremis from empyema. I know personally nothing of the case prior to the date when I was first con- sulted, February 19, 1914. Assuming that the statements of the patient are correct, and I have no reason to doubt them, the results are such as might be expected. It further appears that claimant was employed as an assistant forest ranger in the Forest Service, and while thus employed he de- veloped typhoid fever, finally suffering from pneumonia and empyema. The cause of the typhoid fever, he alleges, arose from the necessity of his being compelled to drink water, furnished by the Government, which was contaminated by the fever germs. JFrom the foregoing it will be observed that the incapacity did not arise from anything directly connected with the work which OPINIONS or SOLICITOR, DEPARTMENT OP LABOR. 273 claimant was performing, although it may have arisen from condi- tions surrounding the employment. At any rate there was nothing of an accidental nature connected with the origin of the incapacity, nor can it be said to be due to an occupational disease. It would therefore appear that the incapacity in this case arose in a some- what similar manner to that which was found in the Sheeran case, where the incapacity was due to pneumonia resulting from catch- ing a severe cold while at work. In that case the Attorney General said, in referring to an opinion in a former case, that of Alfred A. Clark (27 Op. At. Gen., 346), who suffered a sprain of the wrist: That opinion, however, was not intended to create the impression that the statute in question covered diseases contracted in the course of employment. The language of the opinion is perhaps broader than It .should be, in the light of the committee report on the bill above quoted, which indicates that only Injuries of an accidental nature were in mind. As, however, the statute is remedial, it should be generously construed, and so construed it might be held to include injuries of the character there referred to; although, strictly speaking, no definite accident had occurred which gave rise to the injury. The'word " injury," however, as used in the statute, is in no sense suggestive of disease, nor has it ordinarily any such significance. As the Attorney General took the view that the case of pneumonia, though contracted about the course of employment, was not covered by the act, it would appear that this case would fall in the same general class and that therefore the claim can not be approved. 34. A disease not contracted but caused' by physical means, under circum- stances involving an element of accident, is an injury within the act. [In re claim of Charles J. Witiiy, Nov. 12, 1914.] The above claim is submitted to this office with special reference to the question whether the claimant was injured within the meaning of the compensation act of May 30, 1908. It appears from the claim affidavit that at about 3 o'clock p. m. on September 3, 1914, while claimant was working at an oil-burning furnace near an open door a rainstorm came up, blowing the damp cold air onto claimant, who was in an overheated condition from his work. While so engaged he was stricken with severe pain between the shoulder blades and elbows, as well as being unable to use either hand, elbow, shoulder, or leg. The certificate of the attending phy- sician shows that he first treated claimant on September 3, 1914 ; that he treated him about 25 times between that date and September 30, on which latter date he was still incapacitated. The nature of the disability is given as " multiple neuritis." In a later statement, dated October 29, 1914, the attending phj'sician says : In my opinion Charles J. Withy's trouble was caused from exposure while at work in navy yard over hot fire, with cold drafts of air blowing into shop, according to history of case given. The foregoing practically embodies all the evidence furnished by the record, from which it must be decided whether claimant sus- tained an " injury " within the meaning of that word as used in the compensation act, or, in other words, whether the condition causing the incapacity resulted from an injury received in the course of the employment or from a disease contracted therein. 93364°— 15 18 274 workmen's compensation tjndbb act op may 30, 1908. At first thought it would seem that the injury in this case arose in a manner similar to that found in the John Sheeran case, where the employee while removing ashes from a furnace room to a pile outside the building, contracted a severe cold which resulted in pneumonia and caused incapacity for work. In that case the Attor- ney General held (28 Op. At. Gen., 254) that the word "injury" as used in the statute is in no sense suggestive of disease, nor has it ordinarily any such signification. In that case the claimant con- tracted a cold which subsequently developed into pneumonia, caus- ing disability. In this case it does not appear that the disability was produced in that manner, but that while at his work, owing to the extreme heat issuing directly from the work he was engaged upon, in connection with the fact that a cold, damp wind was blowing into the building through an open door near his machine, he be- came immediately then and there incapacitated, with severe pains be- tween the shoulder blades and the elbows, which he alleges were due to the conditions arising from the nature of his work, and which disability the attending physician certifies to be due to "multiple neuritis," which trouble, he also states, in his opinion, was caused by exposure to the heat and cold draft blowing on claimant. Just how the multiple neuritis arose is not understood by the writer, as there is no medical information in the record to show this, but it is a well-loiown fact that neuritis in many instances follows an injury. It may be that the injury in this case was similar to that found in the case of an employee of the Bureau of Engraving and Printing, who in following his usual occupation sustained a sprain of the wrist and a rupture of the synovial sac, causing incapacity, in which case it was held by the Attorney General that the claimant was injured within' the meaning of the act (27 Op. At. Gen., 346). Whether the multiple neuritis^ medically speaking, may be classified as a disease is not shown by anything in the record ; but even if that be admitted, this of itself would not be sufficient to bar the claim, for it was held in Opinions of the Solicitor, page 231, that the fact that an injury may be classed as a disease does not take it out of the statute. In that case it was said that though sunstroke was classed as a disease, it was not such a disease as may be contracted in the same sense an ordinary disease maj' be, but it is an injury of an accidental nature and is covered by the act. Again, in a case under the British compensation act — that of Ismay, Imrie & Co., 99 T. L. E., 595 — it was held that a man who had suffered a heat stroke while in the course of his employment, his duties being to rake ashes from the furnace of a ship, had died an accidental death, it being said by the court that — Althougli a heat stroke may be called a disease, it Is in this case, in my opinion, a disease directly caused by an accident arising out of or in the course of an employment particularly dangerous to Williamson in consequence of his weak state of health. Its not being scheduled as an Industrial disease in the act of 1906 does not affect the question, for the act expressly provides that " nothing shall affect the rights of a workman to recover compensation In respect of a disease to which the section does not apply If the disease is a personal injury by accident within the meaning of the act" I do not at all say that all diseases arising out of or In the course of employment should be regarded as a personal injury by accident, but I am of opinion that under the circumstances of this case and its facts Williamson was killed by a personal injury by accident and that the appellants are accordingly liable. . OPINIONS OF SOLIOITOE, DEPARTMENT OF LABOE. 275 It therefore appears that by analogy there is ample authority to regard the incapacity in this case as due to an injury in the course of employment, and in view of that conclusion I have the honor to recommend that the claim be approved. 35. An injury caused by continuous strain due to the nature of the work, and which develops gradually, held to be an injury covered by the act. (Overrules Crellin case, Government Printing Office, June 31, 1911, p. 233.) [In re claim of Margaret B. Sargent, Jan. 7, 1915.] This claim is submitted with the inquiry whether the claimant sus- tained an injury within the meaning of that term as used in the act of May 30, 1908. It appears that claimant is employed as an " operative " at the Bureau of Engraving and Printing, and that on November 16, 1914, she became incapacitated for performing her duties, which inca- pacity continued until December 7, 1914, when she returned to work. The disability is shown in the medical certificate to be due to a ganglion on the right hand. In a statement by one of the witnesses it is stated that " on October 21, about 9.30 a. m., a lump appeared on Mrs. Sargent's wrist, caused by the constant motion of the hand in counting." The claimant says in her affidavit that the cause of the injury was "strain, overwork." It does not appears that any doubt whatever arises that the condi- tion foimd to exist was due to the constant use of the hand of claim- ant in the performance of her duties at the Bureau, but the question is presented whether the ailment or the condition found was an injury within the meaning of the statute. A case practically identical with the present case is found reported in the Opinions of the Solicitor for the Department of [Commerce and] Labor at page 233, wherein the question •w&s discussed whether the claimant, Mary A. Crellin, had suffered an injury as contemplated by the act. Claimant in that case was employed in the Government Printing Office, her occupation being that of a " folder." While so employed a ganglion or cystic growth developed on her hand, said to be due to a continuous strain to ligaments of the hand. In that case it was decided that the disability was not due to an injury within the mean- ing of the conipensation act. While the case was under consideration the medical officer of the Government Printing Office made an exam- ination of a number of employees engaged upon the same kind of work that claimant performed, which examination developed the fact that there were five other cases of a similar character among the employees, which were, however, not at that time sufficiently advanced to cause incapacity for work. The medical officer also described the condition found in that case to be what is technically laiown as a ganglion, which he said was " formerly considered to be a hernial protrusion of the sheaths or covers of the tendons, but of late years the condition from which she suffered has been known in the plural sense as cystomata, which are the degeneration of the tendon itself." From the foregoing it will be observed that if it is held in this case that the claimant was injured, such action will be equivalent to 276 workmen's compensation undek act of may 30, 1908. a reversal of the principle laid down in the Crellin case, and there- fore before such action is taken the ground upon which that opinion rested and the reasoning therein will be examined for the purpose of ascertaining whether the conclusion then reached is in keeping with the construction of the act as now administered. From the opinion in that case it is observed that the attending physician stated that the disability was due to a definite injury, while the medical officer of the Government Printing Office took an opposite view, contending that the cystic growth which caused the in- capacity was the result of a gradual development due to a degenera- tion of the tendon sheath caused by a continuous strain. The view held by the medical officer was apparently adopted. in reaching a con- clusion, and it was held that as the disability was due to a gradual breaking down (degeneration) of the tissues, the claim fell within the principle stated in the Treiman case (Op. Sol., 204) . In the latter case the disability was due to lead poisoning, and treating such condi- tion as a disease it was held that the inca]3acity was caused by a dis- ease and that there was no justification for applying the law to a case of lead poisoning. It will be seen, then, that the opinion sets forth two grounds for denying that claim. First, that the incapacity was the result of a gradual development and not the result of a definite accident; and second, that the condition found to exist was due to a disease and not to an injury. Taking the first above-mentioned ground of objection, viz, that the incapacity was the result of a gradual development and not that of a definite accident, it does not appear that such a condition is found herein, for in order that there may be a gradual growth there must have been an initial starting point. That starting point here must have been at some particular time when a strain occurred causing something unexpected to happen and remaining unseen until such time as by continuous use of the injured part it became aggravated, thereby producing incapacity. From this understanding of the case it would appear that the injury arose in a similar manner to that which was found in the Clark case, and from the description given by the medical officer of the Government Printing Office it might be said that the ganglion or cyst originates in a manner similar to an ordi- nary hernia which, as is well known, is due to a rupture, and usually from a strain of some organ of the body. In the Clark case the employee was working a hand press and the injury sustained by him consisted of a condition of relaxation of the posterior ligaments of the right wrist, commonly Imown as a sprain, which was complicated by a rupture of the synovial sac surroimding the ligaments leading from the back part of the forearm to the fiiigers, the subjective symptoms of which were a swelling' due to the rupture and a weak- ness of the flexor and extensor muscles. In reaching a conclusion in that case the Attorney General, in an opinion (27 Op. At. Gen., 353) said in part : On a day which seems to be flxecl, Mr. Clark's wrist was sprained and the synovial sac ruptured. After working ofC and on for a few days he was abseut from work on account of this injury for several weeks, tlie injury having to be treated by placing the wrist in a plaster cast. He was injured in the course of his employment as a plate printer. The conditions of his employment on the day in question were as usual, except that the ink used was probably somewhat OPINIONS OF SOLICITOE, DEPARTMENT OP LABOR. 277 thicker than it should have been. When injured he was working a hand press involving five operations, which he had been accustomed to perform for years on sn average of 950 times a day. The statement of facts shows that the man's wrist was sprained by something Involved In his exertions in doing his work, and I shall assume that no further information exists concerning the cause of the injury. As the incapacity in the Clark case was produced in a similar man- ner to that existing in this case, it would appear that the same cofl- clusion should be here reached. As the Crellin case was disposed of on the principle laid down in the Treiman case, supra, it does not appear that such decision, which related to a disease, has any appli- cation to a case of this character, which is most certainly an injury arising from the work. Furthermore, as the opinion in the Treiman case has been overruled by a decision of this department in the case of Willard E. Jule, dated July 28, 1913 (p. 261), wherein the claimant, a painter, was incapacitated by lead poisoning, it being held that he was injured within the act, I can not see where the principle laid down in the Treiman case can have any controlling influence in this case. From a consideration of the foregoing I am of the opinion that this claimant was injured within the meaning of the act of May 30, 1908. 36. A physical injury which aggravates a previous ailment so as to disable an employee, when disability would not have been caused but for such previous ailment, is an injury within the act. Tuberculosis superin- duced by brass poisoning. [In re claim of Edward Devine, Feb. 9, 1915.] This claim is submitted with the inquiry whether the claimant is entitled to compensation under the act of May 30, 1908. This question is raised because of the fact that the employee is cer- tified to be suffering from tuberculosis of throat and lungs, which condition, if unexplained, being a disease, would bring the case within the principle laid down in the case of John Sheeran, who was suffering from pneumonia. In that case the Attorney General, in an opinion dated April 25, 1910, held that there was nothing, either in the language of the act or its legislative history, which justified the view that the statute was intended to cover disease contracted in the course of employment, and consequently a case of pneumonia was not an injury within the meaning of the act. The conditions, however, under which the incapacity arose in this case are entirely different from those under which the pneumonia arose. In the latter case the employee caught a cold, owing to his being a little overheated from his work, which developed into pneumonia; so that the cause of the incapacity was not directly attributable to anything arising from the work in the nature of an injury to the body of the employee. In order that the circumstances and conditions surrounding this case may be thoroughly understood and distinguished from the facts in the Sheeran case tlie report of the superior officer is quoted, wherein he says: As a molder's helper it is the employee's duty to assist in the handling and pouring of the different metals, and in so doing [he] has inhaled from time to time the metallic fumes arising therefrom. Certificates from two physicians are as follows: This is to certify that, In my opinion, Edward Devine, now suffering with T. B. [tuberculosis] of throat, was superinduced by brass poisoning. 278 woEKMEnr's compensation under act of may 30, 1908. This Is to certify that Mr. Edward Devine, of 2312 South Front Street, has been examined and treated by me ; that he Is suffering with laryngeal tuber- culosis, which has without doubt been caused by the irritating fumes which he inhaled while employed in the brass foundry in the United States navy yard. The yard surgeon also says claimant was incapacitated by — Acute inflammation of pharynx and larynx, blisters uvula and left anterior pillar, said to have been caused by caustic efl'ects of fumes from molten brass In foundry. This is possible, and the appearance of the throat suggests that It IS probable. Dr. Eemig, who examined claimant by direction of the department, makes the following observation in his report under the heading of " Eemarks " : If, as the claimant alleges, that during the course of his employment he inhaled metallic fumes, this, in my opinion, would render the throat and lungs more susceptible to the disease, and he Is therefore entitled to compensation. From the foregoing it will be seen that the incapacity in this case appears to be similar to that found in a case of lead poisoning aris- ing from the inhalation of the lead fumes which in time injure the system so as to produce incapacity. In the case of Willard E. Jule, under date of July 28, 1913, this office held that lead poisoning was an injury within the meaning of the act. Again, in the case of Ed- ward Edmonds, on June 23, 1913, it was held that incapacity pro- duced by the inhalation of fine dust and gaseous fumes arising from the work being performed was an injury. Other cases of a some- what similar character might be cited, but it is believed that as the foregoing cases appear to be in point and on all fours with the pres- ent case further citation is unnecessary, and the same principle is applicable herein. There is also another class of cases to which this case may properly be said to belong. I refer to cases which have previously arisen wherein a preexisting disease, which had not previously caused incapacity, is aggravated, lighted up, or excited by an injury in the course of the employment, thereby producing incapacity. It has been uniformly held in these cases that the incapacity is attributable to the injury as the proximate cause, and the claims have been approved. See in this connection the case of Washington Elmore (Op. Sol., 24:5), where the claimant had a latent rheumatism which was excited by a fall, producing incapacity which had not previously existed. There it was held that while the incapacity was directly due to the rheuma- tism, yet that in turn was attributed to the fall, and the claim was approved. It may be that in this case the tubercular germ had existed for some time previous to the incapacity^, and but for the injury or irritation produced by the work being performed may not have caused incapacity for years to come, if ever. However, by referring to the medical evidence furnished it appears to be satisfactorily established that the preexisting condition was irritated or aggravated by the inhalation of the metallic fumes, thereby causing incapacitJ^ It seems that all the physicians who furnished certificates are agreed upon this point. In view of the foregoing I am of the opinion that the claimant was injured within the meaning of that term as used in the act of May 30, 1908. OPINIONS OF SOLIOITOB, DEPARTMENT OF LABOE, 279 37. An injury caused by strain from rusliing work under a time-record efficiency system, whereby a strong, healthy man was kept under a high nerve-racking tension during every minute of an eight-hour workday, is an injury within the act. [In re claim of D. C. Manning, Apr. 2, 1915.] The above-mentioned claim has been specially submitted to this office with the following inquiry : Did the claimant sustain an injury within the meaning of the act of May 30, 1908 ? ^ It appears from the record that on July 24, 1913, this claimant became incapacitated and so continued until July 28, when he re- turned to work. After working three days he was again incapaci- tated, which disability continued until November 1, 1913, when he again returned to work, but after working with great difficulty for nine days he was again incapacitated and has since that time been unable to return to work. The cause of the injury as given by claimant is "strain from rushing work under the Halsey system." The nature of the incapacity is given by one physician as "aortic incompetence." He further says that the disability will continue for life, and that claimant is suffering from "incurable heart con- dition." Another physician who treated claimant afterwards gives the nature of disability as "dilatation of aortic orifice of heart, hyper- trophy, and dilatation of heart. Aortic incompetence." The objec- tive and subjective symptoms he gives as follows: Condition as noted in 4 above, producing dyspnoea, palpitation, gastric dis- turbances, insomnia, general nervous irritability. This physician also states that claimant, who is a man only 52 years of age, will be incapacitated for life. Under the heading of "Re- marks" he further says that — It is possible and even probable that the type of work being done on day of accident suddenly and without warning produced the overstrain which resulted in dilatation of aortic orifice. In response to a letter from the department asking claimant to explain fully the facts and circumstances connected with his in- capacity, in a letter dated January 2, 1916, he says : 1. I worked in the sail loft at Mare Island as a first-class sailmaker, without losing a day from illness of any kind, for about 20 years, and had one of the best records for lots of good work that any man could have. When Naval Constructor Evans took charge of the shops on the navy yard he placed the men in the sail loft on a time-card system. Under this you had to give an account of every minute you were on a job. At the time this system was inaugurated we were given to understand that the men who did the most work would hold their jobs the longest. As I had a large family to support I could not afford to lose my job, so I worked hard and fast and faithfully as usual, and I had understood that the sailmakers at Mare Island Navy Yard out- classed those at all other yards in the amount of work turned out for a given time under this system. When Mr. Evans left the navy yard he was succeeded by Constructor Fisher, who instituted the Halsey system — a system which is more severe than the time-card system as regards the amount of work expected from those working under it. At that time there were only a few men left in the sail loft, all the others having been eliminated as a result of the fast pace that a few of us had set. I might be asked why I did not quit when I found the work so trying. My answer to this, of course, is that I had a large family to support and I was not in a position to quit, and, besides, I felt I was physically strong 280 wokkmen's compensation undeb act of may 30, 1908. enough to keep up the work. During this time the six other men who remained m the sail loft with me never worked steadily under the Halsey system, the same as I did. They used to take long rests and do so yet, as their records will show. If they did not, they probably would be in the same condition as I am now. This system is so trying on the physical condition of a man who works under it that the larger shops refused to stand for it. On the afternoon upon which the injury occurred I had just gotten started on my work on coaling bags when, all of a sudden, I felt my heart give out for the first time in my life. The rush had strained or ruptured my heart, which had always been good and never before given me any trouble. If this was not the case, or if my heart had previously been affected in any way, I certainly could not have made the record I did during my 20 years of work in the sail loft. At the time of the injury I managed to get to the navy-yard dis- pensary, where I remained the rest of the afternoon, and I have never been well or able to work since. I think this is all I can say under the first heading. 2. Under the Halsey system a time man, equipped with tablet, lead pencil, and stop watch, sat in front of you as long as the job lasted. His work was to hold the watch in his hand and take absolute account of every minute of your time for a day of eight hours, the object being to find out how long it takes a man to do a certain piece of work. Having done this, his duty was to report to headquarters, and as result you were given a standard, which, of course. Is always a big day's work, as under such a system men will naturally do their level best in attempting to make the best record possible. In other words, the Halsey system is a system designed to get out of the man employed under it the greatest possible amount of work he can do in a given time, with the fear ever hanging over him that a failure to keep up to standard will cause him to lose his job. At the time of my Injury I was making coaling bags. A coaling bag when finished is about 42 inches long and 8 feet in circumference. It Is the hardest job in sailmaking. When filled it will hold 800 pounds of coal. It is made out of the heaviest kind of flax canvas. In making it two thicknesses of canvas are used and a large tarred rope, including two slings, is sewed around the top of the bag. In making it a 5-inch needle is used, with large flax thread, which requires the exercise of considerable strength to get it through the canvas. I had just started to sew on one of these bags when the injury occurred. 3. In the first place, I thought that my injury would be only temporary, and I did not expect to be permanently disabled. Then my case became so bad that I had to be removed to a San Francisco hospital for treatment. I kept think- ing all along that I probably would get well in time and would be able to go back to work again. Had I recovered, probably no claim would have been presented by me; but inasmuch as my injury has resulted in permanent dis- ability I finally decided to submit my claim some months ago. Upon the foregoing facts the question arises whether the incapacity of claimant; beginning July 24, 1913, and practically continuing until the present time, with prospects of further continuance through- out the life of claimant, is due to an injury in the course of employ- ment as contemplated by the provisions of section 1 of the act of May 30, 1908. While the facts and conditions in this case may be somewhat dif- ferent from other cases of a similar nature which have been hereto- fore passed upon in the administration of this act, yet the principle involved is not entirely new and has been previously considered. One of the early cases wherein a similar question was considered was that of W. H. Merritt, an employee of the Puget Sound Navy Yard. The cause of the incapacity in that case was shown to be as follows : Severe strain due to overexertion in continuous climbing of stairways and la 1709.] The claimant is a policeman employed by the Isthmian Canal Commission in the Canal Zone. He claims that on or about Sep- tember 30, 1908, near midnight, he was walking along the Panama Railroad track on his way to report for duty. It was raining and the night was very darlf. When he had almost reached his destina- tion he slipped on a crosstie and stepped into a drain about 12 inches deep. He claims to have felt a pain in the groin shortly after, but did not notice any swelling until three weeks later. He continued work until May 6, 1909, when he consulted a physician, who found that he had hernia. He was absent from duty ^rom May 6 to 31, 1909. The claim is presented to this office with special reference to the questions whether the accident occurred in the course of em- ployment and whether there is sufficient evidence of connection between the accident and the claimant's incapacity. The claimant was on his way to work, having taken the only route available, when the accident occurred in the immediate vicinity of his work by his slipping on a crosstie. This case is similar to that of Joseph Chambers (C 862, Bu. No. 2825), in which it was said: In the present case the employee at the time of the accident "was on his way to work and was following the path leading to the shovel." and for the OPINIONS OF SOLICITOK, DEPARTMENT OP LABOR. 295 reasons above Indicated I have the honor to recommend that the claim for compensation be approved. As above indicated, the question as to whether the accident occurred in the course of employment is answered in the affirmative. [In re claim of John Atkins, Mar. 13, 1911 ; No. 6070.] The above claim is submitted to this office with special reference to the question whether the accident occurred in the course of employ- ment. The claimant was employed by the Isthmian Canal Commission as a cableway engineer at Gatun, Canal Zone, and was injured while returning to his work from the noonday meal. The reporting officer furnishes the names of two eyewitnesses to the accident, and states that claimant was injured in the course of employment and without negligence or misconduct on his part. In giving a description of the accident, the claimant says : On going to my work after the noon meal I found that the usual path was bloclfed by a t6*er, and in going around this tower in order to continue on my way to work I had to go over a pile of crushed stone. While on this crushed stone I began to slide and slid into a moving engine which was passing by. The facts in this case are similar to those in the case of John Joseph (C 1163, Bu. 3369), who was injured while walking along a railroad track to his dinner, wherein it was held that as he was pursuing the course usually and necessarily followed by him in connection with his employment he was injured in the course of employment and entitled to the benefits of the act. (See also case of Joseph Chambers, C 862. Bu. 2825.) In the case of Z. M. Crooks (C 51, Bu. 418) the claimant was going from his work to the place where he took his dinner and was injured while crossing a certain bridge in order to board a train which usually stopped on the other side to take on passengers. In the opinion I said : * * * He was in the position of a laborer returning home from his work and endeavoring to use the only legitimate means presented by the Government for the accomplishment of that purpose, and therefore entitled to recover. In view of the foregoing and the fact that the claimant in the present case was injured while following the usual pathway on his return to work from his dinner, and as it may be reasonably assumed from the description of the accident and its location, together with the statement of the reporting officer, that claimant was upon the premises of his employer at the time of the accident, I am of opinion that he was injured in the course of employment and therefore have the honor to recommend that the claim be approved. 8. A shop boy employed to work a punching maclilne, injured ^by voluntarily starting a rolling machine while the former machine was idle, was not injured in the course of employment. [In re claim of Vlctorino Morales, June 1, 1909 ; No. 1114.] This claim is submitted with reference to the question whether the injury was the result of the claimant's own negligence or miscon- duct. 296 woekmen's compensation under act of may 30, 1908. Morales was a shop boy at La Boca ship ways, working for 14 cents (silver) per hour. His duties were to turn a lever on a punch- ing machine and other such minor service. A few feet from the punching machine stood a large rolling machine, with the operation of which the claimant had nothing whatever to do. On the day of the accident, while the punching machine was not running. Morales f^tepped up on the rolling machine to turn a lever or handle, in at- tempting to do which his left foot slipped between the rollers, and he was injured as stated above. It appears from the testimony of several witnesses that said claim- ant had not been ordered to turn the lever on the rolling machine, had never been seen on the rolling machine by the foreman before the accident, and it was no part of his duties to be there at all. It is testified by the man whose duties among others required him to turn the lever of the rolling machine that at the time of the injury to Morales deponent was on the rolling machine attending to his duties when the claimant stepped up beside him and attempted to turn the lever of the machine. As a general proposition^ a servant can not of his own accord go outside of the scope of his employment without authority of Ms superior and have any reasonable grounds for compensation for in- juries while thus engaged. With reference to the risks of employ- ment a servant is in the position of an invited person, and like other invited persons his right of compensation for injuries exists only as to the risks that come within the scope of the invitation given him. He is but a licensee as to risks in places or about machinery where he is not invited, they being beyond the scope of his employment. (See case of David, Apr. 22, 1909, C 835, Bu. No. 545.) Where the servant voluntarily and without directions from the master, and without his acquiescence, goes into hazardous work outside of his contract of hiring, he puts himself beyond the protection of the master's implied under- taking, and, if he is injured, he must suffer the consequences. (Pittsburg C. & St. L. Ry. Co. V. Adams, 105 Ind., 151, 165.) In the following cases injured employees have been held to have been outside of the scope of their employment : A girl employed to pick rubbish out of coal as it passed by her who was caught in a wheel trying to start the engine (Losh v. Evans & Co., 51 W. R., 243) ; a boy driver who worked as a digger (Patterson v. Neal, 135 Ala., 477) ; a boy meddling with machineiy (Lowe v. Pearson, 1 Q. B., 261). In Johnson v. Armour (18 Fed., 492) it was held that a carpenter, who did some work in the line of his trade, which work he was not ordered to do, could not recover if injured while so engaged. A workman can not recover even where his acts, voluntarily done outside of his employment, are for his master's benefit, because the master did not acquiesce in the servant's action. Thus, where one ran a circular saw instead of a,ttending to his duties as a helper (Brown v. Byroads, 47 Ind., 435) ; and where a brakeman acted as fireman (Ala. G. S. R. Co. v. Hall, 105 Ala., 599) ; and where one volunteered to make repairs out of the scope of his employment (Mel- lor V. Merchants' Mfg. Co., 150 Mass., 362) , it was held that claim- ants were hot entitled to recover for injuries received in such volun- tarily undertaken employment, because such services did not rtjason- ably fall within the scope of the original service. OPINIONS OF SOLICITOR, DEPARTMENT OP LABOR. 29*7 Of course, there often arise emergencies where servants may rightly go without the scope of their employment in order that danger or other damage may be averted without loss of compensation for in- juries received. (Harrison v. Whittaker Bros., 16 T. L. R., 108.) In this case the claimant voluntarily assumed a duty for which he was not employed ; there was no emergency or need for his going out of his employment to do another man's work, and it is niy opinion that the Government is relieved of responsibility for his injury. I have to advise, therefore, that the claimant should not be compensated. 9. A workman bitten by a mad dog while attending to Ms duties was injured in the course of employment. [In re claim of B. B. Bailey, July 7, 1909 ; No. 1300.] It appears from the papers submitted with the above claim that the claimant was in the canal cut attending to the duties of his position as powder foreman when a mad dog came running through the cut and bit him on the calf of his left leg. This occurred on February 15, 1909. He was taken at once to the Ancon Hospital, where he was treated until February 19, 1909, when he was sent, at the expense of the canal commission, to the United States for treatment to prevent the development of rabies. Two questions are submitted with this claim. The first is whether the injury was received in the course of the employment within the meaning of the compensation act. I am clearly of opinion that the injury is covered by the act of May 30, 1908. The question was prob- ably raised because of the fact that such an injury does not appear to come within the scope of the British workmen's compensation act, from which many features of our act have been taken. In the case of Burrell v. Avis (1 W. C. C, 129), which arose in 1898 under the British act of 1897, it appeared that the employee, while drunk, and prompted by a spirit of bravado, attempted to climb a ladder with a long piece of timber on one shoulder, when he fell and was killed. ' His dependents made claim for compensation under the statute. The defendant contended that the accident was not an accident " arising out of " the employment ; that the words " arising out of " have a different meaning from the words " in the course of." The claimants contended that the accident did arise out of the employment, because it was part of the deceased's employment to carry wood up the ladder. The court of appeal said that the de- ceased was acting in the scope of his employment, but held that the claimants were not entitled to compensation, for the reason that the accident was due to the serious and willful misconduct of the de- ceased. This case is referred to here because it is cited by Dawbarn in support of the statement that an accident can not be said to " arise out of or in the course of the employment " when it is occasioned either by the man himself or his fellow workers deliberately playing the fool (Dawbarn on Emp. Lia. and Workmen's Comp., p. 188), and to show that, although the court held that the accident did not arise " out of " the employment, it happened " in the course of " the employment. 298 woekmen's compen-sation under act op may 30, 1908. In the case of Falconer v. The London & Glasgow Engineering & Shipbuilding Co. (38 Sc. L. E., 381; 3 F., 564, Ses. Cases) it was held that a workman who was injured as the result of horseplay on the part of fellow workmen was not entitled to compensation. The injured employee was a blacksmith working at his anvil in the works of the defendant company when two of his fellow workmen, who were engaged in horseplay, stumbled against him and knocked him over a bucket of water, whereby his left leg was broken. The injured man was not a party to the pushing or knocking that took place. On the question of liability of the employer the court was divided. The Lord Justice Clerk, in delivering the opinion of the court, after refer- ring to the fact that the accident was caused by the conduct of the two fellow workmen when they were not working or doing anything having relation to their work, said : The question is whether an accident so caused can be held to have, in the words of the act, arisen " out of and in the course of the employment." I recog- nize to the full that the statute in question, which Is remedial in its character, must receive a liberal interpretation. But I have considered the case again and again, and have not been able to find it possible to hold that the words of the statute can cover the case stated. I can not read the statute as if It had said there should be liability for every accident occurring to a worliman when engaged at his worli in the factory, no matter how the accident occurred, unless it was through his own willful fault or negligence. It must, I thinli, have arisen " out of " his employment in a more exact sense than that it occurred to him when at or going about his own employment in or about the factory. Here the facts seem to me to point to the accident not having arisen out of the employment. Two men, not doing their master's work, and not in course of doing it, but leaving their work aside and engaging in play, which was not what they were there for at all, threw the respondent down, with the result that he was injured. It was not "out of" the employment, but out of proceedings outside the scope of the employment, that the accident occurred. I am unable to hold that the statute covers such a case. Lord Trayner, concurring, said : The only question therefore is. Was the accident from which the respondent suffered one which arose out of and In the course of his employment? I think both of these qualities or conditions of the accident must be predicable of any accident before it can be made the ground of a claim under this statute — first, because they are conjoined in the statute and we are not at liberty to disjoin them, and, second, because many accidents may happen to a worlunan " in the course of the employment " for which his employer would incur no liability. In a dissenting opinion, Lord Moncreiff said : Now, in the present case it is proved (1) that the accident occurred in the appellant's factory; (2) that the respondent was Injured in the course of his employment while he was doing his employers' work; and (3) that he was in no way to blame. This of itself would not, in my opinion, be sufficient to entitle him to compensation under the statute; but it carries him a very long way toward that result. All that is required to complete his case is to show that in a reasonable sense the cause of the accident was connected with the employ- ment. Now, the cause of the accident was simply the negligence of two of the respondent's fellow workmen, who, instead of attending to their work, engaged in horseplay, pushed against him and knocked him over. It is maintained that because they were romping and not working the accident did not arise out of the employment. I think that this is too fine a distinction. The same might be said of most cases of negligence on the part of a servant. Negligence con- sists in the servant neglecting — that Is, not attending to his master's work. It may take many shapes. If in the course of their work the respondent's fellow workmen had through carelessness or clumsiness pushed against the respondent and knocked him over, it is conceded that the appellants would have been liable Does it make any material difference that the push was given in horseplay? I think not. The negligence of a fellow workman is a risk of the OPINIONS OP SOLICITOE, DEPARTMENT OF LABOE. 299 common employment against which the statute insures Qie worltman; and I am not prepared to hold that the workman's right to recover depends upon the precise shape which his fellow workmen's negligence takes, provided always that it occurs in the factory while the workman injured is at his work and while the fellow workman who causes the injury is or ought to be engaged in working along with him, or in the common employment. It is unnecessary to multiply illustrations, but many may be readily figured. For Instance, a miner works with a naked light and causes an explosion; his employers are admittedly liable. But the appellants would maintain that, if instead of using a naked light for the purposes of his work he uses it to light his pipe and smoke, contrary to regulation, and thus causes an explosion, the employers are not liable, because the servant is not engaged on his master's work and therefore the accident can not be said to arise out of the employment. Again, take the case of an engine driver. If through absent-mindedness he ran past a danger signal, the railway company is liable to any fellow workman who Is injured, but if his inattention to the signal is due to his reading a news- paper or gossiping or bear fighting with the fireman, according to the appel- lants the result is different. Notwithstanding he thought the language of the British act broad enough to cover the injury in question, he added, by way of qualify- ing the principle involved : The result would be different if the proximate cause of the accident were something wholly without the employment ; for instance, as suggested by Lord Trayner, a flash of lightning, or a shot fired into the factory by an assassin, or even it may be some criminal or tortious act on the part of a fellow servant sufficiently unconnected with the employment to liberate his employer. It will be observed that great stress is laid upon the language of the statute under which the claim arose, and that, while the dissenting justice was willing to stretch it to cover the case at bar, it is evident that he would have excluded an injury caused by the bite of a mad dog. In the case of Amitage v. Lancashire & Yorkshire Eailway Co., which arose under the British act of 1897 (86 L. T., 883; 2 K. B., 1902, 178), it appears that the claimant was a boy about 16 years of age who had been employed by the railway company in their car- riage works. A number of boys were there employed. On the occa- sion in question, while the claimant and the other jjoys were engaged at the works, one of the boys, named Smith, pushed another boy, named Harrop, into a pit which there was on the works, for a " lark." Harrop, becoming angry, picked up a piece of iron and threw it at Smith. It missed Smith and hit the claimant on the eye, causing the injury for which he claimed compensation. Judge Pari-y, in the Manchester County court (112 The Law Times, p. 37), held that the injury was the result of an accident which arose out of the claimant's employment. Upon appeal this decision was reversed by the court of appeals. Justice Collins, in rendering the opinion of the court, said : The statute does not provide an insurance for the workman against every accident happening to him while he is engaged in the employment of his master, but only against accidents arising out of and in the course of that employ- ment. * * * We have to consider what sort of accident the legislature con- templated when they spoke of accidents arising out of and in the course of the employment. Did they intend to give compensation to the workman for in- juries occasioned to him while engaged in his employment by an accident arising from any act which might be done by another workman engaged in the same employment, although it might have no relation whatever to that employment? I think that it is obvious that they did not so intend. 300 WOEKMEN^S COMPENSAlioiir UNDER ACT OF MAY 30, 1908. Justice Mathew, concurring, said : I am of the same opinion. The act gives compensation in respect of acci- dents " arising out of and in the course of the employment." If the words had been merely " arising in the course of the employment," possibly the result might have been different, but we have to deal with the additional words " out of," which we must suppose to have been introduced by the legislature for some reason. The Falconer case was decided in 1901 and the Armitage case in 1902. In 1905 the case of Challis v. London & South Western Eail- way Co. (2 K. B., 1905, 154), involving a similar question, was de- cided by the court of appeals. ' In this case it appears that an engine driver, while in his cab and in the course of his employment, was passing under a bridge when he was injured by a stone which was mischievously thrown by a boy from the bridge above. The court held that the injury was caused by an accident arising out of and in the course of the employment. Justice Collins, in rendering this decision and distinguishing the case from the cases of Falconer and Armitage, said: The question remains whether it was an accident which arose out of and In the course of the deceased's employment. That is the only question which was argued before us. It was not contended that there was not an accident. The contention was that this occurrence, though an accident, was not one which could be said to have arisen out of the deceased's employment. I do not think that in deciding that question we should be justified in leaving out of sight what is matter of common knowledge and experience in relation to the subject with which we are dealing, and therefore we must, I think, approach the ques- tion whether what occurred was a risk incidental to the employment of an en- gine driver from the standpoint that a train in motion has great attractions for mischievous boys as an object at which to discharge missiles. It seems to me that the legislature in framing the workmen's compensation act, 1897, in- tended to provide for the risks of accident which are within the ordinary scope of the particular employment in which the workman is engaged. No doubt the act does not use the expression " risks incidental to the employment " ; but the interpretation of the words " accident arising out of and in the course of the employment" appears to me necessarily to Involve the consideration of the question what risks are commonly incidental to the particular employment In question. The cases relied upon by the respondents are not, in my opinion, Inconsistent with the view that such an accident as occurred in the present case is within the act. On the contrary, they appear to me to be rather in favor of that view. Take the case of Armitage v. Lancashire & Yorkshire Ey. Co. (1). It appears from the judgments in that case that in dealing with the question whether the particular accident which had happened arose out of the employ- ment, the test applied was whether it was within the scope of the employment of the workman to submit to the risk of such an accident; and in that case we held that, the accident not being one to the risk of which it was within the scope of his employment to submit, it did not come within the purview of the workmen's compensation act, 1897. In the case of Falconer v. Ijondon & Glas- gow Engineering & Iron Shipbuilding Co. (1) the same test seems to have been applied by all the judges of the court of session in Scotland. In giving judg- ment, the Lord Justice Clerk said : " It was as against accidents incidental to the special employment that the benefit of this statute was given." Lord Trayner said : " If some servants leave their work and indulge in horseplay ■ to the injury of a fellow servant that does not infer liability on the employer. It can not be said to be incidental to his business or one of the hazards attached to it." In the present case such an accident as happened does appear to me to be one incidental to the employment and a hazard attached to it. Lord MoncrelfC held that the particular accident in that case was one incidental to the employment and therefore differed from the conclusion arrived at by the majority. But all the members of the court appear to have concurred in the view that the object of the workmen's compensation act, 1897, was to pro- vide for those risks which are incidental to the particular employment In which the workman is engaged. OPINIONS OP SOLIOITOB, DEPARTMENT OP LABOR. 301 It is clear from the decisions of the English courts that the case of an injury such as is presented in the claim now under considera- tion would not be within the English statute ; and it is equally clear that it would be excluded, because the language of that statute covers only such injuries as result from accidents " arising out of aiid in the course of the employment." While the general purpose of our com- pensation act is similar to the general purpose of the British com- pensation act, and for this- reason the English decisions are entitled to great weight in determining the intent of the legislature in pass- ing the act, yet, where there is a difference between the language used by the British legislature and that used by Congress, we are bound to take this into account in applying our own statute. As before noted, the British act applies to " personal injury by accident arising out of and in the course of the employment." Under our statute the right to compensation is granted by sections 1 and 2. The first section provides for payment of compensation to the em- ployee of the United States who " is injured in the course of such employment," and the second section provides for the payment of compensation to the family of an employee of the United States who dies within a year by reason of " injury received in the course of such employment." The injury for which compensation is here pro- vided is not limited to injury by accident, nor to injuries arising out of the employment, as in the case of the British statute. It is only necessary that the injury be received in the course of the em- ployment by the United States. Sections 3 and 4 constitute the adjective part of the law. They provide for the reporting of acci- dents, the filing of claims, etc. They seem to contemplate that the injuries referred ta in the first and second sections are such as may result from accident, but they do not limit the right to compensation to cases of injury from accident. Section 3, in prescribing what in- formation shall be incorporated in the reports of accidents, provides that the official superior of the injured employee shall state " whether the accident arose out of or in the course of the injured person's employment." Even if it could be assumed that the words quoted were used to limit the right to compensation, we would not be justi- • fied in holding that the mjury which entitled to compensation must result from an accident which arises out of as well as in the course of the employment, for the word " or " is here used where the word " and " is used in the corresponding language of the British act. So, in any view it would not be necessary that the injury result from an accident arising out of the employment if it happened in the course of the employment. Assuming that the injury is covered by the statute, the further question is asked whether the compensation to be allowed should " cover the period of absence from place of employment or only the time of detention at the hospital." As before indicated, as soon as it was known that the claimant had been bitten by a mad dog he was sent, at the expense of the canal commission, to the United States in order that he might be treated for the prevention of rabies. I assume that the canal commission had ample authority to send the claimant away for treatment and to pay all expenses in connection therewith. See decisions of the Comp- troller of the Treasury under dates of September 1 and September 26, 1908, and act of February 24, 1909. (36 Stat., 645.) The only ques- 302 workmen's compensation under act op may 30, 1908. tion to be considered here is, therefore, when may the injured em- ployee be considered as able to resume work within the meaning of theact of May 30, 1908? As I stated in my opinion in the case of Archibald C. McAllister (C 76, Bu. No. 41), when the right to compensation is established, the only limitation placed upon it by the letter of the statute is one year, "unless such employee, in the opinion of the Secretary of Com- merce and Labor, be sooner able to resume work." " The incapacity for which compensation may be paid must be the result of an injury received in the course of employment. If compensation is granted on account of such an injury, it must be because tJiat injury has caused incapacity, and when the incapacity caused by tJiat injury ceases the right to compensation ends." If the canal commission had the au- thority to send the claimant away for treatment, as assumed, and did so send him, he could not, of course, be expected to resume work until his return. The necessity for sending him away arose out of the nature of the injury received. Being unable to resume work while he was away, his inability to resume work was due to the injury. Hav- ing been sent to the United States for treatment, he could not be ex- pected to return until the treatment is completed or until it is safe for him to leave the hospital. After he is discharged from the hos- pital, he must have a reasonable time in which to make the trip from the hospital to the place of his employment, and during the time necessarily taken to make this trip his inability to resume work is as much due to the injury as is the time necessarily taken to travel to the place of treatment and the time spent in the hospital. I have to advise therefore that the claimant's injury was such as to entitle him to compensation, and that the compensation should cover the time he is necessarily absent from his place of employment. 10. A workman wbos'e employment required him to occupy sleeping aud living quarters furnished by the Government, injured after hours, but at quar- ters, is injured in course of employment. [In re claim of C. K. Hott, Mar. 5, 1910 ; No. 2736 The facts in this case are as follows : Claimant was employed as a survey man in a United States sur- veying party using the United States steamer Mars, the quarterboat Illinois, and a fuel barge, which party was engaged in work along the Mississippi Eiver from Natchez, Miss., to Donaldsonville, La.., a dis- tance of between 100 and 150 miles. In the performance of this work it was necessary for the entire party to occupy the boats furnished by the Government for living quarters, taking their meals and sleeping thereon. After supper on November 9, 1909, while the fleet was moored near Red Eiver Landing, in the neighborhood of Torras, La., the decedent left the boat and proceeded to the town of Torras for the purpose of getting his pay checli cashed and making some purchases. In due time he returned to the boat and was met at the gang plank by the watchman with a lantern. He passed across the bow of the fuel barge, and in attempting to pass around a person on the gang plank who had stopped, he lost his balance and fell overboard and was drowned, the body being recovered nine and a half days there- OPINIONS OF SOLICITOE, DBPAKTMBNT OF LABOR. 303 after. Decedent was an unmarried man, but left a mother who w^as, within the meaning of the act of May 30, 1908, dependent upon him for support, and the claim for compensation is accordingly filed by the mother, Mary A. Hott. Did the accident occur in the course of employment ? It has frequently been held that employees injured in going to and returning from work are entitled to compensation. (See case of Elroy Lopez, Nov. 30, 1908, No. 169, p. 282,) In this connection no dis- tinction need be drawn between the time of employment and the point of time when actual work begins, since it has been held that the employee is " in the course of such employment " from the time he takes a train furnished by the Government to carry him to and from the place of work. This position has frequently been maintained by the courts, which have held that the employment begins upon the completion of the contract of employment : as, for instance, where one applies for work and his offer is accepted, and that for injuries sus- tained while on the premises of the employer the same have been held to be incurred while in the course of employment. In the case of Benson v. Lancashire & Yorkshire Railroad Co. (1 K. B., 242) the court said : I do not think that the protection given by the act (worlimen's compensation act) can be confined to the time during which a worliman is actually engaged In manual labor, and that he would not be protected during the Intervals of leisure which may occur in the course of his daily employment. A workman is not a machine and must be treated as llliely to act as workmen ordinarily would during such intervals; and as regards any reasonable use which, while on the employer's premises, he may make of moments when he is not actually working I must not be supposed to say that he would be thereby deprived of the protection of the act. It has been frequently held that where the employer provides quarters or transportation for the employees, such quarters or trans- portation are a part of the consideration paid for the services of such employee and consequently a part of the contract of employment. (See Holmes v. Great Northern R. E. Co., 2 Q. B., 409.) This point is further demonstrated by a series of cases wherein the employee is injured while off duty, but occupying sleeping and living quarters provided by the master. In such cases it has been held, although not uniformly, that the employee was injured in the course of his em- ployment, and where the accident was due to the negligence of a lellow servant, th?t there could be no recovery. (See I. & G. N. Ry. Co. V. Ryan, 82 Tex., 565.) From a consideration of the entire record as presented it appears that the decedent, at the time of the accident, was where his em- ployment required him to be, and while there, through no negligence or misconduct on his part, met with an accident causing his death. In view of the foregoing I feel fully warranted in reaching the con- clusion that the accident occurred in the course of his employment and that the claim should be allowed. [In re claim of Gottlob Joos, Sept. 7, 1912 ; No. 9116.] In this case the superior officer of claimant reports that the injury was not received in the course of the employment, and the facts in the case are as follows : Claimant was employed as a laborer in the Reclamation Service, and incidentally to his employment he was furnished, along with 304 wobkmen's compensation under act of may 30, 1908. other employees, a bunk house for lodging purposes which was located at the site of the employment. These bunk houses are occu- pied by several men, each taking a turn at supplying the wash water for all. At about 6 o'clock a. m. February 12, 1912, this claim- ant was in the act of taking his turn at supplying the water; while so doing he slipped on the ice and was injured. As the accident hap- pened during the interval between working hours the superior officer of claimant reached the conclusion that the injury did not arise in the course of the employment. In order to determine whether an employee is injured in the course of his employment, the facts, circumstances, and conditions of the employment should be clearly understood. In a letter, dated July 24, 1912) from the acting project engineer to the Director of the Reclama- tion Service, the conditions under which the employees occupy the bunk houses are shown as follows: The men are required to carry their own wash water to the bunk houses, and as several laborers live in one bunk house, the duty of supplying wash water is divided among the men, in order that no one person will be compelled to do more than his share of the work in this line. Under the circumstances of the employment in this case it was necessary that the employees remain in the locality of the work upon which they were engaged, sleeping in the houses provided by the Government for that purpose, and incidentally that they do the work necessary in connection with their occupancy of the quarters men- tioned. In the case of Charles E. Hott (C 2736, Bu. 5997) the claimant was employed as a survey man in a surveying party^ and it was neces- sary for the entire party to occupy the boats furnished by the Gov- ernment for living quarters, taking their meals and sleeping thereon. In returning one night to the boat which he occupied from a trip to a nearby town, he fell overboard and was drowned. Upon con- sideration of the facts and circumstances in that case it was said : It has been frequently held that where the employer provides quarters or transportation for the employees such quarters or transportation are a part of the consideration paid for the services of such employees and consequently a part of the contract of employment. ( See Holmes v. Great Northern R. B. Co., 2 Q. B., 409.) This point is further demonstrated by a series of cases wherein the employee is injured while off duty but occupying sleeping and living quarters provided by the master. In such cases it has been held, although not uniformly, that the employee was injured in the course of his emplojanent and where the accident was due to the negligence of a fellow servant that there could be no recovery. (See I. & G. N. By. Co. v. Byan, 82 Tex., 565.) From a consideration of the entire record as presented it appears that the decedent at the time of the accident was where his employment required him to be, and while there, through no negligence or misconduct on his part, met with an accident causing his death. In view of the foregoing I feel fully warranted in reaching the conclusion that the accident occurred in the course of his em- ployment and that the claim should be allowed. In this case, under the circumstances of the employment, it was just as necessary for claimant to occupy the bunk house for his living quarters as it was for Hott to have occupied the boat, and the pro- viding of such quarters must be regarded as part of the consideration paid for the services of the employee and consequently a part of the contract of employment. _ As he was, therefore, required to occupy these quarters and was injured while performing an act in connectioi; OPINIONS OF SOLICITOB, DEPARTMENT OF LABOR. 305 therewith, which was incidental to his contract of employment, I am of the opinion that the conclusion reached in the Hott case is ap- plicable herein, for which reason I have the honor to recommend that the claim be approved. 11. A workman Injured in going to assistance of a fellow workman, attacked by a third, was not injured in the course of employment. [In re claim of G. M. Armistead, June 13, 1910 : No. 3543.] The above-mentioned claim is forwarded to this office prepared for formal approval. From an examination of the papers showing the manner in which the injury occurred, it appears to be necessary to consider the same before recommending its approval. The description of the accident is given in the immediate report, as follows : The shovel engineer and a negro brakeman became involved in an altercation, and the negro attacked him with an iron bar and iSnally struck him in the head. This man, seeing the engineer's life in. danger, got down from shovel to defend him, and when he struck the negro in the teeth with his fist the back of his hand was badly bruised and lacerated and shortly after became infected. The claim was evidently prepared for formal approval upon the authority of the case of Cornelius Flemmings (C 2086, Bu. 5163), de- cided by this office under date of November 24, 1909. The facts in that case are quite different, however, from the facts in the present case. In that case the employee, while in the course of his employ- ment, was struck by a fellow employee, and it was said in the opinion that— The record in the case under consideration clearly shows that the injured employee was engaged in his regular duties at the time his arm was fractured by being struck with the iron bolt, and the evidence further shows that he did not provoke the assault nor contribute in any way to the same, and that he was therefore not guilty of negligence or misconduct. In the present case it is noted that two of the other employees be- came involved in a fight, and this claimant left his work and went to aid one of the fighters, and, in striking the other man, he suffered his injury. Thus it will be seen that the following question arises : Was the in- jured employee acting within the scope of his employment at the time he was injured ? Claimant was employed to perform services as a fireman, and un- less he was in the act of performing that particular work or by im- plication was performing some other service for the benefit of his employer, or incidental thereto, he can not be said to come within that provision of the compensation act providing compensation for em- ployees " injured in the course of such employment." At page 483, volume 1, of Dresser's Employers' Liability, it is said : With the exception of the negligence of fellow servants and dangers incidental to the business, the scope of the plaintiff's employment measures the risks which the servant- assumes and the duties owed him, • ♦ • when, there- fore, the servant of his own accord steps out of his sphere of service and meets new dangers, he can not expect that the master will protect him against them, and the master owes him no duty to do so ; the servant acts at his own peril. 93.364°— 15 20 306 woekmen's compensation undek act of may 30, 1908. •In speaking of a workman acting outside the sphere of his employ- ment, Willis, in his work, at page 35, has this to say : In the second place, the workman can not Increase the responsibility of his employer under the act by voluntarily taking upon himself work which is quite outside the character of the particular class of work which his employer has allotted to him ; and this is so although his self-imposed task may be in further- ance of his employer's business. In the case of Collins v. Collins (2 I. R., 104), found in Willis's work at page 31, arising under the English compensation act, the employer was assaulted by a stranger, the employee went to his as- sistance and was killed. It was held that the accident did not arise out of the employment. In the case of Armitage v. L. & Y. Ey. (4 W. C. C, 5), A mali- ciously threw a piece of iron at B, which struck the eye of C, who was at work, and it was held that the accident did not arise out of and in the course of the employment. While it is not necessary under our law for the injury to arise out of as well as in the course of the employment, as required under the English law, yet it is not to be said that compensation is payable. for any and every injury which may happen to an employee while around or about his work. This is partly guarded against by the provision that the injury shall occur without negligence or misconduct on the part of the injured employee. It is clear that in taking part in a fist fight between the engineer and the negro the claimant was not in the act of defending himself while in the course of his employment, but was only adding to the general confusion, which is to be avoided at all well-regulated places of employment: furthermore, his injury did not occur by reason of an attack upon him, but because of his striking the negro. If an em- ployee who goes to the assistance of his employer and is injured or killed while so assisting is not entitled to compensation, as above shown, then a stronger reason exists why an employee who goes to the assistance of another employee is not entitled to compensation for any injury sustained. It is shown by the record that the employee quit the work of his employment to engage in a matter foreign thereto. No service of the master was being performed, and it may be said that for the time being the relation of master and servant had been severed. As the servant had gone out of the scope of his employment in taking part in the fight, he assumed the risks incidental thereto, and the master owed him no duty in the premises. In view of the foregoing I am of opinion that the claim should not be allowed. 12. A raibroad conductor on an excursion trip, when the train was mn, with permission, by the employees for their own pleasure was not injured in the course of employment. [In re claim of C. C. Fitzpatrlck, Aug. 20, 1910; No. 4219.] The above claim is submitted to this office with special reference to the question, whether the accident occurred in the course of claimant's employment. _ From the immediate report, it is noted that claimant volunteered his services for the purpose of running a train on the night of June OPINIONS OF SOLICITOB, DBPAETMENT OF LABOH. 307 1 1-12, 1910, which train was known as the " opera special," which was run by and for the employees who wished to attend a theatrical performance. The use of the equipment was granted to the em- ployees by the officials of the commission and of the Panama Eail- road Co. The conductor and engineer volunteered their services, and the train crew was paid by a collection taken up among the party. In his claim, Fitzpatrick states that — I was asked by the Isthmian Canal Commission train dispatcher Mr. Mc- Neil, if I would run the special. This, however, I regarded as a favor, and not an order. I was to receive no compensation for it. A consideration of the foregoing shows that at the time of the ac- cident claimant was engaged upon a voluntary mission — running a train and transporting himself and other employees for the purpose of attending a theatrical performance at a distant point from where they were employed. That the running of this train had nothing whatever to do with the regular work or employment of the claim- ant or any of the other employees, and that the Government had no interest whatever in the trip is readily apparent, and, consequently, no service was being rendered to the Government at the time of the accident. Under section 1 of the act of May 30, 1908, it is provided that cer- tain employees are entitled to compensation when " injured in the course of such employment." While the foregoing provision has been given a liberal interpretation, it can not be said to extend to in- juries received under the circumstances above set forth. In this case the hours of labor had ceased and no service was being rendered to the Government. The employees were not at a place where their employment required them to be, but were upon a pleasure trip for their own amusement. At this time the officials of the Government had no supervision of the employees or of the train upon which they were traveling. No obligation for service rendered was incurred by the Government, and for the time being the relation of master and servant was severed. In view of the conditions existing at the time of the accident, I am of the opinion that the injury was not received in the course of employment, for which reason the claim can not be allowed. 13. A laborer having gotten his fingers frozen in course of employment, who later burned his fingers at home by accidentally setting fire to the bandages, was not injured as to the burn in the course of employment. [In re claim of A. M. Rockwell, Mar. 1, 1911 ; No. 5820.] The above claim is submitted to this office with special reference to the question whether the claimant was disabled for over 15 days as the result of an injury received in the course of employment. The facts in the case are as follows : While claimant was engaged upon the regular work of his em- ployment three fingers on his right hand were frozen. Upon return- ing to his home he put turpentine on his hand, bandaged it, and then soaked it thoroughly in turpentine. With the hand in this condi- tion claimant then attempted to put coal on the fire at his home, when the bandage caught fire and the hand was badly burned. 308 workmen's compensation tinder act or may so, 1908. As there was nothing in the record to show the length of time claimant would have probably been incapacitated on account of the frozen fingers, the Acting Secretary, under date of January 19, 1911, requested the Secretary of War to have claimant furnish a state- ment from his physician which would show whether the original injury would have caused incapacity for more than 15 days. In compliance with this request, there is now furnished by the attending physician the following statement, dated January 30, 1911 : This Is to certify that Mr. A. M. Rockwell has been under my care since December 21, 1910, for the treatment of burn of first three fingers of right hand. On a previous occasion said fingers had been frost bitten; this injury, howevet, was not severe enough to interfere with his work for more than a few days. The burned fingers have entirely healed, but owing to the de- struction of tissue and the contraction following Mr. Rockwell has been unable to resume his occupation for more than a few days at a time. In the case of T. F. Luttrell (C 852, Bu. 2638) claimant was incapacitated by reason of his feet being frozen, and it was held that claimant sustained an injury within the meaning of the com- pensation act. As the original injury in this case was of a similar nature, the conclusion in the former case is applicable here. The question then arises. Was the original injury of sufficient moment to cause incapacity for more than 15 days, and if not, does the fact that the injury was aggravated by reason of other circumstances which would not have intervened but for the condition caused by the original injury prevent the allowance of the claim ? From the foregoing statement of the attending physician, it is reasonably certain that the original injury would not have caused incapacity " for more than a few days." Owing to the hand being burned, incapacity existed from December 21, 1910, to January 12, 1911, and would probably continue for several additional days. The period of incapacity beyond " a few days " is therefore due to the injury received at his home by placing his hand bandaged and soaked in turpentine in too close proximity to a fire. This action would clearly appear to be negligence, but such negligence would not of itself bar a claim, for in an opinion dated March 17, 1909 (C 524), answering inquiries made by the commanding officer of the Water- vliet Arsenal, it was said : The negligence referred to in the statute is the negligence which causes the injury, not the negligence which may prolong the incapacity. Numerous cases have arisen where the question of proximate and remote cause has been considered. For instance, in the case of Wicks V. Dowell & Co. (Ltd.) (2 K. B., 225), the plaintiff was engaged in unloading a ship and in the course of his work had to stand oy an open hatchway. He was seized with an epileptic fit and fell into the hold and was injured. It was contended on behalf of the defense that the court should go back and discover the remote cause of the falling; that is, the fit. The court held, however, that regard must be had to the proximate cause of the accident, and that the court ought not to go back along the train of circumstances and tface the accident to some remote source when it is plain that the man was in fact injured by falling from the place where he was standing. Thus the court held that the proximate cause of the injury — the fall — should be re- garded and not the remote cause — the fit. OPINIONS OF SOLICITOR, DEPARTMENT OP LABOR. 309 Applying this principle to the present case we find that the proxi- mate cause of the injury, resulting in incapacity for more than 15 days, was the burn of the hand, while the remote cause may be said to be due to the fact that the hand had been frozen. The remote cause arose in the course of employment, while the proximate cause arose outside the course of employment. In Willis's Workmen's Compensation Acts, page 33, it is said : The question to be decided is whether the death or incapacity in fact resulted from the injury or whether, on the other hand, it was brought about by some new cause intervening after the accident. Again, on the same page of that work, it is said : The question whether death resulted from the injury resolves itself into an inquiry into the chain of causation. If the chain of causation is broken by a novus actus interveniens, so that the old cause goes and a new one is sub- stituted for it, that is a new act which gives a fresh origin to the after conse- quences. Thus it is seen that in the present case claimant sustained an injury in the course of employment, which, according to the statement of his attending physician, would have incapacitated him for " a f ew days." While so incapacitated a new injury intervenes, not con- nected with the employment, which causes incapacity for more than 15 days. The incapacity then is due to the new injury, which is the proximate cause, while the original injury may be said to be the re- mote cause. This case is easily distinguishable from that class of cases wherein the employee is suffering from a disease which is accelerated or ag- gravated by an injury, for in those cases the injury is the proximate cause of the incapacity, while the disease is the remote cause. In view of the foregoing I am of the opinion that the injury which prevented claimant from resuming work for more than 15 days was not received in the course of employment, for which reason the claim can not be allowed. 14. A watchman returning from work, injured after alighting from a labor train, while walking on the adjoining track, which was the only way of reach- ing the highway leading to his home, was injured in the course of em- ployment. [In re claim of Joseph Forde, Mar. 8, 1911; No. 5964.] The claimant in this case was employed by the Isthmian Canal Commission at Empire, Canal Zone, as a night watchman, and was injured on January 16, 1911, at 5.50 a. m., while going home from work, being struck by the ice train on the main line of the Panama Railroad between Lirio Mill and Culebra Station. The locomotive engineer, whose name is given in the report, was, apparently, the only eyewitness to the accident. The claim is submitted to this office with special reference to the following questions: (1) Did the accident occur in the course of employment? (2) Was the accident due to the negligence or misconduct of the daunant? 310 workmen's compektsation under act of may 30, 1908. In his affidavit of claim, dated January 28, 1911, the claimant thus describes the accident: The accident happened at 5.50 a. m., January 16, 1911, after I had completed my work at Empire as night watchman. At Empire I got on labor train to go to my home in Cow Pen, Culebra. I got off the labor train at regular stop- ping place nearest Cow Pen, and wallied in -a southerly direction along a track parallel to the one on which the labor train was running in order to get to my home. The labor train also went on ahead in a southerly direction. The noise from labor train prevented me from hearing the approach of ice train, also coming south on track on which I was walking, and I was struck and Injured. Daylight was breaking just about that time. No bell was rung nor whistle blown to warn me of my danger, neither was there any headlight on engine that might have attracted my attention to its approach. A certified copy of a statement made by claimant to a clerk of the central division, dated February 3, 1911, accompanies the report. This statement is substantially the same as.that of the official superior in his description of the accident, and is as follows : On the morning of January 16, 1911, I got on the labor train at Empire to ride to my home in Cow Pen, near Culebra. The labor train stopped at Lirio Mill to allow passengers to get on and off. I remained aboard until train reached a switch about 100 yards from the mill, where it stopped for brakeman to line up said switch, and I got off. I then got over on the southbound main- line track of Panama Railroad and walked south. When I had gone only a short distance I was struck by the ice train, which was going south also. There are several ways of getting to Cow Pen. One is by taking the road that leads from Lirio Mill over by Golden Green ; another is to take the public road, which is located about 20 feet west of the main line, and then go over the dumps. Referring to this statement in a further affidavit, dated February 9, 1911, the claimant says: On February 3, 1911, I made a statement to a clerk from the office of the division engineer, central division, and the certified copy thereof, signed by M. B. Hugg, clerk, central division, is correct in all respects as far as it goes. The statement of the division engineer on B''orm C. A. lb has also been read to me, and I wish to point out one fact which has been overlooked, which will explain why I walked along the tracks as I did. There is a ditch running alongside of the track on which I was walking at the time I was struck (i. e., the southbound main line of the Panama Railroad). This ditch runs between the track and the public highway. At a point a little south of the place where I was hit by the train (say, 30 to 40 feet) there was a plank which bridged that ditch to enable anyone to get over from the track to the highway, and I was aiming to get to that plank. It lay directly on my way home. The road which leads from Lirio Mill over to Golden Green, referred to in my statement mentioned above, was about 800 or 1,000 feet north of the place where I was struck and lay in the direction opposite to that which I had to travel in order to reach Cow Pen, my home. Cow Pen lies southwest from the mill. It should be remembered, as admitted by me in certified copy of statement hereinbefore referred to, that I did not get off the labor train at the mill, but got off 300 or 400 feet south of the mill, and then crossed over to the south- bound main line of the Panama Railroad and started to walk south to get to the plank which crossed the ditch so I could gain the public highway. When I was hit by the train I had already walked along the southbound railroad track, say, 600 to 800 feet. Over these 600 to 800 feet the track curves from southeast to southwest and the public road runs parallel to the track ; and, as stated before, I was only 30 to 40 feet from the plank so I could cross the ditch and get on to the highway. It would have been out of my way entirely to take the road leading from the mill to the public road, because that was 300 or 400 feet north of the place where I got off the labor train and my destination. Cow Pen, was in a southwesterly direction, and the plank leading from the railroad to the public road was in a southwesterly direction from the point where I got off the train. OPIKIONS OF SOLICITOB, DEPABTMENT OF LABOR. Bll The primary question presented by the evidence in this case is whether claimant, who was returning from work at the time of the accident, was in the course of employment. It is seen that he had left the regular labor train provided by the employer to carry em- ployees to and from their work at its nearest stopping place to his home, and that when injured he was pursuing the most direct route from the railroad to the public highway. In order to reach the high- way it was necessary for him to walk some distance along the rail- road in a southerly direction to a plank which bridged a ditch be- tween the railroad and the public road, and, so far as is shown by the evidence, the only means of reaching the highway from the rail- road was at that point. In attepipting to reach this plank, which leads directly to the highway, he was injured by the ice train, which was also going south. Even though he had abandoned the convey- ance, he was still upon the railroad owned and operated by his em- ployer and therefore upon the premises at the time of the accident. In the case of Joseph Chambers (C 862, Bu. 2825), who was in- jured on his way to work while following a path leading to a certain shovel where he was employed, I said with reference to the " prem- ises " at the Canal Zone : I think we may reasonably indulge the presumption that the " premises " of the employer Is extensive enough to cover all that part of the zone where actual construction work is being carried on and which is not used for residence, pleasure, or business not connected with the work. In the case of Holmes v. Great Northern Eailroad Co., 1900 (2 Q. B., 409), the claimant, an engine cleaner, generally employed by the railway company at K, was sent by his employers to work in an engine shed at H, about 4 miles distant. The workman, who lived near K, was taken by the railway company, free of charge, to their station at H, getting there shortly before the hour for commencing work in the shed. At the expiration of the first day's work he was brought back to K free of charge. He was told on the first day that he could cross from the station at H to the engine shed either by the bridge across the line or the subway under it. On the second morning he, with other engine cleaners who were going to the shed, crossed the tracks to save time, that being a shorter route than either the bridge or the subway. Whilst so crossing he was knocked down ijy'an express train and fatally injured. The county court judge awarded compensation, being of opinion that the accident arose out of and in the course of the decedent's employment, and holding that the fetaployment began when the man entered his employers' train at K. The court of appeals unanimously upheld the award. (See Euegg's Employers' litfii^ilityj etc., "1910, p. 358.) Thid — I am of opinion that the Secretary would be justified in allowing the claim upon satisfactory evidence that the injury did last more than 15 days. Such a situation might arise where the claimant after having pre- maturely filed his claim, and after he might have filed it at the proper time becomes so incapacitated that he can not file a new one. However, the law clearly contemplates that the claimant shall wait 15 days before filing his claim, and in the administration of the law I think this intention of Congress should be generally insisted upon. Furthermore, I am of opinion that in any event the Secretary would not be justified in approving a claim before the expiration of the 15-day period, and that his approval should be based upon evi- dence filed after the expiration of such period. In other words, the evidence which the Secretary ought to require is evidence that the injury did last more than 15 days rather than evidence that in the opinion of some person it would last more than 15 days. 10. The Government physician certified that he had treated an injury daily for a period of more than 15 days, but that the injury received did not show sufficient external evidence of violence to lead to the belief that it would cause incapacity for more than 15 days. As claimant made affidavit that he was unable to resume work for more than 15 days and the Government physician treated the injury for the same period, it was held that the preponderance of the evidence established a claim for compensation. [In re claim of Tea Smith, Feb. 3, 1914.] This claim has been prepared for disapproval on the ground that there is insufficient evidence that the employee was incapacitated for work for more than 15 days. 542 wokkmen's compensation undee act op may 30, 1908. An examination of the record shows that claimant sustained con- tused wounds of second and third toes of the right foot on Decem- ber 15, 1913, resulting in incapacity beginning on the following day. The immediate report states that the incapacity would probably continue for from 15 to 25 days. In his affidavit claimant asserts that he was first able to resume his ordinary work on January 5, 1914. It also appears from the medical certificate that claimant was treated by a Reclamation Service physician, who certifies that he first treated the injury on December 15, 1913; that he last treated it on January 4, 1914; and that during this period of time he saw or treated claim- ant daily, which covered a period of more than 15 days. • There is also in the record a further statement from the phy- sician, dated. January 14, 1914, which is as follows: The injury received by this man did not show sufficient external evidence of violence to lead to the belief that it would be a case that would cause loss in excess of 15 days. There is absolutely no method of examination, so far as I know, by which It is possible to tell if a man is really suffering to the degree which he claims, or is unable to perform manual labor. As far as is known to me, judging by the physical signs elicitable upon inspection and palpation, this man was as well able to work a week after the injury as he was when he returned to work. If the claim of a man as to his ability to work, in the absence of marks of violence, is to be the sole criterion by which to determine when he can work, an enormous field for malingering is opened up, and I am sure from my observa- tion here that it has already been far more than scratched. Thus it will be noted that the Government physician certifies that he attended or treated the injury daily from December 15 to Jan- uary 4, as shown by his certificate, while in his later statement he says that the injury received would not lead to the belief that it would cause incapacity in excess of 15 days. This informal and indefinite statement is the only thing in the record which raises any question on the contention of claimant, and there is no definite statement by the physician to show just when, in his opinion, claimant should have been able to return to work. Furthermore, it does not appear from the record that the physician ever at any time advised claimant that he had recovered sufiiciently in order to be able to return to work. As claimant had made an affidavit that he was incapacitated from December 15 to January 4, and as the Government physician treated him daily during that time, I am of the opinion that the great pre- ponderance of the evidence in the record establishes the fact that' claimant was incapacitated for more than 15 days. In view of the foregoing I have the honor to recommend that the claim be prepared for approval for the above-mentioned period. 11. The day on wlxich injury occurred should be included for the purpose of determining whether duration of incapacity existed for more than 15 days. [In re claim of Frank E. Taylor, Nov. 19, 1914.] The above-described claim has been prepared for disapproval on the ground that the incapacity did not continue for more than 15 days. As this action appears to be based upon the fact that the day OPINIONS OF SOLICITOR, DEPARTMENT OF LABOH. 543 the incapacity began was not regarded as a whole day in computing the period of incapacity, it appears advisable to consider this phase of the law, as it (3oes not heretofore appear to have been passed upon by this office. The facts in the case as shown by the record are as follows : On October 1, 1914, about 11 o'clock a. m., claimant sustained an injury and apparently continued on with his work until the follow- ing day at 11.30 a. m., when the condition of the injury became such as to cause him to cease work, the incapacity continuing until Octo- ber 17. The question therefore arises whether the injury justifying compensation continued for more than 15 days. It will be noted that the period from October 2 to 16 is just exactly 15 days, counting October 2 as a whole day. If this was the entire period of the in- capacity, it would be said that the injury did not continue for more than 15 days as required by the proviso to section 1 of the act of May 30, 1908, where it is said : That no compensation shall be paid under the act * * * unless said in- jury shall continue for more than 15 days. As the absence from work on account of the injury, however, did not apparently occur until about 11.30 o'clock a. m. on October 2, the question arises whether that date should be regarded as a full day in counting the period of incapacity or injury. It is a well-known rule of the common law, as well as a rule of construction of statutory law, that a day comprises 24 hours, and as was said in Attorney General v. Borough of Anglesea (33 Atl., 971)," a day is in law and in fact some period of a year which is the shortest ordinarily recognized at com- mon law." Again, in Hadon v. Buddensick (49 How. Prac, 241, N. Y.), it was said that: The law ordinarily takes no notice of portions or fractions of a day. It is only where the precise hour becomes material, as, for instance, in ascertaining the priority of liens, that a different rule obtains. Of course there are other instances wherein the day may be divisible for the purpose of preventing injustice being done, but in the absence of such equity it may be laid down as a general proposition that a day is an indivisible point of time. In arriving at the point of time when the " one year thereafter " period began to run, it was said at page 339 of the Opinions of the Solicitor, that the day of the accident must either be included or excluded; that to include it would be to follow the exception rather than the rule in the construction of statutes, and would, moreover, in some cases result in cutting off compensation before the expiration of a full year after the accident. In such a case the pre- sumption would arise that the employee was paid for a full day's wage on the day of the injury; consequently, in order to allow a full year for the injury, it would be necessary to extend the end of the period to one full year from the date of the injury. In a question of the character involved in this case it would appear that the opposite rule would be the proper course to pursue, in order that the employee may have the advantage of the full period covered by his injury, for it would not appear to be the proper procedure to strike out from his period of incapacity a full day's time when as a matter of law frac- tions of a day are not ordinarily regarded. 544 woekmbn's compensaiion xjndeb act op may 30, 1908. Adopting this rule in the present case, it will be observed that claimant was injured on October 1; that he became incapacitated sometime on October 2, which incapacity continued until and in- cluding October 16, thereby making a period of exactly 15 days, including the 2d and 16th. Now, as the claimant was injured on October 1, under the ruling laid down in the Fogg case (Op. Sol., 509), where it was presumed that some period of incapacity, how- ever small, would immediately follow the happening of an injury, the date of the injury may be added to give the period of incapacity the additional time to make more than the 15 days. In Fogg's case it was said: In regard to the day on whicli the injury occurred, on the other hand, I am of opinion that this would be Included, at least for the purpose of determining whether the duration of the incapacity existed for " more than " 15 days. Applying the foregoing to the facts as found herein, it would ap- pear that the injury in this case continued for more than 15 days. This conclusion, however, is not intended to alter or change the established practice in approving death claims to cover the first anniversary of the date of death, since in such cases the approval is for the full year, less any time for which payments may have been previously made on account of the injury. 12. When claimant's actual incapacity, due to injury from shock received at time of accident and developing later, continued beyond the period of disability (less than 15 days) covered by report of yard surgeon and about which condition there was a difference of opinion between the yard surgeon and the attending physician, held that doubt should be determined in claimant's favor. [In re claim of Robert Coleman, Jan. 26, 1915.] This claim is submitted with the inquiry whether there is sufficient evidence that the incapacity continued for more than 15 days. The reason for the inquiry arises from the fact that the yard sur- geon reported that the claimant, who was injured on November 3, 1914, was able to resume work on November 12, while the attending physician certifies that the incapacity continued until November 23, 1914. It does not appear that the case was sent to the examining physician designated by the department, consequently the only med- ical evidence regarding the period of incapacity shows opposite views on the part of each physician. The nature of the injury was a laceration of the left eyelid about 1^ inches in length, requiring two stitches, caused by striking an iron bracket. The employee reported at the yard dispensary immediately after the injury, when the stitches were taken and the employee returned to work for the remainder of the day. On the following morning he returned to work at the usual hour, but owing to head pains he was compelled to go home about noon, first reporting to the dispensary, but finding that the surgeon was not there at the time. He then asked the hospital apprentice what about his eye, and was told by him that he had given claimant the first treatment and that was all he could do. Claimant then called his own physician, who, according to the certificate of the latter, treated the former until OPINIONS OF SOLICITOR, DEPARTMENT OE LABOR. 545 November 20, giving five treatments during that period, viz, No- vember 4, 8, 12, 14, and 20. This physician certifies to the nature of disability as follows: Incised wound (lacerated) of left lid (li inches, requiring two stitches), lumbar pains, headache, general malaise. He further certifies that claimant was not able to resume his occu- pation until November 23. On November 12 the yard surgeon examined claimant and, finding the wound healed, took out the stitches. It is noted that the yard surgeon reported that the injury was over the eyebrow, while the immediate report, claimant's affidavit, and the attending physician's certificate refer to the eyelid as the injured part. In a letter dated November 24 the attending physician says that when claimant came to him he also, complained of severe pam of left temple, backache, and pain in limbs. It is also noted that the recorder of the labor board refers to the injury to the left eye. When claimant was before the board on November 25 he was asked why he did not report for work on November 12. He replied that when the yard surgeon took the stitches out he asked him whether he should call again and that the surgeon said, "No; it is not necessary; you have your physician outside." In a letter dated January 2, 1915, claimant has this to say con- cerning the pains he complained of: In reference to the pains in my head, I am positive they were due to the injury I received on the third (3d) of November, 1914, as they centered in the said injury. In an effort to keep from falling when I was struck I wrenched my back, which, naturally, causes severe pains in the lumbar region; and I were not physically able to resume work on November 12, and not until November 23. The attending physician, replying to a letter from the department, has this to say in a letter dated January 14, 1915 : In treating him he complained of symptoms referred to and claims that they dated from the time of his injury. I treated him without the knowledge of any relation he might have with the Department of Labor. It is quite possible that he received the injury at the time of his accident, and from his complaints would most truthfully say that he was warranted in absenting himself till the 23d of November. However, this is a matter with the department and Kobert Coleman. His eye injury would not alone compel him to have remained from work tiU the day he returned. From the foregoing it will be observed that in addition to the injury to the eye claimant contends that he also suffered pains in the head and back — ^lumbar pains. The attending physician certi- fies also to a condition of general malaise and further states that while the eye injury itself would not have compelled him to remain from work as long as he did, yet he believes he was warranted in so remaining away on account of the other complaints. While the physician does not say so in precise language, yet the inference to be drawn from what he says is that the pains suffered by claimant were a result of the shock he received at the time of the accident, and that his condition was such that he was unable to return to work before November 23. It therefore appears that so far as the yard 93364°— 15 35 546 workmen's compensation under act op may 30, 1908, surgeon and the attending physician report in regard to the eye injury they are agreed, but the difference of opinion concerns the other results which apparently arose from the injury. The yard surgeon was of opinion that the accident was not severe enough to cause the pains complained of by claimant and paid no attention to them, while claimant received treatment from his own physician on three occasions after the yard surgeon decided he had recovered from the wound of the eye. When the nature of the injury and the manner in which it was received is considered it would seem rea- sonable to suppose that the shock in striking the eye against an iron bracket of such moment as to cause two stitches in the eyelid, together with the strain to the back in attempting to avoid falling, would produce just such a condition as claimant suffered from. Whether the general malaise described by the attending physician was also due to the shock is not quite clear, as he does not so specifi- cally state. However, as he does certify that incapacity arising from the injury continued until November 23, and the circumstances sur- rounding the case appear to support him in this respect, and in view of the fact that the attending physician had better opportunity of observing claimant, I am of the opinion that any doubt arising should be resolved in his favor. 13. Where there is a conflict of opinion between Government surgeon and attending physician as to ability of claimant to return to work, and record sustains views of attending physician, claimant can not be forced to lose his right to compensation by being compelled by decision of Government surgeon to resume work before 15-day period expires. [In re claim of Walter J. Tyrrell, Mar. 3, 1915.] This claim has been specially submitted to this office with the fol- lowing inquiries: 1. Is there sufficient evidence of incapacity for more than 15 days? 2. Is the claimant entitled to compensation under the act of May 30, 1908? It appears from the report of the official superior, dated December 21, 1914, that on December 18 Tyrrell was injured in the course of his employment, his hand being caught in the machinery, resulting in the following condition: "Lacerated contused wound 2 inches long, dorsum and palmar surfaces, right middle finger." Following the above report the superior officer again reported, under date of December 31, 1914, that the incapacity had terminated on that date, and that claimant had returned to work. On the other hand, claimant alleges in his affidavit dated January 25, 1915, that he was incapacitated until January 6, 1915, when he was first able to resume work. By reference to the certificate of the attending physician it appears that he treated the injury seven times between December 19, 1914, and January 5, 1915. The extent and injury he gives as follows : Lacerated open wound on the anterior and posterior aspect of middle finger, right hand, wound extending down to the first joint on palmar aspect of finger, and the other wound on dorsal aspect extending to the periosteum and gapiug widely. OPINIONS OF SOLTOITOE, DEPARTMENT OP LABOB. 547 It is noted that the certificate is dated January 23, 1915, and in re- sponse to the inquiry therein as to whether there were any permanent results probable the physician says : Will take some time for joint wound to loosen up and thickening periosteum to absorb. It further appears from the record that on December 30 the claim- ant was examined by Dr. Kousseau, contract surgeon. United States Army, who made the following report on the result of his findings on that date : Mr. Walter Tyrrell, civilian employee, reported this date for examination for injury incurred at shops on December 18. His injuries are nearly healed, and it is believed that he can resume his work. A hospital attendant whom the superior officer advises had fol- lowed the case closely was present at the above examination, and immediately thereafter, on the same date, made the following affi- davit concerning his knowledge of the matter : Personally appeared before me one Sergeant (First Class) Ire E. Gates, Hospital Corps, United States Army, who, being duly sworn according to law, deposes and says : That he has been on duty in the ofBce of the surgeon, Water- vliet Arsenal, N. T., and was present when the following transactions oc- curred, viz : " On December 24, 1914, Walter J. Tyrrell, a civilian employee of the gun shop, Watervliet Arsenal, reported for the examination of injuries which he had received while working in the gun shop on December 18, 1914. At this examination he was found to have lacerated wounds of the skin on palmar and dorsal surfaces of the right middle finger, each about 2 inches in length. The injured finger was closely covered with adhesive plaster, which interfered with the circulation, caused swelling of the finger, and inflammation of the abraded surfaces. Tyrrell stated that the plaster had been placed on the finger by his physician. Dr. Rousseau instructed Tyrrell to return for reex- amination and treatment on Saturday, December 26, 1914. TyrreU stated that he could not do so, owing to his having made arrangements to visit his own physician on that date. Dr. Rousseau then instructed him to return here at 10 o'clock on Saturday regardless of the appointment with another physician. Tyrrell next reported on December 30, 1914. At this time the finger was properly dressed and the abrasions were nearly healed. He was instructed by Dr. Rousseau to return to his work on the following day (December 31 1914). Claimant was then ordered by his superior officer to return to work, and although he protested to the surgeon and the superintendent of the shop that his injury was not in condition to permit his return to the usual duties of his occupation, he was notified to be at work the next day or he would be marked " absent without permission." This, claimant states, would have resulted after two days of such absence in his discharge from the service. Under the alternative circumstances of facing dismissal or return- ing to work while protesting his inability to do so, he chose the latter course, and returned to work on December 31, 1914. After attempting to work he says that owing to the sore and painful con- dition of his hand he found he could not continue thereat and was compelled to quit, when he was told that he would have to request leave of absence. This, he states, he did for a day and three hours, but owing to the painful condition of his finger he had to remain from work for two additional days, thus bringing the period up to and including January 5, 191-5. 548 workmen's compensation' undee act of may 30, 1908. While on the face of things, as shown in the record, it might ap- pear to some that there was a conflict of opinion regarding the ter- mination of the incapacity period between the contract surgeon, United States Army, on the one hand and the claimant and his attending physician on the other, yet an analysis of the medical evidence presented does not appear to bear out any such hypothesis. At any rate, had there been such a conflict the matter should have been immediately called to the attention of this department, as di- rected by the regulations, so that an independent examination may have been directed by a physician selected by the department. However, taking the evidence in the case as presented, it is clearly established that on December 18, 1914, claimant met with what appears to have been a serious injury, as is indicated by the descrip- tions given by the superior officer and the attending physician. That such an injury would heal within 10 or 12 days and be suffi- ciently strong to withstand the unusually heavy work of a machinist constantly using the injured member in his work would not appear reasonable to the average lay mind, for an open wound 2 inches in length on the middle finger of the right hand would seem to be a very serious injury to that member. But in this case it is not neces- sary to resort to imagination to satisfy one that the incapacity had not terminated on December 30, 1914, when claimant was examined by the contract surgeon. To substantiate this statement reference is only necessary to be made to the certificate of the surgeon quoted above, wherein he says: "His injuries are nearly healed * * *." This, then, of itself appears to be a clear admission that the wound had not thoroughly healed, and such being the medical fact as found by the surgeon it is not understood how he reached the conclusion that since the wound had not healed the claimant was safely "able to resume work without aggravating the existing condition and probably causing further incapacity than would have existed if claimant had not returned to work until he was properly healed. The idea of sending a man back to work before he has safely recovered from his injury for the mere purpose of defeating his claim under the 15-day limitation does not appear to be in harmony with the beneficent spirit which prompted the enactment, and in such cases it would appear that greater damage and costs may arise from such action by causing other and further incapacity, thereby prolonging the period of disability. If anything more was necessary to satisfy the conclusion that the claimant had not completely recovered so as to resume work, refer- ence may also be had to the affidavit of the " competent hospital at- tendant" referred to by the superior officer in his report, without date, accompanying the papers. In his affidavit the attendant says: Tyrrell next reported on December 30, 1914. At this time the finger was properly dressed and the abrasions were nearly healed. He was Instructed by Dr. Rousseau to return to his work on the following day. Since the claimant had his own physician, who evidently did not think the injury had healed sufficiently to justify the return to work at that time, as the claimant contended that there was still pain and suffering in the injured member, and as the contract surgeon of the United States Army and the Government hospital attendant found OPINIONS OF SOLICITOK, DEPARTMENT OP LABOE. 549 on December 30 that the wound had not yet healed, it certainly most clearly appears that all the evidence indicates that claimant was not then able to resume the usual duties of his employment. XIX. "WIDOW." 1. A woman living as tlie illegitimate wife of an employee in the Canal Zone does not become, upon Ms death, his widow within the meaning of the act. [In re claim of Stanley Howell, May 8, 1909 ; No. 851.] From the papers submitted in connection with the above claim it appears that Stanley Howell, the deceased, and Irene McKenzie had been living as man and wife for about two years immediately pre- ceding Howell's death. In June, 1908, after they had been living together some time, Howell obtained a license to marry the McKenzie woman, but no marriage ceremony was ever performed. While they were living together they had one child, which died shortly after birth, and the woman is now enciente. Two claims for compensation are filed. One is dated January 30, 1909, and is made by Irene McKenzie. In this claim the name of wife is given as "Irene McKenzie (illegitimate)." The blanks for names of children and parents of the deceased are not filled out, and the claimant certifies, in the printed words of the form, that she knows of no other person entitled to compensation on account of the death of the employee. The other claim is dated February 3, 1909, and is made by Edward Davis Howell, the father of deceased. This claimant in like manner certifies that he knows of no other person entitled to compensation. The case is submitted to this office with special reference to the question whether Irene McKenzie as the widow of deceased is en- titled to the compensation or any part thereof. The status of the parties is governed by the law of their domicile. The Civil Code of Panama is in force in the Canal Zone. Article 115 of the Code provides: A marriage contract is constituted and perfected by the free and mutual consent of the contracting parties, expressed before the proper official, in the form and with the formalities and requisites established in this Code, and shall not produce any civil or political effects, if such forms, formalities, and requisites are not observed in its celebration. I can find nothing in the law which would Justify the recognition of a " common-law " marriage in Panama. Even if such a marriage could be recognized, there is nothing in the record which shows that the parties regarded themselves as husband and wife. On the con- trary, the deceased procured a license to marry the woman, indicat- ing that at that time he did not regard the woman as his lawful wife, and, as the license was never utilized, he could not have so regarded her at the time of his death; and the woman herself describes herself as an illegitimate wife. Neither is there any evidence to sustain the relations of the man and woman as a putative marriage. Their 550 v/orkmen's compensation under act of may 30, 1908. relations must, therefore, be regarded as illegitimate, and being such, their posthumous child, should there be one, must also be regarded as illegitimate, for the Code provides that legitimate children are those conceived during the real or putative marriage of their parents (article 6 of Law •6Y of 1887), that the subsequent marriage of the parents legitimates ipso jure the dhildren conceived before and bom after marriage, except if the subsequent marriage is presimied or putative (article 52 of Law 153 of 1887). I refer to the law in regard to legitimate children for the reason that although the child is not yet born, the Code provides (article 93) that — The rights which would be deferred to a child in the maternal womb, if It should be born and live, shall be suspended until the birth has talien place. And if the birth constitutes a beginning of existence, the new born shall, enter upon the enjoyment of said rights, as If he had existed at the time they were deferred. I am of opinion, therefore, that Irene McKenzie is not the " widow " of the deceased (see Bolton v. Bolton, 73 Me., 299) ; that her claim can not be allowed ; and that the claim filed by Edward Davis Howell is the only one properly before the Department. In reference to this latter claim, attention is called to the meager- ness of the information on which to base a judgement as to the de- pendence of the claimant. It is stated that he customarily received $5 per month from the deceased. The amount customarily received is only one of the factors from which to judge of dependence. The Department should be advised as to the financial condition of the parent, his earning capacity, etc. It is recommended, therefore, that the Isthmian Canal Commission be requested to furnish additional information along the line indi- cated. 2. The act does not operate to grant compensation to a woman who for several years lived in Barbados and as the " reputed wife " of an employee who was killed vt the Canal Zone, and to whom she had borne three illegitimate children. [In re claim of Fitz Agard, Mar. 9, 1910 ; No. 2957.] The above claim is submitted to this office with special reference to the question whether Madelin Long, reputed wife of deceased, is the widow within the meaning of the act of May 30, 1908. The claim for compensation is filed by Madelin Long on behalf of herself and three children. From the record it appears that the deceased went from the Bar- badoes to the Canal Zone and that he had been living with one Made- lin Long as his reputed wife; that during such relationship there had been born to the couple the three children named in the claim, who are all under 16 years of age and who survive him. It is upon this statement of the record that the question arises whether the said Madelin Long is his widow. There is nothing in the record to show that the parties were ever married, while on the contrary it is shown that the parties merely lived together, he holding her out as his " reputed wife." While the status of the parties is governed by the law of their domicile, there is nothing in the record which shows that such a OPINIONS 0]? SOLICITOR, DEPARTMENT OF LABOR. 551 telationship is recognized as a common-law marriage in the Barba- does. If such a law exists, it is a matter of fact which should ap- pear in the record, and in the absence of such showing it must be pre- sumed that such a status is not recognized and their relations must be regarded as illegitimate. The question whether persons occupy- ing similar relations were husband and wife was passed upon by this office in the case of Stanley Howell (C 851; Bu. No. 1950), wherein it was held that the claimant was not the widow of the deceased. In accord with that decision I am of the opinion that in the present case Madelin Long is not the widow of Fitz Agard, and is therefore not entitled as such to any part of the compensation. In this connec- tion, however, the record shows without doubt that there are three ille- gitimate children living, the result of the relationship, who are under the age of 16 years. As the claim is also properly filed in their behalf, and as I have recently held in the case or James F. Harding (C 2059; Bu. No. 1923) that compensation may be paid to illegiti- mate children, it appears that the compensation in this case should be allowed for the benefit of the children. 3. A woman who has been divorced from an employee and who has been given the custody of his children is not entitled to coT^pensation on account of his death, though the compensation may be paid to her as guardian for the children. [In re claim of Edward Niemeier (alias W. J. Nlemeier), Oct. 3, 1911 ; No. 7207.] This claim is submitted with special reference to the following question: Is claimant (a "divorced widow") a widow within the meaning of the act ? (Attention is invited to question 13 and reply, on page 1 of claim.) It is observed from the affidavit that claim is made by the "* di- vorced widow " in her own behalf as well as in behalf of two chil- dren of the marriage under 16 years of age. It is noted from the record that in granting the divorce the court awarded the custody of the two children to the mother. A woman who has been divorced from her husband is not the " widow " of the latter after his death (11 Op. At. Gen.; 30 Am. & E. Ency. Law, 521). The divorcee in the present case therefore would not be entitled to the payment of any part of the compensation ; and as there are no dependent parents whose interests should be considered, the entire amount of compensa- tion should be awarded to the two children and should be paid to the mother as their guardian for their use and benefit. XX. "CHILD OR CHILDIIEN." 1. The filing of an affidavit of claim by any one or more of the beneficiaries named in section 2 and referred to in section 4 is sufficient to protect the rights of a minor child if filed within the period of 90 days. rin re claim of A. G. Rodriguez, Dec. 13, 1909; No. 2334.] The deceased employee on account of whose death the above claim is made was accidentally killed on October 22, 1909. Besides a brother, who is still working on the canal, he left a father and mother 552 wokkmrn's compensation xjndee act oe may 30, 1908. living in Spain and a 6-year-old child. His wife died prior to the accident. The brother, in behalf of his parents, filed an affidavit of claim executfld on November 8, 1909. While this affidavit of claim gives the name and date of birth of the child, that part of the affidavit form which refers to other possible claimants is not filled out, except that the word " none " is written in the proper place to indicate that no person other than the father and mother is entitled to compensation. Assuming that the act of agency of the deceased's brother will be ratified by the father and mother, the case is sub- mitted to this office with special reference to the question, whether the claim, in its present form, could be approved in favor of the child. It is to be observed that the child is not old enough to make claim in his own behalf, and that no claim has been made in his behalf by the brother of the deceased or any other person. The 90 days within which the affidavit of claim must be filed in order to protect the rights of the beneficiaries will expire with Jan- uary 20, 1910. Suppose that when that time arrives no affidavit will have been filed by or in behalf of the child, will the child's rights under the act expire by limitation? It can not be held that the 90-day limitation does not run against a chUd, for this would be equivalent to holding that a child might, unless some other limita- tion is placed upon it, file an affidavit of claim 1 year, 10 years, or even longer, after the death. We can not apply the general rule that a statute of limitation does not run against a person during minority, for this would lead to an absurdity. One of the chief objects of the law is to provide for the helpless children of a deceased em- ployee, and it would be absurd to hold that such a helpless child might wait until majority, or until the age of 16, when such help- lessness is presumed to have ceased, and then make application for and receive the compensation provided for by the act. What, then, is necessary to protect the rights of the child? Sec- tion 2 of the compensation act provides, in effect, that the widow and child or children under 16 years of age and dependent parents of the deceased employee " shall be entitled to receive " certain com- pensation. This is the substantive part of the law, so far as the right of the child to receive compensation is concerned. It confers the right. Section 4 prescribes the course to be followed by " the persons entitled to compensation " in presenting their claims and necessary proofs. This is the adjective part of the law. It does not affect the right further than to say how and when it shall be estab- lished. It has already been held by this office that that part of section 4 providing that in each case an affidavit of claim shall be filed within 90 days is mandatory, and that unless this requirement is complied with no compensation can be allowed. See opinion of July 28, 1909, in the case of Sarauele Badolato (C 1517, Bu. No. 3317) and opinions therein cited. But this provision does not say that each person entitled to compensation shall file an affidavit, nor that only those who file affidavits within 90 days shall receive the compensation to which they may be entitled under section 2. The evident purpose of the 90-day limitation was to prevent stale claims coming up, when it might be practically impossible to obtain the essential facts on which the several rights might depend. It does not seem reasonable to assume that the Congress intended that each OPINIONS OP SOLICITOE, DEPARTMENT OP LABOH. 553 child under 16 years of age should file an affidavit. The Purpose of the provision is fully accomplished if the widow files an affidavit which shows her relationship to the deceased and the ground ot her claim, and gives the names and ages of the children under si^een years old, and the names of the decedent's parents, and the facts showing whether or not they are dependent. The law gives to the Secretary of Commerce and Labor the power and authority to appor- tion the compensation between the persons who may be entitled to receive it in such a way as to best accomplish the purpose of the act. In order to do this, it is necessary that he be fully advised as to the name and relationship of each person covered by the act, and the ground of the claim in each case, and this is to be done by affidavit filed within 90 days after the death of the employee. In the case of the widow and children it is only necessary to establish the rela- tionship. In the case of parents it is necessary to show, in addition to the relationship, the facts indicating dependence. In a case where an employee leaves a widow and a child and parents, and the widow files an affidavit giving all the facts, and justice seems to require that the whole amount of the compensation should be paid to the widow for her use and benefit and the use and benefit of the child, independent of whether the parents may or may not be dependent in some degree, no good purpose would be served by requiring the parents to file affidavits or to join in the affidavit of the widow. In the Brinkley case (C 8, Bu. No. 137) it was suggested that the official reporting a death should make a statement as to whether the parents were living, and, if so, that a statement be obtained from each, showing any facts indicating dependence, and, if no depend- ence is shown, that the statement be so framed as to amount to a release, but it was added that this was merely for the purpose of fully advising the Secretary. So I think in any case where the Sec- retary is fully advised by an affidavit filed by the " persons entitled to compensation," or any of them, within 90 days after the death, this gives him jurisdiction to allow the compensation, and to appor- tion it so as to best subserve the interests of all concerned. I have the honor to advise, therefore, that if the parents of the deceased employee in the present case ratify the act of agency done in their behalf by the brother of deceased the claim may be approved in such form as to make proper provision for the child, even though no formal claim be made specifically in behalf of such child. 2. The word " child " or " children " as used in the act-is not restricted to child or children born in wedlock, hut includes illegitimate offspring as well. [In re claim of J. F. Harding, Jan. 17, 1910 ; No. 2059.] The deceased was an artisan or laborer employed by the United States in the Canal Zone and was at the time of his death engaged in hazardous employment under the Isthmian Canal Commission. On December 12, 1908, without negligence or misconduct on his part, he was injured in the course of his employment by a premature ex- plosion of dynamite and " taken out dead." The claim filed on account of this death discloses the existence of two persons, either or both of whom may be entitled to compensation — namely, a father 66 554 WORKMEN ^S COMPENSATlOlir tTNDEB ACT OF MAY 30, 1908. years of age, alleged to be a " dependent parent," and an illegitimate child 7 years of age, both residing at Below Eock Village, Barbados, West Indies. The father is a butcher, earning between $3 and $4 a week, and is the owner of the house in which he lives. Before taking employment at the Canal Zone and while living in Barbados the deceased occasionally contributed to his father's support from 1 shilling to 2 shillings a week. The child is at present living with and is cared for by his maternal grandmother, who, together with his paternal grandfather, the father of the deceased, contributes to his support. Before going to the Canal Zone and while living in Barbados the deceased contributed toward the support of his ille- gitimate son from 4 to 5 shillings a week. Since his employment in the Canal Zone he contributed to the support of the child $9.60 a month. From the facts stated it can scarcely be contended that the father is a " dependent " parent within the meaning of the act. It is con- cluded, therefore, that the father's claim to compensation must be denied. The case turns accordingly upon the rights of the child in the premises. The compensation act, section 2, provides — That If any artisan or laborer so employed shall die during the said year by reason of such injury received In the course of such employment, leaving a widow, or a child or children under 16 years of age, or a dependent parent, such widow and child or children and dependent parent shall be entitled to receive, in such portions and under such regulations as the Secretary of Com- merce and Labor may prescribe, the same amount for the remainder of the said year as the said artisan or laborer would be entitled to receive as pay if such employee were alive and continued to be employed. The question, therefore, is squarely presented whether the word " child " or "children," within the meaning of the act, is restricted to legitimate children. It may be said at once that the word " child " or " children " when employed in a statute, as a general rule, subject to relatively few exceptions, is held by the courts to mean legitimate offspring only. Such at least is the prima facie meaning given, not to be enlarged unless imperatively necessary or clearly required by the context. (2 Lewis- Sutherland Stat. Con., 760; Endlich Interp. Stat., 105; 2 Words and Phrases, 1123 et seq. ; 7 Cyc, 124 et seq. ; Lavigne o. Ligue Des Patriotes, 178 Mass., 25; Porter v. Porter, 7 How. (Miss.), 110 ; Ala., etc., By. Co. v. Williams, 78 Miss., 209 ; McDonald v. Pitts- burg, etc., Ey. Co., 144 Ind., 459; Eobinson v. Ey. Co., 117 Ga., 168; Dicldnson v. Ey. Co., 2 Hurlst. Coltm., 734; Clarke v. Coal Co., App. Cas. (H. L.), 412; Gibson v. Ey. Co., 2 Ont., 658 ; Marshall w. Ey. Co., 46 Fed., 269.) Thus* in Dickinson v. Ey. Co., supra, which was an action brought on behalf of an illegitimate child on account of the death of its mother under Lord Campbell's Act, it was held that no recovery could be had. Pollock, C. B., saying : Beyond all doubt in the construction of this act of Parliament the word " child " means legitimate child only. This case was followed by the Queen's Bench Division of the Canadian High Court of Justice in Gibson v. Ey. Co., supra, where it was held that the mother of an illegitimate child could not recover damages for its death. The same view has been taken by numerous American courts. (See citations supra.) Notwithstanding, however, OPINIONS OF SOLICITOE, DEPARTMENT OF LABOR. 555 the weight of authority in support of this rule of interpretation, the reason on which it is founded is neither conclusive nor satisfactory, and authorities are not altogether wanting which lay down what would seem to be a better rule. Literally, of course, and according to popular acceptation, the word "child" or "children" refers to offspring, whether legitimate or illegitimate. Thus, the Standard Dictionary defines a child as " an offspring of either sex, considered with reference to the parent or parents," and children as " plural of child." In most of the cases which have restricted the meaning of the word to legitimate offspring the courts have simply followed precedent, without discussion, and have usually rested the decision, in cases involving statutes giving a right of action for wrongful death, on two grounds : (1) That statutes in derogation of the common law are to be strictly construed, and (2) that, prima facie, the word " child " or " children," when used in a statute, will, or deed, means legitimate child or children; that in other words, bastards are not, within the term, " child " or " children." (See Robinson v. Ry. Co., 117 Ga., 168, where the authorities are fully collected.) Where the reason for narrowing the scope of the term is set forth, it runs substantially as in the following passages from McDonald v. Ry. Co., supra, and Ala. & Vicksburg Ry. Co. v. Wil- liams, supra. In the former case, omitting citations, it is said : At common law a bastard has no father and was considered the son of nobody. He was sometimes called fillus nulllus, and sometimes Alius populi. A bastard can not be heir to anyone, neither can he have heirs, but of his own body ; for, being nullius filius, he is therefore kin to nobody and has no ancestor from whom any inheritable blood can be derived. It is a rule of construction that prima facie the word " child " or " children," when used either in a statute or win, means legitimate child or children; that is, that bastards are not within the meaning of the term " child " or " children." * * * We think it clear, both upon principle and the authorities cited, that the father of an Illegitimate child can not recover damages for the death of such child under the pro- visions, etc. In the latter case it was said : At common law an illegitimate child could not Inherit from his own mother or anyone else, and he could not transmit by Inheritance, except to heirs of his own body. He might become the propositus of a new line of descent from him- self, but until a child was born to him in wedlock he had no kindred — no father, no mother, no sister, no brother — and nothing which he did not acquire, all kinship was denied and no blood connection recognized, except that the courts for the actual protection of his life as a person in the body politic, would ascer- tain the natural mother, and, for the conservation of the morals and decencies of society, would look into his natural blood kinship in vindicating the statutes against incest. Statutes denouncing penalties reached him, as they did all other persons, but statutes could not be availed of which would improve his condition unless they expressly Included Illegitimates in their terms. The reason was to discourage adulterous connections. * * * if anything can be said to be settled on reason or authority it is that statutory rights of action given kindred for injuries done another do not embrace illegltlmiite kindred without express mention. Legislation must be presumed to be enacted In the light of the com- mon law, and not to give or enlarge rights denied at common law to a class separated by it from the common mass without express mention. The strict interpretation of the word, therefore, was originally re- quired to give effect to the rule of common law, that a bastard, being the child of nobody, is without father or mother and hence without the capacity of inheriting from a father or mother, or from any other ancestor, lineal or collateral. But is this any longer true, at least in the same sense and to the same extent as in earlier times? Even in 556 workmen's compensation undee act of may 30, 1908. Blackstone's day the only disability of moment was the incapacity to inherit. " The incapacity of a bastard consists principally in this, that he can not be heir to anyone, neither can he have he;rs but of his own body. * * * And really," he adds, " any other distinction but that of not inheriting, which civil policy renders necessary, would, with regard to the innocent offspring of his parents' crimes, be odious, unjust, and cruel to the last degree." (1 Bl. Com., 460.) " The rule that a bastard is nuUius filius," says Kent, " applies only to the case of inheritance." (2 Com., 215.) Statutes mitigating the severities of the common law with respect to illegitimates are universal in this country, so that few if any States remain in which laws have not been passed, recognizing in greater or lesser degree, the relation of parent and child and the right of the latter to inherit. " This relaxation in the laws of so many of the States," said Chancellor Kent, " rests upon the principle that the relation of parent and child, which exists in this unhappy case, in all its native and binding force, ought to produce the ordinary legal consequences of that consanguinity." (2 Kent Com., 213.) Thus the relation of parent and chud is recognized by statutes providing for legitimation by parental recognition or ac- knowledgement or by subsequent marriage of the parents, by statutes imposing upon parents the duty of support and dealing with the right to custody, by the so-called bastardy laws and by the laws admitting bastards to inherit, even to a limited degree. (5 Cyc, 622 et seq, where the several classes of statutes are referred to.) The effect of the laws last mentioned, conceding a right of inheritance, which are so common at this day, is to remove, in whole or in part, what Blackstone re- ferred to as the principal incapacity of a bastard. In the face of such statutes, and having m mind the law now generally administered throughout the United States, it is simply incorrect to say, in the lan- guage of the common law, that a bastard is incapable of inheriting because he has neither father nor mother and is the child of nobody. This being so, how can it be said in reason that the word " child " in legal instruments is necessarily limited to legitimate issue and can not be understood in the usual and proper sense as denoting natural offspring? Illegitimate children are children in fact, and it is only by a legal fiction, which has become largely outworn, that they have not been regarded as children in law. In Marshall v. Ey. Co. (120 Mo., 275) it was said: The ease of Dickinson v. Railroad, supra, was evidently decided on the ground that when a statute speaks of a child or children it means legitimate children ; and this for the reason that by the common law a bastard is looked upon as the child of nobody. * * * But this want of inheritable blood constituted the chief and principal incapacity of a bastard. * • * The harsh rules of the common law have been modified by express statute In this State, so that the mother is declared the natural guardian of her illegitimate child. • * • This section does not, it is true, legitimate a bastard, but it concedes to him inheritable blood on the mother's side. Instead of being the son of nobody, as at common law, he has a mother who is recognized as such by our laws. The duty of supporting him rests upon her, and she is entitled to his services dur- ing minority. As the chief and principal incapacity of a bastard has been removed so far as he and his mother are concerned, there seems to be no good reason why a statute which speaks of parents and children should not apply to a mother and her illegitimate child, unless there is something in the statute or subject abou- which it treats to show that it was not intended to apply to persons standing in that relation. It would seem, in fact, that some courts have been too ready to accept the statement that the word "child" had acquired an estab- OPINIONS OF SOLICITOR, DEPARTMENT OE LABOR. 557 lislied technical legal signification which excluded illegitimates, except where the language or circumstances imperatively demanded such an interpretation. Even in England, as early as 1786, the courts found no difficulty in extending the application of statutes based on the relation of parent and child to illegitimate children where it was thought that their acts were within the mischief aimed at. Thus a marriage act, "which declared void the marriage of minors without the consent of their parents or guardians, was held to apply to ille- gitimate children (E. v. Hodnett, 1 T. K., 96), Lord Mansfield observ- mg, " there is no reason to except illegitimate children, for they are within the mischiefs intended to be remedied by the act" ; BuUer, J., adding, " besides, the rule that a bastard is nullius filius applies only to the case of inheritances; it was so considered by Lord Coke" (and see E. V. Brighton, 1 B. & S., 447). Again, an act which made it penal to take an unmarried girl under sixteen from the possession of her parents against their consent was held to apply to tiie taking of a natural daughter from her putative father (E. v. Cornforth, 2 Stra., 1162). In this country, the Supreme Court has said, " ' chil- dren ' has a legal significancy, extending, as the case may be, to grandchildren and even illegitimate children" (11 How., 358). Muhl's Adm'r v. Ey. (10 Ohio St., 272), involved a statutory action for wrongful death, allowed to be brought by the personal represen- tative for the benefit of the " widow and next of km." The deceased left a lawful sister and an illegitimate son. The trial court having nonsuited the plaintiff because the child alleged in the petition to be next of kin was illegitimate, the Supreme Court reversed the ruling, held the suit well brought, and said, " it is evident that the nearness or remoteness of kin on the part of the son of the deceased mother, neither in fact, nor by any canon of descent under the statute, de- pended at all upon the circumstance of his being born within or without lawful wedlock." Eogers v. Weller (5 Bis., 166, 20 Fed. Cas., 1130), involved the question whether one illegitimate brother could inherit from another in Illinois. The deceased having left no issue and the mother having died, the brother was the nearest relative. The statute in such case provided that the estate should descend, one- half to the mother's "children" and one-half to her "next of kin." The court held the surviving brother to be entitled in both respects. As to the use of the word " children," the court said : The law uses the term " children " or " child," and it is contended on the part of the defendant that the term Is here used in its strict legal significance ; that it means children born in wedlock, or legitimate children of the mother ; that the term does not mean " offspring." But I am inclined to the opinion, and for the purposes of this case shall hold, that the term is there used in its proper signifi- cation and means the offspring of the mother. In Drain v. Violett (2 Bush., 157) it was said, "'children' and ' issue,' as used in this statute, are not necessarily confined to children and issue born in lawful wedlock, but include all such children and issue as are by law capable of inheriting," and it was held, accord- ingly, that a natural son, who had been made capable of inheriting from his father by special legislative act, could take as child of his father under the statute of descents (and see Power v. Hafley, 85 Ky., 676). In Security, etc., Co. v. Ey. Co. (91 111. App., 332) the ques- tion was whether, under a statute giving compensation on account of 558 "woRKMEisr's compensation under act of may 30, 1908. death by wrongful act, an action could be maintained on behalf of the mother of an illegitimate child, as next of kin of such child. In the court below it was ruled that the deceased, being illegitimate, could have no next of kin. The court said : The common law regarded an Illegitimate child as nulUus flUus for the pur- pose of inheritance. Being such, he could have no kin; could neither be nor have an heir. * * * The common-law rule has been materially modified in this State. * * * It is obvious that it may be said, with equal reason, that it was the intention of the legislature, by section 2 of the act of 1872, * * * to remove the common-law disability of illegitimates to transmit property by descent through the maternal line, and, in that regard, place such persons on the same footing as legitimate persons. That such was the intention of the legis- lature, we think too plain to require discussion. * * * It appears from the evidence that the deceased was an illegitimate child and died when he was about 4 years old. Therefore, his mother, for whose benefit the action was brought, is by the statute his next of kin and heir. In Coimecticut the courts have almost wholly discarded the com- mon-law doctrine respecting the status and rights of illegitimates and have definitely rejected the common-law definition of the word " child " or " children." Dickinson's Appeal from Probate (42 Conn., 491) turned on the proposition that legitimate children of an illegiti- mate daughter of one Mary Cotton had an interest in the estate of one Eliza Cotton, the sister of Mary, which would entitle them to appeal from an order admitting the will of Eliza to probate. The relation- ship of the testatrix to the appellants was necessarily traced through her sister and their grandmother to her illegitimate niece and their mother, and through the latter to them. In the probate court motion was made to dismiss the appeal on the ground that appellants were not heirs at law of the deceased and had no interest in or title to her estate, and the question thus raised was reserved for the advice of the supreme court of errors. The court first reviewed the situation of illegitimates at common law, and then, referring to changes accom- plished by legislation in the several States and contrasting the com- mon law of Connecticut with the common law of England, said: The laws of the different States of our Union differ widely as to the rights of illegitimates. Most of the States have passed statutes mitigating more or less the rigors of the common law and conferring rights which that law denied. The general tendency seems to be one of increasing liberality. In most, if not in all of the States, they inherit from the mother, and the mother from them. In some States they inherit from each other, from collateral kindred, and from the father, when there has been a general, notorious, and mutual recognition. In many of the States subsequent marriage of parents legitimates. Connecticut is one of the very few States, possibly the only one, that has passed no statute defining the rights of bastards. We have a common law of our own, built up from the usages and customs of our people and from various judicial decisions. It differs from the common law of England and from the Koman law. The decisions of the Connecticut courts were next examined and summarized as follows: It is abundantly clear from this examination of our law that we have departed very widely from the common law of England as applicable to illegitimates. * * * We have seen that it was at first held that a bastard derived its settle- ment from its mother, not from its place of birth. This was analogous to an interest derived by inheritance and recognized the legal relation of parent and child. It was next held that illegitimate children of the same mother could inherit from each other. This recognized the relation of brother and sister. It was then held that an illegitimate child could inherit from its mother ; and so the relation of parent and child was most directly recognized, and the recip- rocal rights and duties growing out of that relation were thoroughly established. OPINIONS OP SOLICITOR, DEPABTMENT OF LABOR. 559 From this examination is was concluded : After as careful a consideration of the question as we have been able to give, we think that the points decided in the cases we have quoted tend strongly to the conclusion that these appellants, by the law of Connecticut, are heirs at law of die testatrix, Eliza J. Cotton. Since the question was one of inheritance, however, it was necessary to consider the statute of distributions. On this subject it was said : In 1699 our statute of distributions, properly so called, copied substantially from a law of Massachusetts of 1692, was passed. Some alterations have been made in it from time to time, but the clauses bearing on the question before us, "to and among his children, and such as shall legally represent them, and if no child to the next of kin to the Intestate," have been changed but slightly in terms and not at all in meaning. By the common law no doubt the terms " child " and " children," when used in statutes, wills, and legal instruments generally, meant legitimate child and legitimate children, just as positively as If the term "legitimate" were prefixed. The case of Dorin v. Dorin (7 Eng. & Irish App., 568), decided by the House of Lords during the past year, carries this principle to such an extent as In our opinion entirely to frustrate the Intent of the testator and leave the corpus of the estate undisposed of. The still more recent case. In re Ayle's Trusts (1 L. R., Chan. Div., 282), decided since this case was argued, holds the same doctrine. We can not think that this was the meaning which our legislature affixed to these words in this statute. That body was made up generally of plain men, and they made laws for plain men. That they understood the terms " child " and " children," so far as the mother was concerned, to comprehend her illegitimate as well as her legitimate offspring, we entertain no doubt. They used those terms In their common, popular signification, rather than with reference to any legal or technical sense. They had as little reference to the technical meaning of words in the English common law as they had to the English law of inheritance, which they disregarded altogether. * * * The terms used In It. therefore, should not be construed with reference to like terms In an act of Parliament, but rather with reference to their ordinary, popular signification here in the colony. The numerous decisions which we have quoted from our reports, from the earliest to the latest, recognize the relation of mother and child existing as well when the child was illegitimate as when legitimate. That an illegitimate child is as certainly next of kin to Its mother as a legitimate child seems to us a proposition that does not require proof. We think of no plausible reason that can be given to the contrary. * * » A fair construction of our statute of distributions leads us, therefore, to the conclusion that these appellants have an interest as heirs at law In the estate of the testatrix. Nor does it seem to us that in reaching this result we are making a farther departure than we have already made from the English common law. The cases heretofore decided in this State involve prin- ciples which must control this case, and the decision we make is necessary to vindicate those principles and preserve the symmetry of our law. Commenting on cases in other States, holding a contrary view, the court said : But the appellees quote to us a number of cases decided in States where, by statute, bastards are authorized to inherit from their mothers and their mothers from them, and yet all right of inheritance among collaterals Is denied. To these cases we deem It a sufficient answer in the first place to say that In all those States the doctrine of the common law as to a bastard that he was nulUus filius was considered as established. The statute, being in derogation of the common law, was therefore to be construed strictly. The bastard was CO inherit to the extent, and only to the extent, specified in the statute. If the statute gave him a morsel of bread, the common law gave him a stone if he asked to have that morsel of bread enlarged. In Connecticut, as we have seen again and again, this doctrine of the common law as to bastards never obtained, and so these decisions lack applicability. 560 workmen's compensation under act of may 30, 1908. On the question of public policy involved, the court said : Facts, however, we believe, fail to show either the immorality or impolicy of our law. We have been at some pains to examine the statistics on this subject, but have not been able to obtain returns from any of our sister States. We doubt if such returns are generally made. In 10 years ending on the 31st day of December, 1874, there were born in this State 137,396 children, of which 1,118 (eighty one-hundredths of 1 per cent) were Illegitimate; as small a ratio, we venture to assert, as can anywhere be found. In England, for three years prior to and including 1860, the ratio of illegitimate to legitimate births was over 6i per cent; and in Scotland, for 10 years ending in 1870, It was 9.77 per cent. On the Continent, so far as we have had access to the returns, the ratio is generally much larger. The number of illegitimates now in England and Wales alone is over 1,000,000. Surely it is not beneath the con- sideration of a wise statesmanship, whether it is just or prudent, to cut off so lar^e a portion of the population, who are charged with no crime, from all rights of inheritance and isolate them almost absolutely from the body politic. The foregoing cases would seem to furnish abundant authority for holding that the word " child " or " children," when used in a statute, although unqualified, may be given its ordinary and proper signification as referring to offspring, whether legitimate or illegiti- mate, if such an interpretation is not inconsistent with the aim and policy of the enactment, this construction not being precluded by the mere fact that illegitimates were denied the rights of kinship and inheritance at common law. It will be, recalled that the cases applying the restricted meaning of the word invariably relied on the fact that the statute in question was in derogation of the common law, and therefore to be construed strictly. But the compensation act, the statute here in question, is not to be construed strictly, but liberally (C 209 ; 15 Comp. Dec, 463 ; 15 id., 6-t7; 27 Op. At. Gen., 350). As said by the Attorney General, " This is a beneficent statute, in the nature of an act granting pensions of limited duration and of special application. The language em- ployed appears to me to be clear and unambiguous, and should not be so construed as to exclude from its benefits any of those cases which it fairly includes." Considering the nature of the statute, as intended to confer a bounty, and in view of the propriety of giving it a liberal construction, the case of Walton v. Cotton, 19 How., 355, may be referred to. In that case the court considered the act of Congress of June 2, 1832, and several acts supplemental thereto, granting arrearages of pension to certain officers of the Revolution, and, in cases of the death of any such officer, then to his widow; if no widow, then to his " children." Notwithstanding the rule that the word "children" ordinarily includes only immediate ofepring, and will not extend to grandchildren unless a strong case of inten- tion or necessary implication requires it (Adams v. Law, 17 How., 421), the court held, in view of the nature and object of the statute, that the word " children " included the grandchildren of a deceased pensioner, saying : There is no argument which can be drawn from human sympathy, to exclude grandchildren from the bounty, whether we look to the donors or to the chief recipient. Congress, from high motives of policy, by granting pensions, alle- viate, as far as they may, a class of men who suffered in the military service by the hardships they endured and the dangers they encountered. But to withhold any arrearage of this bounty from his grandchildren, who had the misfortune to be left orphans, and give it to his living children, on his decease, would not seem to be a fit discrimination of national gratitude, • « • They OPINIONS OF SOLICITOE, DBPAKTMENT OF LABOK. 561 have not named grandchildren in the acts ; but they are Included in the equity of the statutes. And the argument that the pension is a gratuity, and was Intended to be personal, will apply as well to grandchildren as to children. * • * But they will be presumed to have acted under the ordinary influences which lead to an equitable and not a capricious result. And ^here the lan- guage used may be so construed as to carry out a benign policy, within the reasonable intent of Congress, it should be done. • * * See also Cutting v. Cutting (6 F. E., 259). Adopting the reasoning of the Supreme Court in the present case, it is difficult to see whyj if it is proper to extend the meaning of the word " child " in a pension act to include a grandchild, it is not like- wise proper, in a compensation act, which is equally beneficial in its nature, to allow the word its natural force as denoting offspring. In the one case as in the other, " there is no argument which can be drawn from human sympathy " to exclude the particular children in question. In both cases alike, though not named in the act, "they are included in the equity of the statutes." And the argument that the compensation, no less than the pension, " is a gratuity, and was intended to be personal, will apply as well to ' illegitimate ' children as to ' legitimate ' children." And surely in the one case no less than in the other. Congress " will be presumed to have acted under the ordinary influences which lead to an equitable and not a capricious result. And where the language used may be so construed as to carry out a benign policy, within the reasonable intent of Congress, it should be done." An examination of the workmen's compensation acts of other countries, ■which formed the basis on which our comj)ensation act was constructed, shows that in but one country, Austria, is the right to compensation expressly limited to legitimate children. In the acts of the other countries the words " child " and " children " are used as in our statutes without any qualification as to legitimacy. I have not been able to make aii examination as to the meaning which has been given to these words by the judicial tribunals of mese several countries. I have, however, examined the British law in this respect, since the law as it existed in England at the time of the passage of our compensation act is more persuasive as an indication of the intent of the Congress than the law of any other country. I find that the fatal accidents act, 1846 (Lord Campbell's Act) provided that every action for damages authorized thereby should be for the benefit of " the wife, husband, parent, and child " of the deceased person. In the case of Dickinson v. Ry. Co., supra, decided in 1863, it was held that the word " child " as used in this statute did not include a bastard. The employees liability act, 1880, did not use either of the words "child," "children," "parent," or "parents," but provided that in case of the death of a workman his "legal representatives " " and any persons entitled in case of death " should be entitled to the benefits of the act. The workmen's compensation act, 1897 (sec. 4 of First Schedule) provides that payment of com- pensation shall be made to " the legal personal representative " or " to or for the benefit of his dependents, and in section 7 of the act the word " dependents " is defined as meaning " in England and Ireland, such members of the workman's family specified in the fatal accidents act, 1846, as were wholly or in part dependent upon the earnings of the workman at the time of his death.''' The act of 1900 did not affect the matter under consideration. I have been unable to 93364°— 15 36 562 workmen's coMPEnrsATioiir undek act of may 30, 1908. find any decision in which the meaning of the word " child " or the word " parent " was involved, except the Dickinson case, supra, which was based upon the fatal accidents act, 1846, so I have no information as to how these words might have been regarded after the acts of 1880, 1897, and 1900 became effective. In the workmen's compensa- tion act, 1906, the legislature settled the matter by defining " depend- ents " as follows : " Dependents " means such of the members of the workman's family as were wholly or in part dependent upon the earnings of the workman at the time of his death, or would but for the incapacity due to the accident have been so dependent, and where the workman, being the parent or grandparent of an illegitimate child, leaves such a child so dependent upon his earnings, or, being an illegitimate child, leaves a parent or grandparent so dependent upon his earnings, shall include such an illegitimate child and parent or grandparent respectively. At the time of the passage of our compensation act, then, the workmen's compensation law of England applied to illegitimate chil- dren as well as to legitimate children. It thus clearly appears that, as a matter of public policy, even in England, there is no reason for withholding the benefits conferred by such laws from illegitimate children ; and it seems fair to assume that the Congress did not intend to shut out from the benefits of the act a class of persons coming within the literal description of its beneficiaries and to whom the English statute extends its benefits. Notwithstanding, then, the generally accepted view, and the nu- merous decisions in support of it, referred to at the outset, it is believed that the Secretary would be amply justified in holding that the chil- dren of a deceased employee, whether legitimate or illegitimate, at least if there is no reason to question the relationship, are entitled to the benefits of the compensation act. This would be no more than giving to the word " child " its natural import. It would likewise give effect to the tendency, noticeable in modern legislation, toward recognizing in illegitimates the same claims to parental care and support that belong, by natural right, to the young of any species. It would be sustained, moreover, by those authorities above cited, few in number but none the less persuasive, which announce what seems to be the more rational doctrine; and it would follow a principle of public policy which does not depend for its sanction upon the inflic- tion of vicarious punishment on the innocent and the helpless. On the other hand, to hold, as many courts have done, that the use of the word " child " in a statute, without any qualification indicating a restricted sense, always implies the issue of lawful wedlock, be- cause in generations past the law regarded a bastard as nullius Mius and heir to no one, is to adhere to a rule long after the reason, tor it has ceased to have point. Such an adherence to mere technicality, based on a legal fiction no longer operative, would be still less reason- able when dealing with a statute which, like the compensation act, is intended for a beneficial purpose and is expressly designed to relieve ordinary laborers and those dependent on them of the necessity of bearing the whole burden resulting from the inevitable accidents incident to the industry in which they are employed. Without saying of Congress what the court in Connecticut said of the legislature of that State, that it is " a body made up generally of plain men," it can be said that, in passing the compensation act, " they made laws OPINIONS OP SOLICITOR, DEPARTMENT OP LABOR. 563 for plain men " ; and it is at least fair to presume that they used the terms " child " and " children " in the statute in question " in their common, popular signification, rather than with reference to any- legal or technical sense," and that they " had as little reference to the technical meaning of words in the English common law as they had to the English law of inheritance." The compensation act does not in any way touch the matter of inheritance. In my opinion, therefore, for the reasons given, and on the strength of some of the authorities cited, the word " child " or " children," within the meaning of the compensation act, is not restricted to child or children born in wedlock, but includes illegitimate offspring as well. It is accordingly recommended that the claim of Edgar Mc- Donald Harding, the illegitimate child of James F. Harding, deceased, be allowed. 3. Where an employee dies, leaving no parent or widow but leaving a child en- titled to the benefits of the act, and the acting Spanish consul files an affidavit of claim on behalf of such child, such acting consul may be re- garded as acting in loco parentis and his affidavit as the affidavit of the child. [In re claim of J. G. Eedondo, May 2, 1910 ; No. 3218.] The above claim is submitted to this office with special reference to the following question: Can this be recognized as a valid claim on behalf of child (Prudencia Garcia Redondo) ; and if so, to whom should compensation payments be made? The facts in the case are as follows : Decendent left surviving him as entitled to compensation only a child 12 years of age, residing at Palencia, Spain, and the claim for compensation was filed in her behalf by the acting Spanish consul at Panama. It is upon this latter circumstance that the above ques- tion is based. It is noted that the child 12 years of age is the only person who would be entitled under the act to any benefits thereunder. As in this country a child of that age would not be sui juris, it fol- lows that a claim in its behalf could only be filed by a parent, as the natural guardian, a guardian regularly appointed by the proper au- thority or by a person who stood in loco parentis. Section 4 of the act of May 30, 1908, provides that— The persons entitled to compensation under this act or their legal representa- tives shall, within 90 days after such death, file with the Secretary of Com- merce and Labor an aflSdavit * * *. In this respect it may be said that the act of the Spanish consul as the representative of his Government, in filing the affidavit in behalf of the child did so in the capacity of loco parentis, which action appears to be as valid as though the same had been filed by a parent. That a parent may file such claim in behalf of a child is plainly seen from the action of this office in the case of Ralph W. Baugh (C 2063, Bu. No. 4740) . In that case the claim was filed on behalf of the chil- dren by an illegitimate father and the same was held to be a sufficient compliance with the provisions of section 4 of the act. In regard to that part of the inquiry relative to whom the payments should be made, the usual practice is to have a guardian appointed by the proper court, who could receive and disburse the funds for the 564 workmen's compensation tjndek act of may 30, 1908. benefit of the children and at the proper time or times render an accounting of the guardianship funds to the court making the appointment. It is noted by the record that the child has a sister 21 years of age. It is accordingly suggested that this sister be communicated with and advised that it will be necessary that some person should be duly qualified according to local practice to receive the compensation for tile use of the child, and that upon submission of satisfactory evi- dence of such authority, payments may be made to the person designated. ' 4. Where on account of the death of an employee compensation has heen allowed to the widow and child and the widow dies within the compensation period, and the care of the child devolves upon the child's maternal grand- mother, the remainder of the year's compensation may be paid to such maternal grandmother for the use and benefit of the child. (In re claim of J. E. Jefferson, Oct. 1, 1910; No. 2995.1 The above matter is submitted to this office with special reference to the following question: To whom should the compensation pay- ments on behalf of Wallace W. Jefferson be made payable, and what procedure is necessary to authorize such payments? The deceased in this case met his death on December 25, 1909, and under date of March 14, 1910, the Assistant Secretary approved the claim for the period ending December 25, 1910, the entire payment to be made to the widow for her own use and that of her child, Wallace W. Jefferson, and payments were accordingly so made. Under date of September 9, 1910, Mrs. Mary E. Culp, mother of the deceased employee and grandmother of the child, Wallace W. Jefferson, advised the Auditor for the Navy Department that the widow had died on August 30, 1910, and that the child had been left to her care to be reared and educated. Application is accordingly made for the payment of the remaining compensation for the benefit of the child. By reference to the proviso to section 2 of the act of May 30, 1908, it will be noted — That if the widow shall die at any time during the said year her portion of said amount shall be added to the amount to be paid the remaining beneficiaries under the provisions of this section, if there be any. In view of this provision ample authority exists in the Secretary of Commerce and Labor to direct that the entire payment be made to the remaining beneficiaries, and as the child, Wallace W. Jeffer- son, is in this instance the sole remaining beneficiary, I have the honor to recommend that the entire compensation be awarded to him. As the child, by the death of its mother, thus became an orphan, and as the care, custody, control, and maintenance of him have de- volved upon the grandmother, that person may be said to stand in loco parentis. Such a person, being charged with the support of the child, may also maintain any action for any injury done such chUd. (See Am. & Eng. Ency., vol. 21, pp. 1043, 1046.) As the act of May 30, 1908, makes no specific provision for pay- ment to any pai-ticular person for the benefit of a child or children under 16 years of age, it has been the uniform practice to make such OPINIONS OP SOLICITOK, DEPARTMENT OF LABOR. 565 payments to the parent. As the grandmother in this case stands in the place of the mother, I can see no objection to making the pay- ments to Mary E. Gulp, as trustee, for the benefit of the child. Ordi- narily it would be necessary to have a guardian appointed for the child, but as this would involve considerable expense, which would necessarily come out of the funds the child would receive, it would appear to be a useless and unnecessary proceeding, considering the amount involved. Before payment is made to the grandmother, how- ever, she should be required to file an affidavit setting forth her rela- tionship to the child, the death of the mother, and the fact that the care, custody, and maintenance of the child have devolved upon her. 5. Payment was authorized to the widow of a deceased employee, who died before any payment was made. Two children over 16 years of age filed claim for the compensation. Held that the children were not entitled as beneficiaries and that the amount which had accrued to the widow between death of employee and her death became part of her estate. [In re claim of Constantine Towle, Feb. 16, 1915.] It appears from the records herein that a claim for compensation was approved on January 15, 1915, for the period from December 20, 1914, to December 19, 1915, in favor of Catherine Towle, widow of Constantine Towle, who was drowned in the course of his employ- ment on December 19, 1914. It further appears that on January 22, 1915, before any payments were made to the widow under said ap- proval, she became deceased, and a claim is now filed by two daugh- ters of the decedent, Catherine M. and Eleanor M. Towle. These lat- ter claimants are aged, respectively, 30 and 24 years, and their claim is filed in the nature of dependent children. It is also noted from the claim affidavit of the widow that there were four other children, all of whom were over 16 years of age. In regard to the persons entitled to compensation in the event of the death of an employee arising in the course of employment, section 2 of the act of May 30, 1908, provides as follows : That if any artisan or laborer so employed shall die during the said year by reason of such injury received In the course of such employment, leaving a widow, or a child or children under 16 years of age, or a dependent parent, such widow and child or children and dependent parent shall be entitled to receive, in such portions and under such regulations as the Secretary of [Commerce and] Labor may prescribe, the same amount, for the remainder of the said year, that said artisan or laborer would be entitled to receive as pay if such employee were alive and continued to be employed : Provided, That if the widow shall die at any time during the said year her portion of said amount shall be added to the amount to be paid to the remaining beneficiaries under the provisions of this section, if there be any. From the foregoing it will be seen that the only persons entitled as beneficiaries in case of death of an employee are a widow, a child or children under 16 years of age, or a dependent parent. It is further provided that in the event the widow shall die at any time during the said year her portion of said amount shall be added to the amount to be paid to the remaining beneficiaries, if there be any. The beneficia- ries, therefore, who are specifically designated by this section are the 566 workmen's COMPENSAHOIf UNDER ACT OP MAY 30, 1908, widow, children under 16 years of age, and dependent parents. The record here shows that the only person entitled to compensation was the widow, all the children being over 16 years of age, and there being no dependent parents. There being no children under 16 years of age, there are no such persons existing who are described in the act as the remaining beneficiaries, as it is believed that a proper construc- tion of this provision contemplates only such children as are under 16 years of age. The claim having been approved on January 15, 1915, in favor of the widow for a period beginning December 20, 1914, it would appear that she should be entitled' to such amount as would have accumu- lated under the approval between that date and the date of her death on January 22, 1915, and that this amount would become an asset of her estate and payable to the legal representatives as mentioned in section 6 of the act. 6. A child which has been legally adopted according to the law of the domicile becomes entitled under the act the same as any other child named therein, [In re claim of Asenclon Estorga, Apr. 3, 1915.] The claim is submitted with the inquiry whether an adopted child of decedent is entitled to the benefits of the act of May 30, 1908. The record discloses the fact that decedent left a widow and a child under 16 years of age which, it is stated, was adopted five years ago, and a claim is filed by the widow on behalf of herself and the child. There is nothing further in the record to show whether the child was legally adopted according to the laws of the domicile, and, on the other hand, nothing appears to dispute this fact. It may therefore be assumed that the child was legally adopted. In the case of Juan Rodriguez (Bu. No. 9441) the question arose whether the father of an adopted son was a dependent parent within the meaning of the act, and it was held in an opinion by the Solicitor, under date of October 12, 1912 (p. 551), that as it was shown that the child was legally adopted in accordance with the practice and custom of the country of domicile the claimant, the adopting father, stood in the relationship of a natural parent and was therefore entitled to the compensation as a dependent parent. That being true, it would seem that a child should stand in the same position after being legally adopted as it would generally under the laws of most jurisdictions become an heir at law of the adopting parent or parents. I therefore conclude, considering that the child was lawfully adopted and stands in the relation of a natural-born child of the decedent, that as such it is entitled to a portion of the compensation payments. OPINIONS OF SOLICITOE, DBPABTMENT OF LABOB. 567 XXI. " DEPENBBNT PARENT." 1. A foster parent by legal adoption may be a dependent parent within the act. [In re claim of F. J. Hu£E, Nov. 24, 1.908; No. 160.] This claim should be returned for proper signature of claimant. Aside from this it is submitted with special reference to the question whether proof of dependence and adoption of the deceased by the claimant is required. The revised statutes, codes, and general laws of New York provide : Adoption is the legal act whereby an adult takes a minor into the relationship of child and thereby acquires the rights and incurs the responsibilities of parent in respect to such minor. * * * ^n adult unmarried person, or an adult husband or wife, or an adult husband and wife together, may adopt a minor in pursuance of this article, 'and a child shall not hereafter be adopted except in pursuance thereof. (Sec. 60, p. 1051.) (This law appears to have been in effect since 1873.) The child takes the name of the foster parent. * * * The foster parent or pa'rents and the minor sustain toward each other the legal relation of parent and child and have all the rights and are subject to all the duties of that relation, including the right of inheritance from each other, etc. (Sec. 64, p. 1053.) Section 62 prescribes certain formalities requisite for formal adoption. An adopted parent in New York is therefore in the same position in regard to this claim as a natural parent would be under the same circumstances. Adoption, like marriage, is a civil contract, and, as a general rule, following the opinion in the William A. Brinkley case under this act, where there are no circumstances which may raise a doubt of the relationship, where it appears that the deceased has lived with and supported a woman who claims to be and was claimed by the deceased to have been the mother by adoption of such deceased, and where the reporting officer, as in this case, states that such relationship existed, it may safely be assumed that the relationship is established. Upon the question of proving dependence of the parent upon the deceased the opinion in the Brinkley case may again safely be fol- lowed, to the effect that a statement by the claimant is sufficient to establish such dependency. In this case claimant states that she necessarily depended upon the deceased, customarily receiving $6 weekly out of his salary of $1.75 a day. Deceased received the injury which caused his death in the course of employment, and said injury was not due to any negligence or misconduct on his part. Therefore I am of the opinion that said claim has been established, but that proper signature of the claimant should be affixed to Form C. A. 16. 568 workmen's compensation under act of may 30, 1908. [In re claim of Frank J. Hu£E; No. 160.] DECISION OF THE COMPTROILER OF THE TREASURY. 1, So long as the injury continues the employee la entitled to his status at the time of the injury and must be paid compensation as if he continued to he employed. 8. The payment of compensation provided for contemplates a continuing liability, and even in case of death that the payments will be made as they would have accrued, 3i An adopted mother must sustain the legal relation to the employee of a parent before a payment can be made to her as a " dependent parent " within the meaning of the com- pensation act, Sir : I have received by your authority of the 9th instant a letter from Col. W. L. Fisk, Corps of Engineers, United States Army, dated the 6th instant, as follows: (1) I have the honor to forward herewith voucher in favor of Honor F. Huff for compensation on account of the death of Frank J. HufC, stated at $528.50. (2) In making up the voucher under the approval of claim attached all days except Sundays between the dates given are counted as working days, for which payment is to be made, as follows : Days. August 18 to 31, 1908, inclusive 12 September, 1908 26 October, 1908 27 November, 1908 25 December, 1908 27 January, 1909 26 February, 1909 24 March, 1909 27 April, 1909 26 May, 1909 26 June, 1909 26 July, 1909 27 August 1 to 4, 1909, inclusive 3 Total 302 (3) It will be seen that the time stated Includes the winter season, when the work is ordinarily shut down, during which time the deceased would not have had employment under this office had he lived. (4) Should payment be made for the winter season, and should it be made for the entire period before the expiration of that period? (5) Is the above computation of time correct, and am I authorized to pay the voucher as stated? The act of May 30, 1908 (35 Stat., 556), provides: That when, on or after August first, nineteen hundred and eight, any person employed by the United States as an artisan or laborer in any of its manufac- turing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortification work, or in hazardous employment on construction work in the reclamation of arid lands or the management and control of the same, or in hazardous employment under the Isthmian Canal Commission, is in- jured in the course of such employment, such employee shall be entitled to receive for one year thereafter, unless such employee. In the opinion of the Secretary of [Commerce and] Labor, be sooner able to resume work, the same pay as if he continued to be employed, such payment to be made under such regulations as the Secretary of [Commerce and] Labor may prescribe. * • • Sec. 2. That If any artisan or laborer so employed shall die during the said year by reason of such injury received in the course of such employment, leav- ing a widow, or a child or children under sixteen years of age, or a dependent parent, such widow and child or children and dependent parent shall be entitled to receive, in such portions and under such regulations as the Secretary of 0Pll>riON^S OP SOLICITOR, DEPARTMENT OP LABOB. 569 Commerce and Labor may prescribe, the same amount for the remainder of the said year that said artisan or laborer would be entitled to receive as pay If such employee were alive and continued to be employed : Provided, That If the widow shall die at any time during the said year her portion of said amount shall be adde4 to the amount to be paid to the remaining beneficiaries under the provisions of this section, if there be any. • •**••* Sec. 4. That in the case of any accident which shall result In death, the per- sons entitled to compensation under this act or their legal representatives shall, within ninety days after such death, file with the Secretary of Commerce and Labor an affidavit setting forth their relationship to the deceased and the ground of their claim for compensation under the provisions of this act. * * • If the Secretary of Commerce and Labor shall find from the report and affidavit or other evidence produced by the claimant or his or her legal representatives, or from such additional investigation as the Secretary of Commerce and Labor may direct, that a claim for compensation is established under this act, the compensation to be paid shall be determined as provided under this act and approved for payment by the Secretary of Commerce and Labor. • ****•* Sec. 6. That payments under this act are only to be made to the beneficiaries or their legal representatives other than assignees, and shall not be subject to the claims of creditors. The date of the injury is stated to be August 4, 1908. The date of death is not given in the papers submitted, but on inquiry it was ascertained that he died August 17, 1908, and compensation is ap- proved by the Secretary of Commerce and Labor from August 18, 1908, to August 4, 1909, at $1.75 per day, to be apportioned as follows : Entire payment to be made to Honor F. Huff, adopted mother of the deceased. The voucher submitted is for one entire payment for 302 working days of 8 hours each, at $1.75 per day, $528.50. The following questions affecting your right to make the payment appear from this record, viz: 1. Should the time during which the deceased would probably not have been employed if he had lived be excluded from the payment? 2. Is the adopted mother a " dependent parent " within the mean- ing of that term as used in the act of May 30, 1908 ? 3. Can the payment be made in one lump sum to a beneficiary in case of death before the expiration of a year from the date of the injury? I will decide these questions in the order in which they are stated. 1. This is a beneficial statute and should be given a liberal con- struction. It is. the initial statute on the subject covered and is in- tended to be completB within itself without reference to other laws. It was intended to cover payments for two classes of injuries, those resulting in death and those merely disabling the employee. It provides in section 1 that if the employee coming within its pro- visions " is injured in the course of such employment " he " shall be entitled to receive for one year thereafter," unless sooner able to resume work, " the same pay as if he continued to be employed." Section 2 provides that if the artisan or laborer dies by reason of said injury during the year and leaves a widow or a child or children under 16 years of age, or a dependent parent, " the same amount f 01' the remainder of the said year that said artisan or laborer would be entitled to receive as pay if such employee were alive and con- tinued to be employed " shall be paid to such beneficiary. The pay in both cases is designated to be the same as if he " continued to be 570 workmen's compensation trNDER ACT OF MAY 30, 1908. employed." The statute seems to be based upon the assumption of a continuation of his pay status at the time of the injury for one year thereafter, unless he was sooner able to resume work. He is to be paid during the period the same pay as if he continued to be em- ployed. His pay on account of the mjury is based on a status that the statute assumes would have continued but for the injury. The payment should therefore be made in accordance with this assumed status. It is not therefore material what would have been his actual status if he had been uninjured. So long as the injury con- tinues we must deal with the employee and pay him in accordance with the assumed status given m the statute; that is, "as if he continued to be employed." If the employee had continued to be employed he would have been paid for all days except Sundays. The assumed status would not include payment for these days for the reason that had he remained alive, uninjured, and employed he would not have been paid for these days. All days should therefore be included under the facts shown except Sundays. I have not overlooked the decision of this office reported in 5 Comp- troller's Decisions, 694, in which the act of May 4, 1882 (22 Stat, 57), providing for carrying members of life-saving crews on the roll for a period of one year, is construed. The language of the two acts is not the same, nor so similar as to make the decision on the act of May 4, 1882, an authority in construing the act of May 30, 1908. 2. The claim can not be assigned, and the adopted mother must sustain the legal relation to the employee of a parent before a pay- ment can be made to her as a " dependent parent " within the mean- ing of the act of May 30, 1908. The adopted mother lives in the State of New York, and it is as- sumed that the employee was a resident of the State of New York at the time of death. The law of that State would therefore govern in determining whether she may be held to be a " dependent parent." The Revised Statutes of New" York, 1895 (p. 2350) , provides that: A child when adopted shall take the name of the person adopting it, and the two thenceforth shall sustain toward each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation (including) the right of inheritance. * * * It is assumed for the purpose of this decision that the Secretary of Commerce and Labor has found that Honor F. Huff legally adopted Frank J. Huff imder the laws of the State of New York, as her child, and that she was dependent on him for support. I am of the opinion that under the provisions of the statutes of the State of New York, above quoted, a person who legally adopts a child under the laws of said State may take as the dependent parent under the act of May 30, 1908, supra, if he is in fact dependent on such adopted child for support. This decision, however, must be confined to the facts in this case, and would not necessarily apply to a payment to a mother by adop- tion as a dependent parent in any State other than New York. 3. The act of May 30, 1908, refers to the payment as " compensa- tion " and contemplates a continuing liability, and that the payments will be made as they accrue or would accrue if the employee had OPINIONS OP SOLICITOR^ DEPARTMENT OF LABOR. 5Y1 lived and continued to be employed. This is clearly indicated in the proviso to the second section of the act, wherein it is provided — That if the widow shall die at any time during the said year her portion of said amount shall be added to the amount to be paid to the remaining bene- ficiaries under the provisions of this act, if there be any. If the entire amount were paid to the widow or any other bene- ficiary under this act this proviso could never have any application in the very cases which it was intended to cover. The necessity for this proviso arose from the fact that the payments were to be con- tinuing. The entire sum can not therefore be paid in advance of the expiration of the year from the date of injury. Where a pay- ment is made prior to the expiration of a year it should cover only such compensation as would have accrued to the employee had he lived and continued to be employed to the date of payment. You are therefore advised that the voucher should be recast and made to cover payment for the period from the date of death to the date of payment, at $1.75 per day, for all days except Sundays. When recast it should be returned to the Secretary of Commerce and Liibor, with a copy of this decision, and if he should return the claim approved for payment as appears in the voucher as recast, you would be authorized to ,pay it. Other payments are authorized as the compensation would accrue to the employee if he were alive and continued to be employed. The inclosures are returned herewith. Respectfully, E. J. TRACEWEiJi, Comptroller. The honorable the Seceetaet of War. 2. The word " parent " does not include a stepfather or stepmother. [In ro claim of Alexander McMurray, Mar. 20, 1909 ; No. 467.] The employee, on account of whose death the above claim is made, was injured, and died under circumstances which would authorize the payment of compensation to the " widow, or child or children under 16 years of age, or a dependent parent." The deceased left no widow or child or children. His mother died when he was quite young, and when he was about 4 or 5 years old his father married the claimant, who is his stepmother. When he was about 11 or 12 years old his father died. His stepmother to'ok care of him until he was able to support himself, and since that time he has contributed to her support. About four or five years ago he left Chester, Pa., where the claimant still lives, and within the past year he sent her money out of the wages earned by him as an employee in the navy yard at Brooklyn, N. Y. The primary question in this case is whether a stepmother is entitled to the benefits of the act upon the death of her stepson, injured in the course of his employment, and dying as a result of such injury. The language of the act (sec. 2) is as follows: That if any artisan or laborer so employed shall die during the said year by reason of such injury arising in the course of such employment, leaving a widow, or a child or children under 16 years of age, or a dependent parent, 572 WOEKMEN-'s COMPENSATION UNDER ACT OF MAY 30, 1908. such widow and child or children and dependent parent shall be entitled to receive, in such portions and under such regulations as the Secretary of Com- merce and Labor may prescribe, the same amount, for the remainder of said year, that said artisan or laborer would be entitled to receive as pay If such employee were living and continued to be employed. As the act was originally framed the beneficiaries in case of death were the widow or a child or children under 16 years of age, and " a dependent mother " ; but, as reported to the House and subsequently enacted, the word " parent " was substituted for the word " mother." Undoubtedly, by this change, it was the intention to extend the ap- plication of the act. But was it intended to extend it so far as to include not only the father, but the stepfather and the stepmother? I am constrained to believe that such was not the intention, or at least that such an intention can not be imputed, in view of the lan- guage used and in view of certain accepted rules of statutory inter- pretation. It will be observed that, in naming the persons who are entitled to receive compensation in case of the death of an injured employee, the statute proceeds by way of specific enumeration rather than by way of general description. In this it differs from the British em- ployers' liability act, which first mentions a general class, namely, dependents," using that word as a substantive rather than as an adjective, as in the statute here in question. It next proceeds to define " dependents " as " members of the family," and then, proceed- ing from general to particular, it declares that member of a family " shall mean " wife or husband, father, mother, grandfather, grand- mother, stepfather, stepmother, son, daughter, grandson, grand- daughter, stepson, stepdaughter, brother, sister, half-brother, half- sister." The present act, on the other hand, refers to no general class, but names specifically ^' the widow," a definite person, and omits to name the surviving husband ; it names the children under a certain age and omits to name the stepchildren ; it names the parents, but omits to name, not only the step-parents, but the grandparents and the brothers and sisters. It seems to me that this enumeration is significant, not only on account of the definiteness with which the several persons entitled to the benefits of the act are named, but also by reason of its omissions; and I am forced to conclude that the words used should be understood in their ordinary sense, with- out any enlargement, and should be taken to refer only to the par- ticular persons mentioned. "As exceptions strengthen the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated" (Lord Bacon quoted, Bishop Written Laws, sec. 245). In the interpretation of terms employed m a statute it is proper to apply to them the meaning naturally attaching from their context and suggested by associated words (148 Tj. S., 519) ; and, unless such a sense is repelled by the context, the legislature must be presumed to use words in their popular and ordinary signification (6 Pet., 110). The word "parente," according to Bouvier, refers to "the lawful father and mother of the party spoken of." Just as the word " children," when found in a statute, is held not to include " stepchildren " ( Tepp er v. Eoyal Arcanum, 59 N. J. Eq., 331 ; Cut- ter V. Doughty, 2^vv end., 513) , so the word " parents," in its ordi- nary acceptation, does not include the stepfather or the stepmother (Heinemier v. Ajrlitt, 29 Tex. Civ. App., 144; Marshall v. Lumber OPINIONS OF SOLICITOK, DEPAETMENT OP LABOK. 573 Company, 103 Ga., 725; Six Words and Phrases, 5174). In the case last cited the question involved was not unlike the one now under consideration. Under a statute providing that " a widow, or if no widow, a child or children, may recover for the homicide of the husband or parent," suit was brought to recover damages by reason of the defendant company's negligence causing the death of the plaintiff's stepfather. In discussing the meaning of the word " parent," as used in the statute, the court said : The clear meaning of these words in the first sentence quoted Is. that a widow may recover for the homicide of her husband, and, if no widow, a child or children may recover for the homicide of the father. It is contended in this case that the stepfather stands in loco parentis as to his stepchildren, and that the latter may recover damages for Oie negligent homicide of the former. Our attention has been called to no authority in which it has ever been decided that the word " parent," either in the legal or ordinary acceptation of that term, includes a stepfather or stepmother. It is true that cases have arisen in which it has been held for some purposes that the stepfather may stand in loco parentis as to the children of his deceased wife. For Instance, where he assumes the care and custody of his infant stepchildren, so long as he maintains them as members of his family under the parental roof the law would give him the right to control and govern them as he would his own children ; and he would also have the right to protect them against wrong and injury. But it would not follow from this either that he was under any legal obligation to maintain and support them or that the children would have any legal interest in his life. I am imable to find any case where the word " parent," used in a sense similar to that in which it is used in the act of May 30, 1908, has been held to apply to a stepfather or a stepmother. For the reasons given, therefore, I can not avoid the conclusion that the injured employees compensation act does not authorize the payment of compensation to the stepmother of a deceased employee whose death was due to injuries received in the course of his employment. 3. The question of dependence is one of fact, and the fact of dependence suf- ficiently appears if a condition of partial dependence is shown. Contribu- tions by the deceased tend to establish a condition of dependence, but is not the only criterion. The natural and equitable claim for support which the parents have upon their children makes it proper to consider the actual needs of parents; and in ascertaining such needs, it is necessary to look to their age, circumstances, position in life, and earning capacity. [In re claim of Theodore Rock, Mar. 24, 1909 ; No. 516.] This case is submitted, first, with reference to the question whether the date of the affidavit shall be regarded as the date of filing the claim, in accordance with section 4 of the act of May 30, 1908, which provides that " in case of any accident which may result in death the persons entitled to compensation under this act or their legal repre- sentatives shall, within 90 days after such death, file with the Secre- tary of Commerce and Labor an affidavit setting forth their relation- ship to the deceased and the ground of their claim for compensation under the provisions of the act." The injured employee met his death August 14, 1908. The date of the affidavit in this case is September 28, 1908, and appears to have been executed in Bridgetown, Barbados. The affidavit was received at the Bureau of Labor January 22, 1909, 161 days after the death occurred. Attached to the affidavit is a certificate of the physician . attending the deceased, dated Ancon, Canal Zone, December 14, 1908, 574 workmen's compensation under act op may 30, 1908. four months after the death. There is nothing to show when the aflSdavit was filed with any officer of the Canal Commission by whom the deceased was employed. In my opinion in the case of George Nurse, March 6, 1909, Bu. No. 1166, it was said: It is necessary that the claimants should file their affidavits with the superior ofl5cer of the person injured before the claim Is transmitted to the Secretary, in order that the certificate of that officer may likewise accompany the claim. * * * In my opinion, therefore, the delivery to the official superior, desig- nated by the regulation referred to, of an affidavit or claim within 90 days after the death of the employee injured, constitutes a sufficient compliance with that provision of section 4 of the act of May 30, 1908, which requires, etc. Inasmuch as the filing of a claim within the period limited by the act is necessary to confer jurisdiction, and necessary to enable the Secretary to pass upon the claim (Gates v. State, 128 N. Y., 221), the fact of such filing must be shown by the record. It is not shown in this case. The record should therefore be returned, so that this information may be supplied. This case is also submitted with reference to the question whether the claimants are " dependent " parents within the meaning of the act. The act provides that if any artisan or laborer shall die by reason of an injury received in the course of his employment " leaving a widow, or a child or children under 16 years of age, or a dependent parent, such widow or child or children and dependent parent shall be entitled to receive * * * the same amount for the remainder of said year that such artisan or laborer would be entitled to receive as pay if such employee were living and continued to be employed." It is not sufficient, therefore, that the claimant should be merely the parent of the deceased ; it must further appear that the claimant is a " dependent parent." Under what circumstances, then, are parents to be regarded as " dependent " upon their children? A person is dependent, according to the Standard Dictionary, when " needing support or aid from outside sources ; poor ; weak ; as, chil- dren and invalids are dependent;" and a dependent is defined as "one who looks to another for support, help, or favor." Speaking of the British workmen's compensation act, it has been said : It would be hopeless to attempt to lay down any rule of guidance, because every case would probably differ in some material circumstance from almost any other. Dependent probably means dependent for the ordinary necessaries of life for a person of that class or position in life. Thus the financial or social position of the recipient for compensation would have to be taken into account. That which would make one person dependent upon another would in another case merely cause one to receive benefit from the other. Each case must stand on its own merits and be decided as a question of fact. (Mintou-Senhouse Accidents to Workmen, 197 ; Simmons v. White, 1 Q. B. 1899, 1007.) Eeferring to a statute providing for the creation of beneficial assistance, which contemplated the payment of benefits to " persons dependent upon " a deceased member, it has been held : Trivial or casual, or perhaps whoKy charitable assistance, would not create a relation of dependency within the meaning of the statute or by-laws. Some- thing more is undoubtedly required. The beneficiaries must be dependent upon the member in a material degree for support or maintenance or a:ssistance, and the obligation on the part of the member to furnish it must, it would seem, rest upon some moral or legal or equitable ground, and not upon the purely volun- tary or charitable impulses or disposition of the member. (McCarthy v. Order of Protection, 153 Mass., 318.) OPINIONS OP SOLIOITOE, DEPAETMENT OF LABOE. 575 The question of dependence is one of fact and not of law (Daly ti. Steel & Iron Co., 155 Mass., 5) ; and the fact of dependence is suffi- ciently established for the purposes of an employers' liability law if a condition of only partial dependence for the necessaries of life is shown (Mulhall v. Fallon, 176 Mass., 267). Cunningham v. McGreggor (38 S. L. E., 574) involved the case of a widow who had lived with her children separate from her husband for three years preceding his death. His contributions to the support of the family did not exceed £5 a year. The widow obtained occasional employ- ment and her relatives assisted her. One of her children earned a small wage. It was held that she was wholly dependent upon her husband (see also Atlanta Railroad, etc., v. Gravitt, 26 L. E. A., 553). The amount contributed by the deceased to the support of his par- ents is therefore by no means the only criterion for determining whether such parents are dependent; although the fact that the de- ceased had contributed would obviously tend to establish the condition of dependence. The fact that the parents have a natural and equi- table, if not a legal, claim upon their children for care and mainten- ance makes it proper to consider the actual needs of the parents in any given case in this respect, regardless of how far a deceased child may have been able to supply those needs. And in ascertaining what such needs are it is plainly necessary to look to the age, the circum- stances, the position in life, and the earning capacity of such parents. Thus, under section 4707 of the Revised Statutes of the United States, which provides, in effect, that if a soldier has died, entitled to a pen- sion, and leaves neither widow nor minpr children, his mother, father, or orphan sisters or brothers, " if dependent on him at the time of his death," shall be entitled to the pension, it was held that a mother is dependent upon her son when she requires for her support the use of a farm in which he has an interest as an heir; that the mother would be entitled to support according to the style in which she had been accustomed to live; and that though the mother, a widow, had some money of her own invested, she was not bound to use the capital for her support, but could be dependent upon the son, within the meaning of the statute, and still keep her money at interest, using the income for her support as far as it would go. If that use of the farm was necessary to her support, then she would be, at least in part, dependent upon that, and that dependence would be recognized by permitting her to occupy the farm, as I have stated. * * * ghe haft the right, so far as the construction of this statute is concerned, to keep that money at Interest, depend upon the income from it, and treat herself as de- pendent upon her sons for whatever might be necessary for her support over and above that income. * * * There is a statement here that if the Income of the relative claiming to be dependent is less than $500 per year, that is to be regarded as making him or her dependent. .* * * In the opinion of the court, it depends upon the circumstances of each case. The mother Is entitled to support according to the style in which she has been living. If that has been humble and inexpensive, the amount necessary to provide for her would necessarily be less than if she had been living in a more expensive style. The policy of the Government is not to reduce the surviving relatives of the soldier who has lost his life in the service down to the lowest standard of life, but it is to construe the dependent clause, so far as the obligation of the statute Is concerned, according to the mode in which the widow had .been living. * * * It Is for you to determine according to the testimony vvhether she was ade- quately provided for, and in determining that you will look to what Is necessary for her support. (U. S. v. Purdy, 38 Fed. Eep., 902.) 576 workmen's compensation under act of may 30, 1908. It is to be noted that the blank form of affidavit prepared for the use of claimants in case of death is not framed in the best manner possible to bring out the facts which would enable the Secretary to satisfactorily determine the fact of dependence in all cases. In the present case the claim is made by both parents on account of the death of their son, who was 24 years of age, and who was accidently killed on the Isthmian Canal by the overturning of a car, under which he fell and was crushed. Nothing is shown regarding the age, occupation, circumstances, or earning capacity of the parents. It is shown, however, that within the period of 7 months prior to the death of the son, out of the latter's earnings, amounting to 26 cents (silver) per hour, the parents received $39, in two installments, which amount is referred to as having been necessary to their sup- port. The parents are West Indians, living at Mount View, St. Lucy, and are of the black race. It -must be confessed that the evi- dence contained in the record is far from satisfactory. It may not be unreasonable to presume, however, considering the race, residence, and situation in life of the claimants, particularly in view of the fact that the deceased had actually contributed to their support, that if the record was returned for further information, the fact of dependence would be established. Under all these circumstances, therefore, I have the honor to recommend that the claim be allowed. 4. A parent is not dependent who did not in fact depend in some measure for the means of living upon the deceased; but if the parent is in actual need, the fact of dependence is sufficiently shown if it further appears that the deceased attempted to supply such need even to a slight extent, or that, but for the death, the parent was reasonably assured that such need would be supplied in some substantial measure. [In re claim of G. W. Branch, Mar. 18, 1910; No. 2091.] George W. Branch was accidentally electrocuted on May 1, 1909, while employed as a laborer in the construction of the Panama Canal. He left a widow, Ursula Branch, living in Trinidad, British West Indies, and a father and mother, Joseph M. Branch and Mary M. Branch, living in Barbados. He had no children. Two separate claims are filed, one by the widow and one by the parents. No ques- tion is raised as to the right of the widow to compensation, which, indeed, is beyond dispute. Whether the parents are also entitled to compensation and therefore whether the Secretary may consider the propriety of apportioning the compensation allowed by the act be- tween the widow and the parents turns on whether the latter are " dependent " within the meaning of the act. This case well illustrates the difficulty of determining from the evidence usually presented whether a condition of dependence exists. The sum total of the information bearing on this point, contained in the record, is as follows : _ In the claim filed by the widow the answer to the question, "Amount of necessary support customarily received by dependent parents from deceased prior to his death," is " Six ( ? ) per week." The answer to the same question contained in the claim filed by the parents is, "An amount of $7.40 on two occasionSj during a period of three OPINIONS OF SOLICITOB, DEPARTMENT OP LABOE. 577 months' absence from island." The three months here mentioned refer to the period which covered the employment of the deceased in the Canal Zone. From a further affidavit filed by the parents it appears that their income during the 12 months preceding the death of the son, aside from what he contributed, amounted to $93.60, de- rived solely from the earnings of the father, amounting to $1.80 per week ; that both parents are colored, the father being 54 years of age and a laborer, and the mother 45 years of age ; and that the value of the property owned by the claimants is $3.80. In a police report con- cerning the condition of the parents, made at the instance of the British minister resident of Panama, it is stated : Deceased's father states that he is fifty-flve years of age, resides in his own house, is a laborer, earns six shillings a week, and has thirteen lawful children alive, three of whom are absent from the island and the others are at Barbados. The question of dependence is one of fact (Daly v. Steel & Iron Co., 155 Mass., 5) ; and the fact of dependence is sufficiently established if a condition of only partial dependence is shown (Mulhall v. Fallon, 176 Mass., 267; Martin v. Woodmen, 111 111. Ap., 99; Grand Lodge V. Eisner, 26 Mo. Ap., 108). A person may have been no less de- pendent upon the deceased because also dependent in part upon others (Atlanta, etc., Ey. Co. v. Gravitt, 26 L. E. A., 555 ; Cunning- ham V. McGregor, 38 S. L. E., 547) . But actual dependence in some degree must appear, since the fact of dependence is not established by a mere showing that the claimant derived a benefit from the con- tributions of the deceased (Simmons v. White, 1 Q. B., 1005). Actual dependence refers to a reliance upon others " for the ordinary necessaries of life for a person of that class or position in life" (Simmons v. White, supra). On the other hand, the claimant's standard of living is not to be critically inquired into to say whether, " with the earnings of the deceased workman, the family was above or below the standard "_ (Howells v. Vivian, 85 L. T., 529). Neither is it material to ascertain the minimum at which the claimant can be maintained (French v. Underwood, 19 T. L. E., 416). The policy of the Government is not to reduce the surviving relatives to the lowest standard of living (U. S. v. Purdy, 38 F. E., 902) ; and to establish dependence it is not necessary to show that life could not have been supported without the assistance of the deceased (Plowells v. Vivian, supra) . " What the family was in fact earning, what the family was in fact spending," is, however, a pertinent inquiry (Main Colliery Co. V. Davies, 2 W. C. C, 108) ; and whether the contributions of the deceased constituted a part of the claimant's income or means of living has been held to be a test of dependence (Howells v. Vivian, supra). The principles thus established are valuable as far as they go and clearly indicate that the word " dependent " should be interpreted broadly and not in a narrow or restricted sense. But with what- ever liberality the term may be applied, no person can be deemed a " dependent," within the meaning of the compensation act, who did not in fact depend in some measure for the means of living upon the deceased. The deceased may have contributed very little to the support of the claimant ; he may have been unable, through the force of circumstances, to contribute anything at all for long periods ; and yet the claimant may have been in a true sense almost wholly de- 93364°— 15 37 578 workmen's compensation under act op may 30, 1908. pendent upon the deceased. While the condition of dependence im- plies a person aiding, as well as a person aided, it is a condition which primarily concerns the person aided. Dependent, as an adjec- tive, is defined by the Standard Dictionary as ^^ needing support or aid from outside sources; poor, weak; as children and invalids are dependent " ; as a noun, the word is defined, " one who looks to another for support, help, or favor." In a former opinion of this office (C 516, March 24, 1909) it was said: The amount contributed by the deceased to the support of his parents is therefore by no means the only criterion for determining whether such parents are dependent; although the fact that the deceased had contributed would obviously tend to establish the condition of dependence. The fact tJiat the parents have a natural and equitable, if not a legal, claim upon their children for care and maintenance makes it proper to consider the actual needs of the parents in any given case in this respect, regardless of how far a deceased child may have been able to supply these needs. And in ascertaining what such needs are it is plainly necessary to look to the age, the circumstances, the position in life, and the earning capacity of such parents. But notwithstanding these considerations, before it can be held that a given claimant is a " dependent parent " within the meaning of the act, it will not suffice to know merely " the age, the circumstance, the position in life, and the earning capacity " of the parent ; it must futher appear that the parent did in fact depend upon the deceased, in whole or in part, for a means of living, in so far at least that by reason of the death of the deceased the parent was deprived of a means of support on which he relied and which he would otherwise receive. If it is shown that the parent is in actual need of assistance, the fact of dependence would sufficiently appear, doubtless, if it further appeared that the deceased had attempted to supply that need, even to a slight extent, or that, 'but for the death of the de- ceased, the parent was reasonably assured that such need would be supplied in some substantial measure. In the present case, however, which is typical of many others, the fact of dependence is left almost entirely to inference, and inference ijot based on facts disclosed by the record, but on assumptions which may or may not be correct. It is not even shown that the parents are in actual need of assistance,- which is one of the primary condi- tions of dependence. While it is shown that the parents are ap- proaching old age, that their circumstances are poor, their position in life lowly, and their earnings small, it is also shown that they live in their own house and that the father is regularly employed; while there is nothing in the record to indicate that West Indian negroes of their class and station in life, situated as they are, are not ade- quately provided for. Neither does it appear in any affirmative way that the parents ever in fact depended upon contributions from their deceased son, or had any expectation that the latter would contribute to their support. It is shown that the son's contributions to his parents in the course of his three months' employment on the Canal Zone, made on two occasions, aggregated $7, but there is nothing to show that this action was in fulfillment of an obligation he had assumed, or that he had ever done so before or intended to do so again. Parents are entitled to compensation under the act only if they are "dependent." The fact of dependence, therefore, must affirmatively appear on the record, and while a conclusive showing OPINIONS OP SOLICITOK, DEPABTMBNT OF LABOK. 579 should not be required, an essential fact of this character can not be assumed in the absence of evidence from which it may be reason- ably inferred; otherwise the qualification, "dependent," would be eliminated from the act. I have gone thus fully into the requirements of the act with reference to the question of dependence, in view of the number of claims presented in which-, as in this case, the evidence is so meager and fragmentary that it is impossible to reach a satisfactory con- clusion either for or against the claimant, and in the hope that a full consideration of what the law may be reasonably said to require would furnish in future cases a basis for the collection and presenta- tion of evidence from which a fairer understanding of the claimant's situation can be had. In the present case the record, in my opinion, fails to establish the necessary fact that the parents are "dependent parents" within the meaning of the act. It is accordingly recom- mended that the claim of the parents be denied, and that the claim of the widow be allowed. 5. The word " parent " does not Include a foster parent where there has heen no legal adoption. [In re claim of Charles Perkins, Mar. 24, 1912 ; No. 8189.] This case is submitted with the following inquiry; Whether the " foster father " of the decedent, in the event that he can establish a condition of dependency, would be entitled to compensation as a " dependent parent " under the act of May 30, 1908. This question is raised because of an inquiry submitted to the yard officials, asking whether a foster father, who raised the decedent from his eighth year, but did not adopt him legally, was entitled to compensation under the act of May 30, 1908. Thus it will be seen that while the foster father raised the decedent, still he never went through the formality of adopting him under the laws of his domicile, consequently, the relationship of parent and child by adoption was never consummated, and in the eyes of the law no inheritable relationship existed. Under the provisions of the above-mentioned act a beneficiary must be either a widow, a child or children under 16 years of age, or a dependent parent. In con- struing this provision of the act in connection with the claim of a .stepmother in the case of Alexander McMurray (C 467, Bu. No. 276) it was said: The present act * * * names the parents, but omits to name, not only the stepparents, but the grandparents and the brothers and sisters. It seems to me that this enumeration is significant, not only on account of the definite- ness with which the several persons entitled to the benefits of the act are named, but also by reason of its omissions; but I am forced to conclude that the words used should be understood in their ordinary sense, without any enlargement, and should be taken to refer only to the particular persons mentioned. And it was concluded that the word " parent " as used in the com- pensation act did not authorize payment to the stepmother of the decedent. By a parity of reasoning, it must be said that the act can not be held to include a foster father. 580 workmen's compensation undek act of may 30j 1908. 6. Miscellaneous opinions holding on review of facts and testimony parents to be dependent. [In re claim of Levi Belgrave, Nov. 20, 1909; No. 2061.] The above claim has been submitted to this office with special refer- ence to the question as to whether the claimant may be regarded as a dependent parent within the meaning of .section 2 of the act of May 30, 1908. The following is a description of the accident as given in the im- mediate report of the injury : Engine No. 204, light, going south, ran into rear end of EJx. 270, near bridge 50i. Belgrave was riding on front of No. 204 and was caught between engine and end of car of Ex. 270. Kesponsibility for accident has not been determined as yet. The official superior further states that the accident did not arise out of or in the course of employment. The Department under date of April 21, 1909, requested additional information as to whether it is the custom for employees to be transported to and from their work, and as to the custom of persons similarly employed to ride on the front of locomotives while going to and from work. In his letter dated May 8, 1909, the division engineer says: In many cases, it is necessary to assign employees, especially steam-shovel crews, to work which is several miles distant, consequently, It became the cus- tom to use these engines to transport them to and from their work. From the latter statement it is apparent that the fatal accident arose in the course of employment. See the case of Joseph Chambers (C 862; Bu. No. 2825) where the same question was considered. The other question to be considered is whether the father and mother of the deceased employee are dependent parents within the meaning of the statute. In their affidavit the father and mother in answer to the question as to the amount of necessary support cus- tomarily received by dependent parents from deceased prior to his death, say, " During a period of two years and five months, he trans- mitted an amount of |l00." In their supplemental affidavit under ' date of August 26, 1909, they reiterate that the decedent contributed $100 toward their support, and further state that the earnings of the father are 50 cents per week and the mother's earnings 24 cents per week, that they are 55 and 45 years old respectively, that the deceased lived with them until December, 1907, and that the value of the property owned by them is $12. In the recent case of John L. Rice (0 1500, Bu. No. 3963), which is somewhat similar to the present case, it was said : The father of the deceased employee received at least $20 a year from him. There are other circumstances which should also be taken into consideration in determining the dependency on the part of the father, namely, the fact that he is a very old man, his age being given as 81 ; that during the 12 months immedi- ately preceding his son's death on June 18, 1909, he earned only about $1 a week, and that in his supplemental affidavit of October 26, 1909, it is -stated that he " is too feeble to do anything." The record in the case now under consideration shows that the de- cedent contributed $100 in the two years and five months prior to his death to the father and mother. Furthermore, the evidence shows that the total amount earned by the parents, which was only $39 a year is slightly less than the decedent contributed ; that the deceased OPINIONS OF SOLICITOR, DEPARTMENT OE LABOE. 581 prior to his death lived with his parents, and the value of the prop- erty owned by the latter amounts to only $12. When all of the above circumstances are considered it very clearly appears that the claim- ants are dependent. I am therefore of opinion, as above indicated, that the claimants are dependent parents within the meaning of the law. [In re claim of Leon Saselman, Mai. 26, 1910; No. Z50S.] The above claim is submitted to this office with special reference to the question whether the claimants are dependent parents within the meaning of the act of May 30, 1908. Decedent was employed as a deck hand on the U. S. tender No. 3, engaged on river and harbor work on the Mississippi River, and while so employed and in the course of his employment, without negligence or misconduct on his part, fell overboard and was drowned. Claim for compensation has been filed by Joseph and Lucy Esselman, father and mother, respectively, of the deceased. The facts disclosed by the record, lending to show whether the par- ents are dependent within the meaning of the act, are as follows : The parents reside at Fort Gage, 111., rural delivery No. 3, and live on their own property, of which the assessed value is $10,000, but which is subject to a mortgage of $4,400. The total income of the parents during the year immediately preceding the death of their son amounted to about $2,000, which is said to be exceptionally large, their average yearly income falling below $1,200, which is stated to be insufficient to meet expenses. It is further stated that even with the income of $2,000, during the year preceding, " after buying food, paying interest, hired labor, etc., only a limited living was left." During the year immediately preceding his death the deceased con- tributed nothing toward the support of his father, but contributed $125 at least to the support of his mother. The deceased did not make his home with his parents, but lived with a brother-in-law, " as he and his father were not on very good terms socially." The affida- vit further states : " Leon always sent his money home to his mother, telling her to use such as she needed and keep the balance, if any, for him ; the exact amount which she used we can not give, yet it was in the neighborhood of $125." In a recent opinion of this office (C 2091, Mar. 18, 1910), discuss- ing the question of dependence, it was said, omitting citations : The fact of dependence is sufficiently established if a condition of only partial dependence Is shown. A person may have been no less dependent upon the deceased because also dependent in part upon others. * * * xhe claimant's standard of living is not to be critically inquired into, to see whether, with the earnings of the deceased workman, the family was above or below the standard. Neither is it material to ascertain the minimum at which the claimant can be maintained. The policy of the Government is not to reduce surviving relatives to the lowest standard of living ; and to establish dependence it is not necessary to show that life could not have been supported without the assistance of the deceased. * * * whether the contributions of the deceased constituted a part of the claimant's income or means of living has been held to be a test of dependence. Applying these principles to the facts in this particular case, I think it is clear that the mother is a dependent parent, while the father is not. The son regularly contributed to his mother's sup- port, and she relied in part upon such contributions for a means of 582 workmen's compensation under act of may 30, 1908. living of which she was deprived when the death occurred. In the previous opinion of this office already referred to, it was stated that before it can be held that a claimant is a dependent parent within the meaning of the act it must appear " that the parent did in fact depend upon the deceased, in whole or in part, for a means of living, in so far at least that by reason of the death of the deceased the parent was deprived of a means of support on which he relied and which he would otherwise receive." I think this showing has been made in the present case so far as the mother is concerned. In U. S. V. Purdy (38 Fed. Eep., 902) section 4707 Eevised Stat- utes was construed, which provides, in effect, that when a soldier dies entitled to a pension, and leaves neither a widow nor minor children, his mother, father, or orphan sisters or brothers, " if dependent on him at the time of his death," shall be entitled to a pension. It was held that a mother was dependent upon her son when she required for her support the use of a farm in which he had an interest as an heir ; that the mother would, be entitled to support according to the style in which she had been accustomed to live; and that, though the mother, a widow, had money of her own invested, she was not bound to use the capital for her support, and could be dependent upon her son, within the meaning of the statute, and still keep her money at interest, using the income for her support as far as it would go. She had a right, so far as the construction of this statute Is concerned, to keep that money at Interest, depend upon the income from it, and to treat her- self as dependent upon her sons for whatever might be necessary for her sup- port over and above that Income. * * * The mother is entitled to support according to the style in which she has been living. If that has been humble and inexpensive, the amount necessary to provide for her would necessarily be less than If she had been living in a more expensive style. The policy of the Government is not to reduce the surviving relatives of a soldier who has lost his life In the service down to the lowest standard of life, but it is to construe the dependent clause, so far as the obligation of the statute is concerned, ac- cording to the mode in which the widow had been living. * * * It Is for you to determine from the testimony whether she was adequately provided for, and In determining that you will look to what was necessary for her support. For the reasons given, therefore, I have the honor to recommend that the claim of the mother be allowed and the claim of the father be denied. [In re claim of Thomas AUaway, Mar. 25, 1910; No. 2719.] Claim is submitted with special reference to the question whether the claimant, mother of the deceased, is a dependent parent within the meaning of the act of May 30, 1908. The deceased was a negro boy, 19 years of age, employed as a train- man in the Canal Zone, earning at the time of his death 13 cents per hour. The mother is 39 years old and lives- with the father at St. Johns, Antigua, British West Indies. The father earns nothing, and the mother's total income, aside from whatshe received from the deceased, consists of what she earns from washing, which amounts to 48 cents a week. In the year preceding his death the deceased con- tributed $7.68 toward his mother's support. Neither parent owns any property. The mother states in her affidavit, " Deceased was almost my sole support; my other means of living is 48 cents per week derived from washing." The facts in this case bearing on the question of the mother's dependence are so meager as to make it difficult to reach a satisfactory OPINIONS OF SOLICITOR, DEPARTMENT OP LABOR. 583 conclusion. But in view of the race, the circumstances, the position in life, and the earning capacity of the mother, her actual need of assistance is apparent. As said in the Branch case (C 2091, Mar. 18, 1910), " If it is shown that the parent is in actual need of assist- ance, the fact of dependence would sufficiently appear, doubtless, if it further appeared that the deceased had attempted to supply that need even to a slight extent, or that but for the death of the de- ceased the parent was reasonably assured that such need would be supplied in some substantial measure." That the deceased attempted to assist his mother is shown by his contributions amounting to $7.68. In view of his youth and small wages large contributions were be- yond his power; but the fact that he had helped his mother in the past furnished some assurance of similar help in the future. It may fairly be inferred, therefore, that the claimantj by reason of her son's death, was deprived of a means of living which she had thereto- fore possessed and which she was justified in counting on for the future. Whether the contributions of the deceased constituted a Eart of the claimant's income or means of living has been "held to e a test of dependence. (Howells v. Vivian, 85 L. T., 529.) It is accordingly recommended that the claim be allowed. [In re claim of M. T. Gonzalez, Aug. 10, 1910 ; No. 4043.] The above claim is submitted to this office for formal disapproval with the statement that " It appears that the claimant is not a de- pendent parent within the meaning of the act." The claim for compensation was filed by Sebastian Tapia, as the father of the deceased, and states that there was neither widow, children, nor mother or deceased living at that time. The affidavit of dependent parent shows that he received no support from deceased during the prior 12 months, his income during that period being $240, and owning property valued at $200. It was upon the foregoing showing that the conclusion was reached that the father was not a dependent parent, which is a proper con- clusion under those circumstances. Attached to the papers, how- ever, is a letter written entirely in the Spanish language, and which was not translated before action was taken on the claim. The letter reads : MiEANDA DEL CasTANAE, SALAMANCA, 5/20/1910. Senor Consul of Spain. Deab Sir: There is attached to this the interrogatory which you had the goodness to send me, for which I thank you heartily. It is going, authorized and stamped by the justice, and signed by the subscriber. My unfortunate son sent me no money. Neither had he sent me any amount of his wages. I possess, for property, a cottage and some dry land, which may perhaps be worth 1,000 pesetas. Inside of a few days you will receive a power authorizing the collection by you of whatever is due me. Please do me the favor to look out for my Interests, since I am left with the wife and four children to maintain in place of my lost son who supported this unfortunate family. With this motive, I am, sir, your most obedient servant, etc., Sebastian Tapla. The end of the deposition (Interrogatory) is also stamped, in case there should be anything to add, and so that it may not get detached, allowing you to fill in anything you consider best. Vale [farewell]. 584 workmen's compensation under act oe may 30, 1908. It will be noted that this letter is written by the father who filed the claim as a dependent parent, and among other things he says : Please do me the favor to look out for my Interests, since I am left with the wife and four children to maintain in place of my lost son who supported this vnfortunate family. Thus it will be seen that the contents of this letter throw an en- tirely different light on the status of affairs as disclosed by the affi- davit. As a matter of fact, each is clearly contradictory of the other. The affidavit says there was no widow or mother of deceased liv- ing. The letter refers to a wife and four children. Apparently the writer could not have been referring to his own wife, as she is re- ported to be dead, and he further stated in the claim that he had received nothing from the son during the previous year, while in the letter he refers to the family he will be compelled to maintain in place of the son who had done so. The only logical deduction to be drawn from the record as it now stands is that the deceased left a widow and four children. As the record does not affirmatively show this to be a fact, I have the honor to recommend that the papers be returned for. the purpose of "clearing up this point. [In re claim of M. T. Gonzalez, Dec. 1, 1910 ; No. 4043.] This claim was previously considered by this office, but on account ■ of an apparent conflict of statements in the record the papers were returned for the purpose of having the same cleared up. The record as previously submitted showed that decedent had be- fore his death supported a " wife and four children." It was not clear whether it was his own wife and children or his mother and brothers and sisters who were referred to, and the matter was further compli- cated by reason of the fact that the record showed that his mother was dead. It now appears from a statement of the father, dated May 20, 1910, addressed to the Spanish consul, that the " wife and four children " mentioned were the mother and brothers and sisters of the decedent. It further appears that decedent, a boy 19 years of age, left his home and emigrated to Panama, reaching there about March 15, 1910, and on April 10, 1910, he met his death. Prior to leaving home he had been employed, and contributed his earnings to the support of the family. As he was killed before receiving any pay from the Canal Commission, he had sent nothing home. In the father's affidavit it is stated that the son had contributed nothing during the previous 12 months; that the father's income during that period was $240 ; and that he owned property worth $200. The foregoing constitutes practically all the information contained in the record upon which an opinion is requested on the question pre- sented, and from an examination of the same it does not appear to me that there is sufficient evidence to establish a state of dependency of either the father or the mother. As the father states that the son had contributed nothing during the previous year, that fact would appear sufficient to negative his claim that the son had, previous to his death, supported the family. _ In view of the foregoing, I am of the opinion that the claimant is not a dependent parent within the contemplation of the compensa- tion act. OPlNIOlsrS OF SOLICITOR, DEPARTMENT OF LABOR. 585 [In re claim of M. T. Gonzalez, Aug. 30, 1911 ; No. 4043.] This claim is resubmitted to this office with the following query: Do the additional statements relating to dependency warrant a re- consideration of the Secretary's action of December 10, 1910, disap- proving the claim of Sebastian Tapia Dias for the reason that he is not a dependent parent within the meaning of the act ? The claim has been heretofore considered by this office, and in an opinion dated December 1, 1910, it was concluded upon the evidence presented that the claimant was not a dependent parent within the contemplation of the compensation act, and the claim was accord- ingly disapproved. The claim in all other respects appeared to be a proper one for allowance, and new matter is now furnished for the purpose of establishing the fact of dependence of the father of decedent. TJpon receiving notice that the claim had been disapproved, claim- ant submitted further evidence with a request that the case be re- considered. In support of his claim of dependence, he makes the following statement, dated March 10, 1911 : Sebastian Tapia Dias, a natiye of and resident of Miranda del Castanar, Province of Salamanca, age 60, laborer, who can not at present engage in the work of his trade by reason of his falling strength, which will not permit him to use the tools of his trade, on account, first, of his advanced age, and, second, on account of many minor ailments, to you, with the greatest respect and regard, sets forth: That, within the time allowed by law, he filed with the commission a claim for compensation on account of the death of his son (may God rest his soul), which claim was disapproved, for the reason, doubtlessly, that it appeared therein that he paid in taxes, annually, only the small sum of 6 pesetas and 26 cents. This, Mr. Chairman, was paid on a small vineyard which has since been destroyed in the epidemic of phylloxera. The only laborer who worked with him was Miguel Tapia Gonzales, who was employed on the canal, and who, unfortunately, died on the 10th of last April, as a result of being crushed, according to the physician's report. As the exponent depended solely upon the earnings of his son, he is now found to be in a state of abject poverty, as is shown by the statements attached. The afflicted and unfortunate father awaits the pleasure of that charitable commission who will condescend to give the necessary orders to have made payment of comi>ensatlon on account of the death of his son (peace be to his ashes) from an accident in the course of employment. The payment of this compensation will relieve the afflicted father and grief-stricken family from having to live upon public charity or seeing themselves in extreme peril of entering a public asylum. Thanks to the fact that he has no doubt of obtaining from the charitable commission upright justice, etc. Under date of March 30, 1911, the municipal judge made, in part, the following statement : Also that the said young man during his residence in this town showed an unimpeachable conduct, living in his father's home until the date on which, as an emigrant, he departed for Panama, and during such time he assisted and sustained his father and family, to whom he gave all his earnings, sustaining in this manner his family, whose father, already aged and without property, and really because of his advanced years, had not ability to work and not having other sons than the mentioned Miguel. There are also furnished a number of statements made before the alcalde of Miranda del Castanar on February 17, 1911, being made by neighbors of claimant and which are to the effect that before the son left home in February, 1910, he had always contributed his earnings toward the support of the family and had, in a large measure, supported them, and that it is notorious and a matter of common knowledge in the community that claimant is at present in 586 workmen's compensation under act of may 30, 1908. real distress. From a consideration of the record as now made up, it IS seen that claimant is GO years of age; has a wife and four young children depending on him for support; that because of his advanced age and failing strength he is unable to earn a livelihood; that the vineyard from which he formerly received some means for support has been destroyed, and that up to the time decedent emigrated to Panama, which was about one month before his death, he had con- tributed all his earnings to the family support, and had expected to be able to do more in that respect in his new employment. It, therefore, appears from the foregoing that a clear case of de- pendence is established, in view of which I have the honor to recom- mend that the action of the Department, under date of December 10, 1910, in disallowing the claim, be now revoked and, in lieu thereof, that the claim be approved. tin re claim of Leon Garcia, Oct. 13, 1910 ; No. 2738.] The only question in this case is whether the claimant is a " de- pendent parent " within the meaning of the act. If so, in the absence of a widow of the deceased or children under 16 years of age, she is entitled, for the year following the death of her son, to receive the same amount the latter would be entitled to receive as pay if he were alive and continued to be employed. The deceased was a Spaniard, 25 years of age, employed as a laborer on the Canal Zone feeding a rock crusher. A load of rock being dumped into an adjoining crusher accidentally came over to the crusher where deceased was employed, strilring him on the feet, knocking him into the crusher and crushing his leg. Two days later he died from resulting shock, hemorrhage, and infection. The claim- ant, the mother of the deceased, lives in the Province of Lagrono, Spain, and is quite destitute, having no income or property, and sub- sisting altogether upon public charity, these facts being certified to by the clerk of the local municipal court. The record does not show how long the injured employee had been employed on the Canal Zone; it does appear, however, that he contributed nothing to his mother's support during the period of such employment. The question of dependence is one of fact, and what circumstances will suffice to show a condition of dependence has been a matter of frequent consideration by this office. In the Branch case (C 2091, Bu. No. 3511) careful consideration was given to the question and an effort made to indicate in a general way, as far as the authorities would permit, the necessary distinctions to be observed. The por- tions orthe opinion rendered in that case relevant to the question pre- sented by the present case are as follows. A person may have been no less dependent upon the deceased because also de- pendent in part upon others. (Atlanta, etc., R. R. Co. v. Gravitt, 26 I.. R. A., 555- Cunningham v. McGregor, 38 L. B. R., 547.) But actual dependence in some degree must appear, since the fact of dependence is not established by a mere showing that the claimant derived a benefit from the contributions of the deceased (Simmons v. White, 1 Q. B., 1005.) Actual dependence refers to a reliance upon others " for the ordinary necessities of life for a person of that class or position in life." (Simmons v. White, supra.) ^ » * ♦ * * * While the condition of dependence implies a person aiding as well as a person aided it Is a condition which primarily concerns the persons aided. Dependent, as ah adjective, is defined by the Standard Dictionary as "needing support or OPINIONS OP SOLICITOR, DEPARTMENT OF LABOR. 587 aid from outside sources ; poor, weak ; as, children and Invalids are dependent ; " as a noun, the word Is defined as " one who looks to another for support, help, 01 favor." And quoting a former opinion, It was said : "The amount contributed by the deceased to the support of his parents Is, therefore, by no means the only criterion for determining whether such parents are dependent, although the fact that the deceased had contributed would obviously tend to establish the condition of dependence. The fact that the parents have a natural and equitable, if not a legal, claim upon their children for care and maintenance makes It proper to consider the actual needs of the parents in any given case in this respect, regardless of how far the deceased child may have been able to supply those needs." • * * That the present claimant is in actual need of assistance, which is one of the primary conditions of dependence, is established, and de- ciding the case in accordance with the principles stated in the pas- sages quoted, the claimant would be entitled to compensation as a dependent parent, unless the fact that she received no support from her son during his employment in the Canal Zone removes her from that category. The latter contingency requires notice to be taken of the case of Eees v. Penrikyber C!o. (87 L. T.^ 661; 5 Minton-Sen- house, 117). This case arose under the British workmen's compensa- tion act. The claimant was the father of the deceased and had been an inmate of the workhouse prior to the death of his son, and con- tinued to be such an inmate thereafter. While the report does not expressly so state, it is gathered therefrom that the claimant was not sent to the workhouse as a punishment for any offense, but as a means of supporting him at public expense, and that he was therefore a dependent upon public charity, having no property or means of his own. The report shows that the son, for the several months prior to his death, during which his father was in the workhouse, had con- tributed nothing toward his support. The court decided that the claimant was not a dependent parent within the meaning of the British workmen's compensation act, saying, in part: Those provisions (of the act) contemplate an actual dependence by the claim- ant on the deceased workman. No such actual dependence exists when the claimant is being maintained by the guardians. The claimant's dependence in such a case is on the guardians. * * * In these circumstances it can not be laid down as a matter of law that the claimant is dependent on the deceased. It was by reason of reliance upon English cases of similar tenor that it was said in the opinion in the Branch case above referred to : No person can be deemed a " dependent " wlthiu the meaning of the compen- sation act who did not in fact depend in some measure for the means of living upon the deceased. The deceased may have contributed very little to the support of the claimant; he may have been unable, through the force of cir- cumstances, to contribute anything at all through long periods, and yet the claimant may have been In a true sense almost wholly dependent upon the deceased. And again: It must further appear that the parent did in fact depend upon the deceased, in whole or in part, for a means of living, in so far at least that by reason of the death of the deceased the parent was deprived of a means of support on which he relied and which he would otherwise receive. If it is shown that the parent Is in actual need of assistance, the fact of dependence would sufficiently appear, doubtless, if it further appeared that the deceased had attempted to supply that need even to a slight extent, or that, but for the death of the de- ceased, the parent was reasonably assured that such need would be supplied. in some substantial measure. A reference to the terms of the British workmen's compensation act with respect to dependent parents and a comparison thereof 6^8 workmen's COMPENSATIOlf UNDER ACT OF MAY SO, 1908. with the terms of the act of Congress under consideration, with re- spect to the same class of beneficiaries, leads me now to conclude that the English authorities are not controlling in thi^ particular. As noticed by the court in the decision last cited, the British act defines " dependents " as " such members of the workmen's family specified in the fatal accidents act, 1846, as are wholly or in part dependent upon the earnings of the worhman.'''' The compensation act enacted by Congress does not restrict the payment of compensation to parents who were dependent "upon the earnings" of the injured employee. Neither the term " dependent " nor " dependent parent " is defined at all. In the administration of the* United States act, therefore, it is not necessary, as in the case of the British act, that it should appear not only that the parent is dependent, but dependent upon the deceased employee. In construing the former act we are hence at liberty to give to the word dependent the meaning which attaches to it in ordi- nary speech, in other words, its usual and popular significance. So construed, I am of opinion that a parent who is shown to be utterly destitute, altogether lacking in property and income, unable to sus- tain himself or herself, and depending on public charity for the means of living, is a dependent parent within the meaning of the act. A person so circumstanced is certainly in a condition of actual dependence and the fact, as in the present case, that the claimant's son, an ordinary laborer earning 20 cents per hour, working over seas in a foreign country, had not, while so employed, contributed anything to her support, does not, in my judgment, sufiice to show that she was not dependent. rin re claim of Joliu Zupa, Feb. 7, 1911 ; No. 4153.] This claim is filed by the parents of John Zupa, an Austrian, 21 years of age, employed as a laborer in the Reclamation Service at Montrose, Colo., who died as a result of injuries received in the course of employment without negligence or misconduct on his part. The only question presented is whether the claimants are dependent pa- rents within the meaning of the act. The facts disclosed by the record bearing on the question of dependence are few. It appears that the deceased left his home to come to America in October, 1907, his parents advancing him the money for his passage to the United States. His parents state that they received no money from the de- ceased during the 12 months prior to his death, although 2 months prior thereto he had written to them promising to send them 1,000 kronen (about $200) " in order to pay off his and their debts." The Austro-Hungarian consul at Denver, who files the claim on behalf of the parents, states that they are " very poor and have been hoping all days to receive a support from their child (children?)." Unless the mere fact that the deceased contributed nothing to the support of his parents during the year preceding his death is con- trolling, it seems to me that the condition of dependence sufficiently appears' in the present record, and, in my judgment, this fact is not controlling. . . In the Rock case (C 516) it was said: The amount contributed by the deceased to the support of his parents is, therefore, by no means the only criterion for determining whether such parents are dependent, although the fact that deceased had contributed would obvi- OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 589 ously tend to estaUish the condition of dependence. The fact that the parents have a natural and equitable, If not a legal, claim upon their children for care and maintenance makes it proper to consider the actual needs of the parents in any given case in this respect, regardless of how far a deceased child may have been able to supply those needs. In the Branch case (0 2091, Bu. No. 3511), where the question of dependence was carefully considered, after a full examination of the authorities it was said in part : The word " dependent " should be interpreted broadly and not in a narrow or restricted sense. But with whatever liberality the term may be applied, no person can be deemed a " dependent " within the meaning of the compensa- tion act who did not, in fact, depend in some measure for the means of living upon the deceased. The deceased may have contributed very little to the sup- port of the claimant ; he may have been vmable, through the force of circum- stances, to contribute anything at all through long periods, and yet the claimant may have been, in a true sense, almost wholly dependent upon the deceased. While the condition of dependence implies a person aiding as well as a person aided, it is a condition which primarily concerns the person aided. Dependence, as an adjective, is defined by the Standard Dictionary as " needing support or aid from outside sources; poor, weals; as, children and invalids are dependent " ; as a noun the word is defined " one who looks to another for support, help, or favor." ♦ * * It must appear that the parent did, in fact, depend upon the deceased, in whole or in part, for a means of living, in so for, at least, that by reason of the death of the deceased the parent was de- prived of a means of support on which he relied and which he would otherwise reoevoe. If it is shown that the parent is in actual need of assistance, the fact of dependence would sufficiently appear, doubtless, if it further appeared that the deceased had attempted to supply that need even to a slight extent, or that, hut. for the death of the deceased, the parent was reasonably assured that such need would be supplied in some substantial measure. In the present case the actual need of the parents is apparent ; and, in view of the promise of the deceased — ^made shortly before his death — to send them money, they were reasonably assured of a means of support on which they obviously relied and of which they were deprived by the death of their son. This case, therefore, is readily distinguishable from other cases where the deceased contributed nothing to the support of his parents for a year or more, but where the record also failed to show either that the parents were in actual need or that they were deprived of any reasonable expectation of future assistance. (See cases of Dean, C 3097, and Gonzales, C 4043.) In the present case, therefore, it is concluded that the claimants are de- pendent parents within the meaning of the act and that the claim should be approved for payment. 7. Mlscellaneo-us opinions holding on review of facts and testimony parents not to be dependent. I In re claim of J. W. D. Mason, Dee. 0, lf)09 ; No. 2175.] The above claim is submitted to this office with special reference to the question whether the claimants are shown to be " dependent parents " within the meaning of the act of May 30, 1908. From the record it appears that the name of the deceased em- ployee's father is James Da Costa Mason, and that the name of his mother is Rachel Jane Campbelle. The father's address is "Near Thickets St. Philip " and the mother's address is " Waterhall Land, St. Michael," in Barbados. The record does not disclose any reason 590 workmen's compensation under act of may 30, 1908. why the last name of the mother is " Campbelle " instead of being the same as that of the father and the deceased employee, " Mason," nor why the address of the mother is different from that of the father. However, as these circumstances do not seem to have been regarded as of any significance by either the claim officer or the British consul general in Panama, or the police magistrate or the American vice and deputy consul in Barbados, who are undoubtedly more familiar with conditions in Panama and Barbados than the officials in Washington, it is assumed that the claimants are the parents of the deceased em- ployee, as set forth in their affidavit. The only question to be con- sidered is, therefore, whether they are " dependent " within the mean- ing of that word as used in the compensation actt" The claimants state in their affidavit of September 13, 1909, that the father's average weekly earnings during the 12 months prior to the death of the son were $3; that those of the mother during the same period were none; that during this same period the deceased did not contribute to the support of either, but that for four years prior to his employment under the Canal Commission he contributed regularly to the support of his mother 72 cents a week. The father is 45 years of age and the mother 48. There is nothmg in the record to show how long the deceased had been employed in the Canal Zone, but it must have been for more than a year, as it is stated that he contributed to the support of his mother prior to his employment under the Canal Commission and ihat he did not contribute to the support of either parent during -the 12 months prior to his death. Both parents are in the prime of life as regards earning capacity, the father being 45 and the mother 48, and there is nothing to show that their earning capacity is impaired by reason of sickness or infirmity of any Idnd. The burial expenses of an employee killed in the course of his employment by the Canal Commission are provided for by the commission, and it does not appear to me that the death of the employee in this case has added anything to the burdens of the claimants or deprived them of any present or prospective support. Without the compensation they will get along exactly as they have for more than a year. To grant the compensation would be to make them better off to the full extent of such compensation. Neither the letter nor the spirit of the law con- templates such a thing. If Congress had intended to extend the benefits of the act to parents on account of their relationship merely, as in the case of widow and children under 16 years of age, the word " parent " would not have been qualified by the word " de- pendent." While I think the act should receive such a liberal con- struction as to extend it to parents who are only partially dependent, we can not overlook the use of the word by the legislature, which would be the practical effect of granting compensation under the circumstances in this case. I have the honor to advise, therefore, that neither of the above- named claimants is shown to be a dependent parent within the mean- ing of the compensation act. [la re cUilm of Mariano Fernandez, Dec. 9, 1909; No. 2199.] This claim is submitted to this office with special reference to the question whether the claimants are dependent within the meaning of ftie act of May 30, 1908. OPINIONS OP SOLICITOR, DEPARTMENT OF LABOR. 591 In the formal affidavit of claim it is stated that the " amount of necessary support customarily received by dependent parents from deceased prior to his death " was " nil " and in the additional affidavit it is stated ihat during the 12 months prior to the death the amount of support received by the claimants from deceased was "nil," that the amount of support received from other persons was "nil," that their total income from all sources was " nil," that the average weeldy earnings of each was " nil," and that the value of property owned by them was " nil." The age of the father is given as 72 years, and that of the mother as 60 years, and that the deceased lived with them until November, 1907. Aside from the fact that both claimants are somewhat advanced in years, there is stated no fact on which to base a judgment as to de- pendence. While some infirmity and loss of earning capacity might be inferred from the ages of the claimants, there is nothing to show a probability that they would have received any help from the de- ceased during the year following the date of the accident if their son had lived and continued to be employed. On the contrary, it may reasonably be assumed from the fact of his having contributed noth- ing for more than a year and from the further fact that there is noth- ing to show that he ever contributed anything; that they would not have received any assistance from him if he had lived and been employed a year longer. Under these circumstances, the claimants can not be regarded as "dependents" within the meaning of the act. This conclusion makes it unnecessary to call attention to certain informalities and omissions in the papers which would prevent the allowance of the claim in its present form, even if the dependence of the claimants were shown. [In re claim of K. W. Baugh, Jau. 20, 1910; No. 2062.] The above claim is submitted to this office with special reference to the following questions: 1. Is there sufficient evidence of death? 2. Is the evidence sufficient to show that the claimant is a de- pendent parent? 3. Are the illegitimate children of the deceased entitled to compen- sation under the law ? If so, under what conditions should the pay- ment of compensation be approved ? As to the evidence of death, it appears that the employee on ac- count of whose death the claim is made was a night watchman on a pile driver, and on the night of August 9, 1909, the trestle on which he was stationed was run into by a mud clappet and several bents of the trestle were hurled into the sea, carrying the employee with them. The body of the man has never been recovered. However, the fore- man of the work on which he was engaged, certifies that, to the best of his knowledge and belief, the said employee was drowned on the night of August 9, 1909 ; that he has not seen or heard of him as alive since; nor has any of his men of whom he made inquiry. Although the body has not been recovered, there appears to be no doubt on the part of officials and employees of the Isthmian Canal Commission in the Canal Zone that the man was drowned. The circumstance which suggests the question is the fact that the body has not been re- covered. While, under some circumstances, the Department might 592 workmen's compensation tjndee act of may 30, 1908. not be justified in allowing compensation unless the body of the de- ceased were recovered, the circumstances in this case are such that the recovery of the body could hardly be expected. The trestle was knocked into the sea and the man was known to be on the trestle at the time. I am of opinion, therefore, that death has been established with reasonable certainty. Referring to the evidence of the dependence of the parent making the claim, it appears that during the 12 months prior to the death of the employee, the said employee contributed $20 per month toward the support of his father, the claimant. It appears, furthermore, that the claimant is 51 years of age; that he lives in Jamaica, where he owns property valued at $1,000 ; that his average earnings amount to about $12.25 per month; and that his total income, including the $20 received from the deceased, is about $50 per month. While the death of the employee may occasion a distinct loss to the claimant, it does not appear that he is dependent in the sense that without the help he received from the son he would be unable to maintain him- self. He is in the prime of his earning capacity. What he received from his son and the amount of his earnings together make $32.25 per month, and yet it appears that his total income is $50 per month; so he must receive in the neighborhood of $17 per month from some other source. He owns $1,000 worth of property, which may yield an income sufficient to practically harmonize all the claimant's state- ments. In this connection it is to be observed that, although the rate of pay received by the employee at the time of his death was but $37.50 per month, the claimant received out of this amount $20 per month, or more than half. In other words, the deceased lived on less than half his earnings, sending the greater part to his father. And this, notwithstanding the father had an income of $30 per month over and above what he received from his son. As furnishing a possible explanation of this somewhat anomalous state of facts it may be noted that the deceased left two minor children, who are living in the same town in Jamaica where the claimant lives. While it is not stated that the claimant has been caring for these children, the infer- ence seems natural that during the 12 months prior to the death the claimant kept the two children of the deceased, and that the $20 per month sent to the claimant was to compensate him for the support of Ihe children. If this conclusion is correct, and it appears to be a logical deduction from the facts disclosed in the record, it seems clear that the claimant is not "dependent" within the meaning of the statute. The third question is raised because the two children above re- ferred to are illegitimate children. In the case of James F. Harding (C 2059, Bu. No. 1923) , after a careful examination of the authorities and a due consideration of the whole matter I reached the conclusion that the compensation act extends its benefits to illegitimate children as well as to legitimate children. Accordingly the two children of the deceased in this case are within the statute, and it only remains now to consider the conditions under which payment to the children may be approved. . , . . , The affidavit of claim required by section 4 of the compensation act having within the limit of 90 days been filed hj the father of the de- cease^ the Secretary of Commerce and Labor is given jurisdiction to OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 693 disallow the claim or allow it and to apportion the compensation among those who may be entitled to receive it (C 2334; Bu. No. 5622). From the foregoing it is seen that the two children of the deceased are entitled to compensation and that no other person is so entitled. Both children are infants, one being 3 years old and the other 18 months. Of course they are not capable of receiving the benefits "directly and they have no natural guardian. Section 2 or the compensation act, which gives the Secretary of Commerce and Labor the authority to apportion the compensation be- tween two or more beneficiaries, also authorizes the Secretary to pre- scribe the regulations under which the payments Shall be made. I am of opinion that under this section the Secretary may direct that the compensation be paid to the claimant, one-half for the use and benefit of one child and one-half for the use and benefit of the other child, or the benefits may be otherwise divided between the two children. In such a case William G. Baugh would become a trustee as to any por- tion of the compensation which might be paid to him for the chil- dren. [In re claim of Parker Fatten, Apr. 2, 1910 ; No. 3096.] The above claim is submitted to this office with special reference to the question of the dependence of the claimants. The deceased was 19 years of age and left no widow or children. The claim is made by his parents. The claimants own no property; during the 12 months prior to the death of the employee he lived apart from them and contributed nothing to their support, and their total income from all sources was $300. As tending to show dependence, the claimants make the following statement : Deceased was going to work in tunnel through winter and was going to return home to help in whatever way he could, and In course of time the father would be dependent on him, as he was the eldest child. All the income the father has is $25 per month as wages. There is nothing in the above statement which shows that the claimants were, in fact, dependent on the deceased. It is stated that the deceased was going to return home to help in whatever way he could, and that in the course of time the father would be dependent upon him. There is no way of determining what the deceased might have done if he had lived. If he had lived with his parents or had contributed to their support during the last year, it might have been- inferred that he would return or that he would contribute to their support in the future, especially as the claimants state that it was his intention to do this. But no such inference can be drawn. Fur- thermore, the claimants' statement that " in course of time father would be dependent " carries with it the idea that the father did not consider himself dependent at the time of the death. The statute does not grant compensation to a parent who, in course of time, may become dependent, but only to such parents as are dependent. I have to advise, therefore, that the claimants herein are not de- pendent parents within the meaning of the compensation act. [In re claim of J. S. Oabbs, Jr., Feb. 21, 1911 ; No. 5853.] The above claim is made by John S. Dabbs, sr., the father of the decedent, and is submitted to this office with special reference to the question whether the claimant is a dependent parent within the meaning of the act of May 30, 1908. 93364°— 15 38 594 wohkmbn's compensation under act of may 30, 1908. The affidavit of the parent shows that he is a man 45 years of age, with an income during the preceding year amounting to $1,000 ; that he owns a home worth $2,200, and livery stable and horses worth $1,000. It is stated that the son contributed the sum of $200 in the month of November, 1910. The explanation of this contribution, is probably found in a letter from the attorney for claimant, dated February 3, 1911, wherein he states that : During the year previous to last year Mr. Dabbs bad contributed toward his son's support, and likewise contributed to the same support for many years prior thereto and actually furnished his son money with which to go to Panama. It would appear from this that the $200 sent by the son to the father in a lump sum in November, 1910, was a reimbursement of money advanced him, and was not intended as a contribution on the ground that the father was in any sense dependent upon the son. As a matter of fact, it is conclusively shown by the letter of the attorney that the son had, up to the time he went to Panama, been dependent upon the father, for he says that the father had contributed to his support for many years prior to last year. In view of the foregoing, I am of the opinion that there is nothing in the record to establish a state of dependence by the father on the son so as to constitute the former a dependent parent within the meaning of the act of May 30, 1908. 8. A son was in the habit of sending his mother in Ireland small sums of money about May and Christmas of each year. The mother was a pensioner of the British Government and had three other sons. . The deceased son left a widow. Upon this state of facts it was concluded that the mother was not a dependent parent. [In re claim of Frank Duffy, Sept. 5, 1913.] The record in this case comes to this office prepared for formal approval granting compensation of $100 to Elizabeth Duffy as dependent parent and the remainder to Mary Duffy as widow of the deceased employee. It appears from the record that under date of June 5, 1913, Mary Duffy made claim for compensation on account of the death of her husband, Frank Duffy. In her affidavit she stated that the deceased employee left a mother living in Ireland, but that he had contributed nothing to her support within the past year. On the strength of this affidavit the department, under date of June 16, allowed her claim to compensation for one year. Subsequently a letter was received from an attorney in Ireland say- ing that Elizabeth Duffy, mother of the deceased employee, was dependent upon the earnings of said deceased employee, and asking for instructions as to presenting a claim therefor. In response to this letter a blank application for compensation was forwarded to said attorney on July 30. On the same date a letter was also ad- dressed to Mary Duffy, widow, advising her of the claim of the deceased employee's mother and asking to be fully advised as to whether her deceased husband sent money to his mother, and if so, OPINIONS OF SOLICITOE, DEPAETMENT OF LABOR. 595 how often and in what amounts. Under date of August 1 the widow replied to the effect that her deceased husband had never contributed to the support of his mother, but that he had sent her a present of $5 at Christmas. She also stated that the mother received a pension from the British Government, and that she had one son in Ireland, one in Scotland, and one in the United States. About September 1 the department received the affidavit and claim of Elizabeth Duffy, mother of the deceased employee. In her affi- davit she stated that she was 76 years old and that within the past year her son had sent her $10, and that he usually sent her $5 at a time, about twice a year, in May and at Christmas. She also stated that she received a pension of 5 shillings a week. The change in the compensation is based upon this record. I am of opinion that the foregoing does not justify the conclu- sion that Elizabeth Duffy is a dependent parent within the meaning of the act. The small sums sent by the deceased employee to his mother at Christmas and in May seem to have been in the nature of presents rather than contributions to her support. Besides this, the mother receives a pension, and she has three sons who are under as much obligation to contribute to her support as was the deceased employee. Furthermore, it is noted that the formal approval is made out to allow a fixed sum of $100 to Elizabeth Duffy and the remainder to the widow, Mary Duffy. The Secretary is not authorized to allow a fixed or lump sum as compensation. All that he is authorized to do is to apportion the compensation between two or more claimants, allowing a certain percentage to each. See Comptroller's Decision of January 26, 1909 (Op. Sol., 568). It is recommended that the proposed action granting compensation of $100 to Elizabeth Duffy be not approved, and that the compensa- tion granted to the widow under date of June 16 be continued under that approval. 9. Where decedent contributed large sums to his parents, he being single and the parents having five younger children to raise, these facts, consider- ing the financial condition of the parents, were held to constitute dependency. [In re claim of Jack Scott, Oct. 28, 1913.] This claim is submitted with the following inquiries : Was the death of the decedent due to his own negligence or misconduct? Are the claimants dependent parents within the meaning of the compensation act? It is noted from the papers that the occupation of decedent is given as a lineman, and at the time of his injury he was engaged in climbing poles and stringing wires thereon. While so engaged he fell from a pole a distance of about 15 feet, injuring himself severely and dying a day later as a result thereof. The superior officer reports that the accident was due to the fact that decedent disobeyed orders in carrying the wire up the pole in a hook on his safety instead of using his hand line. For this reason he is of the opinion that the deceased employee was guilty of negligence or misconduct. In this 596 workmen's compensatton under act of may 30, 1908. connection there is furnished a statement from the subforeman, wherein he says : I, John R. Williams, hereby certify that I was the subforeman in charge of the construction of the transmission line connecting the Highline pumping plant with the transmission system of the United States Reclamation Service at a point directly south of Tempe, Ariz. ; that on February 27, 1913, I instructed Jack Scott in regard to the method to be used in transferring the wire which was being strung from the ground to the top of the pole, giving him specific instructions to climb the pole and draw the wire up to the top of the pole by means of a hand line ; furthermore, that later in the day I found that said Jaclj Scott, instead of following the instructions before given, was climbing the poles and carrying the wire up with him as he went ; I immediately gave him positive instructions to use a hand line according to the instructions before given and sent and had a hand line brought for the purpose; he demurred in regard to using the line, stating that he was not accustomed to using that method; I assured him that it must be used, and expected that he would use It when I left him ; I then left him and went down the line a distance of 4 or 5 spans, and at that time heard calls being given to stop the team which was pulling on the wire, and was Immediately afterwards informed of the accident to the said Jack Scott. There is also furnished an additional statement from the superior officer, which is as follows: I will state that the method which Williams insisted be used is the correct method of performing this operation, and that the method which Scott used was dangerous; and, while undoubtedly it is employed by some people, it is at great risk. We do not allow this method to be used on any of our work, and this explains the insistence of Williams in regard to the method. As the decedent never gained consciousness after the accident, it was impossible to obtain his explanation of the matter; so the fore- going practically constitutes all the evidence submitted bearing on the point in issue. It is noted from the superior officer's statement that the method of drawing up the wire as used by decedent is undoubt«>dly employed by some people. It is also observed from the statement of the sub- foreman that decedent advised him that he was not accustomed to using the other method, from which it would appear that both methods are in common use, one being probably more dangerous than the other. While it is expected that employees will obey the orders of their superiors in performing their work, yet it is not con- templated that a strict observance of instructions in following a particular method of performing ordinary work, where there are different methods in existence, will be required in order to entitle an employee to compensation when injured under such circumstances. It can safely be presumed that the employee has at stake his own welfare to the extent of not wanting to expose himself to imneces- sary danger in performing his work, and that he will use that method to which he feels better adapted in order to perform his work in a more satisfactory manner. As the decedent is unable to make any statement concerning his reasons for performing the work in the manner adopted by him, it would appear unreasonable to resolve any doubt against the claimants, since they are unable to furnish his side of the case. I therefore reach the conclusion that the death was not due to negligence or misconduct as intended by the act of May 30, 1908. Eeferring now to the second inquiry, it is seen from the affidavit of claimants, who are the parents of decedent, that while the latter OPINIONS OF SOLICITOE, DEPARTMENT OF LABOB. 597 was 20 years of age, yet he contributed to the former during the previous 12 months the sum of approximately $240 ; that their total income from all other sources amounted to approximately $600; that they own no property other than household effects; that the decedent had lived with them up to six months previous to his death ; and that he had always contributed part of his earnings to the sup- port of the family, which consisted of his parents and five younger children; consequently there is not only shown to exist a state of dependency, but it is also in evidence that the assistance was given. It is likewise in evidence that the health of the father has partially failed him; so from his physical and financial condition it is ap- parent that, with a wife and five children to support, he was abso- lutely in need of the assistance heretofore rendered by his deceased son, and that the loss of it will entail a pecuniary hardship upon him and his family. In view of the foregoing, I am of the opinion that the second inquiry should be answered in the affirmative, and the claim being otherwise a proper one, it should be approved for pay- ment. 10. Decedent left a widow and widowed mother. The widow filed claim, but died before it was approved. The mother joined in the widow's claim, stating that she was not dependent on her son. Subsequent to widow's death the mother filed a claim setting forth her financial condition, that she was 61 years of age, and depended upon her efforts for sup- port. Held that although the son had not contributed, yet her finan- cial and physical condition rendered her a dependent parent. [In re claim of William F. Munn, Not. 25, 1913.] It appears that the decedent was incapacitated for work by an injury which was sustained in the course of his employment on April 26, 1913, and that the injury resulted in death on July 31, 1913. Decedent left among those named in the act as beneficiaries a widow and widowed mother. Subsequently his widow filed a claim for the compensation arising from the death, but before its approval she also became deceased. It appears that the mother also joined in the claim with the widow, but stated therein that she was not de- pendent upon the son for support. Upon the death of the widow the mother took up with the yard officials the matter of filing a claim in her own behalf, with the result that she has now filed a claim for compensation. In regard to her condition of dependence she made an affidavit on November 10, 1913, wherein she shows that she is 61 years of age and has been a widow for the past 25 years ; that although she was the mother of 6 children, she has no one to look to for her support, all of the children being dead so far as she is aware; that she is compelled to earn her living by her own labor or depend upon her sister, who has a family of 10 children, the youngest being 6 years old, and furthermore that she is possessed of neither personal nor real property. While it is true that in the affidavit filed by the widow of the decedent it was stated that the mother was not dependent on the son, still this should not bar her right to compensation if, as a mat- ter of fact, it is shown that she was dependent. Under the circum- stances of her physical and financial condition it is clear that she 598 workmen's compensation undee act of mat 30, 1908. was morally entitled to all the support her late son may have been able to give her, and the fact that he did not do so while living is not sufficient to deprive her of the benefits of the act if it is satis- factorily established that she was entitled to it. Why he did not assist her and why she stated at first that she was not dependent are matters which are not explained, but such things can be easily under- stood in persons endowed with a spirit of independence. From a consideration of the circumstances in this case I am of the opinion that the claimant is a dependent parent within the meaning of the act of May 30, 1908, for which reason a claim should be ap- proved in her favor. 11. Decedent was 20 years of age, and until a few days previous to Ms death in the Government employ he had worked on the farm of his parents. He had promised to contribute from his Government wages, but met his death before receiving any. Held that parents were dependent, considering all the facts presented. [In re ejaim of Robert Harris, Dec. 16, 1913.] This claim is submitted with the inquiry whether the claimants are dependent parents within the meaning of the act of May 30, 1908. The claim for compensation is filed by Josiah and Mary Harris, the father and mother of decedent, as dependent parents. In their affidavit the age of the son is shown to be 20 years, while in the report of the official superior it is given as 22. As it is reasonable to sup- pose that the parents are in the best position to know the age of their son, the age given by them will be regarded as the correct age. In support of their claim of dependence the parents state that the son contributed an amount -equal to $240 in labor on their farm during the 12 months preceding his death, he having only been at work for the Government a few days at the time of his decease. It is also stated that he had promised his wages to his parents when he went to work. In reference to their financial condition, it appears that the income during the preceding year from all other resources amounted to the sum of $1,000 and that their real estate is worth about $2,500, consisting of 146 acres of farm land with the improve- ments thereon. From the foregoing state of facts the question arises whether the parents are dependent within the meaning of the compensation act. It may be said that the question of dependence is one of fact and must be settled like any other question of fact, and it has been held that the fact of dependence is sufficiently established if a condition of only partial dependence is shown (Mulhall v. Fallon, 176 Mass., 267; Martin v. Woodmen, 111 111. App., 99; Grand Lodge v. Eisner, 26 Mo. App., 108). Again, it is said that what the family was in fact earning and what they were spending are pertinent inquiries to be made in this connection (Main Colliery Co. v. Davies, 2 W. C. C, 108), and that the question whether the contributions of the decedent constituted a part of the claimant's income or means of living has been held to be a test of dependence (Howells v. Vivian, 85T. L. E., 529). It is observed from the little evidence at hand that the son was only 20 years of age at the time of his decease, and apparently up to OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 599 a few days before his death he had lived with his parents and helped them in the work on the farm, which service was valued at $240 for the previous year, and as the son was still under age they were entitled to such assistance as he was able to give in the form of his earnings or were entitled to the benefit of his labors on the farm until he was of age. Then, when the financial condition of the par- ents is considered, it will be noted that they do not appear to be suffi- ciently wealthy to warrant the conclusion that they are not entitled to such assistance as they would have received but for the death of the son. In view of the foregoing I am of the opinion that the facts pre- sented herein warrant the conclusion that the parents in this case are dependent within the contemplation of the act of May 30, 1908. 12. Decedent was 21 years of age. The parents claimed that the son had contributed a certain amount during a certain period, which amount was in excess of his earnings. Considering all the circumstances of the case, including age and financial condition of the parents, it was held that they were not dependfent to any extent upon the son, the mere fagt of contributions not being suflacient of itself to establish that condition. [In re claim of William Rees, Aug. 4, 1914.] Claim in this case is filed jointly by the parents of the decedent, based upon the ground that they were dependent parents. The papers have been submitted to this office with special reference to the question whether the evidence submitted establishes a state of depend- ence by the parents oh the deceased son. It appears from the record that the deceased employee was employed as a pump man, at the rate of $3 per day, in the Reclama- tion Service and that he subsisted himself out of his wages. It fur- ther appears that he was 21 years of age and that he had been engaged in the service from January 12 to the date of his death, on April 15, 1914. It is also shown that during this entire period his net earnings, after deductions for meals, storehouse supplies, etc., amounted to the sum of $158.69, or an average of a little over the sum of $50 per month. There is also in the record an affidavit from former employers showing that during the months of May and June, 1913, the decedent was paid $65 per month and $70 per month for the balance of the time until October 3, 1913. In the original claim affidavit filed by the parents under date of May 14, 1914, it is stated that the ages of the father and mother are 47 and 42, respectively ; that the amount of support received by them from the deceased son during the 12 months preceding the death was $800. These payments are stated to have been made as follows : " Seventy dollars per month for five months ; balance assist- ance at home." The total income of claimants from all other sources during the year above mentioned is given as $1,000. It is also stated that claim- ants own two farms, valued, respectively, at $6,500 and $6,200, against which there are two mortgages aggregating $5,700, thus leaving the claimants an equity of about $8,000 in said property. Upon receiving information as to the amount of the earnings of the son from the Reclamation Service, the parents were requested 600 workmen's compensation undbe act of may 30, 1908. by the department to explain their statement that they had received $70 a month, in view of the fact that this amount was far in excess of the net earnings. In a letter dated July 6, 1914, in answer to the department's request, the father stated that " when I gave $70 a month as the amount William contributed during the last few months before his death, I figured that what he paid out for board and clothes was that much less expense for us at home, and I was not thinking of the actual amount of cash that he sent us. * * * The last money order, in April, was $40." The foregoing is practically all the evidence in the record bearing on the question of dependence, from which it will be noted that it is a very difficult matter to ascertain the exact financial condition of the parents. There is nothing to show whether the earnings of $1,000 from other sources than the deceased son's contributions were net or gross earnings — that is, whether they represented clear profit after payment of all living and operating expenses or whether it represented the gross income. At any rate the question to be decided in this case is not an easy one when the principles laid down in the adjudicated cases are considered, as it would seem that adjudged cases can be found to cover each siSe of the question. The question of dependence, as was said in Daly v. Steel & Iron Co. (155 Mass., 5), is one of fact, and unless all the facts are clearly presented it is difficult to reach a proper solution. An indication of the variety of opinion on this subject may be gleaned from a perusal of cases wherein the following views were held : The fact of dependence is sufficiently established if a condition of only par- tial dependence is shown. (Mulh.ill v. Fulton, 176 Mass., 267 ; Martin v. Wood- men, 111 111. App., 99; Grand Lodge v. Eisner, 26 Mo. App., 108.) A person may have been no less dependent upon the deceased because also dependent in part upon others. (Atlanta Ry. Co. v. Garett, 26 L. R. A., 555; Cunningham v. McGregor, 38 L. R., 547.) But actual dependence in some degree must appear, since the fact of de- pendence is not established by a mere showing that the Claimant derived a benefit from the contributions of the deceased. (Simmons v. White 1 Q B 3005.) ' ■' It has been said that " actual dependence refers to a reliance upon others for the ordinary necessaries of life for a person of that class or position in life." (Simmons v. White, supra.) Again it has been said that " to establish dependence it is not necessary to show that life could not have been supported without the assistance of the deceased " (Howells v. Vivian, 85 T. L. R., 529), and that the test of dependence was whether the contributions of the deceased consti- tuted a part of the claimant's income or means of living. (Howells V. Vivian, supra.) When the question of dependence as shown by the evidence in this case is considered in connection with the conclusions reached in the foregoing cases it will be seen that authority exists to justify action either way. It will be noted from the statement of facts in this case as set forth herein that the decedent was a man of the age of 21 years, whose earnings were his own to do as he pleased with them. The only evidence of contribution to his parents since becoming of age is their affidavit to that effect. The value of this affidavit is lessened by OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 601 reason of the apparently conflicting statement as to the amount con- tributed, which is refuted by the evidence furnished showmg the amount of the earnings. The fact of contribution, however, stand- mg alone, is not sufficient to establish a state of dependency, as was said in Simmons v. White, supra. There is nothing in the evidence to show that the parents were in any manner depending upon any contributions from the son, for it appears that they own farms, which, though mortgaged, are worth considerably more than the average farm; they are both, so far as known, in the prime "of life as to age; they have apparently an income or profit, after paying their expenses, of about $1,000 per year outside of any contribu- tions made by the son, so it is evident that, a state of actual depend- ence is not shown by the record. Actual dependence, as was said above, refers to a reliance upon others " for the ordinary necessaries of life for a person of that class or position in life." In view of the foregoing I am of the opinion that the evidence in the case does not satisfactorily establish the fact that the claimants are dependent parents within the meaning of that term as used in the compensation act, for which reason the claim should be disap- proved. 13. The deceased employee had, previous to going to work for the Reclama- tion Service, assisted his parents in the operation of a small farm. On the day he began work he was killed. Considering the age, circum- stances, and condition of the parents, they were held entitled as dependent parents. [In re claim of Juan Encinas, Not. 16, 1914.] This claim is specially submitted to this office with the inquiry whether the claimants are dependent parents within the meaning of the compensation act of May 30, 1908. The claim has been filed by Luis and Juanita Encinas, the parents of decedent, whose age at the time of his death is shown as 25 years. The age of the father is given as 85, while that of the mother is about 65. It appears from the papers that the decedent had just begun to work for the Eeclaination Service on the day of his death, and that prior to that time he had worked on an 80-acre ranch belonging to his father, and apparently had lived at home up to the time he went to work for the Government. What arrangements had existed between the father and son in regard to the payment for services on the farm is not shown by the record, but it is stated that the total income of claimants from all sources during the previous year was a living for father, mother, and son from the farm. It is also stated that the inother is not active, and that on account of the advanced age of the father he is unable to carry on the operation of the ranch alone. It further appears that while the ranch contains 80 acres of land only one-half of it is tillable, that portion being irrigated, while the bal- ance is rough and unfit for cultivation, thus leaving only about 40 acres upon which to support the family of three. There' is nothing stated with regard to any arrangements having been made whereby the son was to contribute to the support of the parents after he went 602 workmen's compensation under act of may 30, 1908. to work for the Government, but judging from his conduct in the past it may be safely assumed that it was his intention to contribute to their support from his future earnings. Any other assumption would hardly be fair in the light of his action in the past. In view of the advanced ages of the father and mother it is clear that they are in no physical condition to operate the farm without assistance, and as the death of the son will deprive them of the assistance which he formerly rendered they have suffered a loss upon which they were in every sense of the word dependent. I am therefore of the opinion that the parents are dependent parents within the meaning of the act. 14. Claim was filed by the mother on account of death of 18-year-old son. As she was unable to establish the fact of contribution by the son, who did not live with her, it was held that dependency was not shown. [In re claim of Charles Jones, Doe. 8, 1914.] This claim is submitted with the inquiry whether the claimant is a dependent parent within the meaning of the act of May 30, 1908. It appears that the deceased employee was a colored boy 18 or 19 years of age; that he was the illegitimate son of Willis Jones and Mandy Carter- Jones, or Adams; and that the latter files a claim for compensation in the name of Mandy Adams on account of the death of the boy. In the claim affidavit it is shown that the claimant is 40 years of age; that decedent had contributed to her support in the previous 12 months the sum of $75 ; that the payments were made every three months ; that the total income of claimant from other sources during the above period was $100; that she owns no property; that the son worked away from home and did not live there; and that he was the only boy she had to work for her. The foregoing constitutes practically all the evidence submitted to establish the fact of dependency by the mother upon the son, from which it will be observed that there is very little evidence of a posi- tive or definite character to show such dependency. The only state- ment made by claimant which would appear to support her conten- tion of dependency is where she says that the son contributed $75 to her support during the 12 months previous to his death. This amount, she informed the Government official who investigated the matter, was sent her either by post-office money order or registered mail. Upon inquiry at the post office it was ascertained that claim- ant had never received, so far as was Imown there, either a post-office money order or a registered letter. It therefore appears that her statement in this respect is contradicted by such information, and as there is no other evidence to establish a state of assistance or a condition requiring assistance it does not appear that a state of dependency has been shown. In the absence of further evidence to support the contention of claimant that she was dependent on her son for at least partial sup- port, I am forced to the conclusion that she is not a dependent parent within the meaning of the compensation act. OPINIONS OF SOLICITOK, DEPARTMENT OF LABOE. 603 XXII. " SUCH PORTIONS." 1. The word " portions," as used in the act, refers to the division of the compensation among the claimants and not to its division into weekly or monthly payments, and the Secretary is authorized to direct that one beneficiary receive a larger and another a smaller portion; his au- thority in this regard may even justify his direction that the whole compensation be paid to one beneficiary to the exclusion of the others. [In re claim of William A. Brinkley, Oct. 15, 1908 ; No. 8.] It appears from the papers that William A. Brinkley, while em- ployed as brass finisher's helper in the construction and repair ma- chine shop of the navy yard at Norfolk, Va., on August 8, 1908, was instantly killed by the bursting of an emery wheel with which he was working. There is no evidence of any negligence or misconduct on his part. His compensation was $1.76 per day. He left a wife and one child, the child being less than a year old. The report, on Form C. A. 3, states that the parents of the deceased are not depend- ent, but it is not stated whether either or both the parents be living. The claim for compensation is made by the widow and child. This is the first case arising under the injured-employees compen- sation act of May 30, 1908, where a claim is predicated on the death of an employee of the Government, and it seems proper at this time to consider the character and amount of evidence that ought to be required in order to justify the payment of compensation to the claimants. The questions which are herein presented are as follows : 1. What evidence should be required to establish the relationship of the person claiming to be the widow of the deceased ? 2. What evidence should be required to establish the relationship of the person claiming to be the child of the deceased ? 3. What evidence should be required in regard to the parents of the deceased? 4. To what compensation are the claimants entitled and how should it be apportioned between them? 5. How may the compensation be paid to the infant child of the deceased ? 6. Out of what appropriation and by whom is the compensation to be paid? I will consider these questions in order as follows : 1. In this particular case there appears to be no reason to doubt that the claimants are the widow and son of the deceased. The naval constructor, on Form C. A. 3, gives the name of Christine Brinkley as that of the wife of the deceased, and the same address is given for her as for the deceased. The name and date of birth of the child is also given. On Form C. A. 16 the claimants are supposed to state under oath that they laiow of no other persons entitled to compensa- tion. This form is not properly signed by the claimants, however, though the notary public has certified that the document was sub- scribed and sworn to before him. The claimants signed their names in the body of the blank instead of at the bottom. Though this is a matter of form rather than substance, I think that it would be well to insist that Mrs. Brinkley sign for herself and her son in the proper place. In this case it appears to be a matter of common laiowledge that Christine Brinkley was the wife of the deceased ; that they were 604 workmen's compensation under act of may 30, 1908. living together at Scottsville; and that Edward Joseph Brinkley is their child. In cases where the person claiming to be the widow of the deceased employee was living apart from, him or where some other woman may claim to be the widow, or where there is any cir- cumstance which may raise a doubt, the department would not be justified in allowing the claim. without more evidence as to the rela- tionship than is brought out in the regular blank form, the nature of the evidence depending upon the circumstance which raises the doubt. As a general rule, I think the report of the official superior of the deceased may be relied upon as to the relationship of the claimants. In case this proves insufficient, future blanks may be so amended as to meet the deficiency. It is not desirable at this time to lumber up the administration of the law with formalities and official red tape, which may have a tendency to defeat the purpose of the law to provide a just and expeditious method of relieving the financial distress- of the dependents of an employee whose earning capacity is temporarily or permanently cut off. It wUl be time enough to adopt stringent rules of evidence when it is shown that they are necessary in order to protect the Government against fraud- ulent claims. 2. Where it appears that a child has lived with and was supported by the deceased, as may reasonably be assumed from the report of the accident as made by the proper official, and the widow recog- nizes the said child as the child of the deceased, and there appears no reason to doubt the statements of the official and the widow, it may safely be assumed that the relationship is established. 3. As to the parents of the deceased, as the law provides that the indemnity shall be paid to the deceased's " widow and child or children and dependent parent," it is important to determine, in the first place, what persons bearing the relationship of widow, child, or parent are left by the deceased, and if a parent is left, whether such parent is dependent. The widow and child or children- are en- titled to the indemnity as such and without regard to whether they are dependent upon the deceased. Not so with regard to a parent. To entitle a parent to participate in the indemnity it must be shown that the said parent is dependent. A parent is generally regarded as having an insurable interest in the life of a son. This is based, to some extent at least, on the recognized obligation of a son to take care of his parents where the circumstances require such care. It is suggested, therefore, that in every case of death arising under this law a statement as to whether the parents of the deceased are living should be elicited from the official making the report, and if either of the parents be living, such parent should sign a statement setting forth whether or not he was dependent upon the deceased, and if so, to what extent ; if not, the statement should be so framed as to amount to a release or waiver of any claim. It is not to be implied from this that a release or waiver is necessary in order to protect the Govern- ment ; it is for the purpose of fully advising the Secretary. In case it is impracticable to secure such a statement from the surviving parent, the reason why it is impracticable should be made to appear. 4. What is the amount of indemnity that accrues in the present case, and how is it to be apportioned between the claimants? The deceased was receiving compensation at the rate of $1.76 per day. As to the amount, the law provides that it shall be the same for the OPINIONS OP SOLICITOE, DEPAKTMENT OF LABOE. 605 remainder of tfie year as the deceased would be entitled to receive as pay if he were alive and continued to be employed. In other words, the indemnity is to he the full amount of his compensation for one year from the date of the accident, at the rate of $1.76 per day. The year referred to is the year following the date of the accident. Sec- tion 1 provides that when an employee is injured he " shall be enti- tled to receive for one year thereafter " the same pay as he was re- ceiving at the time of the injury. Section 2, in fixmg the amount of indemnity to be paid in case of death, uses the words " the remainder of the said year," referring to the year indicated in the first section, the evident purpose of the two sections being to continue an em- ployee's compensation for one year after he becomes incapacitated by reason of an accident. If he lives throughout the year, the in- demnity is to be paid to him; if he dies within the year, it is to be paid to him up to the time of his death, and then, for the remainder of the year, to his family. In the case of Mr. Brinkley, the accident occurred on August 8, 1908, and the resulting death occurred on the same day. Under the rulings of the comptroller, a per diem em- ployee is entitled to a full day's pay for the day of his death, even though his death occurred before the completion of his day's work. Mr. Brinkley would therefore be entitled to full pay for August 8, 1908, independently of the new law. The year "thereafter" began to run on August 9, 1908, and will expire with August 8, 1909. The amount of the indemnity, therefore, must be $1.76 for every day from August 9, 1908, to August 8, 1909, inclusive, for which he would be entitled to pay if he were alive and continued to be employed. The law provides that this amount shall be paid in such portions as the Secretary of [Commerce and] Labor may prescribe. That the word " portions " as here used refers to the divisions of the compensation as between the claimants rather than to the division of the compensation into weekly, monthly, or yearly payments is evident from the lan- guage of the whole act, read together, as well as from the defini- tions of the word as given in the standard dictionaries. It follows, therefore, that the Secretary may direct that the compensation be divided between the claimants share and share alike, or he may di- rect that one beneficiary receive a larger and another a smallerpor- tion. There may be some doubt as to his authority to direct the pay- ment of the whole compensation to. one beneficiary to the exclusion of the others. I am of opinion, however, he does possess this au- thority. The power to prescribe the portions the beneficiaries are to receive obviously involves a wide discretion, wholly inconsistent with any requirement of making distribution in equal shares or ac- cording to a fixed ratio. (Haight v. Day, 1 John., ch. 18.) So long as the discretion is exercised in good faith and not arbitrarily or capriciously it can not be controlled. (Stotesbury v. Vestry, 59 IT. L. E., 475.) The Secretary may therefore, if in his judgment the justice of the case requires, award a merely nominal and insignificant share to one and practically the whole compensation to another. This in effect would amount to the same thing as designating from among a general class one or more particular persons, to the exclusion of others. Where commissioners to receive subscriptions to the stock of a bank in course of organization were authorized by statute, in case the subscriptions exceeded the amount of the stock, " to appor- tion the same among the subscribers thereto " in such manner as they 606 woekmen's compensation tjndeb act op may 30, 1908. deemed best, it was held " that the words ' apportion ' and ' among' certainly do not require that every subscriber should receive some stock." (Clark v. Brooklyn Bank, 1 Ed., ch. 368.) 5. If it is considered that the protection of the infant claimant demands that a substantial part of the compensation be paid to him, how may it be so paid? The language of the act, the debates in Congress, and the reports made to the two Houses of Congress when the matter was being considered, shows that it was the intention of the legislature to give to the Secretary all power necessary to execute the law without any appeal to the courts. In reporting the bill to the House, the Committee on the Judiciary (Report No. 1669) said: All payments are to be made under the direction of the Secretary of [Com- merce and! Labor, who is authorized to pass upon questions of negligence and misconduct and to make such rules and regulations us may be necessary to safeguard the interests of the Government and of the beneficiaries. From his decision no appeal is allowed. It is only necessary that the Secretary be satisfied that the interests of the Grovernment and of the beneficiaries be safeguarded. The in- fant can not, of course, receive and receipt for the money himself. It must be paid to some person for him. His mother is his natural guardian, even though she be not appointed by a court. I see no legal objection to the Secretary designating the widow to receive the portion allotted to the infant beneficiary. 6. There appears to be no special appropriation out of which the payments contemplated by the act may be made. I am of opinion that the intention of Congress was that the indemnity accruing by reason of the injury of an employee be paid from the appropriation out of which his compensation was being paid at the time of his injury. However, this is a matter for the decision of the comptroller. [In re claim of Simeon Osbourne, Mar. 22, 1909 ; No. 559.] This case has been prepared for the formal approval of the Secre- tary, and provides for the payment of the entire amount of compen- sation due under the act of May 30, 1908, on account of the death of Simeon Osbourne to his widow. Section 2 of the act of May 30, 1908, provides : That if any artisan or laborer * * * shall die during the said year by reason of such injury received in the course of such employment, leaving a widow, or a child or children under sixteen years of age, or a dependent parent, such widow and child or children and dependent parent shall be entitled to receive, in such portions and under such regulations as the Secretary of [Com- merce and] Labor may prescribe, the same amount, for the remainder of said year, that the artisan or laborer would be entitled to receive as pay if such employee were alive and continued to be employed. * * * Section 4 of the act provides : That in the case of any accident which shall result in death the persons entitled to compensation under this act or their legal representatives shall, within ninety days after such death, file with the Secretary of [Commerce and] Labor an affidavit setting forth their relationship to the deceased and the ground of their claim for compensation under the provisions of this act. * » * It will be seen that in the case of the death of an employee injured in the course of his employment the act provides that the compensa- tion due shall be paid to the persons named in the act as entitled thereto in such "portions" as the Secretary of [Commerce and] Labor may prescribe. As said in the Brinkley case (Oct. 15, 1908; Bu. OPINIONS OP SOLICITOE, DEPARTMENT OF LABOE. 607 No. 137), the Secretary may direct that the compensation be divided between the claimants, share and share alike, or he may direct that one beneficiary receive a larger and another a smaller portion ; that the power to prescribe the portions the beneficiaries shall receive in- volves a wide discretion, wholly inconsistent with any requirement of making distribution in equal shares; and that the Secretary might therefore designate, from among those who are competent to take, one or more particular persons to the exclusion of others. It is ob- viously necessary, in order that this discretion may be intelligently exercised, and, indeed, before the Secretary can properly say that a claimant is entitled to compensation at all, that the Secretary should be advised as-to who are the particular persons competent to make a claim for compensation. It is doubtless true that where more than one person is in a position to make a claim compensation would not be allowed to any one of the number who failed to avail himself of the privilege conferred by the act by actually filing a claim; and, although in a given case more than one person might be entitled to receive compensation, if only one of the number claimed it the entire amount ordinarily would probably be awarded to that one. Such would not necessarily be the case, however, and in any event the law would seem to contemplate that the Secretary should be advised in regard to all those who may be entitled to the benefits of the act. Moreover, in the absence of full information on this subject a valid claim might be made notwithstanding the fact that the Secretary had previously awarded the entire amount to a single claimant. In such cases the possession of full information in the premises would serve as a check in the consideration of the second claim. In the present case it affirmatively appears that the deceased left a widow, and that he left no children under 16 years of age; but it does not appear whether or not he left a dependent parent. A blank form (C. A. 16) has been printed for the purpose of disclosing the information in question, and space is provided therein for setting forth the names of the widow and any child or children under 16 years of age and any dependent parent. In the present case the claimant has not only omitted to state whether or not the decedent left a father or mother, but has failed to certify to the truth of the statements made and to the fact that she knows " of no other persons entitled to compensation under this act on account of the above- mentioned death." It is recommended, therefore, that the papers in the case be re- turned with a request that the claimant file an affidavit completely and properly filled in. XXIII. " THE PERSONS ENTITLED TO COMPENSATION UNDER THIS ACT OR THEIR LEGAL REPRESENTATIVES." 1. Where an injured employee dies several days or weeks after the injury compensation is payable to the injured person or his personal repre- sentative from the date of injury to and including the date of death, and for the balance of the year to the widow, children, or dependent parent as the case may be. [In re claim of William McCarrel, Dee. 3, 1908 ; No. 206.] . The employee on account of whose death the above claim is made was employed as steam engineer on the dredge Winyah Bay, at Georgetown, S. C, when, without negligence or misconduct on his 608 woee;m:en''s compensation under act of may 30, 1908. part, he fell from the upper to the lower deck on October 21, 1908. As the result of the injury then sustained he died on October 25, 1908. It seems that no compensation was paid to him for any of the time between the accident and the death. The claim is sub- mitted to this office with special reference to the question whether compensation should be allowed to the claimant from the date of the injury or from the date of the death. In the event the compensa- tion is allowed only from the date of death, there is raised the ques- tion as to the termination of the compensation period. In my memorandum of November 28, 1908, in the case of Daniel Joseph Kelly, who was injured on August 4, 1908, and who died on October 1, 1908 (C 45-1, Bu. No. 258), I expressed the opinion that the decedent was entitled to the compensation to and including the day of his death, and that his widow was entitled to the compensa- tion for the remainder of the year following the accident, and that the year referred to in the statute began to run on the day following the accident and terminated with the anniversary of the day of the accident. Applying the reasoning and conclusion in the Kelly case to the case now under consideration, I am of opinion that, at the time of his death, there was due to Mr. McCarrel under the act compensation from the time of the accident to and including the day on which he died, and that the amount so due became an asset of his estate, and that the act authorizes the payment of compensation to the claimant from October 26, 1908, to October 21, 1909, both dates inclusive. I find no provision in the law which would authorize the Secretary to direct that the compensation due the decedent at the time of his death be paid to his widow. In the payment of this portion of the compensation authorized by the act the disbursing officer will doubt- less be governed by the rules laid down by the Comptroller of the Treasury in 12 Comptroller's Decisions, 439. The papers submitted with the above claim show that the de- cedent was a steam engineer on a dredge, at Georgetown, S. C, and that the claim comes through the Engineer Office of the War De- partment, but there is nothing to indicate the work in which the dredge was engaged. If it was engaged in river and harbor or forti- fication work, of course the claim comes within the provisions of the act. But if it was engaged in some work not coming within the de- scription of " river and harbor or fortification work " the claim might not be covered by the statute. It is recommended, therefore, that, before the final approval of the claim, more definite information be obtained as to the public work on which the dredge was being used at the time of the accident. [In re claim of William P. Lindsay, Feb. 19, 1909; No. 522.] It appears from the evidence submitted that the deceased employee was injured October 24, 1908, that he died on December 2, 1908, withouit having made application for compensation under the act of May 30, 1908, that he left no widow, child, or dependent parent, and that his brother now makes the claim as next of kin. That part of the act which is material in this case is as follows : Seo. 4. That in the case of any accident which shall result In death, the per- sons entitled to compensation under this act or their legal representatives shall, within ninety days after such death, file with tJie Secretary of [Commerce andl OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 609 Labor ah affldiivll setting forth their relationship to the deceased and the ground of their claim for compensation under the provisions of this act. This shall be accompanied by the certificate of the attending physician setting forth the fact and cause of death, or the nonproduction of the certificate shall be satisfactorily accounted for. «**!/; the Secretary of [Commerce and] Labor shall find from the report and affidavit or other evidence produced by the claimant or his or her legal representatives, or from such additional investigation as the Secretary of [Commerce and] Labor may direct, that a claim for compensation is established under this act, the compensation to be paid shall be determined as provided under this act and approved for payment by the Secretary of [Commerce and] Labor. The language of this section shows very clearly that it was the intention of the legislature that a right- to compensation once ac- quired by a person should not be defeated by the death of such per^ son. Following my reasoning in the case of William McCarre] (Dec. 3, 1908; Bu. No. 1033) I conclude that the amount to which the deceased was entitled at the time of his death became an asset of the estate. The fact that he did not make a fornial claim is imma- terial. He may not have been in a condition to do it. Whatever right he had at the time of his death passed to his legal representa- tives. As he died without leaving any widow, child or children, or dependent parent, no person, under the law, became entitled to com- pensation for any time after the death. The brother of the deceased employee bases his claim to the com- pensation from the date of the injury to the date of the death on his relationship as " next of kin." While it is possible that, under the law of the domicile of the deceased, the amount due the estate may go to the brother, the claim should, under the act, be filed by the legal representative of the deceased. Furthermore, the law requires that the injured employee or his legal representative shall file with his claim a "certificate of the attending physician setting forth the fact and cause of death, or the nonproduction of the certificate shall be satisfactorily accounted for." This provision of the law has not been complied with, and it is recommended, therefore, that the claimant be given an opportunity to present the required certificate. When this is done and it is found that the deceased was, at the time of his death, entitled to compensa- tion under the statute,- the payment of such compensation will be governed by the law of the domicile and the decisions of the Comp- troller of the Treasury. (See 12 Comp. Dec, 439.) 2. Where an employee dies as the result of an injury before having made application for or received compensation the spirit and purpose of the act warrants payment of compensation from date of injury to date of death, as well as for the remainder of the year, to the widow or family of the deceased. [In re claim of Joseph' L. Sullivan ; No. 6963.] DECISION OF COMPTROILER OF THE TREASURY. Sir : By your letter of the 16th instant you request my decision of a question which you state as follows : On June 14, 3911, Joseph L. Sullivan, an employee at the Picatinny Arsenal, Dover, N. J., was injured by an explosion in a dehydrating press, immediately 93364°— 15 39 610 avorkmen's compensation under act of may 30, 1908. incapacitating him for any further work, and subsequently resulting in his death on June 25, 1911. Claim was accordingly made by his widow, Anna B. Sullivan, for compensation under the act of May 30, 1908 (35 Stat, 556), granting to certain employees of the United States " the right to receive from it compensa- tion for injuries sustained in the course of their employment " ; and the depart- ment, on July 31, 1911, approved the payment of compensation to her " at ii rate equal to the amount the deceased employee would have been entitled to receive as payment if such employee were alive and continued to be employed, for the period beginning June 26, 1911, and ending June 14, 1912, both dates inclusive." A further claim is now presented by the widow for compensation for the time intervening between June 14, the date of the injury, and June 25, the date of Mr. Sullivan's death, which meets with the approval of the department. But the question arises as to whether payment for that period may be made direct to Mrs. Sullivan, who appears to be the only beneficiary of the decedent. By reference to the compensation act it will be observed that there arc only two classes of beneficiaries named therein — first, the employee who has been Injured and survives the injury ; and, second, the widow and child or children under 16 years of age, or a dependent parent, if any, in case the injured em- ployee shall die during the year by reason of such injury. Section 1 of the act jjrovides that any person employed as an artisan or laborer in any of the various branches of tie Government service enumerated therein who is injured in the course of the employment shall be entitled to receive for one year thereafter the same pay as if he continued to be employed, such payment to be made under such regulations as the Secretary of [Commerce and] Labor may prescribe. Section 6, however, provides that payments under the act are only to be made to the beneficiaries or their legal representatives other than assignees, and shall not be subject to the claims of creditors. It was undoubtedly the purpose and intent of the lawmakers in enacting this legislation, providing for the payment to an injured employee of his pay for the period of disability, that such employee or those dependent upon him, whether wife, child or children under 16, or parent, should receive the direct benefit of such compensation, which might not be the case in the present in- stance if payment should be made to the estate of the decedent. It is, more- over, one of the principal objects of all workmen's compensation acts that claims should be settled promptly, so that the parties intended to be benefited should sufiEer the least possible interruption of the income derived from the labor of the injured workman, and to this end the formalities of legal proceedings are dispensed with wherever possible. In the event of the death of the claimant as a result of the injury, the act does expressly provide for payment to the widow, or child or children under 16 years af age, or dependent parent, if any, of compensation for the remainder of the year, and it would seem that these beneficiaries should also receive the amount due and unpaid for the actual period of disability of the decedent from the date of the accident to the date of his death. I have the honor, therefore, to Inclose herewith the papers in the case and to request that you advise me whether payment of the compensation due for the time intervening between the happening of the accident and the employee's death should be made to the beneficiary or to the decedent's estate. Section 6 of the act of May 30, 1908 (35 Stat., 556), to which you refer, is as follows : That payments under this act are only to be made to the beneficiaries or their legal representatives other than assignees, and shall not be subject to the claims of creditors. I do not think the words " legal representatives " are here used as meaning only executors or administrators, which is the ordinary and commonly accepted sense of that term, because they usually by law represent the deceased. But this is not the only definition of the term. The words may niean heirs, or next of kin, descendants, or devisees and distributees. OPINIONS OP SOLICITOR, DEPARTMENT OF LABOR. 611 It was said in the case of "Warnecke v. Lembca '(71 lU., 91), in referring to the term " legal representative " : The sense in whicli. the term Is to be understood depends somewhat upon the intention of the parties using it, and is to be gathered, not always from the instrument itself, but as well from the surrounding circumstances. And in Staples v. Lewis (71 Conn., 288) : These words have lost much of their distinctive force, and are used to de- scribe either executors and administrators, children or descendants, and next of kin, or distributees and devisees * * *. When used in statutes these terms should be interpreted with reference to the intention of the legislature gathered from the entire language used in connection with the subject and purpose of the law. In Schultz ^'. Life Insurance Co. (59 Minn., 309), the words "legal representatives " in an insurance policy were construed to mean heirs or next of kin, the court saying : It is always permissible to construe these wt>rds in that way, especially in wills and policies of life insurance, wherever it is apparent from the contents or subject matter that they were used in that sense. They wiU be construed in that way more readily in policies of life insurance than in almost any other kind of instrument, for the reason that such insurance is very commonly intended as a provision for the family of the insured. The act of May 30, 1908, under consideration, makes provision for the family or dejpendent relatives of the injured employee at a tinie when by his incapacity for work, or death, they are deprived of his regular earnings for their support ; so that the conditions are similar to those referred to in the decision last quoted, and the same con- struction should be placed upon the term " legal representatives." The language of section 6, supra, viz, " legal representatives other than assignees " standing alone seems to show that executors and ad- ministrators are not the only persons meant. And the exemption of the disability pay from the claims of creditors points to the same conclusion. Under the facts you present the proposed payment in this case to the widow is in accordance with the purpose of the law and may be made. Respectfully, E. J. Teacewell, GomftroUer. The honorable the Secketaet or [Commerce and] Labor. 3. Claim on account of the death of an employee was filed by two alleged widows and by a foster mother. The facts in the case showed that neither of the alleged widows was the legal widow, and as the foster mother had never legally adopted decedent she was held not to be a dependent parent within the meaning of that term as used in the act. [In re claim of Leonardo Garcia, Oct. 9, 1913.] Claims for compensation on accoimt of the death of Leonardo Garcia, a laborer employed in the Reclamation Service, have been filed by three different persons. The first claim is filed by Felipa Diaz Garcia, the second by Vic- toria O. Garcia, and the third by Rafaela Martinez. The first two mentioned above each files claim as the widow of decedent and the last named as the foster mother. 612 workmen's compensation under act op may 30, 1908. The situation ' with reference to the two alleged widows is as follows : Oix December 22, 1904, the decedent and Victoria Orta were legally married under the laws of Arizona, living together for a couple of weeks thereafter, when the wife deserted the husband, going away with his brother, Gabriel Garcia. That about a year and a half thereafter she returned alone to the city of her former residence, but did not return to her husband ; that about three months after her return she went to live openly with one Kefujio Amparano as his wife, having three children born to them, who were publicly recog- nized by Amparano as his children ; that Amparano was killed sev- eral months ago, and it is stated that Victoria collected some money on account of his death, and that Victoria is now living with the three children of herself and Amparano. It appears by the record that no proceedings for divorce were ever instituted by either Leo- nardo or Victoria. > In regard to the claim filed by Felipa Diaz Garcia, it is apparent from the foregoing that she could not have been the legal wife of decedent since he had been legally married previous to living with her and had not been legally divorced from the bonds of matrimony. The project engineer was requested to secure from the alleged widow whatever proof she could produce to establish the fact that she was the legal wife of the deceased employee, but no such evidence appears in the record, so it must be assumed that she was never legally mar- ried to the decedent. As between these two claimants it does not appear that either of them is entitled to the compensation on account of the death, for' Felipa Diaz was never legally married to Garcia and consequently could not be his widow, while the conduct and actions of Victoria clearly show that it was her intention to abandon the marriage status, with all its rights and privileges. In this position she was entitled to no consideration of any kind or support from her husband, and in fact had received none since two weeks after the marriage, but on the other hand was supported by another man in a state of con- cubinage, thereby forfeiting all her rights acquired by the marriage. From this view of the case, it would appear that she was baiTed from setting up a claim for compensation on account of the death of Garcia, for it was evidently the purpose of Congress to provide com- pensation for the widow in such cases where she had at least a moral right to expect and receive support from her husband, and her case does not come within that class. I am therefore of the opinion that Victoria is not the widow of decedent within the meaning of the com- pensation act, and accordingly not entitled to compensation on ac- count of his death. Referring now to the claim filed by Rafaela Martinez, the foster mother of decedent: As it is stated by her that she never legally adopted the decedent, it would appear that she is not a dependent parent within the meaning of that term as found in the act, which conclusion is in accord with the opinion of the former Solicitor for the Department of Commerce and Labor as found in the Perkins case (Op. Sol., 579). Under the circumstances as above set forth, it does not appear that any of the claimants are entitled to compensation, and I so advise. OPINIONS OF SOLICITOR, DEPAETMBNT OF LABOE, 613 4. The Greek consul at New York was appointed administrator of a de- ceased employee and desired in that capacity to file a claim in behalf of the beneficiaries. It was held that the consul, as administrator of the decedent, was not the legal representative of the beneficiaries. [In re claim of Manuel Lemanes, Feb. 28, 1914.] The correspondence and reports herewith show that the above- named employee met his death on July 5, 1913, in the course of his employment, and that the death followed immediately after the injury. It also appears from the papers that decedent left a widow and two children, as well as a mother and father, residing in a remote section of Greece, and that up to the present time no claim affidavit has been filed by or on behalf of the beneficiaries named in the act of May 30, 1908. It further appears that the Greek consul in NeAv York City has been appointed administrator of the estate of the decedent, and it is his desire to file a claim as such administrator. The papers are submitted to this office with the inquiry whether such a claim can be filed without such action being ratified by the beneficiaries. Regarding the request of the Greek consul to- file a claim as administrator, attention is invited to the fact that he is the adminis- trator of the estate of the decedent, and as there is no compensation payment due the latter on account of injury there is nothing due the estate in that respect. The law provides, in section 4 of the com- pensation act, that where death results the persons entitled to com- pensation under the act, or their legal representatives, shall file a claim setting forth certain facts. Who are or would be the legal representatives of the beneficiaries named in the act has never been determined, but it is presumed that the words were used in the sense in which they are generally known to the courts as administrators, executors, and so forth, of deceased persons. Under this circum- stance the beneficiaries herein being alive could not have such legal representatives ; consequently, as the law makes no provision for the filing of a claim by the administrator of the deceased employee for death benefits, and as the Greek consul is not the: legal representative of the beneficiaries, it would not appear that he had authority in that capacity to file a claim. In this connection attention is invited to an opinion of the Solicitor for the former Department of Commerce and Labor (Op. Sol., 657) in the case of Jesus Jiminez. In that case the beneficiary executed a power of attorney, granting special authority to the Span- ish consul in Panama to do whatever might be necessary to perfect a claim, and the consul accordingly made a formal claim and executed the usual affidavit, which was held to be a sufficient affidavit under the law. Again, in the case of Lyall Callender (Op. Sol., 637), the British charge d'affaires assumed to file a claim in behalf of the beneficiary, so as to preserve the rights under the 90-day limitation, and the widow subsequently filed one after the expiration of that period, when it was held that the filing of the claim by the widow was a practical and substantial ratification of the act of the charge d'affaires. In this case, however, it does not appear necessary to file a claim ' within 90 days in order to preserve the rights of the beneficiaries, for 614 workmen's compensation tTNDBE ACT OP MAY 30, 1908. as a matter of fact that period has now passed. Furthermore, it was decided by this office in the case of Thomas A. Gray, in an opinion dated July 11, 1912, that the filing within 90 days was directory instead of mandatory, as was formerly held, and the circumstances herein are such as appear to warrant the Secretary in waiving that requirement. As it is shown by the record that there are surviving decedent a widow, two children under 16 years of age, as well as a father and mother, it is suggested that the widow be directed to execute the usual affidavit in connection with the parents. 5. When incapacity lasts more than 15 days and employee dies from causes other than those producing the original injury and before a formal claim is filed, the legal representatives entitled to file a claim and receive payment covering period of incapacity are the adminis- trator, the executor, or the heirs or next of kin. [In re claim of Kaustin N. Karumbellas, Apr. 3, 1915.] It appears from the record submitted that Kaustin N. Karumbellas, machinist's helper. Mare Island Navy Yard, on January 7, 1915, while engaged in mixing lye in tub preparatory to washing pipes, sustained severe burns to both hands, incapacitating him for work. The reporting officer, the yard surgeon, and the employee's physician certify that the incapacity was due to the injury in question and that it continued more than 15 days. It further appears that, so far as the injury was concerned, the employee was able to resume work on February 11, 1915, but that, in fact, he did no further work at the yard, owing to his physical condition, due to other causes, i. e., cerebral softening, from which he died February 15, 1915. The record is rather unsatisfactory with respect to any connection that may have existed between the specific injury and the disease from which the employee died. On February 10 the certifying physician stated, as to the possibihty of any permanent results from the original injury : Now suffering from dementia. I do not know of any relation between injury and his present condition. On February 24 the yard surgeon, speaking of " injury or disease causing incapacity," said : Lye burns both hands. Healing greatly delayed because he was unmanage- able, being declared insane on January 19. Mental condition was that of general paresis of specific origin in no way connected with his injury, as assured me by both physicians attending case. He died of general paralysis of insane, 8 a. m., 2-15-15. The Bureau of Labor Statistics has submitted the case to this office, with special reference to the following question : As the decedent was disabled for more than 15 days, on account of the injury of January 7, 1915, before he died from other causes and before he had submitted a claim for compensation under the act of May 30, 1908, is his widow entitled to compensation for the time he lost on account of the injury? The first question to be decided is whether it is material that a formal claim, signed by him and supported by his affidavit, shall have been filed by the injured employee prior to his death in order OPINIONS OF SOLICITOR, DBOPAETMBNT OP LABOK. 615 to fix the liability of the Government as to payment of compensa- tion for the period of incapacity. Section 4 of the compensation act provides : In case of incapacity for work lasting more than 15 days the injured party desiring to take the benefits of this act shall file * * * an afadavit setting forth the grounds of his claim for compensation * * *. If the Secretary of Labor shall find from the report and affidavit, or other evidence produced by the claimant or his or her legal representatives, or from such additional Investigation as the Secretary of Labor may direct, that a claim for compensa- tion is established under. this act, the compensation to be paid shall be deter- mined as provided under this act and approved for payment by the Secretary of Labor. rt is evident from the language of this section that the Secretary is not precluded from finding that a claim has been established, even when a formal claim supported by affidavit has not been filed by the injured employee prior to his death. The practice of the department with reference to this phase of the matter is based upon a ruling of the Solicitor for [Commerce and] Labor, dated February 19, 1909 (Op. Sol., 608), and in my judgment is the proper construction of section 4. This opinion reads in part as follows : The language of this section (sec. 4) shows very clearly that it was the intention of the legislature that a right to compensation once acquired by a person should not be defeated by the death of such person. Following my reasoning in the case of William McCarrel (Dec. 3, 1908, Bu. No. 1038), I con- clude that the amount to which the deceased was entitled at the time of his death became an asset of the estate. The fact that he did not make a formal claim is immaterial. He may not have been in a condition to do it. Whatever right he had at the time of his death passed to his legal representatives. As he died without leaving any widow, child or children, or dependent parent no person under the law became entitled to compensation for any time after the death. Furthermore, the character of the compensation allowed by the act to the injured employee would require that it should be considered as an asset of his estate upon his death, regardless of whether or not formal claim had been filed by him. If it was intended merely as a gratuity, there would be nothing upon which the legal representatives would have a claim. It would not constitute a vested right until reduced to possession, and unless so reduced to possession would lapse on the death of the injured employee (24 C. Cls., 422) . That it was intended by the legislature to be considered as being in the nature of an earned compensation and not a gratuity is the view of the Comp- troller of the Treasury, as evidenced by the following excerpt (20 Comp. Dec, 555) : It has been correctly held that the benefit conferred by this statute Is not a pure gratuity (16 Comp. Dec, 477). The provision is for a continuance during disability of "the same pay as if he continued to be employed." It is also spoken of in the act as " compensation." It is in lieu of that which an injured employee might recover of a private corporation by an action at law. In view of the foregoing I am of opinion that in the case here under consideration a claim *may be filed by the legal representative of the deceased employee, and that if satisfactory evidence of the validity of such claim is produced the department is authorized to allow it. 616 workmen's compensation undee act op may 30, 1908. After having been allowed, however, the further question arises as to whom payment may be made. Section 6 of the compensation act provides that — Payments under this act are only to be made to the beneficiaries or their legal representatives other than assignees, and shall not be subject to the claims of creditors. In contemplation of law the term "legal representatives" of de- ceased persons refers ordinarily to executors and administrators. But this term is not always confimed to executors and administrators. In 18 Comptroller's Decisions, 395, the comptroller in a well-con- sidered opinion held that the spirit and purpose of the compensation act, where an employee dies as the result of an injury before having made application for or received compensation, warrants payment of compensation from date of injury to date of death, as well as for the remainder of the year, to the other beneficiaries named in the act. In this opinion, construing section 6, the comptroller said: I do not think the words " legal representatives" are here used as meaning only executors or administrators, which is the ordinary and commonly accepted sense of that term because they usually by law represent the deceased. But tMs is not the only definition of the term. The words may mean heirs, or next of kin, descendants, or devisees and distributees. It was said in the case of Warnecke v. Lembca (71 111., 91), in referring to the term " legal representative " ; " The sense in which the term is to be under- stood depends somewhat upon the intention of the parties using it, and is to be gathered not always from the Instrument itself but as well from the surrounding circumstances." And in Staples v. Lewis (71 Conn., 28S) : "These words have lost much of their distincti^■e force and are used to describe either executors and adminis- trators, children or descendants and next of kin, or distributees and de- visees * * *. When used in statutes these terms should be interpreted with reference to the intention of the legislature gathered from the entire language used in connection with the subject and purpose of the law." In Schultz «. Life Insurance Co. (59 Minu., 309) the words "legal represen- tatives " in an insurance policy were construed to mean heirs or next of kin, the court saying : " It is always permissible to construe these words in that way, especially in wills and policies of life insurance, wherever it is apparent from the contents or subject matter that they were used in that sense. They will be construed in that way more readily in i^olicies of life insurance than in almost any other kind of instrument, for the reason that such insurance is very com- monly intended as a provision for the family of the insured." ^ The act of May 30, 1908, under consideration, makes provision for the family or dependent relatives of the injured employee at a time when by his incapacity for work, or death, they are deprived of his regular earnings for their support ; so that the conditions are similar to those referred to in the decision last quoted, and the same construction should be placed upon the term " legal rep- resentatives." The language of section 6, supra, viz, " legal representatives other than assignees," standing alone, seems to show that executors and administrators are not the only persons meant. And the exemption of the disability pay from the claim of creditors points to the same conclusion. Under the. facts you present the proposed payment in this case to the widow is in accordance with the purpose of the law and may be made. In a prior opinion, under a similar set of facts (16 Comp. Dec, 477), the comptroller held that payment might be made to the legal representatives, adding "who appear to be the parents of the de- ceased employee." Under the foregoing rules laid down by the comptroller it has been the practice to make payments under section 6 covering period of incapacity prior to death, where same has not been paid to the Opinions of solicitOb, depahtMent op laboe, 617 injured employee, to the dependent relatives as the "legal repre- sentatives " designated by such section. The question as to payment under section 6 to an administrator, where deceased employee left neither widow, child, or dependent parent, subsequently came up for consideration by the comptroller, and on May 9, 1912 (18 Comp. Dec, 872), he held that: By section 6 the payments under tlie act may be made only " to the bene- ficiaries or their legal representatives," and the payments are also excluded from assignment and from the claims of creditors. It is a limitation on the payments that may be made, and the term " legal representatives " as used in the sixth section of the act does not require that payment be made to an administrator of the estate of the employee who acts for the general purposes of such estate. The act as a whole shows the intent to be that whatever compensation is provided under the several sections of the act is for the employee and those naturally dependent on him. They are undoubtedly the beneficiaries contem- plated by the act, and there is no sUch provision as shows an intention to benefit the estate of the employee. The purposes as expressed in the act negative the payment of the compensa- tion to an administrator who does not represent a beneficiary, but represents only the estate generally of the employee. Such payment would appear espe- cially negatived where none exist of those expressly mentioned by the act as beneficiaries as in the present case, and I view payment of the voucher sub- mitted as not authorized by any provision of said act of 1908. Under the foregoing decision it thereafter became possible to pay the compensation in question only to a restricted class of adminis- tratox's. This eventually brought the term "legal representatives" as used in section 6 again forward for construction, under the follow- ing circumstances: The Auditor for the Interior Department on November 29, 1913, disallowed a credit for payment made to the administrator of the estate of John E. Wood, deceased, for com- pensation or disability pay, stating the following reason : The act of May 30, 1908 (35 Stat., 556), authorized payment of the compen- sation provided for therein only to the employee, his widow, children, or de- pendent parents. Payment is not authorized to an administrator who does not represent a beneficiary but only the estate generally of the employee * * *. (See 18 Comp. Dec., 872.) The action of the auditor came up for revision by the comptroller, and the latter officer, after quoting the language of the former comp- troller in Decisions of the Comptroller, volume 18, page 477, supra, said (20 Comp. Dec, 555, 557, 558) : In concluding, the comptroller held that payment might be made to the " legal representatives," adding " who appear to be the parents of the deceased employee." The comptroller knew, as we all ifnow, that " legal representatives " of deceased persons are, in contemplation of law, executors and administrators; but he evidently invoked the rules of construction which In some cases permit heirs or next of kin to be regarded as within the term. This idea is borne out by the. case in Decisions of the Comptroller, volume 18, page 395, wherein authorities are cited justifying this sort of a construction. In that case, where claim was made by a widow and payment authorized to her on that construction of the term "legal representatives," the comptroller, referring again to section 6, said : " I do not think the words ' legal representa- tives ' are here used as meaning only executors or administrators"; and con- cluding the case, he says : " The language of section 6, supra, viz, ' legal representatives ' other than assignees, standing alone, seems to show that executors and administrators are not th« only persons meant," Tlie use of the word " only " in both quotations is significant. . The language can be interpreted only as a concession not to be questioned that " legal repre- sentatives " necessarily means executors and administrators and a contention 618 wokkmen's compensation under act oe may 30, 1908. that the words were not to be strictly so limited, but were meant to include others also. In the face of these two cases, well reasoned on sound principles, the decision in Decisions of the Comptroller, volume 18, page 872, is difficult of comprehen- sion, especially as it does not in any specific way refer to, modify, or distinguish either of the cases above cited. In the case last cited It is said : " In fact, there is no clear provision in the act for making payment of the compensation under section 1 to any other than the employee." It had been theretofore held (16 Comp. Dec, 477) that section 6 applied to section 1. And it is also said, as the basis of the conclusion that payment may not be made to an administrator, that " the purposes as expressed in the act negative the payment of the compensation to an administrator who does not represent a beneficiary, but represents only the estate generally." This statement can only be justified upon the conclusion that "legal repre- sentatives " means an administrator if there be widow, minor children, or de- pendent parents surviving, and does not mean an administrator if no such rela- tives survive. Such a conclusion can hardly be justified. An administrator is not the " legal representative " of persons in life. In the administration of an estate he must conserve the Interests Of surviving heirs, but he is the " legal representative " of the decedent and no one else. Construc- tion to carry out assumed intention must have a firmer foundation before it can be permitted to violate established principles. In the case under consideration the pay to which this man was found to be entitled was his before his death, although not reduced to possession, just as much as if it was pay earned by actual labor. Section 2 has no reference to such a case. If section 6 applies to section 1, this pay could go only to the beneficiary — ^the injured employee — or his legal representative, subject to certain restrictions. If section 6 does not apply to section 1, the law will talie care of the case equally as well. We need not in this case determine anything as to the right to institute a claim. We are concerned only with the pay due under a perfected and allowed claim, a right fixed during the life of the employee. There Is nothing In the act providing against payment to an administrator In such a case, and there is too much of established principle to permit of a conclusion based on a mere assump- tion as to intention. It is to be noted that the present comptroller does not disagree with the views expressed in Decisions of the Comptroller, volume 16, page 477, and id., volume 18, page 395, supra, that payment was not neces- sarily confined to the administrator or executor. His contention is that nothing in either of these decisions justifies the view expressed in Decisions of the Comptroller, volume 18, page 872, that payment could not be made to the administrator of the estate generally. More- over, the last-mentioned decision is expressly overruled by the latest decision, while as to the two former ones it is said that they are " well reasoned on sound principles." It is apparent, however, that the present comptroller does not consider these opinions to go further than to allow payment to be made, outside of administrators and executors, only to legal representatives who are heirs or next of kin. In my opinion this is a correct conclusion and one which will rarely, if ever, work hardship upon the family of the deceased employee. While it may be that under the law of domicile of the deceased the amount due the estate may go to some relative other than the widow, dependent parent, or child, it is believed that in practically every case the payment will reach the persons who under the present prac- tice are receiving it. In the case under consideration it is necessary, as a matter of course, that a claim shall be filed by the " legal representative " of Mr. Karumbellas, the deceased employee, who in my opinion would OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR, 619 be the administrator, the executor, or the heir or next of kin of such deceased employee. A claim filed by any one of these individuals would appear to meet the requirement that the claim be filed by the "legal representative." Satisfactory evidence should of course be furnished as to the status of the person filing the claim. If this is done, and it is determined that a claim has been established under the statute, payment of the compensation due will be governed by the law of the domicile and the decisions of the Comptroller of the Treas- ury. In this connection, attention is invited to Decisions of the Comptroller, volume 12, page 439, quoting from the syllabus : Payment without administration of small amounts due to the estates of de- ceased creditors of the United States must be made to the person or persons who under the laws of the domicile of the decedent would be entitled to receive the same if administration were had ; therefore the proof reiiuislte for the pay- ment of such claims should be in accordance with the requirements of the laws of the States of their respective domiciles. XXIV. « WITHIN NINETY DAY« AFTEB, SUCH DEATH PILE WITH THE SECBETABY OF LABOR." 1. The requirement that an affidavit of claim, shall be filed within 90 days after the death is mandatory, and the claim of a widow filed 91 days after the death of the employee is barred by the statute. (See case of Thomas A. Gray, jr., at p. 648, overruling' this case.) [In re claim of William Goodley, Jan. 16, 1909 ; No. 385.] This claim is submitted for a ruling on the question whether the provision as to the submission of claim for compensation on account of death within 90 days (sec. 4) is mandatory or only directory. The act of May 30, 1908, after providing for certain compensation to the widow or dependent parent or children of a Government em- ployee of certain enumerated classes, provides, in its section 4, " That in the case of any accident which shall result in death the persons entitled to compensation under this act, or their legal representatives, shall, within 90 days after such death, file with the Secretary of [Commerce and] Labor an affidavit setting forth their relationship to the deceased and the ground of their claim for compensation under the provisions of this act." In this case Goodley was killed on October 8, 1908, and the mother of the killed employee filed her affidavit on January 7, 1909, 91 days after the death of the employee. The language of the act is clear and not ambiguous. It sets a limit to the presentation of claims, and must have been so intended by Congress. Like the time prescribed for bringing suit in a case at law or of taking an appeal, a definite period of 90 days is fixed, after which no such claim can be made. One day more is obviously as much a bar to such claim as 1 year or 10 years. The act of May 30 is undoubtedly remedial and should be liberally construed. But "if the language be clear, it is conclusive. There can be no construction where there is nothing to construe." (United States V. Hartwell, 6 Wall., 396.) The presumption is that the word "shall " in a statute is used in an impera- tive and not in a directory sense. If a different interpretation is sought, It must rest upon something in the character of the legislation or in the context which will justify a different meaning. Thus, whenever a statute declares that something " shall " be done, the natural and proper meaning is that a peremp- tory mandate is intended. (25 A. & B., 633, and cases cited.) 620 WORKMEN *S COMPENSATION tjNDEB ACT OP MAY 30, 190S. Statutory prescriptions in regnrcl to tlio time, form, and mode of proceeding by puhUo functionaries are generally directory, as they are not of the essence of the thing to be done, but are given simply with a view to secure system, uniformity, and dispatch in the conduct of public business. (2C A. & B., 689, and cases cited.) This is not the rule in the case of a private claimant for benefits under a statute where compliance with the terms of a statute is a condition precedent in getting the relief sought. To read it other- wise would make a new law instead of the one really enacted. When {I statute gives a right or remedy which did not exist at common law, find provides a specific method of enforcing it, the mode of procedure provided by the statute is exclusive and must be pursued strictly, (26 A. & E., p. 671, citing Dollar Bank v. XT. S., 19 Wall., 227; N. Y. Fourth National Bank v. Frnncklyn, 120 TJ. S., 747; Lumber Co. v. Hubbert, 112 Fed., 718, and many State and English cases.) Just as in the case of a suit at law, provisions as to the mode of procedure prescribed by statute are mandatory and must be strictly conformed with' (Mays v. King, 28 Ala., 690; Elliott v. Chapman, 15 Cal., 383 ; Seymour v. Judd, 2 N. Y., 465 ; Ammerman v. Stone, 11 Pa. Dist., 726), so, the condition that a claim for the death of an employee must be presented within 90 days must be strictly complied with to give the Secretary jurisdiction to consider the case. (See also Davis case, 17 Ct. Cls., 301.) It is my opinion that no construction can be given to this act to read out of it the plain provision that a claim must be pre.sented within 90 days. In this regard the act gives the Secretary of Com- merce and Labor no discretion. The claim can not be paid. [In re. claim of David Kaul, Aug. 1. 1912 ; No. 8533.] This claim is filed by C. Kahale, the father of decedent, who ap- pears, from the affidavit filed, to be a dependent parent within the meaning of the act of- May 30, 1908. The claim is submitted to this office with the following inquiries: 1. Was claimant's injury in October and overseer s neglect to properly instruct as to filing a. claim such as. to bring the filing of the claim within the 90 days limitation provided by the act ? 2. Was the decedent's death due to his own negligence or mis- conduct within the meaning of the act? The decedent was killed September 23, 1911, and the claim affida- vit of the dependent parent was not filed before April 3, 1912. By section 4 of the compensation act it is provided — That in case of any accident which shall result in death, the persons entitled to compensation under this net or llioir legal representatives shall, within ninety days after such death, file with the Secretary of Commerce and Labor an affidavit setting forth their relationship to tlie deceased and the ground of . their claim for compensation under the provisions of this act. The claimant made the following statement in explanation of the delay : On hearing his dcnth, which occurred September 23, 1911, I went to Hono- lulu ; and on 2d October following called at the local office to see the chief officer or major of the corps about my claim. From him I learned that I would have 10 wait Six months to receive an allowance, which was to the sum of $532; from the main office In Washington. I took his word and waited. ■ Some time nflpr this, in the month of November or December, I received $32; for which 1 acknowledged receipt. OPINIONS 01'' SOLICITOK, UEPARTMENT Oi' LABOR. 621 When the six months'- time was up, I again called at the office at Kamoillill, Honolulu, on the major in regard to the claim. He then informed me that they have written to Washington and no answer came. I then said I would get an attorney to help me. To which he consented. He then handed me blank forms to fill in in which I saw that a claim must be made in 90 days. Had I known beforehand that a written claim was necessary, I would have sent in within the time prescribed. I thought that my personal appearance.and demand was all sufficient. I was too dependent on the major. The engineer officer in charge of the work also made the following report after investigating the matter : This statement was evidently prepared for the claimant's signature by some person not conversant with the facts.- The claimant did not appear at this office until the submission of his claim. Where the word " major " appears In the cliiimant's statement, it should read " overseer." 1 find upon Investigation that some time after the death occurred the claim- ant called on the overseer in charge of the quarry and inquired about the pay due the deceased. He was Informed that it would take some time for the case to be sent to Washington and returned, and the overseer estimated that It might be as much as six months before the back pay was received. On the occasion of his second visit to the overseer he was told that the overseer had heard nothing about it. The overseer apparently made no effort on the occasion of the claimant's first visit to instruct him as to the proper procedure to take In submitting his claim, and did not refer him to this office where he would have been furnished with blanks. Owing to the fact that the claimant's failure to submit his claim within the proper time was due partly to the overseer's negligence and partly to his own ignorance, it is recommended that that fact do not operate as a bar to his claim If otherwise approved. In a former opinion involving the limitation here in queiStion (claim of Goodley, Jan. 16, 1909, C. 385), it was said: The language of the act is clear and not ambiguous. It sets a limit to the presentation of claims and must have been so intended by Congress. Like the time prescriber for bringing suit In a case at law or taking an appeal, a definite period of 90 days is fixed, after which no such claim can be made. One day more is obviously as much a bar to such claim as 1 year or 10 years. The act of May 30, 1908, is undoubtedly remedial and should be liberally construed. But if the language be clear. It Is conclusive. There can be no construction where there is nothing to construe. (TJ. S. *. Hartwell, 6 Wall., 398.) The presump- tion Is that the word " shall " is used in an imperative and not in a directory sense. If a different interpretation is sought it must, rest upon something in the character of the legislation or In the context which will justify a different meaning. Thus, whenever a statute declares that something " shall " be done, the natural and proper meaning Is that a peremptory mandate is Intended. (25 A. & B. Encyc. Law, 633 and cases cited.) Statutory prescriptions in regard to the time, form, and mode of proceeding by public functionaries are generally directory, as they are not of the essence of the thing to be done, but are given simply with a view to secure system, uniformity, and dispatch in the conduct of public business. (26 A. & B. Encyc. Law, 689 and cases cited.) This isnofthe rule In the case of a private claimant for benefits under a statute where compliance with the terms of a statute is a condition precedent to getting the relief sought. To read it otherwise would be to make a new law instead of the one really enacted. When a statute gives a right or remedy which did not exist at common law and provides a specific method of enforcing it, the mode of procedure pro\-ided by the statute is exclusive and must be pursued strictly. (26 A. & E. Encyc. Law, 071 and cases cited.) Just as In the case of a suit at law provisions as to the mode of procedure prescribed by statute are mandatory and must be strictly complied with (Mays v. King, 28 Ala., 690; Elliott v. Chapman, 15 Oal., 383), so the condition that a claim for the death of an employee must be presented within 90 days must be strictly complied with to give the Secretary jurisdiction to consider the case. This must be the rule. Unless the requirement as to- time of filing is jurisdictional, it is meaningless.. If a claim can be considered. 622 workmen's compensation under act op may 30, 1908. though not filed within the time prescribed, the limit as to time would be without effect. In allowing claims for compensation, however deserving, the Department can not extend the scope of the act or disregard its limitations. The causes resulting in the delay in the present case are such as to justify an exception to the statute on equitable grounds ; but since the statute itself makes no exception the Department can make none. Under a New York statute granting to canal appraisers jurisdiction to hear and determine any claim for damages resulting from the negligence of any State officer in charge of canals, or from any accident connected therewith, and providing that such claims diould be " filed in the office of the appraisers," it was held that there must have been a delivery by or on behalf of the party of his claim at the office itself to constitute the jurisdictional fact of a filing and that proof of the directing and mailing of the statement of the claim to the canal appraisers was not sufficient. (Gates V. State, 128 N. Y., 221.) In this case the court said : Its powers are exclusively derived from the consent of the State, as ex- pressed In the act of the legislature, and none may be implied, except such as may fairly be deemed incidental and necessary to the jurisdiction when once acquired. The citizen who seeks to avail himself of the privilege to sue the State must be held to strictness in procedure; just as it must be held in all cases where the remedy is one which exists and is enforceable solely through the provisions of some statute. His right being dependent upon compliance with the terms of the statute, jurisdiction of his claim can be acquired by the tri- bunal only in the way prescribed. To require that "claimants shall file their claims in the office of the canal appraisers," has but one meaning and effect. There must have been a delivery by or on behalf of the party of his claim at the office Itself to constitute, and to enable him to allege and to establish, the jurisdictional fact of a filing. Anything short of a delivery leaves the fact of the filing disputable, and that, I think, would be quite inconsistent with the principle which underlies the jurisdiction of the inferior tribunal. Its jurisdlc- tMQ being limited and special, no presumption will be entertained in support of it; but this fact conferring it must affirmatively and conclusively appear. For the reasons stated, I am constrained to say that, in my opinion, the claim can not be allowed. It is accordingly unnecessary to con- ^der the question of negligence. 2. If a benSficiary in case of death, in person or by an agent, files a claim for compensation, or what is equivalent to a claim, within the time pre- scribed, and an " affidavit " In the technical sense is not filed until 90 days have expired, owing to the delay of Government officers in supplying the necessary forms, the right to compensation is not barred. [In re claim of S. A. Powers, Feb. 19, 1909 ; No. 416.] This case was submitted to this office with special reference to the question whether the evidence of accidental injury was sufficient to establish a right to compensation under the act of May 30, 1908, and an opinion on that question was given February 16, 1909. It is now resubmitted with the suggestion that the prescribed procedure has not been followed, i. e., that the affidavit setting forth the relation- ship of the claimants to the deceased and the ground of their claim, was not filed within 90 days after the death, as required by section 4 of the act of May 30, 1908. It was held in the case of Mary E. Goodley, mother of William Goodley, cranesman, who was IriUed at Empire, Canal Zone (C 385, OPINIONS OF SOLICITOK, DEPARTMENT OP LABOR, 623 Bu. No. 772, Op. Jan. 16, 1909), that Mrs. Goodley's claim for com- pensation was barred because it was not presented within 90 days after the death of her son. In the present case it is noted that Mrs. Oallie N. Powers, widow of the deceased, presented a claim, for herself and daughter, on October 12, 1908, which was 48 days after the death of Mr. Powers, which occurred on August 25, 1908. That she wrote the letter shows that she was diligent. It is true that the affidavit required by the act was dated December 7, 1908, more than 90 days after the death, but in this connection it is noted also that the captain of the Corps of Engineers did not furnish Mrs. Powers with the formal affidavit blank used in such cases until after he had written his superior officer, November 12, 1908, asking whether he should do so, and was furnished with the blank form, C. A. 16, on December 12, 1908, as shown by the second indorsement on the back of the letter. Mrs. Powers made the affidavit on that same day. It is apparent that the widow and child of the deceased are not chargeable with any delay in filing the affidavit. Whatever the delay, it was merely the result of the passing of the claim through official channels. It is my opinion that the claimants complied with the intent and spirit of the law when their letter of October 12, 1908, was filed. tin re claim of J. H. Malik), Oct. 9, 1900 ; No. 1836.] The above claim is submitted to this office with special reference to the questions of dependence of claimant and whether the claim and affidavit were duly filed in accordance with the provisions of the compensation act. The employee was killed on March 28, 1909. He was unmarriei, and his father, who lives in Spain, makes the claim as dependent parent. Under date of April 21, 1909, the claimant executed what appears to be a sufficient power of attorney to authorize the Spanish consul at Panama to act for and on behalf of the said claimant in this matter. On June 17, 1909, this power of attorney was filed with the examiner of accounts of the Isthmian Canal Commission and the Spanish consul requested that proper forms be sent him for the purpose of making the claim and affidavit required. As the power of attorney and accompanying letter were written in Spanish they were referred to another office for translation, and in some way the matter was overlooked for several weeks and until the 90-day limit had expired. However, the affidavit on its face shows that it was executed on June 17, 1909, and the examiner of accounts states that the claim was recorded as having been filed on June 17, 1909. In the case of S. A. Powers (C 416 ; Bu. No. 1729) , where the claim- ant, within 90 days, wrote a letter to the official superior of the de- ceased employee, but was prevented from executing the required affidavit within the 90 days on account of delay on the part of the official superior in furnishing the proper blanks, the affidavit finally being executed more than 90 days after the death, and then filed, it was held that the provisions of section 4 of the act of May 30, 1908, had been substantially complied with, and the claim was allowed. The present case is similar to the Powers case in that the delay in the filing of the claim and affidavit was due to the delay of Govern- 624 workmen's compensation undeb act op may 30, 1908. ment officers. But while in the Powers case the aflSdavit was executed and dated after the time limit had expired, the affidavit in the pres- ent case is dated as having been executed on June 17, 1909, and the records of the examiner of accounts are made to show that it was received and filed on the same date, making it appear that the affi- davit was filed in ample time. Thus all the reasoning in the Powers case applies with even greater force in the present case. In the Powers case I said : That she wrote the letter shows that she was diligent. It Is true that the affidavit required by the act was dated December T, 1908, more than 90 days after the death, but in this connection it is noted also that the captain of the Corps of Engineers did not furnish Mrs. Powers with the formal affidavit blank used in such cases until after he had written his superior officer, Novem- ber 12, 1908, asking whether he should do so, and was furnished with the blank form, C. A. 16, on December 12, 1908, as shown by the second indorse-, ment on the back of the letter. Mrs. Powers made the affidavit on that same day. It is apparent that the widow and child of the deceased are not chargeable with any delay in filing the affidavit. Whatever the delay, it was merely the result of the passing of the claim through official channels. I am of opinion, therefore, that the provisions of section 4 of the compensation act have been complied with in the present case. With reference to the question of dependence, it is noted that the claimant received about $250 a year from the deceased employee, that the said employee lived with the claimant until April, 1908, and that the property owned by the claimant is valued at about $600. I am of opinion that these facts justify the conclusion that the claimant is a dependent parent within the meaning of the statute. [In re claim of N. M. Martin, Apr. 10, 1912; No. 1786.] This claim is now submitted with additional evidence and with an inquiry whether the same warrants a reversal of the action of the Department of March 21, 1910, in disapproving the claim. The claim was disapproved for the reason that it had not been filed within 90 days, as required by section 4 of the act of May 30, 1908. From the entire record as now made up, it is seen that decedent was killed on May 3, 1909; that the persons entitled to file a claim were his parents, who resided in the Province of Salamanca, Spain ; that the, parents received word of the death of the son and on May 28, 1909, they duly executed, under the laws of Spain, a power of attor- ney authorizing the Spanish consul in the city of Panama to do and perform all necessary acts for the purpose of securing whatever in- demnity might be available under the circumstances. This power of attorney was duly filed by the Spanish consul with the claim officer of the Canal Commission, who advised the former official that he should file a claim on behalf of the claimants, to which he replied that inasmuch as a claim had been filed by the parents direct he did not care to file a claim. This power of attorney was duly sworn to and fully evidenced the intention on the part of claimants to make a claim for such indemnity as they would, under the laws, be entitled to receive. Subsequently, on June 30, 1909, the Department of State forwarded to the American vice consul at Madrid, Spain, blank forms adopted by this Department, to be filled out by claimants, for the purpose of making a formal claim thereon. These forms were in turn sent to the claimants, who, as stated by the American consul, OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 625 lived in a little town, far in the country, with but little communica- tion with the outside world. The blanlcs were then filled out, and, owing to the absence of the notary for a few days from his home town, a little delay was occasioned, but the papers, properly authenti- cated, were mailed in Madronal de la Sierra on August 2, and reached the American consul on August 5, 1909. As the 90 days' limitation expired on August 1, it was decided that the claim had not been filed within the statutory jjeriod. When the claim was formerly con- sidered, there was nothing in the record regarding the execution and filing of the power of attorney, a copy of which now accompanies the papers. It now appears, upon a consideration of the facts set out in the additional evidence, that the power of attorney was duly filed by the Spanish consul at JPanama with the examiner of accounts for the Isthmian Canal Commission on or about July 1, 1909, and the question which is presented now for determination is, whether the filing of the power of attorney with the Canal Commission was the filing of an affidavit within the meaning of the provision of the act that requires that an affidavit be filed within 90 days. Taking up this inquiry, it is found that section 4 of the act pro- vides: That in tlie case of any accident which shall result in death, the persons en- titled to compensiition under this act or their legal representatives shall, within 90 days after such death, file with the Secretary of Commerce and Labor an affidavit setting forth their relationship to the deceased and the ground of their claim for compensation under the provisions of this act. Thus it is noted that the essentials of this provision are that the claiments shall, within 90 days, file an affidavit setting forth their relationship to the deceased and the grounds of their claim for com- pensation. The contents of the affidavit then, as required by law, may be said to consist of a statement under oath, showing the rela- tionship of claimants to the decedent, and the ground of their claim for compensation. An examination of the copy of the power of attorney, filed with the record, shows clearly that it contains these necessary essentials : First, that it was duly sworn to ; second, that it established the fact that the claimants were the parents of the de- cedent, thereby showing the relationship; and, third, the fact that they intended thereby to make claim and preserve their rights to any compensation, indemnity, or damages to which they were entitled under the laws. It will be observed that every requirement of the statute was practically complied with by the filing of the affidavit with the im- mediate official superior of the decedent, when the same was filed with the officials of the Isthmian Canal Commission, for it was decided in the Nurse case (C 518, Bu. 1166) that: It would be unreasonable to hold, that by requiring claimants to file their claims "with the Secretary of Commerce and Labor" Congress intended that such claims should be filed with him personally, or that they should be kept In his personal custody A more sensible ititerpretation would be to say that the claim Is filed "with the Secretary of Commerce and Labor," when it is filed with such persons as the Secretary of Commerce and Labor may have designated to receive the same and in accordance with the regulations prescribed by him to carry the act into effect. As the regulations promulgated by the Secretary of Commerce and Labor with reference to the filing of claims provide that the form of claim must be returned to the official superior, I am of the opinion 93364°— 15 iO 626 workmen's compensation under act of may 30, 1908. that the filing of the power of attorney as above indicated was a sufficient compliance with the requirements of the act in that respect, as this affidavit was filed with the official superior of decedent within 90 days after the death. In the Bilazo case (C 6247, Bu. 11356) the claimant wrote a letter to the official superior of the decedent within the 90-day period, evidencing her intention of filing a formal claim, but owing to some delay the proper blanks were not for- warded to her until it was too late to file them within the time limit. It was determined in this case that the delay in filing, under those circumstances, was not chargeable to claimant but to the manner in which the matter was handled by the superior officer. The facts in. Powers' case (C 416, Bu. 1729) were somewhat similar and the delay in filing was held to be due to the passing of the claim through official channels. It is noted from the record in this case that the death occurred on May 3, 1909, and under date of June 30 the State Department forwarded the necessary blanks to the American consul at Madrid, Spain, so that they could then be forwarded to the claimants who resided in the interior of the country. The papers were accordingly properly executed and mailed to the American consul on August 2, 1909, one day after the 90-day limit expired. Thus it is seen that out of the period of 90 days more than 60 days had elapsed before the claimants were furnished with the necessary blanks, and that, so far as they are concerned, there was no unusual or unnecessary delay on their part, either in executing or forwarding them, so it appears that, in addition to the first reason above given in favor of the allowance of the claim, there is the additional reason that the delay was not attributable to claimants, but to the passing of the papers through 6fficial channels. ' In view of the foregoing, I have the honor to recommend that the previous action of the Department in disapproving the claim, because it was not filed within 90 days, be now revoked and that it be approved for payment. 3. The delivery of an affidavit of claim to the deceased employee's official snperioT, In accordance with regulations of the Secretary desi^ating such official superior to receive the same, is a filing with the Secretary within the meaning of the act. [In re claim of George Nurse, Mar. 6, 1909 ; No. 518.] This case is submitted with reference to the question whetlier the date of the affidavit shall be regarded as the date of filing the claim in accordance with section 4 of the act of May 30, 1908, which pro- vides that " in case of any accident which shall result in death, the persons entitled to compensation under this act or their legal rep- resentatives shall, within 90 days after such death, fie with the Secretary of Govrvmerce and Laior an affidavit setting forth their relationship to the deceased and the ground of their claim for com- pensation under the provisions of this act." The death of George Nurse occurred on October 30, 1908, and the claim, in the form of an affidavit, setting forth the relationship of the deceased to the claimant and the ground of the claim for compensa- tion, was made on November 25, 1908, and, as indicated by the stamp OPINIONS OP SOLICITOR, DEPARTMENT OP LABOR. 627 thereon, was received by the Bureau of Labor January 29, 1909, 91 days after the death occuired. More than two months intervened between the date of the claim and the date of its receipt in Wash- ington. The claim was made in Barbados, West Indies. About a month and a half intervened between the date of the claim and the date of the certificate of the attending physician, executed in the Canal Zone, whence the claim was transmitted to the Bureau of Labor. The question to be considered is whether the claim was filed within 90 days after the death of the employee injured "with the Secretary of Commerce and Labor " within the meaning of section 4 of the act of May 30, 1908. This question is not free from difficulty. If the technical defini- tion of the word "file" given in the books is literally applied, it would be difficult to say that the affidavit in the present case was filed with the Secretary of Commerce and Labor within 90 days after the death of the injured employee. A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file. "The test of filing seems to be whether the officer in whose custody the paper is placed is the one entitled to retain the same." (In re Von Borcke, 94 Fed. Rep., 352; see also Bouvier's Law Dic- tionary; Words and Phrases, vol. 3, p. 2764; 13 A. & E. Encyc. Law, 13.^ Under a New York statute granting to canal appraisers jurisdiction to hear and determine any claim for damages resulting from the negligence of any State officer in charge of canals or from any accident connected therewith, and providing that such claims should be " filed in the office of the appraisers," it was held that there must have been a delivery by or on behalf of the party of his claim at the office itself to constitute the jurisdictional fact of a filing, and that proof of the directing and mailing of the statement of the claim to the canal appraisers was not sufficient. (Gates v. State, 128 N. Y., 221.) In this case the court held that the receipt and filing of the claim was the foundation of the jurisdiction of the tribunal to act upon it. Its powers are exclusively derived from the consent of the State, as expressed in the act of the legislature, and none may be implied, except such as may fairly be deemed incidental and necessary to the jurisdiction when once ac- quired. The citizen who seeks to avail himself of the privilege to sue the State must be held to strictness in procedure, just as it must be held in all cases, where the remedy is one which exists and is enforceable solely through the provisions of some statute. His right being dependent upon compUance with the terms of the statute, jurisdiction of his claim can be acquired by the tribunal only in the way prescribed. To require that " claimants shall file their claims in the office of the canal appraisers " has but one meaning and effect There must have been a delivery by, or on behalf of, the party of his claim at the office Itself to constitute, and to enable him to allege and to establish the jurisdictional fact of a filing. Anything short of a delivery leaves the fact of the filing disputable, and that, I think, would be quite Inconsistent with the principle which underlies the jurisdiction of the inferior tribunal Its juris- diction being limited and special, no presumption will be entertained in support of it ; but the fact conferring it must affirmatively and conclusively appeal^ In the foregoing case, however, there is nothing to show that the claim had ever been received. In that case, moreover, the statute required the claim to be filed " in the office " of the canal appraisers whereas the present act requires that the claim shall, within 90 days after death, be filed " with the Secretary of Commerce and Labor " In Peoples Saving Bank v Batchelder Co. (51 Fed. Rep., 130), it was 628 workmen's compensation under act of may 30, 1908. objected that papers in an attachment suit, which had been delivered to a clerk of court at his home after office hours and away from his office, did not constitute a compliance with a statute which declared that a civil action is commenced " by filing in the office of the clerk of the proper court a complaint," etc., but the court held that " such a literal construction of the statute would be too narrow and technical for the practical and business methods that should obtain in the administration of the law." The point of view indicated by the de- cision last cited is the one which, in my opinion, should govern in the present instance. It would be unreasonable to hold that, by requiring claimants to file their claims " with the Secretary of Commerce and Labor," Con- gress intended that such claims should be filed with him personally, or that they should be kept in his personal custody. A more sensible interpretation would be to say that the claim is filed " with the Secre- tary of Commerce and Labor " when it is filed with such persons as the Secretary of Commerce and Labor may have designated to receive the same and in accordance with the regulations prescribed by him to carry the act into effect. The regulations governing the application of the act of May 30, 1908, granting compensation for injuries to Government employees, made in pursuance of the authority conferred by the act, provide : Procedure in case of death. — -Wlienever an artisan or laborer entitled to com- pensation under this act dies as a result of accidental injury received in the course of his employment, and his wife, his children under sixteen years of age, or his dependent parents desire to claim payment under this act, they shall be furnished with blank form of claim for compensation. This form must be filled out and returned to the official superior and shall be forwarded by him through the regular channels to the head of the department, to be transmitted by him to the Secretary" of Commerce and Labor. Claims in case of death must be filed within ninety days of date of death. * * * Filing of reports and claims. — * * * ^n claims and other documents relating thereto shall be filed by the claimant with his immediate oflBclal superior and shall be forwarded by such superior through the regular official channels to the head of the department, to be transmitted by him to the Secretary of Commerce and Labor. * * * The permanent custodian of claims made under the compensation act is the Commissioner of Labor, and the place where such claims are permanently kept is the office of the Commissioner of Labor, who, under the Secretary, is charged with the administration of the act ; but," so far as the language of the act is concerned, requiring claims in case of death to be filed within 90 days, the Commissioner of Labor is no more to be regarded as the proper person A^ith whom claims should be filed than the " immediate official superior " of the employee, designated by the regulations as the person to recei\e them. Practically it is impossible that claims for compensation should be actually filed with the head of the department or in his immediate office ; practically it is necessary that the final custody of such claims should be lodged in one of the bureaus of the Department; and it would be a highly technical objection to contend that claims so filed were not filed with the Secretary of Commerce and Labor; but since the Secretary of Commerce and Labor, and not the Commissioner of Labor, is the person named in the act with whom the claims are to be filed, it would be hardly less technical to object that claims filed with the immediate superior of the person injured, as prescribed by the regulations, are not likewise filed with the Secretary of Commerce OPINIONS OF SOLIOMOE, DEPARTMENT OT? LABOB. 629 and Labor. The practical effect of such a contention would be to deny compensation to many persons clearly entitled to the benefits of the act on account of a failure to observe what, in some cases, would be an impossible requirement. Cases arise in reniote points of United States territory where the decedent was employed at a great distance from his dependents. It is plain that in such cases it would be equivalent to a denial of compensation to require such dependents, first, to secure sufficient information touching the accident which resulted in death to frame a proper affidavit ; second, to secure a cer- tificate of the attending physician, setting forth the fact and cause of death, which the act requires shall accompany the affidavit at the time of filing; and third, to file the affidavit and the certificate per- sonally with the Secretary of Commerce and Labor within 90 days after such deatli. It is necessary that the claimants^ should file their affidavits with the superior officer of the person injured before the claim is transmitted to the Secretary in order that the certificate of that officer may likewise accompany the claim. To require, never- theless, in all cases that the claim should be in the hands of the Secre- tary of Commerce and Labor within 90 days would have the further effect of charging the claimants, notwithstanding due diligence on their part, with any laches, negligence, or delays on the part of the officials of the Government. ' Statutes should receive a sensible con- struction (7 Wall., 482) ; and, unless clearly required, that construc- tion should be avoided which leads to great inconvenience (2 Cr., 386), injustice (9 Wall., 475), or absurdity (7 Wall.. 482). Nor can it be presumed that the legislature intended to require that which is impossible (112 U. S., 536). In my opinion, therefore, the delivery to the official superior, desig- nated by the regulations referred to, of an affidavit of claim, within 90 days after the death of the employee injured, constitutes a suffi- cient compliance with that provision of section 4 of the act of May 30, 1908, which requires that " in case of any accident which shall result in death, the persons entitled to compensation under this act or their legal representatives shall, within 90 days after such death, file with the Secretary of Commerce and Labor an affidavit setting forth their relationship to the deceased and the ground of their claim for compensation under the provisions of this act," since it is mani- festly impracticable, if not impossible, for the reasons stated, for the Secretary of Commerce and Labor to personally receive such affi- davits for filing on the one hand and equally impracticable or impos- sible for claimMnts to file such affidavits with him on the other hand, and no good reason is apparent why the Secretary may not designate other officials to receive such papers in his behalf and in behalf of the claimants, who are required to file them in order to secure a considera- tion of their claims. 4. It is the date of the delivery to the official superior and not the date of the execution of the affidavit of claim which determines whether or not the affidavit of claim is filed within 90 days. [In re claim of E. R. Graham, Mar. 29, 1909 ; No. 517.] This case is submitted with reference to the question whether the date of the affidavit shall be regarded as the date of filing the claim, in accordance with sectign 4 of the act of May 30, 1908, which pro- vides that " in case of any accident which may result in death, the 630 WORKMElir's COMPENSATION UNDER ACT OP MAY 30, 1908. persons entitled to compensation under this act or their legal repre- sentatives shaU, within 90 days after such death, file with the Secre- tary of Commerce and Labor an affidavit setting forth their relation- ship to the deceased and the ground for their claim for compensation under the provisions of the act." The date of the affidavit in this case is October 12, 1908. There is no record of the time when such affidavit was received by the superior officer of the deceased. Such affidavit was received at the Bureau of Labor January 22, 1909, 142 days after the death occurred. It wiU be necessary to establish the date of the receipt of the claim by the superior officer of the deceased, and if such date is within 90 days of the accident there will be a compliance with the law in this regard to entitle claimant to compensation. (See Nurse, Mar. 6, 1909, Bu. No. 1166 ; Eock, Mar. 24, 1909, Bu. No. 211.) It is requested that the reporting officer supply the date of the receipt of the claim by him. The case is also submitted with reference to the question whether the claimant is a " dependent " parent within the meaning of the act. In reporting upon the amount of necessary support customarily re- ceived by the dependent father from the deceased prior to his death it is stated that claimant received " $2.00 on one occasion." In the case of Eock (Mar. 24, 1909, Bu. No. 211) the view taken was that while the amount contributed by the deceased to the support of his parents was by no means the only criterion for determining whether such parents are dependent, the fact that the deceased had contributed would obviously tend to establish the condition of de- pendence ; that the fact that the parents have a natural and equitable, if not a legal, claim upon their children for support makes it proper to consider the actual needs of the parents in any given case, regard- less of how far a deceased child may have been able to supply those needs; that in ascertaining what such needs are it is necessary to look to the age, the circumstances, the position in life, and the earning capacity of the parents; that the question of dependence is one of fact and not of law ; and that the fact of dependence is sufficiently established for the purposes of the act if a condition of only partial dependence for the necessaries of life is shown. It is requested, there- fore, that the record in the present case be returned for further evi- dence concerning the fact of dependence along the lines indicated. 5. Neither a verbal notice of claim \>y the royal vice consul of Italy to t!ie superior officer of an Italian subject, killed while in the employ of the United States, within 90 days after death, nor a telegraphic notice by such consul sent to the Secretary of Commerce and Labor 92 days aftsi the death, is a compliance with the act. [In re claim of Sajnuele Badolato, July 28, 1909 ; No. 151T.] The claim is submitted to this office with special reference to the question whether the time elapsed since the accident bars the right to compensation under the act of May 30, 1908. The claim is filed by the royal consul of Italy by telegram dated July 22, 1909, addressed to the Secretary of Commerce and Labor, and reads as follows : On behalf of the heirs of Samuele Badolato, killed at New Lock No. 6. Brownsville, Pa., I hereby make application for compensation for his death. The statement can not be made out until I receive information from Italy. OPINIONS OF SOLICITOR, DEPARTMENT OP LABOR. 631 Section 4 of the act above referred to reads in part as follows: That In the case of any accident which shall result In death, the persons entitled to compensation under this act or their legal representatives shall, within 90 days after such death, file with the Secretary of Commerce and Labor an affidavit setting forth their relationship to the deceased and the ground of their claim for compensation under the provisions of this act. In this case Samuele Badolato was killed April 21, 1909, and there is no record of any claim having been filed prior to the date, July 22, of the telegram from the Italian consul, 92 days after the death of the employee. In the William Goodley case (C 385 ; Bu. No. 772) it was said: The language of the act is clear and not ambiguous. It sets a limit to the presentation of claims and must have been so intended by Congress. Like the time prescribed for bringing suit in a case at law or of taking an appeal, a definite period of 90 days is fixed, after which no such claim can be made. One day is obviously as much a bar to such claim as 1 year or 10 years. In the case just quoted from the claim was filed 91 days from the date of death, and the point was carefully considered. That part of the law which requires the claim to be filed within 90 days is undoubtedly mandatory. When a Government declares by law that certain specified acts must be done in order to a citizen's becoming entitled to a gratuity out of the Public Treasury, to which, aside from that law, he would have no right, every one of the acts must be done before he can claim the gratuity. And when a time Is limited within which any of the acts shall be done, the very fact that it is limited is a declaration by the Government of its materiality, and constitutes a condition precedent which must be fulfilled before the right to the gratuity can be fixed. (Davis v. V. S., 17 Ct. Cls., 292, 301.) I am of opinion that the Italian consul should be advised that the law requiring the claim to be filed within 90 days after the acci- dent is mandatory, and that no discretion is left to the Secretary of Commerce and Labor in regard thereto; hence the claim must be disallowed. In view of the conclusion reached it is not necessary to consider the failure of any person entitled to compensation or legal representa- tive to file an affidavit, which also is required by section 4 of the act. [In re claim of Samuele Badolato, .^ug. 26, 1909; No. 151T.] The above claim was considered by this office in an opinion dated July 28, 1909, wherein it was held that the provision of section 4 of the act of May 30, 1908, providing, in effect, that a claim based upon the death of an employee shall be filed with the Secretary of Com- merce and Labor within 90 days after such death is mandatory and not merely directory, and that a claim filed on behalf of the heirs of the deceased by the royal consul of Italy by telegram 92 days after the death was not a compliance with the statute. The royal consul of Italy, upon being advised in accordance with the opinion, addressed a letter to the Secretary of Commerce and Labor under date of August 2, 1909, in which he stated that, at the time of the death, the royal vice consul of Italy at Pittsburgh gave notice of the claim to the United States Engineer Corps in charge of the work on which the deceased was employed, and asked whether this notification by the royal vice consul might not be considered as a compliance with the law. 632 WOBKMEn's compensation under act of may so, 1908. The case is again referred to this office for a consideration oi the question raised by the royal consul. This is a case wherein the limitations placed in the law seem to work a peculiar hardship. It seems that the persons who might be entitled to compensation under the act could not, on account of their residence abroad, be notified of the death and furnished with neces- sary blanks and information in time to enable them to file the proper affidavit within the time limited by the statute, and that the repre- sentatives of the Italian Government made every effort possible to save the rights. of the family of the deceased. At the time the former opinion was written it was not known that the royal vice consul had taken any action in the matter, and as the notice of claim by the royal consul had not been filed within the 90-day period, the question of the sufficiency of such a notice, had it been filed within the time limit, was not considered. . The pertinent part of section 4 reads as follows : That in tile case of any accident wMch shall result in death, the persons entitled to compensation under this act or their legal representatives shall, within ninety, days ^fter such death, file with the Secretary of Commerce and Labor an affidavit setting forth their rolation"ghip to the deceased and the ground of their claim for compensation under the provisions of this act. It is to be observed that the law requires that an "affidavit" be filed and not merely a " claim," and that the affidavit shall be filed by the " persons entitled to compensation " or " their legal represen- tatives," and that the affidavit shall set forth "their" relationship and the ground of "their" claim. Neither the notice given by the ]'oyal vice consul nor the telegram of the royal consul was an affidavit. Neither of the Italian officials is a person entitled to com- pensation or a "legal representative" of such a person. The term "legal representative" is generally applied to the person who suc- ceeds to the rights of a deceased person and commonly used as the equivalent of " executor " or " administrator." While it may, under exceptional circumstances, be applied to a representative of a living person, it imports a higher authority than " agent," for an agent acts for his principal, who retains the beneficial right; but the legal representative succeeds to the place of the former owner, and is vested with his title. (See Black's Law Dictionary.) I have to advise, therefore, that 90 days having elapsed since the date of the death of Samuele Badolato and no affidavit having been filed with the Secretary of Commerce and Labor by the persons entitled to compensation or their legal representative, no claim on account of the death of Mr. Badolato can now be entertained. [In i-e claim of Samuele Badolato, Dec. 13, 1909 ; No. 1517.] In an opinion dated August 26, 1909, considering the circumstances in the case of Samuele Badolato, I held that the giving of a notice of claim for compensation under the act of May 30, 1908, was not the filing of an affidavit, as required by section 4 of the act, even though such notice were given within 90 days after the death, and that a telegraphic notice received more than 90 days after the death could not be regarded as meeting the requirements of the compen- sation act. The matter has since been brought to the attention of the Secretary of State by a letter from the Italian ambassador dated OPINION'S OP SOLICITOR, DEPARTMENT OP LABOR. 6S3. November 12, 1909, and a memorandum of the Italian embassy dated November 23, 1909. In a letter dated November 22, 1909, trans- mitting to the Secretary of Commerce and Labor the Italian ambas- sador's letter of November 12, the Secretary of State said : The Italian ambassador suggests either that this Government might recognize the Italian consular officer having jurisdiction as the lawful representative of the person or persons entitled to the Indemnity, or that the present law should be modified by extending the period v?ithin which affidavits must be filed, In order that foreign claimants may be given sufficient time to avail themselves of the provisions of the Indemnity law. This office is asked for an expression of opinion as to whether either of the suggestions made by the Italian ambassador may be legally followed independently of congressional action. I do not think the Department would be justified in recognizing Italian consuls as the "legal representatives" of Italian subjects entitled to compensation under the terms of the act. The statute provides, in effect, that unless the persons entitled to compensation " or their legal representatives " shall file on affidavit within 90 days after the death of an employee no compensation shall be paid on account of such death. Regarding the application of this provision to the circumstances in the Badolato case, it was said in the opinion of August 26, 1909 : Neither the notice given by the royal vice consul nor the telegram of the royal consul was an affidavit. Neither of the Italian officials is a person entitled to compensation or a "legal representative" of such a person. The term "legal representative" is generally applied to the person who succeeds to the rights of a deceased person and commonly used as the equivalent of " executor " or " administrator." While it may, under exceptional circum- stances, be applied to a representative of a living person, it imports a higher authority than " agent," for an agent acts for his principal, who retains the beneficial right; but the legal representative succeeds to the place of the former owner and is vested with his title. (See Blacli's Law Dictionary.) While it is perfectly clear that the Italian consular officer can not be recognized as the legal representative of a claimant, it is suggested that he might, as the agent of such claimant, file such an affidavit of claim as is contemplated by section 4 of the compensation act. Then, if the claimant subsequently ratifies the act of such consular officer, and thus makes it his own act, the provisions of the statute will have been complied with and the rights of the claimant protected. See opinion in the case of Aleks Sietcinski (C 1475, Bu. No. 3021). Referring again to the Badolato case, it is to be noted that, accord- ing to the information before this office at the time the opinion of August 26, 1909, was written, the royal vice consul had, within 90 days, given notice of the' claim. Presumably this notice was given verbally, and I am sure no one will contend that such a notice can be considered as " filed " within any meaning of the word. But even though the notice referred to was given in writing, so that it might be regarded as " filed," still it was not an " affidavit " and it was not filed by a person entitled to compensation or the legal representative of such a person. The Italian embassy's memorandum above referred to was for- warded to this Department by the State Department under date of November 30, 1909, and is submitted to this office for consideration in connection with the letter of November 12. 634 workmen's compensation under act of may so, 1908. In this memorandum it is stated that no notice of the death of Badolato was given at the time thereof to the Italian consular au- thority at Pittsburgh, in accordance with Article XVI of the con- sular convention of May 8, 1878, between the United States and Italy, nor was it given by the United States engineer officer in charge of the work. The memorandum further states that the papers for filing claim were not received from the engineer's office until June 23, more than 60 days after Badolato's death. In view of the facts stated, the embassy expresses the hope that an extension of the 90-day period for filing the required affidavit be granted. The article m the convention of 1878, above referred to, reads as follows : In case of the death of a citizen of the United States in Italy, or of an Italian citizen in the United States, who has no known heir or testamentary executor designated by him, the competent local authorities shall give notice of the fact to the consuls or consular agents of the nation to which the deceased belongs, to the end that information may be at once transmitted to the parties interested. I do not find that any legislation has been enacted for the purpose of carrying this treaty provision into effect. But even if such legis- lation had been enacted it would not control the execution of the act of May 30, 1908, unless it were of a later date. As touching on this point, attention is invited to the following language of the Supreme Court in the case of Whitney v. Eobertson (124 U. S., 190, 194) : A treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law. For the infraction of its provisions a remedy must be sought by the injured party through reclamations upon the other. When the stipulations are not self-executing they can only be enforced pursuant to legislation to carry them Into effect, and such legislation is as much subject to modification and repeal by Congress as legislation upon any other subject. If the treaty contains stipulations which are self -executing — ^that is, require no legislation to make them operative — ^to that extent they have the force and effect of a legislative enactment. Congress may modify such provi- sions, so far as they bind the United States, or supersede them altogether. By the Constitution a treaty is placed on the same footing and made of like obliga- tion with an act of legislation. Both are declared by that Instrument to be the supreme law of the land, and no superior efficacy is .given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without vio- lating the language of either; but if the two are inconsistent, the one last in date will control the other, provided always the stipulation of the treaty on the subject is self-executing. If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may present its complaint to the executive head of the government, and take such other meas- ures as it may deem esssential for the protection of its interests. The courts can afford no redress. It is recognized that the limitations of the statute have worked a peculiar hardship in the case of Mr. Badolato, but the executive branch of the Government is without authority to extend the benefits of the act beyond the plain language used by the legislative branch. To undertake by any rule or regulation to allow nonresident foreign- ers a longer period than 90 days in which to file affidavits of claim would be a usurpation of the legislative function by the executive department and contrary to the provisions of our Constitution. OPINIONS OF SOLICITOK, DEPARTMENT OP LABOE. 635 6. An affidavit of claim filed within 90 days by an agent in accordance with a sufficient power of attorney executed by the widow of a deceased employee constitutes due filing. [In re claim of A. 6. Munoz, Oct. 6, 1909 ; No. 1808.] The above claim is submitted to this office with special reference to the question whether the Spanish consul at Panama can be regarded as the legal representative of the claimant within the meaning of section 4 of the act of May 30. 1908. On May 1, 1909, the employee above named, while employed as a laborer on construction work under the Isthmian Canal Commission, met with an accident which resulted in his death the same day. Under what appears to be a sufficient power of attorney executed by the claimant in favor of the Spanish consul at Panama, the said Spanish consul, within the 90 days allowed by law, filed a claim and affidavit for and on behalf of the claimant. The circumstances in this case do not raise the question submitted with the claim. The claimant is alive and is the person to whom the beneficial rights under the act, if any, accrue, and she can not, there- fore, have a legal representative, as that term is used in the statute. (See opinion in the case of Samuele Badolato; C 1517; Bu. No. 3317.) The question raised in the present case is one of agency, exactly similar to the question which was fully considered in my opinion in the case of Jesus Jimenez (C 1748; Bu. No. 3865). Following the reasoning indicated in the Jimenez case, I have to advise that the claim now submitted has been established in accord- ance with all the requirements of the law. 7. An affidavit of claim deposited in the mail within 90 days after death of the employee addressed to the deceased's official superior, but not received by the latter until after the expiration of the 90-day peroid, is not a filing within the meaning of the act. [In re claim of Isiah Henry, Oct. 26, 1909 ; No. 1916.] The above claim is submitted to this office with special reference to the question, Was the affidavit filed within 90 days, as required by the act of May 30, 1908 ? The record shows that the employee was injured on May 17, 1909, and that, as a result of such injury, he died on May 22, 1909. He left a widow and five children under 16 years of age; also a father and a mother. The claim is made by the widow, whose address is given as Font Hill, Trinity Ville P. O. It is not clear whether Font Hill, Trinity Ville P. O. is located in Panama or in some other country. However, the affidavit is executed before a justice of the peace, and the British vice consul certifies that "police officers and magistrates in Jamaica have no seals of office." From this it is in- ferred that the claimant lives in Jamaica, and that the affidavit was executed in that country. The claim was prepared in the claim office of the Isthmian Canal Commission, Canal Zone, at the request of a relation of the deceased, who is stationed on the Isthmus, and was forwarded to the British vice counsul at Panama on July 21 for de- livery to the claimants. It was executed on August 17, and received 636 workmen's compensation under act of may 30, 1908. in the claim office on September 16, 1909. It is altogether likely that on August 20, 1909. when the 90 days allowed by law for the filing of the affidavit and claim expired, the papers had left the hands of the claimant in Jamaica and were on their way to the claim office in the Canal Zone. In the absence of any information to the contrary, it is assumed that they were sent by mail. This raises the question whether the depositing of the affidavit in the mail addressed to the superior officer of the deceased employee, constitutes such a filing with the Secretary of Commerce and Labor, as is contemplated by section 4 of the act of May 30, 1908. In the case of Gates v. State (128 N. Y., 221) it was held that the act of depositing a paper in the mail addressed to the canal ap- praisers did not constitute a filing in the office of the appraisers. But in that case it appears that the statute which was being construed was one conferring upon the canal commissioners jurisdiction to hear and determine claims for damages resulting from the negligence of certain state officers, and the conclusion of the court was based upon the principle which underlies the jurisdiction of an inferior tribunal that no presumption in its favor is to be entertained, and the con- sideration that anything short of an actual delivery left the juris- . dictional fact of the filing disputable. While the principle which seems to have governed in the Gates case is not involved in the administration of the compensation act for the reason tliat the Secretary of Commerce and Labor possesses all the jurisdiction, special and general, conferred by the act, still it leaves the question as to what constitutes a filing to be determined by the Secretary of Commerce and Labor. In the Gates case, supra, the court observed : The conditions imposed become jurisdictional facts and determine the status and right of the litigant. If we should hold that the mailing by a claimant of his claim, directed to the canal appraisers, was equivalent to a filing in the office, I think we should be disregarding the plain reading of the law and deny- ing to the words of the statute their plain and usual force and significance. It is to be noted that in the Gates case the paper referred to never reached the office of the appraisers. If it had a slightly different question would have been presented to the court. The paper would then have been filed in the office of the canal appraisers and the ques- tion raised as to whether the date of the mailing or the date of the receipt should be regarded as the date of the filing. When a claimant has deposited his claim and affidavit in the mail addressed to the proper officer it has gone out of his custody. He has done all that he has to do with it. When it reaches the proper officer the filing with him is complete. But was not the act of filing Ijegun when the paper was deposited in the mail, and when it was completed bv the receipt of the paper did not the time of the filing relate back to the time when the act was begun ? I am unable to find any cases dealing with this precise point. However, there are numerous cases in which it has been held that the depositing of a jjaper or an article of merchandise in the mail or with a common carrier properly addressed constituted a delivery to the addressee. But all these cases seem to rest upon some principle which is not involved in the present case. The accept- ance of an offer, when deposited in the mail, is a delivery to the person making the offer and completes the contract. But this' is based OPINIONS OF SOLICITOR, DEPARTMENT OP LABOR. 637 on the assumption that it fixes the time when the minds of the con- tracting parties met; that the post office is the a went of the offerer to deliver the offer and receive the acceptance. (9 Bye, 294.) A delivery of goods to a common carrier, consigned to a particular person without specific directions, different from ordinary usage, is constructively a delivery to the consignee. Wliere the vendee is the consignee, the delivery of goods to a common carrier, without qualifications, consigned to that vendee, is In law a constructive delivery to the consignee from the time of shipment and the commencement of the carriage. (2 Words and Phrases, 1963.) This rule appears to rest upon the ground that the title to the goods passes from the consignor to the consignee when the goods are deliv- ered to the common carrier. (6 Cyc, 433.) A paper is said to be filed when it is delivered to the proper officer and by him received to be kept on file. (3 Words and Phrases, 2764, and cases cited.) Accordingly, it would seem that a filing means something more than such a delivery as would complete a contract or pass title to goods; that the paper to be filed must be actually received by the officer with whom it is to be filed ; that a constructive delivery will not do. Furthermore, it seems that under the post-office regulations now in force the sender of a letter deposited in the mail does not relin- quish his control over it until it is actually delivered to the addressee. (9 Cyc, 297.) As I find the law, the Secretary of Commerce and Labor would not be justified in holding that an affidavit under the compensation act is filed when it is deposited in the mail addressed to the proper officer. I have the honor to advise, therefore, that the claimant in this case did not file her affidavit with the Secretary of Commerce and Labor within 90 days after the death, as required by section 4 of the act of May 30, 1908, and that the claim can not now be entertained. 8. Where a claimant can not act for himself within the time limited, and an- other, in his name and behalf, but without prior authority, acts for him and files a claim within 90 days, a ratification by the claimant of the act done on his behalf, though made after the expiration of the 90 days, re- lates back to the time of the act done so as to make the filing effective as of the prior date. [In re claim of Lyall Callender, Apr. 28, 1910 ; No. 2741.] This case is concerned with so much of section 4 of the act of May 30, 1908, which provides that before compensation can be paid on account of the death of an injured employee the person entitled must, " within 90 days after such death, file with the Secretary of Commerce and Labor " an affidavit setting forth his relationship to the deceased and the ground of his claim. The claim presents the following question: In a case where the person entitled can not act for himself within the time limited, and another, in his name and on his behalf, but without prior authority, acts for him and files an affidavit of claim within the 90 days prescribed by the act, if, after the expiration of the 90 days, the party in interest ratifies the act done on his behalf, will such ratification relate back to the time of the act done so as to make the filing effective as of the prior date? No case involving the precise question here presented has been found. Other cases closely bearing on it are available, however, and 638 workmen's compensation under act of may 30, 1908. the authorities at hand are sufficient to render a satisfactory conclu- sion possible. The case most frequently quoted in describing the legal effect of ratification of acts done by agents, previously unauthorized, is that of Wilson V. Tumman (6 Man. & G., 236) , in which it was said : An act done for another by a person not assuming to act for himself but for such other person, though without any precedent authority whatever, becomes tlie act of the principal, if subsequently ratified by him. In such a case the principal is bound by the act, whether it be for his detriment or advantage, and whether it be founded on a tort or on a contract, to the same extent and with all the same consequences which follow from the same act done by his previous authority. The rule is phrased by the United States Supreme Court as follows (Marsh v. Fulton Ck)unty, 10 Wall., 684) : A ratification is, in Its efifect upon the .act of an agent, equivalent to the pos- session by him of a previous authority. It operates upon the act ratified in the same manner as though the authority of the agent to do the act existed origi- nally. It follows that a ratification can only be made when the party ratifying possesses the power to perform the act ratified. In Cook V. TuUis (18 Wall., 338), the court said: The general rule as to the effect of a ratification by one of the unauthorized act of another respecting the property of the former is well settled. The ratifi- cation operates upon the act ratified precisely as though authority to do the act had been previously given, except where the rights of third parties have inter- vened between the act and the ratification. The retroactive efficacy of the ratification is subject to iiis qualification. The intervening rights of third persons can not be defeated by the ratification. In other words, it is essential that the party ratifying should be able not merely to do the act ratified at the time the act was done but also at the time the ratification was made. It will be observed that the Supreme Court mentions but one quali- fication of the rule, namely, the condition that the intervening rights of third persons shall not be defeated and implies that it is this quali- fication alone which gives rise to the further rule that the party rati- fying must be able to do the act ratified, both at the time the act was done and at the time of ratification. The question is, therefore, in the case supposed, whether, by reason of the expiration of the period of 90 days limited in the act between the unauthorized filing and the ratification thereof, a third party has acquired an intervening right which would be destroyed if the claimant were still qualified to act for himself. Consolidated Fruit Jar Co. v. Bellaire Stamping Co. (27 Fed. Rep., 377) involved an attempted ratification by the applicants for a pat- ent of the filing of a petition for renewal of an application previously dismissed. The petition for renewal was filed on the last day of the period limited by law within which such petitions could be received, and the attempted ratification was subsequent to that date. The court held that the attempted ratification was ineffectual to validate the application, on the ground that vested rights had intermediately accrued. This case is not decisive of the present question,, by reason of the peculiar facts of the case, and by reason also of the other grounds on which the case was decided. It appears that the applicants for re- newal in this case had previously filed their application some 15 years earlier, and the application was rejected and withdrawn. There was evidence to show, and the court found as a fact, that the applicants OPINIONS OF SOLICITOE, DEPARTMENT OF LABOE. 639 had abandoned the invention and never intended to claim any rights under it, until some six months after the limit of time had expired within which a new application could be made, when they were ap- proached by an attorney, who had filed an application on the last day of the time limited, with an offer to purchase their interest in the in- vention for $100, and with a request to give him a power of attorney ratifying his action in filing the application. It further appears that during the 15 years intervening between the original application and the application for renewal a patent for substantially the same in- vention had been granted to another person named Boyd. The court held that the great object of the patent laws is " to benefit the public by stimulating invention," and that the theory of the law is that this object can best be accomplished by securing to the inventor for a limited time the exclusive right to the invention, " thereafter to be forever free to the public " ; that " in reference to patents thei'e is also the public equity which must not be disregarded " ; that by " apply- ing the public equity, the court must regard the intervenor as the representative of the public, and therefore whatever rights he gains the public gains"; that if it appears that an invenor accepts a de- cision rejecting his application and casts aside his invention, "he thereby makes it forever public property " ; and that, therefore, dur- ing the period intervening between the expiration of the time limit for a renewal and the date of the attempted ratification " the rights of Boyd under his patent of March 30, 1869, and the rights of the public had then accrued, and they were vested rights." But in the case here under consideration, there is no third person who can ac- quire any vested property interest between the date of the filing of the claim and a subsequent ratification of such filing; neither can the rights of the public intervene, in the sense referred to by the court, involving the acquisition by the general public of rights abandoned by an inventor. Dibbins v. Dibbins (75 L. T. Kep., 137, decided in 1896) arose as follows : Articles of partnership between two persons provided that in the event of one of the partners dying the survivor should be at liberty to purchase the share of the deceased partner, upon giving notice to that effect within three months after the death. Upon the death of one partner, notice was given on behalf of the survivmg partner, who was of unsound mind, by his solicitor, within three months, but without any authority so to do. After the expiration of the three months, pursuant to an order made under the lunacy act, the com- mittee of the surviving partner gave a new notice and undertook to ratify the previous notice. The court held that the subsequent notice did not ratify the first notice so as to make it valid from its date. The court (Chitty, J.), in its opinion, said in part: It is said that this amounted to a ratification of the first notice, and that it Lad relation back to tlie date when this invalid notice was given. ' If that was so, the result would be that an option which must be exercised within a limited lime would be well exercised if that time had expired. After referring to the cases of Holland v. King (6 C. B., 727- Doe V. Goldwin, 2 Q. B., 143; and Bird v. Brown, 4 Ex., 786), the court continued : I must hold that the option has not been validly exercised. It makes no difference that the person who exercised it was of unsound mind. It is im- 640 wobkmen's compensation under act op may 30, 1908. possible to hold that an unauthorized agent could exercise such an option as this so as to hind a person incompetent to exercise the option himself. Neither this case nor the cases referred to in the opinion- are de- cisive of the present question. The case quoted is not decisive for the reason that the principal, being insane, was wholly without capacity to exercise the option from the time his agent undertook to do so up to the time of the attempted ratification, and it is universally recognized that only a party having the capacity to make a contract as an original one can ratify it (Bishop on Contracts, sec. 848; Cook V. TuUiSj supra). The same is true of the case of Holland v. King, relied upon in the opinion. There the widow of a partner attempted to exercise such an option within the time limited in the articles of copartnership, which, however, conferred the right of doing so upon the executor or administrator of a deceased partner. The widow did not become qualified as a legal personal representative until after the time had expired. It was accordingly held that the notice given within the time limited was ineffectual, and that the subsequent rati- fication was invalid. The case of Bird v. Brown, also cited in the opinion, is not decisive, for the reason that between the act of at- tempted agency and the ratification the ownership of certain goods had become vested in a third party, which, of course, divested the principal of the power to contract with the person with whom this assumed agent had been dealing, by ratifying the agent's act. The third case relied upon by the court (Doe v. Goldwin) related to a notice to quit, which would operate at common law to determine a tenancy, given by one assuming to act for the lessor and disregarded by the tenant. It was held that the notice to quit, although subse- quently ratified by the landlord, was ineffective to determine the lease. The class of cases to which Doe v. Goldwin belongs was thus criti- cized by Judge Lurton in Farmers Loan and Trust Co. v. Ry. Co. (83 Fed. Eep., 872) : The ground upon which such cases have been put is that stated in the subse- quent part of the section- from which I have been quoting, namely, that a notice to defeat an estate should be such a one as that the tenant can safely act upon at the time he receives it, " so that he may deliver up the possession at the end of six months without being liable to further claims in respect to the remainder of the term." The cases upon this subject have not been uniform. To this Judge Story calls attention in a footnote. In Roe v. Pierce (2 Camp., 96), a verbal notice to quit, by a steward of a corporation, was held ratified and binding by the corporation bringing a suit founded on the notice; and in Doodtitle v. Woodward (3 Barn. & Aid., 689), the decision Is put upon ground quite antagonistic to the cases first cited. If such cases as Buron v. Denman and others cited above are supportable, it must be upon the ground that the tenant ought not to be subjected to the hazard of going out and remaining liable thereafter because the landlord elected to repudiate the notice given In his name. If not rested wholly upon this narrow ground, they are in seeming conflict with an older line of cases holding that an entry to make a claim, or to avoid a fine, or for a condition broteu, if made by a person assuming to be the agent of the principal entitled to such claim or entry, would justify an action upon such acts by the principal upon the ground that his subsequent ratification would supply the want of an original authority. (Story, Ag., sec. 245; Co. Litt., 258; Fitehett v. Adams, 2 SI range, 1128.) The distinction between the class of cases last cited and those of a notice to terminate a lease is very refined, and, as observed by Judge Story in a note to section 240 of his work on agency, " stands upon reasoning not very satisfactory or clear." With the exception of the leasehold cases, which stand in a class by themselves, all the cases mentioned, on close examination, show that the principal's ratification of an assumed agent's act, after the OPINIONS OP SOLICITOR, DEPARTMENT OF LABOR. 641 expiration of some limited period, was held not to have a retroactive effect for one of two reasons; either, first, that the principal, withm the time limited, was lacking in the personal capacity to make the contract or perform the act, or, second, that the principal, at the time of ratification, was lacking in the power to make the contract or perform the act, by reason of the intervening rights of third persons. The first reason for denying retroactive efficacy to the rati- fication is illustrated in Dibbins v. Dibbins, where the principal was insane, and in Holland v. King, where the principal had not qualified in time as a personal representative. The second reason is illustrated in the Finiit Jar case, where the principal had abandoned his rights, which had been acquired by another inventor, and in Bird v. Brown, where the principal had in the meantime himself parted with the property concerned to a third party. That these are the only reasons on which the proposition is based — that the party ratifying must be able to do the act ratified, both at the time the act was done and at the time of ratification — is further shown by the illustrations given by Justice Field, then speaking for the supreme court of California, in McCracken v. San Francisco (16 Oal., 591, 624) : It follows, also, from the general doctrine, that a ratification is eguivalent to a previous authority, that a ratification can only be made when the principal possesses at the time the power to do the act ratified. He must be able, at the time, to make the contract to which by his ratification he gives validity. The ratification is the first proceeding by which he becomes a party to the trans- action, and he can not acquire or confer the rights resulting froih that trans- action, unless in a position to enter directly upon a similar transaction himself. Thus, if an individual, pretending to be the agent of another, should enter into a contract for the sale of land of his assumed principal, it would be Impossible for the latter to ratify the contract, If between its date and the attempted ratification he had himself disposed of the property. He could not defeat the intermediate sale made by himself, and Impart validity to the sale made by the pretended agent, for his power over the property or to contract for its sale would be gone. So, also, contracts made upon an assumed agency for a single woman can not be ratified by her after marriage, without the consent of her husband, for her power to contract alone ceases with her marriage. There is nothing, then, in the mere fact that the act of the as- sumed agent, to be effective, must be done in a given time, and in the further fact that the principal in whose behalf it was done does not ratify the act until after the time has elapsed, which destroys the re- troactive effect of the ratification, provided the principal through- out the period limited was personally qualified to act for himself, unless, prior to ratification, the rights of third parties have inter- vened. The ability to do the act ratified at the time of ratification, mentioned in the books, refers to an inherent ability, without regard to the circumstance that it may be defeated by mere lapse of time. No case has been found after a somewhat careful search indicating a contrary conclusion. On the other hand, the best considered cases are strong in their adherence to the ancient rule that a ratification, whenever given, is equivalent to a prior command, barring certain well defined exceptions, such as that the intervening rights of third persons can not be defeated the^ebJ^ In Ancona v. Marks (7 Hurlst. and Norm., 686) , a leading case, action was brought on a bill of exchange in the name of the plaintiff by his attorneys, the bill having been indorsed to the plaintiff by the holder in order that suit might be brought in the plaintiff's name. The plaintiff's attorneys had received the bill and brought suit upon 93364°— 15 41 642 workmen's compensation under act of may 30, 1908. it without his knowledge, but after suit was brought he ratified their action. The court (of exchequer) held that the subsequent ratifica- tion was equivalent to a prior authority and that the suit was well brought, Pollock, C. B., saying in part: There is no doubt that the plaintiff, at the time the action was brought, did not know that his name was used, but the question is whether, the securities having been delivered to Greville & Tucker (who on a previous occasion had the plaintiff's permission to use his name) for the purpose of the action being brought on them in the plaintiff's name, and the action having been so brought, and the plaintiff having subsequently ratified the proceedings, he is entitled to retain the verdict. I think he is. In my opinion it makes no difference whether the ratification is before action or after. * * * i think- that the maxim " Omnis ratihabitio retrotrahitur et mandato priori aequiparatur " ap- plies to this case, and therefore the rule ought to be discharged. All the judges concurred, Channell, B., saying: All that was wanting was that which existed in a former transaction be- tween the same parties, viz, the authority of the plaintiff to Greville & Tucker to sue in his name. If, before action brought, the plaintiff had known of the arrangement and had assented to the action being brought in his name, it would have been well brought ; and though that previous authority was want- ing in this case, it was supplied by the subsequent ratification. And so Wilde, B. : The question is whether, although they had not that authority, it might not be supplied by subsequent ratification ; that is, whether what Greville & Tucker did, namely, suing on the securities in the plaintiff's name, was such an act as the plaintiff could have done, and therefore such as, being done by them, he could subsequently ratify. * * * jj ^^s contended that this subsequent ratification would not make the plaintiff the holder of the securities at the time the action was brought. But in Wilson v. Tumman (G Man. & 6., 236, 242, B. 0. L. R., vol., 46), it is distinctly laid down " that an act done for an- other, by a person not assuming to act for himself, but for such other person, though without any precedent authority whatever, becomes the act of the prin- cipal if subsequently ratified by him, is the known and well-established rule of law. In that case the principal is bound by the act, whether it be for his detri- ment or advantage, and whether It be founded on a tort or a contract, to' the same extent as by, and with all the consequences which follow from, the same act done by his previous authority." For that position the Year Book (Hil., 7 H., 4 Fo. 34, pi. 1) is cited. Applying that law to the present case, the subse- quent ratification by the plaintiff of the act done by Greville & Tucker for him places them in the same position as if he had given his previous assent, and makes the act done by them as his agents the same as if he had done it himself. And so to Martin, B. : My brother Wilde has referred to Wilson v. Tumman (6 Man. & G., 286, ID. C. L. R., vol. 46), and in the note to Armory v. Delamirie, in Smith's Leading Gases (vol. 1, p. 301, 5th ed.). there occurs the following passage: "And on similar reasoning seems to rest the well-known doctrine that a subsequent ratification is tantamount to a prior command of an act done in the name of the party who ratifies. * * * So that where a person, if present at the time, could lawfully command any act to be done, any other person, though either wholly without authority or exceeding the limits of his authority, would be justified in doing that act, provided he did it in the name or as one acting by the authority of the person entitled (whether to his advantage or not) and ob- tained his subsequent ratification." In Farmers Loan, etc., Co. v. M. & C. E. Co. (83 Fed. Eep., 870). suit .was brought to foreclose a railroad mortgage given to secure the payment of certain bonds. The mortgage provided that, on default m the payment of any installments of interest continuing for 60 days, the holders of one-third m amount of the bonds might declare the principal debt due, by an instrument executed by them "or their attorneys in fact thereto duly authorized." Such a declaratiou was OPINIONS OF SOLICITOBj DEPARTMENT OP LABOR. 643 signed by a person as attorney in fact for his wife and two brothers. He had no express authority at the time, but an instrument ratifying his act was executed by the persons for whom he acted after the filing of the bill for foreclosure. It was held, Lurton, J., that the ratifica- tion operated as an original command and that the bill was well filed. The general doctrine in respect of the ratification of the acts of one assuming without authority to act for another is that a subsequent " ratification operates upon the act ratified precisely as though the a:uthorlty to do the act had been previously given." ( Cook v. Tullls, 8 Wall, 338. ) "In short," says Justice Story, " the act is treated throughout as if it were originally authorized by the prin- cipal, for the ratification relates back to the time of the inception of the trans- action and has a complete retroactive efficacy or, as the maxim expresses it, ' Omnis ratihabitio retrotrahitur:' * * * That the effect of ratification Is to bind the other contracting party Is the very consequence of the retrospective effect of ratification." The books are full of cases in which the third party was held bound by a subsequent ratification. Were this not so, the act of "rati- fication would not be dragged back, as it were, and made equipollent to a prior command," as the matter is put by Baron Martin in Brook v. Hook (L. K. 6 Exch., 96). "Thus," Judge Story says, "the effect of ratification Is not only to bind the principal as to his agent, but as to the third party, and give the ordinary rights and remedies both for and against him." * * * There are exceptions to this rule, such as have been mentioned by both Story and Wharton, namely, it will not be permitted to defeat an estate vested In the third party, as In Lyell v. Kennedy (18 Q. B. Div., 796), and it will not be suffered to affect innocent strangers who have acquired intervening rights by levy, attachment, or otherwise. (Wood v. McCains 7 Ala., 806; Whart. Ag., sees. 77-79; Taylor v. Kobinson, 14 Gal., 396.) Certainly neither the railroad company nor the junior mortgagee have acquired any intervening rights to be affected by ratification, and It is not pretended that its effect will be to defeat any vested estate. Neither can it be said that the conduct of the railroad company, on whom ratification is to operate, depended in the meantime on whether there would be ratification or not. * * * Ratification operating as an original command, the bill is well filed, and a decree of foreclosure may be drawn, unless within a short time the defendant company shall discharge both principal and interest of the mortgage debt. No intimation is contained in either of these decisions, nor is there anything in the reasoning followed to suggest that the result would have been different if a period of limitation within which the action might be brought had expired between the filing of the suit and the ratification thereof. It is the very essence of the retrospective effect of ratification that the act of the agent when ratified becomes effec- tive from its date; otherwise the ratification would not be retro- spective, and the rule would be an empty phrase. It is solely with respect to the running of time that the word " retrospective " is used. It is meaningless to say that " a subsequent ratification is equivalent to a prior command " if it is only to operate subsequently. It follows, therefore, that the mere expiration of a period of limitation between the agent's act and its ratification can not deprive that act of the legitimate consequences flowing from its performance • at the time it was done. It is only necessary in such cases to inquire whether the party ratifying was able to do the act ratified at the time the ratifi- cation was made as well as at the time the act was done; and, as above shown, this depends simply on whether, throughout the period limited and at the time of ratification, he was personally qualified to do the act and whether, pending ratification, the rights of third parties have intervened. Applying these principles to the particular case under considera- tion it will be seen at once that a question can seldom if ever arise under the compensation act as to the personal capacity of the bene- 644 workmen's compensation undek act of may 30, 1908. ficiary to file a claim for compensation on account of the death of an injured employee, and this qualification of the right of such a bene- ficiary to ratify a prior and seasonable filing may accordingly be dismissed without further notice. Touching the further qualifica- tion that a subsequent ratification can not be allowed to defeat vested interests intermediately accrued to third persons it is necessary to say only that, in the case under consideration, there are no " third persons " who can have an interest in the matter. The " third per- son " within the meaning of the rule is not the person with whom the agent has his dealings (m this case the United States). That person is one of the two principal parties to the transaction, the other being the person ratifymg (in this case the beneficiary). The agent is merely the representative of the latter party. The " third person," within the meaning of the rule, is really a fourth person — a stranger to the transaction. It is obvious that no stranger to a claim filed under the compensation act can acquire any intervening rights to be aifected by ratification of an unauthorized filing or rights of any kind. From the foregoing examination of the doctrine of ratification it is believed that the only conclusion to be drawn is that, in a case under the compensation act, where the person entitled can not act for himself within the time limited, and another, in his name and on his behalf, but without prior authority, acts for him and files an affi- davit of claim within the 90 days prescribed by the act ; if, after the expiration of the 90 days, the party in interest ratifies the act done on his behalf, such ratification will relate back to the time of the act done so as to make the filing effective as of the prior date. The employee on account of whose death the present claim is made was accidentally killed on September 8, 1909. He left a widow, one child under 16 years of age, and a father and mother, all living in Barbados. It is presumed that no delay occurred in the for- warding of the necessary information and papers to the deceased's family in Barbados to enable them to file an affidavit of claim under the compensation act, for such affidavit of claim was executed by the widow in Barbados on November 20, 1909, and reached the claim office in the Canal Zone on December 15, 1909. This was after the 90-da3^ limit contained in section 4 of the act had expired. In the meantime, however, the British charge d'affaires at Panama exe- cuted and filed an affidavit of claim " for and on behalf of relatives who may be entitled to compensation." This affidavit of claim was executed and filed December 2, 1909, which was within the 90-day limit, but after the widow had executed her affidavit. The claim is submitted to this office with special reference to the question whether the filing of the claim by the widow is a sufficient ratification of the act of agency of the British charge d'affaires. The British charge d'affaires assumed to act for the persons who might be entitled to compensation. This action, however, was taken after the widow had taken the preliminary steps to file a claim and affidavit in her own behalf. The inference is clear that at the time the British charge d'affaires filed his affidavit of December 2, he knew nothing of the affidavit executed by the widow on November 20, and it is equally clear that when the widow's affidavit was filed on December 15 she did not know of the act of agency done in her behalf by the British charge d'affaires. Technically, therefore, the OPINIONS OF SOLICITOE, DEPARTMENT OF LABOR. 645 filing of the claim and affidavit on December 2 has not been ratified by the widow, and the claim and affidavit filed by her on December 15 was not within the limit of time fixed by the statute, and strictly speaking, perhaps, it might be contended that neither claim and affidavit could be entertained. But I am of opinion that such a highly technical application of the law would defeat rather than promote the beneficent purpose of the compensation act. The claim might be held up until the widow could be communicated with and her formal ratification of the act of agency of the British charge d'affaires obtained; but this would only cause delay and accomplish no good purpose. Nothing is better established than that all laws should receive a reasonable and sensible construction with reference to the manifest intent of the legislature, and that that construction which involves great inconvenience should be avoided unless the plain language employed by the legislature re- quires it. (Fed. Stat., Anno, xlix.) The widow has shown that it was her intention to claim the bene- fits of the act; no interests other than those of the United States are adversely affected, and no person is in a position to protest on this ground ; so far as the United States is concerned, the claim is one well within the spirit of the law ; the obvious purpose of the 90-day limitation, to prevent stale claims, will be best subserved by granting the compensation now and avoiding the delay which would be occa- sioned by insisting upon a formal ratification of the act of agency, there being no doubt as to the desire of the principal to have an affidavit filed in her behalf so as to preserve her rights. In Wharton on Agency, section 80, it is said : If ratification on the part of principals was an act to be anticipated as morally certain by parties having adverse interests, then the ratification is no surprise to them, and can not mislead them, and they are bound to treat the original unauthorized act as one which Is to be authorized. Eeferring to this passage. Judge Lurton said in the Memphis Rail- road case, supra : Applying this to the defendants, they must be regarded as bound by the ratification which, in view of the relationship borne by D. Willis James to those he assumed to represent, and the obvious interest they have in ratifying what he did, can be no surprise to them. In Carruth-Byrnes Co. v. Deere (7 L. E. A., 405), it was said: It may be that there are certain kinds of acts done for another without authority, so manifestly for his benefit that all persons dealing in relation to the matter would be held to know, and the law would presume, their ratifica- tion. In Steffe v. Old Colony Railroad (156 Mass., 262), a declaration in a suit for damages for personal injuries under an employer's liability act was demurred to on the ground that the notice required by the statute as a condition precedent to the institution of a suit purported to have been given by the plaintiff by his attorney, and that the previous authority of the attorney to give such notice had not been shown. The demurrer was overruled, the court saying : The notice is the first step in the legal proceedings taken with a view to the recovery of damages; and where a notice is given purporting to be for the person injured, by an attorney at law, and especially by one who after- wards represents the plaintiff in his action, if express authority to give the notice is necessary, * * * it may be presumed that he had it, in the absence of anything to show to the contrary. 646 wohkmen's compensation under act of may 30, 1908. I have the honor to advise, therefore, that, under the circumstances of this case, the filing of the affidavit of claim by the widow may be regarded as a practical and substantial ratification of the act of agency done in her behalf by the British charge d'affaires, and that her claim may be allowed. 9. An affidavit of claim filed with the American consul at Madrid, to whom the proper blanks had been sent and through whom they were to be returned when filled out and executed, held, under the circumstances, to have been filed with the Secretary of Commerce and Labor. [In re claim of G. P. Melchor (alias Martin Lorenzo), May 23, 1910; No. 3425.] The above claim is filed by Miguela Caceres Martin, the widow of deceased, in her own behalf and that of her two children, who are under 16 years of age. The claim is submitted to this office with special reference to the following question : Is the filing of an affidavit within 90 days after death with the American consul a filing with the Secretarj- of Commerce and Labor within the meaning of section 4 of the act? The deceased, whose real name was Gabino Paule Melchor, left his native country of Spain under the assumed name of Martin Lorenzo and obtained employment with the Isthmian Canal Commission under that name. On November 17, 1909, while so employed and without negligence or misconduct on his part he met his death by electrocu- tion while in the course of his employment. The necessary blanks were in due time forwarded through the State Department to the American consul at Madrid, Spain, reaching that officer on December 27, 1909. As the widow of deceased lived in one of the riemote provinces, the papers were forwarded to the alcalde of Pozuelo in the Province of Caceras. No reply being received by January 13, 1910, the American consul wrote a letter of inquiry as to the cause of delay and was informed by the alcalde that he was at a loss to know what steps to take in the matter, because of the fact that the papers referred to the death of Martin Lorenzo, who was then alive, and the man who was killed being Melchor. The consul then advised that the widow of Melchor perfect the papers and furnish additional documentary evidence as she could secure to estab- lish the fact that she was the widow of Melchor and that he had assumed the name of Lorenzo. This evidence was accordingly se- cured in the form of a marriage certificate, together with affidavits of numerous persons, including Martin Lorenzo, which established beyond peradventure the facts necessary to support the claim of the widow. These papers, with the formal affidavit of claimant, were sworn to on January 28, 1910, and were immediately forwarded to the American consul at Madrid, reaching him on January 31, 1910. The papers then apparently remained in nis hands until February 5, as the record shows that on that day he transmitted them to the State Department. The next that is Imown of the case is its receipt by the Isthmian Canal Commission on March 2, 1910, and its receipt in this Department on March 4, 1910. Section 4 of the act of May 30, 1908, provides : That In the case of any accident which shall result in death, the persona entitled to compensation under this act or their legal representatives shall, OPINIONS OF SOLICITOE, DEPARTMENT OF LABOE. 647 within ninety days after such death, file with the Secretary of Commerce and Labor an affidavit setting forth their relationship to the deceased and the ground of their claim for compensation under the provisions of this act. In view of that provision of the law the question is raised in this case whether the filing which was done on January 31, 1910, with the American consul at Madrid was a filing with the Secretary of Commerce and Labor within the meaning of the act. There is no question but that the language of the statute in this respect is clear and unambiguous, consequently there can be no con- struction of the same other than its plain reading, that an affidavit must be filed with the Secretary of Commerce and Labor within 90 days. The question, therefore, for consideration is this : Is the filing of such affidavit with some official of the Government to whom the papers have been referred by the Secretary of Commerce and Labor for the purpose of having the same perfected in accordance with the requirements, a filing of the same within the contemplation of the compensation act ? It is noted from the record that the death occurred on November 17, 1909, and claimant made the affidavit under date of January 28, 1910, and that the same, together with all the necessary evidence to establish the claim, was received by the American consul on January 31, 1910. In other words, claimant had deposited or filed her affidavit with the representative of the United States Government at Madrid within 76 days after the death. In view of all the circumstances it is clear that she has speeded her claim with all the diligence that could possibly be expected. After placing the same in the hands of the proper Government representative, she had done everything within her power. To expect her to follow the same in its course through the hands of the various necessary officials to its final des- tination in the hands of the Secretary of Commerce and Labor would be to require the performance of practically an impossibility. It is a maxim of law that the performance of that which is impos- sible is excused. Applying this principle to the compensation act, it may be said that, since it is a practical impossibility for claimants to actually file their claims personally with the Secretary of Commerce and Labor, the correct interpretation to be given that portion of the act requiring such filing would be so to construe it that a filing of the affidavit with any official of the Government who had been authorized by the Secretary of Commerce and Labor, either directly or, as in this case, indirectly, to receive the same, should be regarded as a sufficient filing within the act. To hold otherwise would not only involve the exaction of an impossible condition, but would be equiva- lent to charging each claimant with the duty of following his claim, step by step, to its final resting place, and not only would that be the case, but he would likewise be chargeable with any and every delay caused by the officials into whose hands the same was carried. The unreasonableness of such a contention must be apparent at first glance. Assuredly, the legislative branch of the Government could not have intended such a result, and, if not, the executive branch may avoid it. As the papers in this case were duly forwarded to the American consul at Madrid, through regular official channels, for the express purpose of having a properly authenticated claim made, and as the papers were duly filed with that official in the form required by the compensation act, I am of the opinion that the filing with such official 648 workmen's compensation under act of may 30, 1908. was a filing witli tiie authorized representative of the Secretary of [Commerce and] Labor, and that such filing was a proper filing within the meaning of the act. 10. The requirement that an affidavit he filed within 90 days after death Is held to be directory, and that a failure to so file within that time may be waived by the Secretary in cases where the f acts_ appear to justify such waiver. (This opinion overrules the case of William Goodley, at page 619.) [IQ re claim of Thomas A. Gray, jr., July 11, 1913.] This claim has been filed by the father and mother of the decedent as dependent parents. It is observed that the affidavit was subscribed and sworn to on the 1.5th day of February, 1913, and while the date of filing is not clearly shown still it must have been subsequent to that date, which is more than 90 days after the date of the death of the employee. . Under the provisions of section 4 of the act of May 30, 1908, it is provided that : In case of an accident which shall result In death the persons entitled to compensation under this act, or their legal representatives, shall, within 90 days after such death, file with the Secretary of [Commerce and] Labor an aflSdavit setting forth their relationship to the deceased and the ground of their claim for compensation under the provisions of this act. This shall be accompanied by the certificate of the attending physician setting forth the fact and cause of death, or the nonproduction of the certificate shall be satisfactorily accounted for. Following the above-mentioned provision regarding the filing of a death claim, there is another provision having reference to the filing of a claim in the case of injury not producing death, which is as follows : In the case of incapacity for work lasting more than 15 days the injured party desiring to talie the benefit of this act shall, within a reasonable period after the expiration of such time, file with his official superior, to be forwarded through regular official channels to the Secretary of [Commerce and] Labor, an affidavit setting forth the grounds of his claim for compensation * * *. There is also contained in the same section of the act the following provision : If the Secretary of [Commerce and] Labor shall find, from the report and affidavit or other evidence produced by the claimant or his or her legal repre- sentatives, or from such additional investigation as the Secretary of [Commerce and] Labor may direct, that a claim for compensation. is established under this act, the compensation to be paid shall be determined as provided under this act and approved for payment by the Secretary of [Commerce and] Labor. An examination of the record in this case reveals the fact that the claimants were not officially notified of the death of their son in the course of his employment until some time after the expiration of the 90 days mentioned in the statute, the reason for such delay being given by the major of the Corps of Engineers in charge of the work as follows: OPINIONS OP SOLICITOR, DEPARTMENT OP LABOR. 649 Claimants live in an isolated locality, and due to the Inadvertence or negli- gence of an employee of this district forms for claim for compensation on account of death were not forwarded to the claimants until after the expiration of the 90-day period allowed for making such claim. By reference to section 1 of the compensation act it will be found that the " accident " which shall result in death, as above quoted from section 4 of the act, has reference to the injury referred to in section 1, wherein it is provided — That when * * * any person employed by the United States as an artisan or laborer * * * is injured in the course of such employment such employee shall be entitled to receive for one year thereafter, unless such employee * * * be sooner able to resume work, the same pay as If he continued to be employed * * * : Provided, That no compensation shall be paid under this act where the Injury is due to the negligence or misconduct of the employee injured, nor unless said injury shall continue for more than 15 days. The foregoing proviso appears to be the only restriction to the pay- ment of compensation after the right shall have accrued, and there is not to be found in the act any provision which prohibits the payment of compensation for failure to comply with any of the regulations concerning the filing of the claim. It will be seen, as will be inferred from the statement of the engi- neer in charge, that the department has provided a number of blank forms for the purpose of reporting injuries and the filing of claims. It is therefore expected that the forms as provided by the Govern- ment shall be used, and the custom and practice ever since the act went into effect has been to provide claimants with these blank forms. In this instance the Government official who usually attends to such matters failed to forward the proper blank forms to the claimant in sufficient time to fill out and file the same within the 90-day period. As the claim was sworn to on February 15, a few days after the expiration of the 90-day period, it is plainly evident thai the claim- ants were not guilty of laches, but, on the other hand, that they imme- diately did everything within their power for the purpose of filing a claim at the earliest possible moment. Cases of a similar nature have heretofore arisen in the administra- tion of the compensation act, and it was held in the Powers case (Op. Sol., 622) that: It is apparent that the widow and child of the deceased are not chargeable with any delay in filing the affidavit. Whatever the delay, it was merely the result of the passing of the claim through official channels. It was also held, in an opinion dated May 13, 1911, in the case of Bilazo, that the doctrine laid down in the Powers case was applicable thereto, as the two cases in that respect appeared to be on all fours. On the other hand, it has been held in the Goodley case (Op. Sol., 619) that the prevision as to the filing of claims for compensation on account of death within 90 days is mandatory and must be strictiy complied with to give the Secretary jurisdiction to consider the case. It that opinion it was stated : That no construction can be given to this act to read out of it the plain pro- vision that a claim must be presented within 90 days. In this regard the act gives the Secretary of [Commerce and] Labor no discretion. 650 WORKMEN- 's COMPENSATION XJNDEK ACT OF MAY 30, 1908. The view was evidently taken at that time that the statute was clear and unambiguous and that it should be read according to its ordinary usage in an imperative maner. An investigation, however, of the adjudicated cases clearly establishes the fact that there is nothing clear, unambiguous, or certain where the words " shall " or " may " are used, and in the construction of laws with those terms they are frequently used interchangeably. In 35- Cyc, page 1451, it is said : The word " shall " as used in statutes is generally mandatory, although it is not always imperative, but may be consistent with an exercise of discretion. Thus it may be construed to mean " may " when no right or benefit to anyone depends on its imperative use, when no advantage is lost, when no right is destroyed, when no benefit is sacrificed either to the public or to any Indi- vidual by giving it that construction; or when It is absolutely necessary to prevent irreparable mischief or to construe a direction so that it shall not inter- fere with vested rights or conflict with the proper exercise of power by either of the fundamental branches of government, and it also means " may " when used by a legislature in a grant of authority to a court. Again, in the case of United States v. Boyd (24 Fed. Rep., 692), the court had under consideration the interpretation to be given the word " shall " as used in the revenue statute, the qualifying phrase of which was "by means whereof the United States shall be de- prived of lawful duties." It was contended by the defendant that the use of the word " shall " restricted the application of the statute to a completed transaction by which the United States had been defrauded, but the court took the view that under the wording of the statute it was equally applicable to attempts as to the completed act. At page 695 of the opinion the court said : If the act or attempt is to enter merchandise by a false statement, etc., of a character which is calculated to deprive the United States of duty, the statute is satisfied. The use of the future tense is consistent with this interpretation. If the statute had used the word " will " instead of " shall " no one would doubt that this would be the meaning. " Shall " and " will " are frequently used indiscriminately, and it is apparent from the reading of the whole section that " shall " was used here in the sense of " will " or " may " as is stated in Sedg. St. Cont. Law. " The words ' may ' and ' shall ' have been a fertile source of difiiculty In the interpretation of statutes. The decisions arising upon statutes in which ' shall ' has been construed to mean ' may ' and ' may ' to mean ' shall ' are too numerous and familiar to need citation." The word " shall " in the homestead law, requiring that the home- steaders of the property shall make a claim of homestead when levied on, is clearly directory. (Goldman v. Clark, 1 Nev., 607-611.) In the case of Railroad Co. v. Hecht (95 U. S., 170) the court had under consideration the provision contained in the charter of the railroad company, which was as follows: Process on said company shall be served on the president by leaving a copy to his address at the principal oflSce of the corporation in the hands of any of its ofiicers. Subsequent to the granting of this charter the legislature passed a law providing for the service of process on corporations generally whereby the same could be served on a clerk of the corporation. In reaching a con^ilusion on the interpretation or construction to be OPIHriONS OF SOLICITOR, DEPARTMENT OF LABOR. 651 given the word "shall" as used in the charter the court, by Mr. Chief Justice Waite, made the following observation : As against the Government the word " shall " when used in statutes is to be construed as " may " unless the contrary intention is manifest. On the other hand, the word " may " has been construed to mean " shall " or " must," and as declared by the Attorney General it must all depend on the context and the intent of the legislature. In Opinions of the Attorney General, volume 21, page 420, it was said : While the word " may " in a statute is sometimes construed as imposing a duty rather thiin conferring a discretion, yet this rule of construction is by no means invariable and its application depends on the context of the statute and whether it is fairly to be presumed that it was the intention of the legislature to confer a discretionary power or to impose an imperative duty. It is also said in Opinions of the Attorney General, volume 24, page 594, that — While " may " in any statute is ordinarily to be construed as " shall " or " must " when public rights or interests are concerned, yet the construction depends on the context of the statute, the test being the intent of the legislature. In regard to the construction of a statute the Comptroller of the Treasury, in Decisions of the Comptroller, volume 7, page 178, had this to say : A doubt as to the meaning of a statute, in order to entitle a contemporaneous construction of the statute by executive officers for the practice of a depart- ment to great weight, must be a reasonable doubt arising upon reading all the provisions of the statute and of statutes in pari materia together. The comptroller had under consideration the construction of a statute of a similar nature as the compensation act, wherein the question arose under the disability act providing compensation for injured employees of the Life-Saving Service. That act contains the following provision: That if any keeper or member of a crew of a life-saving or life-boat station shall be so disabled by reason of any wound or injury received or disease contracted in the Life-Saving Service in the line of duty as to unfit him for the performance of duty * * * he shall be continued upon the rolls of the service and entitled to receive his full pay during the continuance of such disability, not to exceed the period of one year * * *. In the case being considered by the comptroller the employee became disabled on October 15, 1896, and so continued to the date of his death on November 15, 1896. Claim was then filed by the widow for the period of disability as well as for the death benefits also provided by the act. The Auditor for the Treasury Department disallowed the disability claim on the ground " that the application for the surfman to be continued on the roll was not made while he was in the Life-Saving Service." In a discussion of the act in this claim by the comptroller, at page 366 of the opinion, he said, on this point : The claim was therefore disallowed for the reason stated. But in this case the late surfman died during his disability. It was therefore impossible for him to make application, while in the service, to be continued on the rolls 652 wokkmen's compensation under act of may 30, 1908. for the period of his disability. The law does not require impossibilities, and In a case of this kind, where a compliance with the formal requirements of a statute is rendered impossible by the happening of a contingency, a substantial compliance therewith must be deemed a compliance with the requirements of the statute. In a previous opinion by the comptroller, found in Decisions of the Comptroller, volume 4, page 658, on the same statute, in regard to the construction to be placed upon statutes of this character, he said : The purpose of the statute was to encourage men to enlist in this perilous service by securing to them a continuance of their wages when stricken down in the line of duty, either by wounds or disease, by carrying them on the pay rolls during a limited time of disability instead of discharging them from the service. Therefore the statute should be construed liberally. I think no meritorious case, the facts of which bring it fairly within the terms. of the statute, should be excluded from its benefits. I am unable to agree with the conclusion reached in the Goodley case, wherein it was held that it is absolutely necessary for n claim to be filed within 90 days after the death in order to give the Secre- tary jurisdiction to consider the case, for nowhere in the act is there found a provision which makes the administration of the act by the Secretary of [Commerce and] Labor dependent upon the filing of a claim within 90 days. Section 4 as above set forth, in addition to the filing of the claim by the injured employee or by the beneficiary in the case of death, also provides that the claim shall be accompanied by a certificate of the attending physician or the nonproduction of such certificates to be satisfactorily accounted for. And it is also provided therein that if the Secretary shall find from the report made by the superior officer and affidavit or other evidence produced ty the claimant or his or her legal representatives or from such additional investiga- tion as the Secretary may direct that a claim for compensation is established under this act, compensation to be paid shall be de- termined as provided under the act. It can hardly be said from a careful reading of this entire section that the use of the word "shall" in connection with the filing of the claim within 90 days should have any greater mandatory effect than the use of the same word which appears in the same section in seven other places. Therefore it is not apparent that Congress in- tended to make this word more imperative in that connection than it did in using the same word in other connections, which no one will for an instant contend was intended to be mandatory. From a consideration of the various provisions of the compensa- tion act it is readily apparent that the statute is remedial in its nature and that it is a humane and benevolent law, having for its object the relief to a small extent of those injured in the course of employment and for those designated therein dependent upon them in cases of death. Under these circumstances no one will contend that the statute should be construed in any other than the most lib- eral manner. Nowhere in the statute is it provided that after a claim or right to compensation has accrued it shall be divested by failure of the beneficiary to comply with any rule or regulation con- cerning the method or procedure of establishing such claim. OPINIONS OF SOLICITOR, DEPARTMENT OP LABOR. 653 It appears to me that upon an injury being received by an em- ployee covered by the act, without neghgence or misconduct on his part, and such injury shall exist for a period of more than 15 days, eo instanti the right to the payment of the compensation becomes vested and the payment thereof is a ministerial matter in the hands of the officials charged with the administration of the act. It may well be assumed that if Congress had intended that a claim should be filed within a limited period of time or on failure so to do that it would be barred, it would have said so in that many words ; but, on the other hand, there is an entire absence of such in- timation, and in view of the nature of the legislation there is no apparent justification for setting up a statute of limitations. Such a course would manifestly work a grave injustice and hardship to the claimants in this case, as well as many others, and it can not be believed that Congress had any such intention. Besides, under the circumstances as shown herein, it was an impossibility for claimants to have complied with the requirements within the time limited, since the form which had been adopted for such purpose had not been furnished them by the superior officer of the decedent; conse- quently it was an impossibility to file such claim, as it was beyond their power to secure the blanks unless furnished by the Government officials. To disallow a claim under such circumstances would be equivalent to doing that which the courts of equity abhor and do not permit, viz, to allow a person to take advantage of his own wrong. In addition, as said by the Comptroller of the Treasury, supra : The law does not require impossibilities, and in a case of this kind, where a compliance with the formal requirements of a statute is rendered impossible by the happening of a contingency, a substantial compliance therewith must be deemed a compliance with the requirements of the statute Claimant's son was drowned on November 6, 1912. On November 16, 1912, a complete report was made out by the immediate superior of decedent and was on file in the Department of [Commerce and] Labor on November 21, 1912. This report contained not only all details of the accident necessary to establish a claim for compensa- tion but also the names and addresses of the father and mother of the deceased employee. Thus it will be seen that within 15 days after the decedent met his death the Secretary of [Commerce and] Labor had before him every material thing required by law to estab- lish a claim to compensation by the mother and father. All that the law further requires is that the parents make claim to the com- pensation. All the material facts necessary to establish a claim for compensation were preserved and perpetuated in the report on file in the department. The Government could in no way be prejudiced or lose any right or be put to any inconvenience by the failure of the parents to present their formal claim for the compensation to which they were entitled. Could Congress have intended to deprive them of compensation should they fail to claim it within 90 days? I can not think that Congress intended that a request within 90 days by the parents in this case for the compensation, to which the law says they are entitled, should be construed as a condition prece- 654 wokkmen's compensation under act of may 30, 190S. dent, failure strictly to comply with which within 90 days would de- feat their right. I am unable to discover anywhere in the act a necessity or purpose to make time the essence of performance on the part of the beneficiaries. It therefore appea-rs to me, first, that the right to compensation becomes vested upon the happening of the injury or death, provided the same arises in the course of the employment and without negli- gence or misconduct on the part of the employee and the disability from injury exists for more than 15 days, and, second, that the word " shall " was used in a directory rather than an imperative or manda- tory sense in regard to the filing of an affidavit within 90 days. It will be observed that the employee injured is given a "reasonable time" within which to file his claim, which reasonable time is left to the discretion of the Secretary of [Commerce and] Labor, and, as it is apparent that the widow and children and dependent parents would be in a worse financial position on account of the death of their breadwinner, it does not appear reasonable to suppose that Congress would enact a law for their benefit and in the same law deprive them of the same for failure to file a claim within the short period of 90 days. It can hardly be presumed that Congress intended the 90-day limit to act as a statute of limitations, for ordinarily a statute of that kind is based upon the presumption that a party may, be put to disadvantage in defending a claim after a long lapse of time, by death of witnesses, loss of papers, or other evidence, while no such contingency can arise under this law, since it is incumbent upon the officials to report all injuries as well as upon the claimant to estab- lish a prima facie claim. In view of the foregoing I have the honor to i-ecommend that the claim be approved for payment, it being otherwise a proper claim. XXV. " AW AFFIDAVIT." 1. An affidavit of claim may be executed before any person authorized to administer oaths generally, and the authority of a person in a foreign country to administer oaths generally is a question of fact which should be established by satisfactory evidence. [In re claim of .Joseph Gilflllen, May 19, 1909 ; No. 854.] It appears from the record that the decedent was accidentally drowned by the capsizing of a boat on which he was returning from work ; that the accidental death occurred on November 20, 1908 ; that the claim for compensation was made by the father of decedent and was " sworn to " before an " inspector, Jamaica Constabulary," on January 21, 1909; that the certificate of the claim officer is dated February 24, 1909; that the deceased employee was unmarried; that he left one child, less than 2 years old ; and that the amount of neces- sary support customarily received by the claimant from decedent prior to bis death was $1 per month. OPINIONS OF SOLICITOE, DEPAETMENT OP LABOB. 655 Before returning the claim for information as to whether the boat which was capsized was owned by the United States, and also as to the date when the claim was filed with the official superior, my opinion on the following questions is desired : 1. Is an acknowledgment taken before an " inspector, Jamaica Constabulary," without a seal sufficient to satisfy the requirements of section 4 of the act of May 30, 1908? If not, what further authentication is necessary? 2. Is the statement of the claimant as to the amount of support customarily received from the decedent prior to his death sufficient to show that he is a " dependent " parent within the meaning of the act? 3. In view of the statements as to the conjugal condition of the deceased, what right to compensation under the act, if any, has the child, Eugene GilfiUen? Eef erring to the first question : Section 4 of the act of May 30, 1908, provides that in the case of any accident which shall result in death the persons entitled to compensation shall file with the Secretary of [Commerce and] Labor an affidavit setting forth their relationship to the deceased and the ground of their claim for compensation. Without going into the question as to whether this provision is mandatory, so as to defeat a claim which is not accompanied by a properly executed affidavit, or whether it is merely directory, it is clear that the law contemplates that the statements made in a claim shall be sworn to. The statute now under consideration does not designate the officer or officers before whom the affidavit shall be or may be executed. " If no particular officer is designated to administer an oath or affir- mation in a particular case or for a particular purpose, any officer au- thorized to administer oaths or affirmations generally may do so." (29 Cyc, 1303 ; 21 A. & E. Ency. of Law, 2d ed., 748.) The essence of the matter is that the statements shall be sworn to. The statute does not require that they be sworn to within the United States, and the affidavit may, therefore, be executed in any place where there is a person authorized to administer oaths generally. It is essential, how- ever, that the person before whom the oath is taken shall be author- ized to administer oaths generally in the place where such oath is administered, and that he comply with any form or ceremonies pre- scribed by the law from which he derives his authority. Thus the affidavit contemplated by section 4 of the act of May 30, 1908, may be executed in Jamaica before any person authorized to administer oaths generally in Jamaica. If the law from which such person obtains his authority requires that he shall authenticate his official acts under seal, unless a seal is attached to the jurat there would be no com- pliance with the act of May 30, 1908. The real difficulty which is presented is in determining in each case whether the officer before whom an affidavit was executed was authorized to administer oaths generally, and whether the oath was administered within his territorial jurisdiction, and whether all the formalities prescribed by the law of the place were complied with. In 1869 the Court of Claims held (Otterbourge v. U. S., 5 C. Cls., 440) that the oath of office prescribed by section 1757 of the Eevised Statutes, and which was taken in Mexico before the consul general of Switzerland, could not be considered as legally taken without evi- dence that the consul general had authority to administer such an oath. 656 workmen's compensation under act op may 30, 1908. In 1892 the Attorney General held (20 Op. At. Gen., 455) that the authority of a notary public to administer oaths does not exist by virtue of his office, but is derived from positive enactment, and that a notary public in Austria-Hungary was not authorized to admin- ister the oath prescribed by section 4892 of the Revised Statutes, for the reason that notaries public in Austria-Hungary were not author- ized by the laws of that country to administer oaths generally. To determine in each case whether the oath provided for by section 4 of the act of May 30, 1908, was taken before a person authorized to administer such an oath would involve an examination of the laws from which the person administering such oath derived his authority. Such an examination as is here indicated would be extremely difficult if not practically impossible in many cases. The act of May 30, 1908, provides that the Secretary of [Com- merce and] Labor shall find whether a claim thereunder has been es- tablished. But he is not required to take notice of foreign laws. The existence of such laws is matter of fact, to be proven in court as other facts. (Bouv. Diet., vol. 1, p. 822; 16 Cyc, 895.) So, also, should the fact of the existence of a foreign law, where it is neces- sary to justify the approval of a claim, be shown by the claimant, as any other fact. In United States v. Baily (34 U. S., 238-254), the Supreme Court recognized the constant practice and usage in the Treasury Depart- ment in reference to claims against the United States to require such claims to be supported by affidavit, whether such affidavit was re- quired by statute or not, and, referring to a regulation of the Treas- ury Department, authorizing affidavits to be made before justices of the peace in the several States, said : It is a general principle of law, in the construction of all powers of this sort, that where the end is required the appropriate means are ^ven. It is the duty of the Secretary to adjust and settle these claims, and in order to do so he must have authority to require suitable vouchers and evidence of the facts which are to establish the claim. No one can well doubt the propriety of re- quiring the facts which are to support a claim and rest on testimony to be established under the sanction of an oath. * * * The whole matter resolves itself into a question as to what shall satisfy the Secretary of [Commerce and] Labor that the oath contem- plated by the act has been taken by the claimant. Any evidence calculated to give reasonable assurance that a claim is sworn to is, in my judgment, sufficient to satisfy the provisions of the law. Section 1750 of the Eevised Statutes, referring to diplomatic and consular officers of the United States, authorizes " every secretary of legation and consular officer " to administer oaths and take affidavits, and provides that when so administered and taken and certified un- der hand and seal they shall be valid as if taken in the United States. An affidavit executed before any secretary of legation or consular officer at his station and certified under his seal would, it is sug- gested, be the most satisfactory evidence of the taking of the required oath in a foreign country. If it is inconvenient or impossible for the claimant in any case to appear before a secretary of legation or consular officer, he may take the oath before any person authorized to administer oaths generally in the place where he is; but where OPINIONS OF SOLICITOE, DEPAETMENT OF LABOE. 657 this is done the claimant should be required to furnish satisfactory evidence of the authority of the officer to administer the oath, and it is suggested that the most satisfactory evidence of this would be the certificate of the proper secretary of legation or consular officer under his seal. The seal of such certifying officer would be sufficient to verify his signature. (See Barber v. Int. Co., 73 Conn., 687-603.) Referring to the second question : As stated in my opinion of May 8, 1909 (Stanley Howell, C 851, Bu. No. 1950), the amount cus- tomarily received is only one of the factors from which to judge of the dependence of a claimant. One dollar per month is a nominal amount, even in a place where the cost of living is comparatively very low. The department should be advised as to the financial condition, earning capacity, etc., of the parent who makes thft claim. Referring to the third question: The fact that the decedent was single or " unmarried " at the time of his death does not carry with it the inference that the child named in the claim was an illegitimate child. The deceased may have been a widower, and he is entitled to the presumption that he was. However, in such a case it would have been better if he had been described as a widower rather than as unmarried. The department should be advised as to whether he was ever married. In conclusion, I have the honor to recommend — First. That claimants located in foreign territory be required to execute the affidavit contemplated by section 4 of the act of May 30, 1908, .before ths appropriate secretary of legation or consular officer, or that such secretary or consular officer certify that the officer who did administer the oath had authority to administer oaths generally, and that this requirement be insisted upon in the present case. Second. That a report as to the financial condition, earning capac- ity, age, etc., of the person claiming as father be called for. Third. That inquiry be made as to whether or not the deceased was, at the time of his death, a widower. Fourth. That inquiry be made to ascertain whether the person claiming as father is taking care of the child of the 'deceased, or whether said child is being cared for by others. 2. The aflldavit of claim may be executed and filed for the claimant hy an attorney in fact duly appointed for the purpose. [In re claim of Jesus Jimlnez, Oct. 5, 1909 ; No. 1748.] The employee on account of whose death the above claim is made was a laborer employed by the Isthmian Canal Commission on con- struction work in the Canal Zone. He was accidentally drowned on May 27, 1909. He left no widow or children or mother. Under date of July 12, 1909, his father executed a power of attorney, purporting to grant to the Spanish consul in Panama special authority, as com- 93364°— 15 42 658 wOkkmen's compensation under act oe may 30, 1908. plete as might be necessary for the purpose, to collect and receive the compensation on account of the death of his son and to grant and issue " all public or private documents which may be required." Pursuant to this power of attorney the Spanish consul, under date of August 11, 1909, made a formal claim and executed an affidavit in accordance with the appropriate printed form in use by the depart- ment. This claim and affidavit are both signed ■" Nicholas Jiminez Vidarreta, by Juan Potous, Spanish consul, attorney in fact." In the affidavit it is stated that the necessary support customarily received by the claimant from the decedent was $30 per month. It appears from the power of attorney that the claimant is " 50 years of age, widower, minister by profession." The ;;laim is submitted to this office with special reference to the questions whether the claimant is a dependent parent and whether the filing of the claim and affidavit by the Spanish consul is a com- pliance with section 4 of the act of May 30, 1908. As to the first question, it seems fair to conclude from the facta shown that the claimant is a dependent parent within the meaning of the act. The second question involves the sufficiency of the affidavit of claim, which is not made by the claimant in person, but by his duly authorized attorney. Section 4 of the act of May 30, 1908, contains the following provision : That in the case of any accident which shall result iu death the jtersons entitled to compensation under this act, or their legal representatives, shall, within ninety days iifter such death, file with the Secretary of [Commerce andj Labor an aiffidavit setting forth their relationship to the deceased and the ground of their claim for compensation under the provisions of this act. Generally speaking, what a person may do in his own right he may do through an agent.. (1 A. & E. Encyc. of Law, 939; 31 Cyc, 1206; Eeinhard on Agency, sec. 30.) But this general principle is subject to some limitations. As stated in Reinhard on Agency (sec. 186), " there are some things which a man may do himself and yet can not do by another. Thus, he can not delegate authority to perform an act of a personal nature; that is, an act which to be valid must be performed by the party himself. Therefore a person could not render homage or fealty by another, as such service was personal." I think there can be no question as to the right of a claimant to make and file a claim through or by an agent. But the statute re- quires that a claimant or his legal representative shall file with the Secretary of [Commerce and] Labor an affidavit setting forth his rela- tionship to the deceased and the ground of his claim for compensa- tion. . The claimant in this case being a living person and the one to whom all the beneficial rights under the statute, if any, have accrued, the alternative requirement as to a legal representative does not apply. See opinion in the case of Samuele Badolato (C 1517, Bu. No. 3317). The substantial question involved, therefore, is as to whether the affidavit required by the statute must be made and exe- cuted by the claimant personally or whether this may lawfully be done by an agent. OPINIONS OP SOLICITOR, DBPAKTMENT OF LABOE, 659 In numerous cases reported in the books the affidavit of an attor- ney for one of the parties to an action has been accepted as a com- pliance with a statute or rule of court requiring a plaintiff to file an affidavit of merits or a defendant to file an affidavit of defense. Gen- erally speaking, such affidavits have been sworn to by the attorney and not by his client. In some cases the statute or rule of court ex- pressly authorizes the required affidavit to be made by an agent or attorney. (See Remington Sewing Machine Co. v. Cushen, 9 Mo. App., 528 ; School Directors v. Hentz, 57 111. App., 648 ; Wetmore v. Dimn, 5 La. Ann., 496 ; Allen v. Champlin, 32 La. Ann., 511 ; Bryant V. Harding, 29 Mo., 347; Hunter v. Eeilly, 36 Pa. St., 509.) In the case of James v. Young (1 Dall. (Pa.), 248) it was held that the affi- davit required to open a judgment might be made by a third party where it was shown that the defendant was disabled by sickness, and in the case of Guyer v. Cox (1 Overt. (Tenn.), 183) it was held, in overruling an objection to an affidavit for continuance because the agency of the son, who executed the affidavit for his father, was not shown, the court said: It is not material by whom the affidavit is made, so that the court are satis- fied upon affidavit, which the act of assembly requires. In the case of Griel v. Buckius (114 Pa. St., 187), Jacob Griel, sr., was the plaintiff, and John F. Griel was his attorney. There was filed an affidavit of defense signed thus : "Jacob Griel, sr., per John F. Griel, attorney." The court, in holding that this affidavit did not satisfy the provisions of the law, said : The affidavit of defense in this case is clearly insufficient. It is not only evasive, but it was made by a stranger to the record. It is true he styles himself " attorney for Jacob Griel," but vchether he was attorney at law or at- torney in fact does not appear. No reason is given why the defendant did not make the afliclavit himself, nor does the affidavit show that it was made for and on behalf of the defendant, or even with his knowledge. * * * It has never been held that no one but the defendant can make the affidavit of defense. Cases may arise where it would be physically impossible for the defendant to make such an affidavit. Under such and similar circumstances we have no doubt that an affidavit of defense may be made on behalf of the defendant by an attorney at law or other person duly authorized, but the reason why it is not made by the defendant should be set forth in the affidavit. The court can then judge of the sufficiency of such reason. It would never do to allow a stranger to the record to intermeddle in this manner. No question seems to have been raised as to the form of the signa- ture. The affidavit seems to have been treated the same as if it had been signed " John F. Griel, Attorney for Jacob Griel, sr." In fact, the court said that " it was made by a ' stranger to the record.' " The compensation act says that the claimants shall file " an affidavit setting forth their relationship to the deceased and the ground of their claim for compensation." It does not say by whom the affidavit shall be executed. It follows, therefore, that any affidavit which sets forth the relationship of the claimants and the ground of their claims satisfies the letter of the statute. In this case such an affidavit was filed. The Spanish consul was duly authorized by the power of attorney to make the claim and file the affidavit. He acted for and in the stead of the claimant. His act in this regard was the act of the 660 workmen's compensation under act op may 30, 1908. claimant, and the affidavit was therefore filed by the claimant, as required by the statute. While the attorney in fact was undoubtedly competent to sign the name of his principal to the claim, I do not think that he was competent to swear to the affidavit in the name of his principal. The affidavit should have been signed " Juan Potous, Spanish consul, attorney in fact for Nicholas Jiminez Vidarreta." However, I think this may be regarded as a mere matter of form. The statements made in the affidavit arc made to the best of the knowledge and belief of the affiant. They do not involves positive personal knowledge. The Griel affidavit, supra, was subject to the same objection, and yet it would seem that the court would have received it if it had been sufficient in other respects. In conclusion, I have the honor to advise that the claimant in this case is a dependent parent within the meaning of the statute, that the claim has been established, that the provisions of section 4 have been substantially complied with, and to recommend that the pay- ment of the compensation to the claimant be approved. 3. Authority to administer oaths generally is not indispensable if specific authority to administer oaths is not so limited as to exclude the oath in question. [In re claim of Leon Grant, Apr. 21, 1910 ; No. 3325.] The above claim is submitted to this office with special reference to the question whether the affidavit is sufficient. Claimant was employed at the United States Naval Station, Guan- tanamo Bay, Cuba, and the oath in verification of his claim was administered by E. E. Wright, captain. United States Navy, com- mandant in charge of the above naval station, and the affidavit has his official seal attached thereto. The sufficiency of affidavits and the authority of certain officials to administer oaths to claimants under the compensation act has been considered by this office heretofore in two cases. In the first of these cases, that of Luther Gilfillen (C 854, Bu. 1513), the claim was sworn to before an " inspector, Jamaica Constabulary," and the question was raised whether such an officer had authority to ad- minister oaths, and, if so, whether evidence of his authoriW, properly authenticated, should not be furnished along with the affidavit. As the question raised in that case has no similitude to the case before me, the conclusion thereia is not applicable to the present case. The other case, that of Michael Smith (C 2197, Bu. 5406), resembles this case very much, in that the affidavit was executed before a lieutenant. Ordnance Department, United States Army, summary court. The claimant in that case was employed at the Sandy Hook Proving Grounds, Fort Hancock, N. J., which place of employment is under tlie immediate jurisdiction of the War Department. The authority of the above officer to administer oaths of any character is found in OPINIONS OF SOLICITOK, DEPARTMENT OP LABOR, 661 the act of July 27, 1892 (27 Stat., 278) , the material part of which, for the purpose of this discussion, is as follows : That judge advocates of departments and of courts-martial, and the trial officers of summary courts, are hereby authorized to administer oaths for the purposes of the administration of military justice, and for other purposes of military administration. The opinion in the foregoing case appears, from a perusal thereof, to be based upon an opinion of this office (No. 601), under date of October 27, 1905. In that case the office had under consideration the question whether an oath of office made by an assistant light- house keeper before an officer of a summary court was valid. It will be noted that in this latter case it was an employee, or, rather, a prospective employee of the Lighthouse Establishment, under the supervision of the Department of [Commerce and] Labor, who made the oath before an officer of the War Department. It is therefore easily discernible that the administration of such an oath to such a prospective employee could have no relation whatever to " other pur- poses of military administration." The opinion in the Smith case, however, followed the reasoning laid down in the opinion of October 27, 1905, while the circumstances were somewhat different. In the Smith case it appears that the claimant and the officer administering the oath were both employees of the same executive department, and, as in this case, the officers of the department under which the claimant is emplmred is charged with the duty of transmitting to the Department oi [Commerce and] Labor the necessary papers in the case under the provisions of sec- tions 3 and 4 of the act of May 30, 1908. Section 3 of said act provides that whenever an accident occurs to any employee embraced within the terms of the said act : It shall be the duty of the ofBcial superior of such employee to at once report such accident * * * to the head of his bureau or Independent office, and his report shall be immediately communicated through regular official channels to the Secretary of [Commerce and] liabor. Section i of the act also provides : In the case of Incapacity for work lasting more than fifteen days, the injured party desiring to take benefit of this act shall, within a reasonable time, file with his official superior, to be forwarded through regular official channels to the Secretary of [Commerce and] Labor, an affidavit setting forth the grounds of his claim for compensation » * * The authority of the commandant of a naval station to administer oaths is derived from the act of March 3, 1901 (31 Stat., 1086), which reads as follows: That judges-advocate of naval general courts-martial and courts of inquiry, and all commanders in chief of naval squadrons, commandants of navy yards and stations, officers commanding vessels of the Navy, and the adjutant and Inspector, commanding officers, and recruiting officers of the Marine Corps be, and the same are hereby, authorized to administer oaths for the purposes of naval administration. In the Smith case the view was taken that it was necessary for the affidavit, under the compensation act, to be executed before an officer 662 workmen's compensation tjndee act of may 30, 1908. authorized to administer oaths generally, and that as an officer of a summary court did not possess such authority, the affi^lavit was in- suificient. Of course, an oath, administered by one not possessing the authority to administer such oath amounts to no oath at all. In such cases as the present one, however, I do not believe it requisite for an officer to possess authority to administer oaths generally in order to have authority to administer oaths under the compensation act. While the statutory authority conferred on the officers named in the aforementioned enactments is limited or special, it is clear that such authority is limited only by the bounds of what properly comes within tifiat sphere of action designated in the act as " for other pur- poses of naval (or military) administration." The question, therefore, for decision here appears to be this : Is an oath administered by a commandant of a naval station to an employee of such station, for the purpose of verifying his claim for compensation on account of injuries received at such station, such an oath as a commandant is authorized to administer " for other pur- poses of naval administration " ? The word " administration " is defined in Words and Phrases as follows : The administration of government means the practical management and direction of the executive department, or of the public machinery or functions, or of the operation of the various organs of the sovereign. By analogy it is therefore seen that the administration referred to in the act conferring authority on the commandant to administer oaths is in the practical management of the functions or public machinery of the Government intrusted to the care of such official, and, in the case of naval administration, must. refer to all matters connected with the supervision, management, and direction of the naval establishment in his charge. Under the title of " Oaths and affirmations," found in 29 Encyclo- pedia of Law, 1299, it is said: A statutory provision that certain officers may " administer oaths necessary in the performance of their duties," relates to matters filed with or business transacted before the oflScer in which an oath is required and in reference to which some duty is enjoined upon him. While the act does not require that the affidavit of the claimant be executed before his superior, yet it does devolve upon the head of such bureau or independent office certain ministerial duties to be per- formed in this connection. Is, then, the performance of such duties, as in the present case, for the " purposes of naval administration " ? It can not be said that in the performance of such duties as are devolved upon the various officials by the act of May 30, 1908. the same are performed under the direction or supervision of the Secretary of [Commerce and] Labor, since officers of the other execu- tive departments are not subject to, nor do they receive, orders from the said Secretary; hence it would appear that such duties are ad- ministered by naval officers for the " purposes of naval administra- tion." As the statutory provision confers authority upon the officers named to administer oaths in the performance of their duties, and OPINIONS OP SOLICITOR, DEPAETMENT OP LABOR. 663 as a claim for compensation by an employee under such officer ap- pears to " relate to matters filed with or business transacted before the officer in which an oath is required and in reference to which some duty is enjoined upon him," it would seem to me that the ad- ministration of the oath in this case comes within that class of oaths which such officers are specifically authorized to administer. The apt of March 31, 1901, was under consideration by the Comp- troller of the Treasury in a case referred to him by the Secretary of Commerce [and Labor]. The inquiry in that case related to the authority of a commander of the United States Navy to administer an oath of office to a prospective employee of the Bureau of Fisheries, which bureau is under the supervision of the Department of Com- merce [and Labor]. In an opinion dated February 27, 1909, the comptroller held, in effect, that as the authority of officers of the Navy extended only to the purposes of naval justice and of naval admin- istration, such officers were not authorized to administer an oath of office to an employee of the Bureau of Fisheries. The reason for such a conclusion is clear, since the employment of the person who ■desired to take the oath had no connection whatsoever with the matter of naval administration. In view of the foregoing I am of the opinion that sufficient authority exists for commandants of naval stations to administer an oath to an employee of the Navy Depiartment for the purpose of verifying his claim for compensation on account of injuries received by him in the course of his employment. 4. The filing of an affidavit is not the only basis of a claim, as' the Secretary may find a claim established from other sources. The filing of an affidavit is therefore not mandatory but directory. [In re claim of Harry Filler, Nov. 7, 1913.] This claim is submitted with the following inquiry: " Whether the provision of the compensation act of May 30, 1908, that an injured employee desiring to take its benefit " shall * * * fiig * * * an affidavit ' is mandatory, or merely directory to be waived at the discretion of the Secretary of Labor. It appears that the question is raised because of the fact that the claimant in this case, who was confined in a hospital in the city of Philadelphia from injuries received in the course of employment, did not make the usual affidavit to his claim. His failure to do so is ex- plained on the ground that there was no notary public at the hospital. This fact alone would not appear sufficient to warrant the waiving of the affidavit, for it is manifest on the face of things that a notary public could have been obtained at little trouble and cost; conse- quently no real necessity can be said to exist to justify waiving the requirement. It is therefore suggested that the claim be returned for completion in that respect. 664 workmen's compensation undee act op may 30, 1908. In regard to the principle involved, it will be found that in section 4 of the act of May 30, 1908, there is the following provision: In the case of incapacity for work lasting more than 15 days the injured party desiring to take the benefit of this act shall * * * file with his official superior * * * an affidavit setting forth the grounds of his claim for com- pensation * * *. If the Secretary of [Commerce and] Labor shall find from the report and affidavit or other evidence produced by the claimant or his or her legal representatives, or from such additional Investigation as the Secretary of [Commerce and] Labor may direct, that a claim for compensation is estab- lished under this act, the compensation to be paid shall be determined as pro- vided under this act and approved for payment by the Secretary of [Commerce and] Labor. While this question has never been heretofore formally considered, yet cases have arisen where, in consideration of the surrounding cir- cumstances, different actions have been taken by the department in order to avoid unnecessary hardships upon claimants. In one of the early cases, viz, that of Abran Bernal (C 924) the claim was returned in order that the oath might be administered by an officer having general authority to take oaths, while in the case of John O'Toole (C 4451) the claim was sworn to before a postmaster who did not possess authority to take oaths generally, but because of the circum- stances of the case, entailing a great hardship on the claimant, the claim was informally approved for payment upon the oath taken before the postmaster. Eef erring now to the section of the act wherein the provision for the affidavit occurs, attention is particularly invited to that portion quoted above, which says : If the Secretary * * * shall find from the report and affidavit or other evidence produced iy the claimant or his or her legal representatives or from such additional investigation as the Secretary * * * may direct that a claim for compensation is established under this act, the compensation shall be determined as provided under this act and approved for payment by the Sec- retary * • *. The primary object, it would seem from the foregoing, is that the Secretary be satisfied that a meritorious claim has been established under the act. This he may find, first, from the report of the superior officer and the affidavit of claimant; or, second, from other evidence produced by the claimant or his or her legal representatives; or, third, from such additional investigation as he may direct. Thus the Secretary may reach a conclusion that a claim has been estab- lished from any one of the three means mentioned by the statute, or in his discretion he may exhaust all those methods in order to reach such conclusion, but nowhere in the act is it provided that an affidavit of claimant shall be the basis upon which other evidence produced by the claimant " or " such additional investigation " shall depend for the establishment of a claim. While it is not intended to encourage a departure from the prac- tice of requiring an affidavit by claimant or his or her legal represen- tatives when filing a claim, yet it would appear that the Secretary may adopt, in a proper case, any one of the above means independ- OPINIONS OP SOLIOITOH, DEPAETMENT 01" LABOK. 665 ently of the affidavit and official report of the superior officer. As a matter of fact, it will be found upon examination of the records in these cases that many claims have been approved for payment with- out having an official report of the injury. This class of cases fre- quently arises where an employee is injured and there are no visible signs of the injury or where incapacity does not begin for some time after the injury, and in cases where, no witnesses being present, the superior official refuses to certify to the injury on the statement of claimant alone. No doubt the object to be attained by requiring an affidavit was to impress upon the employee the solemnity of his act as well as to provide a means of punishment for perjury in the presen- tation of false or fraudulent claims. In a clear case, where no ques- tion is raised as to the circumstances connected with the injury and the duration of the incapacity, the office of the affidavit is merely a precautionary measure, and it is not believed that it was the intention of Congress to make the allowance of a claim absolutely dependent upon the filing of an affidavit by claimant as a basis thereof. In view of the foregoing I am of the opinion that the filing of an affidavit is not mandatory, but directory, and may be waived in the discretion of the Secretary. XXVI. "ACCOMPANIED BY THE CEKTIPICATE OP THE ATTENDING PHYSICIAN * * * OB, THE NONPRODUCTION OE THE CEB- TIPICATE SHALL BE SATISPACTOEILY ACCOUNTED FOE,." 1. Where the evidence shows incapacity for more than 15 days the attending physician's certificate covering only the 13 days the employee was under his observation satisfies the law. [In re claim of F. C. Kuehnle, Dec. 4, 1908 ; No. 174.] On Form C. A. 1 the division engineer reported an accident which occurred to the claimant on August 13, 1908. This report was made on September 3, 1908, and gave the name of Dr. A. L. Haynes as the physician who first attended him, and the " probable duration of disability " as " two to four weeks." The claim on Form C. A. 4 is dated October 1, 1908, is for compensation from August 13, which is given therein as the date of the accident. The physician's certificate on the same form is made by Dr. John D. Brooks, who certifies that he first attended the claimant on September 8, 1908, and that he last examined him on September 21, 1908. The claim officer, on the same form, certifies under date of October 10, 1908, that the claimant " has been continuously unable to resume his work from August 13 1908." In view of the fact that the physician's certificate covers only 13 days of disability the claim is submitted to this office with special reference to the question whether the certificate is sufficient to justify the allowance of the claim. 666 workmen's compensation under act of may 30, 1908. The statute does not make the production of a physician's certifi- cate a condition precedent to the allowance of the claim. It provides that the claim shall be " accompanied by a certificate of the attend- ing physician as to the cause and nature of the injury and probable duration of the incapacity, or the nonproduction of the certificate shall be satisfactorily accounted for." The basis of the claim is the injury, not the certificate. The certificate is merely a part of the evidence of the injury. The fact that it does not cover 15 days of incapacity is immaterial, if more than 15 days of incapacity is shown by other satisfactory evidence. The certificate in question gives the date of the injury as August 13, which agrees with the date as given in the other parts of the record. It shows on its face the reason why it covers only 14 days of disability ; the physician first attended the claimant on September 8 and last -examined him on September 21, and the certificate only covers the time from one date to the other. The evidence submitted establishes the fact that the injury lasted for more than 15 days, the statute has been complied with as to the production of " a certificate of the attending physician as to the cause and nature of the injury," and I can see no legal objection to the approval of the claim. 2. The fact that no physician was employed satisfactorily accounts for the non- production of a physician's certificate. [In re claim of Charles Wagner, Dec. -15, 1909; No. 2316.] The above claim is submitted to this oiRce with special reference to the question whether there is sufficient evidence of connection between the alleged accident and the claimant's incapacity to justify the approval of the claim. The immediate report of injury shows that on October 11, 1909, the claimant was on an elevator when it fell, and the injury resulted. The accident occurred in the course of employment and was not due to the negligence or misconduct of the injured employee. The claim- ant resumed work November 8, 1909, having lost 22 days on account of the accident. The certificate of official superior, attached to the claim, is to the effect that the claimant was continuously unable to resume work from October 11, 1909, to November 3, 1909. But it does not appear that the claimant received any medical aid or that he consulted a physician until November 3, 1909, when he prepared his formal claim for compensation. In the place of the certificate of attending physician contemplated by section 4 of the act, Dr. James T. Wayson makes the following statement under date of November 3, 1909 : Charles Wagner appeared before me this day with the history of an injury to his right ankle. I find a slight swelling and notice a limp in walking due to favoring same ankle. I can pass no judgment upon the seriousness of his injury nor how long it will incapacitate him, but present condition shows previous injury. There appears to be no doubt as to the occurrence of the accident as stated, and the record discloses no reason to suppose that the injury to the foot was caused independently of the accident. But OPINIONS OP SOLICITOR, DEPARTMENT OP LABOR. 667 was the incapacity the necessary or natural result of the accidental injury to the foot? No physician attended the claimant, and he is unable to furnish the certificate of attending physician contemplated by the act. The physician whose statement is quoted above found a " slight swelling " on November 3, and the inference is plain that he considered the man incapacitated on that date, for he said he was unable to state how long the injury would incapacitate him. It seems to me, therefore, that we can not escape the conclusion that the claimant was incapacitated as the result of the accident on October 11, 1909, and that the incapacity continued for more than 15 days. The question whether he might have recovered in less than 15 days if he had employed a physician is not involved. (See opinion of Mar. 17, 1909; C 524.) The law does not make the production of a physician's certificate a condition precedent to the allowance of a claim. It says that such a certificate shall accompany the claim " or the nonproduction of the certificate shall be satisfactorily accounted for." In this case no such certificate is produced for the reason that no physician was employed, and no physician is competent to make such a certificate. The nonproduction of the certificate is, therefore, satisfactorily accounted for. I am of opinion, therefore, that the evidence submitted is sufficient to establish the claimant's right to compensation. I In re claim of .Tames Foster, Dee. 17, 1910 ; No. ."iSTT.] The above claim is submitted to this office prepared for approval from April 12, 1910, to June 11, 1910. The immediate report shoAvs that on March 1, 1910, claimant met with an accident in the course of his employment, giving the names of two eyewitnesses to the same. The schedule of work dated October 17, 1910, shows that he was absent from work from March 12, 1910, noon, until June 11, 1910, noon, and there is a further statement that " claimant has not been reported as returned to work." In a supplemental affidavit dated November 15, 1910, claimant makes the following explanation of his incapacity, covering the period beginning March 12, 1910, and ending July 23, 1910 : That on March 1, 1910, I was injured as described in my claim for compensa- tion on account of injury ; that I continued at work until about March 12, 1910, when my thumb became so bad that I called at the Bas Obisjpo Dispensary and had my thumb treated. On March 13 and 14, 1910, the doctor at the Bas Obispo Dispensary lanced my thumb. The doctor told me that he would have to amputate my thumb, and I refused to allow him to amputate, and I stayed at my home at Las Cascadas, C. Z., and treated myself, and continued to treat myself until April 12, 1910, when I called at the Las Cascadas Dispensary and requested treatment, and was treated that day and also on April 13, 1910. On April 14, 1910, I was admitted to the sick camp at Las Cascadas Dispensary, and remained there under treatment until May 20, 1910. I was discharged from the sick camp on May 20, 1910, and Dr. Hale ordered me to call at the dispensary daily to have my hand treated, and I called daily from May 20 to June 11, 1910, and received treatment. Prom June 12, 1910, to July 22, 1910, I did not receive any medical treatment from any commission physician or any other physician, but remained at my home, and I treated my hand by using liniments. When I made my claim for compensation I stated to the claim officer that I had returned again to work on August 22, 1910, but this statement was in error, as I returned to work on July 23, 1910, and have been working for the commission since that date. 668 workmen's compensation under act of may 30, 1908. The physician's certificate shows that, claimant was treated at Las Cascadas , Dispensary from April 14 to June 11, 1910, and that the incapacity would continue no longer. The physician states that the above period of time covers all the time that clstimant presented him- self for observation or treatment. In a letter dated December 2, 1910, the physician states that he can not vouch for time from June 12 to July 22, 1910, for the reason that he was not under his observa- tion during that time. In a letter dated November 14, 1910, the dis- trict physician at Bas Obispo states that the records of the dispen- sary do not show this claimant to have received treatment there at any time on March 12, 13, or 14, 1910. It will be noted that claimant states that he called at that dispensary on March 13 and 14, at which time the doctor lanced his thumb. It therefore appears that there are lacking medical certificates cov- ering the period from March 12 to April 14 and from June 12 to July 22, 1910. The omission to furnish same is explained by claimant in his affidavit of November 15, 1910, wherein he states that during that period of time he remained at home and treated himself. That the failure to produce a medical certificate does not necessarily war- rant the disallowance of a claim was clearly decided by this office in the case of Charles Wagaer (C 2316, Bu. 5757). There the claimant received an injury on October 11, 1909, but did not receive medical treatment until November 3, 1909. The attending physician was therefore unable to certify to the entire period of incapacity. In reaching a conclusion in that case it was said : In this case no such certificate is produced, for the reason that no physician was employed, and no physician is competent to make such a certificate. The nonproduction of the certificate is therefore satisfactorily accounted for. The facts in this case are very similar. From the evidence fur- nished there is no doubt but that claimant received an injury on March 1, 1909, and the condition found to exist on April 14, when examined by the physician at Las Cascadas, appears to be the direct result of that injury. It therefore remains to ascertain whether claimant was actually incapacitated by reason of the same from March 12 to April 14 and from June 12 to July 22, 1910. Before approving the claim for the period from April 12 to June 11, 1910, 1 have the honor to recommend that the record be returned and further information obtained. This additional information should consist of a statement from Dr. Hale setting forth the condition of the injured member when he first saw it on April 14, with his opinion as to whether claimant was likely to have been incapacitated thereby pre- vious to that date; and if so, whether such incapacity was probable from March 12, 1910. He should also be requested to state whether or not claimant had sufficiently recovered on June 11, 1910, to war- rant his return to the character of work being performed by him at the time of the injury. If not, he should then state the period of time which would probably be necessary for a complete recovery. In the present state of the record the approval, as prepared, ap- pears to be proper, but as it is probable that further evidence can be adduced which may sustain the contention of claimant as to the exact period of his incapacity, it is deemed advisable to secure this information, if possible, before final action is had on the claim. OPINIONS OF SOLICITOE, DEPARTMENT OP LABOK. 669 XXVII. " SHALL WITHIN A BEASONABLE PEBIOD." 1. Where a verbal claim for compensation was promptly made, but an affidavit of claim was not filed until nearly a year after the injury, owing to neglect of official superiors to furnish necessary forms delay held not unreasonable. [In re claim of James Sturgeon, Oct. 21, 1909 ; No. 1627.] The above claim was formerly submitted to this office with special reference to the question as to whether the claim was filed within a reasonable period as provided in section 4 of the act of May 30, 1908. The record, when the case was first submitted to this office, showed that the accident occurred on August 21, 1908, and the affidavit of the claimant was dated July 10, 1909, which was not received by the Bureau of Labor until August 9, 1909. There was no explanation of the delay other than the following statement in the immediate report of the injury : At the time of accident the foreman reported that the man immediately re- turned to work after the surgeon attended him. Later he continued out for 13 days, but it was not known then that his absence was due to his injury until the receipt of a claim for compensation on July 19, 1909. In absence of any explanation it would seem that the claim was not filed " within a reasonable period," as required by law. However, the additional information indicates that the injured employee is not chargeable with such delay as would bar his right to compensation. In a letter from the master shipwright to the naval constructor, dated October 2, 1909, the former states : " The first I heard of James Stur- geon making application for claim was in June, 1909, when I showed this man the report on his accident * * *. He then asked me to sign some papers in regard to the accident, which, when I looked over them, had no place for my signature, but had one for the head of the department, meaning the naval constructor, which I refused to sign." The claimant's letter in regard to the delay reads as follows : You ask where there was a delay from the date of the accident, August 21, 1908, to date of my claim, July 10, 1909. I made claim verbally, but n»t in writing, many times during this interval. I first complained to my foreman, Joe Brown; next I complained to the labor board; third, to Constructor Clark (I complained to him four times) ; then to the admiral. I complained to Bob Pogne, quartermaster. They all promised to look Into the matter, but never let me know anything. I have been complaining and making claim ever since the accident, but did so verbally; I was not re- quested to do so in writing. I am still under the doctor's care from effects of the accident. Please take the matter up. If the statements contained in the letter last quoted are true, and it is to be noted that the officers to whom the injured employee " made claim verbally " do not contradict him in regard to the matter, the claimant is clearly not responsible for the delay. No general rule applicable to all cases can be laid down as to what constitutes a filing within a reasonable period. The circumstances of each particular case must be considered.^ I am, therefore, of opinioUj as above indicated, that the claim was filed within a reasonable period within the meaning of tfce act and that the claim for compensation should be allowed. 670 workmen's compensation undek act of may 30, 1908. 2. What may be a reasonable time in which to file an affidavit of claim must be determined with reference to the circumstances of each case. Par- ticular circumstances considered. [In re claim of L. F. Perron, Oct. 18, 1911 ; No. 7055.] This case is submitted to this office at the present time with refer- ence to the single question whether the claim was filed within a rea- sonable time. The compensation act provides that a party receiving an injury resulting in incapacity for work of more that 15 days' du- ration desiring to take the benefit of the act — shall, within a reasonable period after the expiration of such time, file with his official superior, to be forwarded through regular official channels to the Secretary of Commerce and Labor, an affidavit setting forth the gi'ounds of his claim for compensation. The facts with reference to the filing of the claim in the present case are as follows: The injury is said to have been incurred October 30, 1908. The only claim for compensation forwarded to this Department and con- tained in the record was not made until August 7, 1911 — nearly three years thereafter. From October ,30, 1908, the date of the accident, to November 6, 1908, a period of six days, the claimant remained at ■home, returning to work on the date last mentioned. The accident was not reported to the claimant's superiors until February 23, 1909. although between this date and the date of claimant's return to work a few days after the accident claimant w,as absent from work at intervals aggregating 56 days, or more than half the time. During the year immediately following the injury, i. e., from October 31, 1908, to October 31, 1909, claimant was absent from work 103.6 days, of which 24 represented leave without pay. Compensation under the act is allowed only for a period of one year following the injury. It was not until a year and nine months had elapsed after the expira- tion of this period for which compensation may be paid that the claimant filed his affidavit of claim, although he then presented phy- sicians' certificates showing continuous disability and medical treat- ment up to the time of filing. Inasmuch as there was nothing in the record attached to the claim to explain this long delay, the papers in the case were returned to the Treasury Department for a state- ment in the premises by the Director of the Bureau of Engraving and Printing, claimant's official superior, as well as a statement by the claimant as to why he did not file his claim at a date closely fol- lowing the time of his alleged injury. The essential parts of the claimant's statement are as follows : On my first knowledge of the true results of my accident I called in the office of the chief clerk at the Bureau of Engraving and Printing, Mr. Lamasure (?), on about the 20th of February, 1909, to file claim for compensation for my injury. * * * The papers I received were filled out by me, stating my acci- dent; my injury, the time it occurred, where and how, also many names of printers around rae who assisted me, also my doctor's certificate, filled out by him, and all the questions asked properly answered ; also a statement from me stating that on account of not being informed myself before the 1st of Febru- ary, 1909, of the true results of accident, I could not make claim for compensa- tion before. My papers were filed nt the Bureau of Engraving and Printing about February 26, 1909. Later, when I called at the director's (Mr. Ralph) office on March 15, 1909, with the letter from Dr. W. G. Erving, dated March 13, 1909, which asked to place me at other work for a while until I improved in strength and health, as my returning to a press might cause a recurrence. OPINIONS OF SOLIOITOK, DEPARTMENT OP LABOR. 671 I was told by Mr. Ralph that he could not do so, as I was rated as a plate printer. I then asked him about my compensation papers, aEd he told me he was sorry, but I could not receive compensation owing to circumstances, and lifting box not being a part of my duty. But he would excuse me for all the time I would lose through my injury. I thought at the time that Mr. Ralph's Answer to my papers that I had filed was proper, and that I had filed compensa- tion papers. * * * On August 4, 1911, I called at the office of the Commis- sioner of Iiabor, Mr. G. Wallace W. Hanger, and, stating the circumstances to him, was surprised to find out that I had not made claim for compensation, but that a record of my accident had been filed in his office through Mr. Ralph, the Director of Engraving and Printing. Mr. G. Wallace W. Hanger then gave me the proper papers for me to make out for compensation, which I did, and filed at the Bureau of Engraving and Printing on August 7, 1911. * * * i was not aware that the papers I filed on February 26, 1909, were not the papers for compensation, and only on calling at Mr. G. Wallace W. Hanger's (Com- missioner of Iiabor) office was I Informed so, as I thought Mr. Ralph had given me the proper compensation blanks to fill out, and from his answer did not apply until such a late date. The director of the Bureau states: A very careful search has been made of our records to see whether the form claimed to have been filed by Mr. Perron is in the files of this bureau, and it has not been located, nor, so far as I am aware, is it In the possession of this bureau * * * it being claimed by Mr. Perron that the form was put in on February 26, 1909. I have no recollection of having seen the same, nor of hav- ing it in my possession. The director further states, however: I find that on February 25, 1909. Form C. A., notice of injiiry in the case of Mr. Perron, was forwarded through the regular channels to the Department of Commerce and Labor and that on February 26, 1909, Form C. A. 2, notice of re- turn to work, was forwarded in the same manner. In order to keep a correct record of all matters pertaining to these claims, we have a bound index in which a minute record of all injuries received by employees of this bureau and the action thereon on claims for compensation under the act of May 30, 1908, is kept. I find thereon that the forms stated above were forwarded on the dates stated, but in the last column of this Index is a notation, as follows : " Papers held by director," without date. Whether or not the papers stated to have been held by the director are Forms C. A. 1 and C. A. 2, I am unable to state. It may be that the papers referred to were Form C. A. 4 or the form upon which the injured party makes claim for compensation under the act. There is, however, nothing to show that this is the form to which the notation refers. The director further states: I could not, of course, say that the form was not, as a matter of fact, filed by Mr. Perron, but, as stated above, have no memory of having had it, and when you consider the large number of papers passing over my desk daily, and the lapse of time between this date and February 26, 1909, it is not to be wondered at that if the paper were actually in my possession, I should have forgotten the incident. * * * Thus it will be seen that the filing of the paper at the time stated by Mr. Perron rests entirely upon his own statement. I can not deny that he filed it, nor can I state that it was filed. Referring to claimant's statement that he called on the director and inquired about compensation claim, the director states: This statement of Mr. Perron is made in connection with a visit which Mr. Perron alleges he made to my office on March 15, 1909, when I expressed to him my opinion that the serious injury which he claims to have received did not come as a result of his lifting a box weighing 28 pounds, and that if it did happen as the remote result of his lifting that box, in my judgment it was no part of his duty to lift a box containing 28 pounds, the weight thereof being caused by his placing tools and junk in it, the box ordinarily weighing about 12 pounds. * * ■* I do, however, remember very distinctly giving the opin- ion, as stated above, that Mr. Perron was not entitled to compensation under 672 workmen's compensation under act or may 30, 1908. the act. This was merely my own personal opinion and, of course, was not intended to interfere with Mr. Perron taking such steps as he desired in tlie matter. The fair inference to be drawn, I think, from the foregoing state- ments is that the claimant did, in fact, file the claim for compensa- tion with his superiors on or about February 26, 1909, and that the papers, having been laid aside for consideration, were mislaid, for- gotten and subsequently lost or accidently destroyed. In support of this conclusion is the positive, circumstantial, and uncontradicted statement of the claimant. The only thing tending to discredit the claimant's statement is the fact that the papers have not been found. As against this, however, and tending to corroborate the claimant's statement, is the fact that in the bureau's index of claims the nota- tion appears " Papers held by director." That this notation refers to papers other than the notice of injury and the notice of return to work, and hence refers to the affidavit of claim, may be inferred from the fact that the two notices referred to are fully accounted for on the index and that the notation mentioned could scarcely apply to them. Regarding the claim as having been filed on or about February 26, 1909, 1 think it must be conceded, under the circumstances, that it was ■filed within a reasonable time. The alleged injury occurred October 30, 1908. From this date until the claim was filed the claimant was alternately disabled and at work, but all the while under medical treatment. It appears that until the 1st of February, 1909, he was treated by a general practioner, with little or no benefit. On the latter date he was referred to a specialist, and it was not until after this that he was in a position ^to know definitely the nature and extent of his injury. A short time thereafter, within the month, the claim was filed; and what is a reasonable time must be determined with reference to the particular circumstances of each case. Under the cir- cumstances of the present case such delay as there was in filing the claim was clearly not unreasonable. Before the claim can be properly allowed, however, it will be nec- sarj', as pointed out in the previous opinion of this office, to determine whether the claimant's disability — i. e., a straining of the ligaments supporting the sacro-iliac joints of the lower back — could have re- sulted in the course of claimant's employment in the manner and on the occasion stated by him. It is thought that there can be no question but that if the claimant's disability was occasioned in the manner stated by him, he was injured in the course of his employment, with- out negligence or misconduct on his part. XXVni. "A CLAIM FOB COMPENSATION IS ESTABLISHED." 1. A claim is not barred by evidence of congenital weakness which may have contributed to cause an injury to result in incapacity. rin re claim of J. F. Malverhlll, Nov. 30, 1908; No. 230.] This claim is founded upon a severe bruise to the right groin and rupture incurred on September 13, 1908, while claimant was removing nuts to take down a portion of an engine. He was using a wrench under high pressure when the wrench slipped off the nut and struck OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 673 him in the right groin. The injury was received in the course of employment and was not due to any negligence or misconduct on the part of the claimant. . » .. The physician certified that the man was operated on at the hos- pital, at the same time that he was treated for his injury, for double mguinal hernia, which was believed to be due to congenital weakness and not to the injury. He was injured September 14 and returned to work October 13, 1908, losing on account of the accident, 28 days instead of 27 days as stated on Form C. A. 2. The case is sub- mitted with reference to the question whether a claim for compensa- tion is barred when a predisposing caufe is so aggravated by the acci- dent as to result in disability. Claimant was afflicted with an ailment, to which no exception was made at the time he was employed. He was retained in employment, apparently able to perform alt the duties assigned to him, notwith- standing such ailment. He might have contmued doing his work had he not received in the course of his employment the injury which disabled him. The commission's employees are not presumed to be in perfect physical condition, and when it put this man to work, afflicted as he was, it did not except him from the benefits of this act. Had the congenital weakness alone been the cause of the injury there would have been presented a different case. This man was injured without any fault of his own, by a cause entirely different from his ailment. It matters not that the injury occurred to Mm at a weak point of his physical makeup. There are other portions of the body, as the eye, for instance, where such injury as he received would have re- sulted in much more serious disability. An injury may be caused by an accident, although no injury would have been thereby suffered but for the existence of a disease which was aggravated by the accident. (Lloyd v. Sugg, 2 W. C. C, 5 Mintbn-Senhouse Digest, p. 2.) In the case of the claim of Frank T. Osgood before this Department for any injury which was aggravated by blood poisoning the fol- lowing language was used : " It does not seem reasonable or just to deny compensation merely because the physical condition of the injured person is such as to predispose him to some ailment which is also a natural concomitant of the injury received. Such a predispo- sition on his part would be harmless if no injury supervened to inaugurate the malady. A man's predisposition to disease * * * can not be held to affect his right to compensation." (C. 62-132, Nov. 25, 1908.) I am therefore of the opinion that the claim is not barred and that claimant should be compensated notwithstanding the fact that the disability might have been caused by the aggravation of a predis- posing cause. i. The fact of death established by a presumption from the facts. [In re claim of Julius Stanley, Dec. 17, 1908 ; No. 233.] This claim is founded upon the alleged drowiyng of Julius Stanley on September 29, 1908, while engaged on improvement work on Congaree Creek, Congaree Eiver, S. C. It is reported that Stanley 93364°— 15 — -43 674 woekmen's compensation under act of may 30, 1908. accidentally walked overboard about 10.20 p. m. and was drowned. There were no eyewitnesses. The coroner was notified, but the body has never been found. The reporting officer states that there was no negligence or miscon- duct on the part of the deceased, and in the case of such an accident, where there are no eyewitnesses, the law would presume that there was no negligence. " Where in a negligence suit there is no eyewitness to the accident it will be presumed, in the absence of any evidence to the contrary, that the deceased used ordinary care and caution." (Adams & West V. Iron Cliffs Co., 78 Mich., 271 Syllabus, citing McWilliams v. Mills Co. 31 Mich., 257; KwiotkowsM v. Ey. Co., 70 Mich., 549, etc.) The presumption of the law is rather, so far as there is any pre- sumption at all, that every party performs his duty properly and is not negligent unless shown to be so. (Cleveland, etc., E. Co. v. Crawford, 24 Ohio St., 631). As a general rule, when a person is shown or appears to have been living at one time, the presumption is that he is still alive, at least for such time as is not contrary to the laws of nature in respect to the duration of human life, which presumption may, of course, be overcome by proof of facts and circumstances raising a contradictory presumption. Are there such facts and circumstances in this case? In the case of the death of Frank N. Smoot (C 235, Bu. No. 1164, Dec. 12, 1908), a dredge hand who was lost overboard while returning at night to a big dredge "boat, the presumption of death was stronger than in this case, because he was seen on the boat a few minutes before he is supposed to have been drowned, a splash was heard, and the Mississippi Eiver is a much larger stream, and hence the prob- ability of swimming to shore less than in this case, and the claim was disallowed. If there were no eyewitnesses to Stanley's drowning, how can it be said that the boy walked overboard, and if the body has not been recovered, although about a month elapsed between the date of the disappearance and the rendering of the report, how can it be said that the boy was drowned? He might have disappeared, that is, absconded ; he might have become insane, gone ashore, and wandered off or disappeared in half a dozen other imaginable ways. Supposing he did fall into the water, Congaree Eiver is not so large a body of water that a presumption of death arises every time some one falls into it. He might have swam or waded ashore. I am of opinion, without expressing an adverse judgment on the legality of the justice of the claim if all the facts could be known, that the fact of the death of Julius Stanley has not been establi'^hed and that the Secretary would not be justified in allowing the claim on the evidence presented. It is respectfully suggested, however that the papers in the case be returned, and the reporting officer requested to furnish an additional statement, in detail, of all the known facts tending to support the theory that claimant was actually drowned. [In le claim o( Julius Stanley, Feb. 15, 1009; No. 233.] This case is resubmitted on new evidence of the actual drowning ot btanley. The claim is founded upon the alleged drownine of claimant s son on September 29, 1908, while engaged on improvement work on Congaree Eiver, S. C. OPINIONS OF SOLICITOR, DEPAETMBNT OP LABOR. 675 It was originally reported that Stanley accidentally walked over- board about 10.20 p. m. and was drowned; that there were no eye- witnesses; and th_at the coroner was notified, but that the body had never been found. It is now added that Stanley was staying up rather late, considering the fact that he had to be at work at 4 a. m. next day ; that at least two of the crew of the boat advised him to go to bed; that he was probably irritated over the advice inasmuch as he told one of the advisers that said adviser had nothing to do with him, implying that he would ncrt go to bed unless he wanted to. It also appears that Stanley took a draw bucket and started toward the after end of the boat to get some water out of the river to wash his feet; that soon after a splash was heard, making a sound like a piece of wood falling into the water; that Stanley was subsequently missed and search was made without result; and that the night was very dark and the current running swiftly. It is the opinion of the master, a deckhand, and the cook of the Little Pedee that Stanley was drowned. " If it appears in evidence that the absent person, within the seven years, encountered some specific peril, or within that period came within the range of some impending or immediate danger, which might reasonably be expected to destroy life, the court or jury may infer that life ceased before the expiration of the seven years." (Davie v. Briggs, 97 U. S., 634.) There can be no general rule laid do^n. "Two cases of disap- pearance in which the facts are exactly alike will probably never arise, and the strength of the presumption of life or death will never be the same in any two cases." (Northwestern Mut. Life Ins. Co. v. Stevens,_ 71 Fed., 261.) In this case, considering the circumstances of the disappearance, the five months of time that have elapsed since such disappearance, the tender age of the boy who was probably drowned, the time of night and the belief of his companions and his superior that he was actually drowned, I am of the opinion that the fact of death has been established with reasonable certainty and that Alice Staggers should be granted the benefit of the act. 3. A claim may be approved where only circumstantial evidence of the injury can be adduced. [In re claim of L. C. Simpson, Feb. 15, 1909 ; No. 205.] When the above claim was first submitted to this office, I said, "under date of December 4, 1908 : The record discloses no competent evidence of the accident which is alleged to have occurred on August 4. The names of no witnesses are given. It was not sufficient to cause the claimant to quit work until August 19, and even then no mention of the accident was made to his superior offlaer. The attend- ing physician certifies that he first attended him on August 19^ and last ex- amined him on September 21. While the physician's certificate gives the date of the accident as August 4, this statement is, in the very nature of the case based upon the statement made to him by the claimant. Assuming the suffl' ciency of the physician's certificate as to the disability of the claimant from August 19 to September 21 there is nothing in the record to connect this dis ability with any injury received in the course of employment except the state- 676 workmen's compensation under act op may 30, 1908. ment of the claimant himself, and even the claimant's statement seems to have been the result of an afterthought. I am of opinion, therefore, that the claimant has failed to establish his right to compensation under the act. However, lest injustice be done him in case the claim be disallowed on the record as it now stands, it is recommended- that he be given opportunity to submit any evidence he may be able to adduce to show that the incapacity resulted from an injury sustained in the course of his employment on or after August 1, 1908, without negligence or misconduct on his part. In accordance with the recommendation contained in the above excerpt, the claimant was given opportunity to furnish evidence tending to show that he was injured on or after August 1, 1908, and that the disability lasting from August 19 to September 21 was due to such injury, and he now submits three written statements, one signed by himself and the other two by deckhands, Smith and Phelps. Claimant states that he was injured on August 4. Smith says that while loading heavy beech lumber on or about August 4 claimant claimed he sustained injuries. Phelps states that claimant was load- ing some heavy lumber on August 4, and heard claimant complaining a few days after of having been injured. The physician reports that the injury occurred on August 4. There was nothing to show that he was not hurt on August 4. It is shown that he was employed on some extra hard work on that day. With all the facts as staled as to the day of the occurrence of the accident it seems that it would take some evidence, at least,' that the injury was not incurred on that date. There is also an exceptional element of honesty in the pres- entation of claimant's case. He kept on working, although com- plaining of being hurt, until August 19, the date of the beginning of his claim for disability, and he only claims pay from that date until September 20, although he was physically unable to do a full day's work and did not return to work until October 17. He does not claim compensation for time lost after September 20. ' It is my opinion that the claim should be allowed. 4. The duty of determining whether a claim for compensation has heen estab- lished involves a discretion on the part of the Secretary which can not he delegated to any other person. [In re claim of Feliclano Villafranca, Mar. 8, 1009; No. 305.] On September 27, 1908, Feliciano Villafranca, employed by the United States Engineer Office in the Philippine Islands, was injured and taken to the hospital for treatment. The hospital, it seems, is provided with funds to take care of emergency, cases only, and the injury to Villafranca was of a permanent nature, and the officials of the hospital insisted upon some guarantee of hospital expenses. At the time of the, injury there was due the injured man only $4; and as, under the regular procedure, compensation under the act of May 30^ 1908, could not become available until the claim had been trans- mitted through regular official channels to the Secretary of Com- merce and Labor and the Secretarjr's formal approval transmitted to the Philippine Islands, the hospital expenses could not be pro- vided for. Mr. Villafranca's claim was formally approved January OPINIONS OF SOLICITOR, DEPARTMENT OP LABOR. 677 16, 1909. How the situation was met between the date of the injury and payment of compensation in accordance with the Secretary's approval is not shown by the record. The circumstances of this case, however, are made the basis of the suggestion of the Engineer office that some officer in the Philippine Islands be authorized to approve for the Secretary of Commerce and Labor such claims as may arise in the Philippine Islands. It is suggested that this may be done under the provisions of the law which authorizes the payment of compensation " under such regula- tions as the Secretary of Commerce and Labor may prescribe." The act provides that all claims for compensation shall be trans- mitted to the Secretary of Commerce and Labor^ who is to pass upon the evidence submitted and determine all questions of negligence or misconduct and approve or disapprove each claim. This involves an exercise of discretion which can not be delegated to another. (See 25 Op. At. Gen., 249.) The authority to prescribe regulations has reference to the payment of compensation and not to its allowance. While I fully appreciate the difficulties and inconveniences which may arise in connection with injuries sustained in the Philippines by reason of the time necessarily consumed in sending claims to Wash- ington and getting the formal approvals back, I am constrained to believe that the Secretary can not delegate to any officer in the. Philippines the authority and duty which the Congress has put upon him to determine in each case whether or not a claim has been estab- lished. 5. Review of evidence justifying the approval of a claim based upon an affec- tion of the heart caused by a " sudden twisting of the body." " [In re claim of P. C. Weil, May 28, 1909 ; No. 869.] The above claim is submitted to this office with special reference to the question, whether the evidence of connection between the ac- cident occurring on August 26, 1909, and the claimant's subsequent incapacity is sufficient to justify the approval, attention being in- vited to the correspondence attached thereto. The correspondence referred to shows that there were some dis- crepancies between the several statements contained in the immediate report of the injury, the claim for compensation, the physician's cer- tificate, and the certificate of the official superior. The papers were returned to the Navy Department under date of March 6, 1909, with a letter pointing out the discrepancies and asldng that explanations be furnished, and suggesting that the official superior have the claim- ant examined by the yard surgeon. In response to this suggestion, the yard surgeon made an examination, from his report of which, under date of April 5, 1909, the following is taken : I examined Mr. P. C. Weil on April 1, 1909, at Ws home in Vallejo, Cal., and noted the following conditions : (o) Valvular heart disease (mitral regurgitation), cardiac enlargement, and irregularity (arythmia). (6) Shortness of breath (dyspnosa), swollen legs, and slight cough; due to disease of heart. Examination of urine was negative. It is impossible at the present time to state how long the heart disease has existed. It is my opinion that the condition is the result of chronic inflamma- tion of the lining of the heart (endocarditis), and that it has existed for a long ■678 WOBKMEN's compensation UNDEK act of may 30, 1908. time. It Is highly improbable that the " sudden twisting of the body " said to have occurred on August 26, 1908, could have caused the cardiac condition noted on recent examination. It is probable that more or less cardiac com- pensation existed before the accident and it is possible that the " sudden twist- ing of the body" previously referred to, could have caused a partial loss of this compensation and brought on the shortness of breath, cough, and swollen legs now present, which symptoms Mr. Weil states were not noticed by him before the accident. The naval constructor, under date of March 30, 1909, gave a record of the claimant's working time showing that he continued work until September 5, 1908, from which time he was on and off, sometimes with pay and sometimes without pay, and said : On February 13, 1909, an order was issued by the manager that all the rigger's force, employed in handling weights, would be consolidated on February 16, under the immediate charge of quarterman laborer and rigger in charge, F. B. Ames. Mr. Weil came to the office and objected seriously to being placed under the supervision of Mr. Ames, his objection amounting practically to a refusal to work under Mr. Ames. The manager informed Mr. Weil that it would be necessary to discharge him if he did not desire to work under Mr. Ames, and Mr. Weil then stated that he should like to resign. He was informed that under this condition he would not be recommended for discharge. On February 16, 1909, Mr. Weil informed this office by letter that he should like to return to work as soon as his health permitted, and that he had reconsidered the idea of resigning. With this letter he submitted a certificate from Dr. B. J. Klotz, stating that he was continually ill and unfit for work from February 12, 1909, till further report. Under date of April 12, 1909, the naval constructor made a fur- ther report, from which the following is taken : ' Chief Carpenter Toles, who is the officer charged with investigating injuries, has interviewed the injured employee and the witnesses to the accident, and the testimony 6f all of these employees indicates that Mr. Weil was in charge of replacing the forward boiler of the U. S. S. Paul Jones. In attempting to move the boiler, it evidently caught on some obstruction, and Mr. Weil leaned over to see what was the trouble. As he did so the jack sprung out and struck Mr. Weil on the left foot, and at the same time the boiler struck him on the left side. Mr. Weil states that shortly afterward he began to expectorate blood, but that, not realizing the full extent of his injury, he kept at work. The three witnesses to the accident state that Mr. Weil complained of being hurt Whether the claimant did or did not have heart disease prior to August 26. 1908, and notwithstanding the opinion of the yard sur- geon that it is highly improbable that the ' sudden twisting of the body ' said to liave occurred on August 26, 1908, could have caused the cardiac condition noted," and admitting that the claimant was averse to working under Mr. Ames, still the records show beyond question that on August 26, 1908, an accident did occur and that the claimant was struck on the foot by a jack and struck on the left side by a boiler, and that, although he continued at work for a few days, he complained of the hurt at the time, and that since then he has worked only a few days at a time; also that much of this loss of time occurred before the consolidation which put Mr. Ames in charge of the work. Furthermore, the statements of the attending physician are unequivocally to the effect that the claimant's heart was perfectly sound before the accident, as he had had occasion to examine it on a previous occasion, and that the incapacity was due to the accident on August 26, 1908. I am of opinion, therefore, that the evidence submitted is suf- ficient to justify the approval of the claim. OPINIONS OF SOLICITOK, DEPARTMENT OP LABOR. 679 6. Review of evidence justifying the approval of a claim based upon an in- jury not reported until after several days' absence from work. tin re claim of C. C. Lewis, May 29, 1909 ; No. 941.] The above claim is submitted to this office with special reference to the question whether the evidence of connection between the alleged accident on December 2, 1908, and the claimant's subsequent inca- pacity is sufficient to warrant the approval of the claim. It appears that the claimant is a case maker employed at the Naval Gun Factory at Washington, D. C. He worked until December 14, 1908, inclusive ; was on leave from December 15 to December 19 ; and then worked from the 20th to the 24th, inclusive. He was then absent until February 8, 1909, when he resumed work. He did not consult the yard surgeon or report to the master mechanic or his foreman that he had been injured, and the official superiors knew nothing of any alleged injury until about January 6, 1909, when his wife called for his pay check and reported that he had a very bad arm and that the doctor was going to or had lanced it. Within the week that he returned to work he filed a claim for compensation under the act of May 30, 1908, in which he alleged that on December 2, 1908, while another employee was placing a cartridge blank in the tub he let it fall upon the second finger or claimant's right hand, injuring the hand, and gave as the names of witnesses Wilbur S. Dodge and Frederick E. Brown. The claim was accompanied by a certificate of the attending physician to the effect that he had first examined the claimant on December 25, 1908, and last examined him on February 9, 1909, and that he had been incapacitated from December 25, 1908, to February 8, 1909, by reason of an injury re- ceived December 2, 1908. This certificate stated that the claimant's right hand had been infected and that the arm was swollen, etc. The medical inspector of the yard was directed to make an exami- nation of the claimant, which he did, and reported on February 13, 1909, that, owing to the length of time between the alleged injury and the infection, it was not believed that the infection was due to the injury as claimed. Under all the circumstances, the injured employee's official supe- riors refused to certify that he had been injured in the course of his employment. An investigation was conducted by the Bureau of Labor, and written statements were obtained from the two eyewitnesses whose names had been given, and an additional written statement was obtained from the attending physician. Both the eyewitnesses de- scribe the accident substantially the same as the claimant. Both men were present and saw the blank cartridge fall upon the claimant's hand, one of the men being the employee who let the blank cartridge fall. The attending physician could only certify to the condition of the claimant when he examined him. He stated that when he first examined the claimant, on December 25, 1908, he found him suffering from constitutional symptoms of infection; that he had received a wound which had apparently healed, but on further examination he discovered pus beneath the wound and that cellulitis subsequently developed. It seems to me clearly established that the claimant did sustain an injury in the course of his employment on or about December 2, 680 workmen's compensation under act of may 30, 1908. 1908. At that time it was not regarded as serious, and he continued work for several days, omitting to say anything about it to his official superiors or to the yard surgeon. It was not until about December 24 that the injury gave him any trouble. Then it developed that the same finger which had been injured on December 2, 1908, was in- fected. It is only reasonable, therefore, to assume that the serious condition of the hand and arm which was found to exist by the attending physician resulted from the accident which arose out of and in the course of his employment on or about December 2. The refusal of the official superiors to certify to the accident is justified by the fact that their attention had never been called to the injury until long after it had occurred apd that they had no personal knowl- edge of it. For the reasons above indicated and following the course taken in the similar case of Philip C. Weil (May 28, 1909 ; C 869, Bu. No. 452), I have the honor to advise that the claim of Mr. Lewis be approved. 7. To entitle an employee to continued compensation, the disaWlity must be due in an appreciable measure to the original injury. [In re claim of A. C. McAlUster, June 8, 1909; No. 76.] In this case compensation was granted for a period of six months, ending February 20, 1909. For the purpose of determining whether or not the injured employee was able to resume work at the end of the six months' period, the Secretary, in accordance with section 5 of the act of May 30, 1908, requested Dr. Thurlow S. Miller, of San Francisco, to make a medical examination of the said injured em- ployee. In his report, this physician states that incapacity still exists and that it will probably continue to exist for an indefinite time. But it appears that the employee was about 76 years of age at the time of the accident, and that he is now " a feeble, poorly nourished, but well-formed old man," and that he has organic heart disease. Dr. Miller is unable, under all the circumstances, to state that the present incapacity is due to the injury for which compensation was originally granted. In a letter to the Department under date of May 17, 1909, Dr. Miller, referring to this case, said : I desire to say that while the weakened and Injured heart as described is usually due to other causes such as endocarditis, etc., in his case the many other senile changes present at the time would have made the strain thrown on the heart during and following the accident suificient to break down these valves, or weaken them ; however, if he had this trouble previous to the acci- dent, and which is the most likely and probable, his present disabled condition would be the usual outcome and so incapacitate him. The claim is referred to this office with special reference to the. question, whether the evidence of connection between the claimant's present incapacity and the accident to him on August 20, 1908, is sufficient to warrant the continuance of compensation after February 20, 1909. In my opinion under date of June 2, 1909 (C 661), I said: The compensation provided by the act is In the nature of an absolute grant or gift, and the measure of the compensation is definitely fixed by the act as "the same pay as if he continued to be employed." By the terms of Its title OPINIONS 03? SOLICITOR, DEPARTMENT OF LABOR. 681 the act purports to be one " granting to certain employees of the United States the right to receive from it compensation for injuries sustained in the course of their employment." It is described by the Attorney General as a " beneficent statute, in the nature of an act granting pensions of limited duration and of special application." (Op. At. Gen., May 17, 1909.) Such being the nature of the act, the injured person whom it contemplates is entitled to receive the full benefit conferred, and the compensation provided can not be either increased oi' diminished, nor even terminated, except as the act itself provides. Compensation having been granted in this case, what is its limita- tion ? The only limitation placed upon it by the letter of the statute is one year, "unless such employee, in the opinion of the Secretary of Conunerce and Labor, be sooner able to resume work." As the beneficiary in this case is still " unable to resume work," the letter of the law would operate to continue his compensation until such tiine as he may be able to resume work, or imtil the expiration of one year from the date of the accident. But the statute should receive a sensi- ble construction and one in harmony with its general purpose and spirit. It can not be presumed that the Congress intended that if an employee receives an injury which continues for more than 15 days he thereupon becomes entitled to compensation for one year or until he is able to resume work, independently of whether this inability is due to the original injury or to some cause not in any way connected with the original injury or with the beneficiary's employment. The purpose and spirit of the law preclude any such view. The incapacity for which compensation may be paid must be the result of an injury received in the course of employment. If compensation is granted on account of such an injuryj it must be because that injury has caused incapacity, and when the incapacity caused by that injury ceases the right to compensation ends. ' But it is not always easy to determine the cause of the incapacity. It may be the result of a cpmbination of several causes, one of which may be the injury for which compensation was originally granted, and it may be impossible to separate the causes so as to be able to say which is the principal cause or to what extent the original injury may contribute to the said incapacity. The case now under consideration seems to be of this character. There is no doubt as to the existence of the incapacity. But is it due wholly or partially to the injury received August 20, 1908, or is it such an incapacity as would have existed if the injury mentioned had not been sustained? If the present incapacity is such as would have existed independ- ently of the accident, a proper and sensible construction of the law would require that no further compensation be paid. But this does not appear to be the case. The examining physician, in the letter above quoted, expresses the opinion that the condition of the em- ployee was such that the strain thrown on the heart during and fol- lowing the accident was sufficient. to break down the valves or weaken them, and, referring to the heart trouble, "if he had this trouble previous to the accident, and which is the most likely and probable, his present disabled condition would be the usual outcome and so incapacitate him." Thus it appears that the incapacity is due to the original injury, although it is very likely that the senility and heart disease which the employee probably had before the accident may have contributed to it. 682 workmen's compensation undee act or may 30, 1908. In the case of Frank T. Osgood (C 62, Bu. No. 132) I said : It does not seem reasonable or Just to deny compensation merely because the physical condition of the Injured person is such as to predispose him to some ailment which is also a natural concomitant of the injury received. Such a predisposition on his part would be harmless if no injury supervened to inaugu- rate the malady. A man's predisposition to disease * • * can not be held to affect his right to compensation. In the case of John F. Mulverhill (C 230, Bu. No. 1020) I held that an employee who was injured by an accident which would not have produced incapacity but for a preexisting ailment was entitled to compensation under the act. This conclusion was based upon the decision in Lloyd v. Sugg (2 W. C. C. 5, Minton-Senhouse Digest, p. 2), and the fact that the claimant in that case was employed* and retained notwithstanding his ailment, and that he was able, until the injury complained of, to perform all the duties assigned to him. The reasoning relied upon in the cases cited applies to the case of a continuance of compensation. I have the honor to recommend, therefore, that the continuance of compensation in the present case be approved. 8. Consideration of evidence justifying the approval of a claim based on injury causing hernia or aggravating old hernia. [In re claina of W. L. Grant, Oct. 30, 1909 ; No. 1955.] The above claim is submitted to this office with special reference to the question whether there is sufficient evidence of connection between the alleged accident and the claimant's incapacity. The record shows that on July 16, 1909, the claimant was using an air machine to do some drilling overhead,- when the drill slipped out and the machine fell and struck him over the right groin. There were no eyewitnesses. The claimant, without any undue delay, reported the accident to his immediate official superior, Mr. Seeger, who ordered him to go to the dispensary at once for examination. This the claimant did, and the physician who examined him told him to come again the next morning. This also the claimant did, and the physician told him he had better see his family doctor. He did not go at once to his family physician, but went back to work and worked all that day, July 17. He did not work the next day, it being Sunday. On the following Monday morning, July 19, he went to work, but owing to severe pain he was compelled to quit work about noon. In the afternoon of the same day he consulted his family physician, who found a right inguinal hernia m danger of strangulation and advised an operation, which was performed. In an indorsement dated August 5, 1909, the yard surgeon said : At 4.45 p m. on July 16, 1909, William L. Grant reported at the dispensary, li^^^r-^ i^'^i 'J.""°£ ^^^ ^''"^■'y "fternoon while lifting an air machine on board the p. S. S. Des Moines, he was struclc in right groin. Examination shows a right inguinal hernia, but his statement that the injury caused the rupture this p. m. IS not credited. There are no marks of any description to show an Injury occurred. yy » i juij This man was not examined physically previous to his employment in the navy yard, consequently it is impossible to state whether or not ri-ijture was sustained in the course of his employment at this yard. OPINIONS OF SOLICITOE, DEPARTMENT OF LABOR. 683 In a later indorsement, dated September 24, 1909, the same official said: Physical examination of William L. Grant at 4.45 p. m., July 16, 1909, sJiowed a right Inguinal hernia which could be reduced easily without discomfort to claimant, and which disappeared upon claimant assuming recumbent position. Examination failed to show local signs of injury which claimant stated he received early in the afternoon, and the hernia appeared to be of more gradual formation. I do not consider claimant was in a condition to continue his work on that day on account of the existing hernia and absence of a proper-fitting support. In a letter dated September 29, 1909, addressed to Dr. Sheehan, the attending physician, the naval constructor requested a statement giving a description of the symptoms or signs of injury in detail, and on the back of this letter, without date, the attending physician wrote the following : July 19. — First examined; right inguinal hernia found. No previous history of rupture. Operation on August 3, 1909, showed a very thin sac without any adhesion — a very recent-looking sac. The hernia was Irreducible at that time because of the smallness of the ring. It is established beyond doubt that an accident occurred to the claimant on July 16, that when he was examined that afternoon by the yard surgeon it was found that a hernia existed, and that by reason of such hernia he was not in condition to continue his work. While the yard surgeon was unable to state whether or not the employee had hernia when he entered the service of the navy yard, or whether or not the rupture was sustained in the course of his employment, he expressed the opinion that the rupture which he found was one of a gradual formation rather than one produced by the accident of that day. The yard surgeon said he found no local signs of injury, that the hernia was easily reducible, and that it dis- appeared upon the claimant assuming a recumbent position. On the other hand, the attending physician, who examined the claimant three days later, expressed the opinion that at that time the hernia was irreducible and that there was danger of strangulation; and upon operation on August 3 he found " a very thin sac without any adhe- sions — a very recent-looking sac." I am not a competent judge as to whether a rupture could have been produced in the way the claimant describes and yet show no local signs of the injury immediately or within one or two hours thereafter. But it seems that the yard surgeon regarded the con- ditions which he found to exist on the afternoon of the accident as sufficient to make it unwise for the claimant to continue his work. There is no positive evidence of the existence of hernia before the accident. The yard surgeon had never examined the man prior to the accident, but his judgment, based on the conditions which he found to exist after the accident, was that the hernia was of gradual for- mation and therefore must have existed before the accident. On the other hand, we have the statement of the claimant himself that he never had a hernia or the symptoms of one previous to the accident, and the judgment of the attending physician that the conditions which he found to exist three days after the accident showed the hernia to be of recent origin. Assuming for the moment that the claimant had a hernia previous to the accident, it is but fair to assume that he did not know it. Besides his positive statement to this effect, 684 WORKMEN 'S COMPENSATION XJNDEE ACT OP MAY 30, 1908. his conduct does not indicate that he was seeking an excuse to stop work and receive compensation under the act. He continued his work without interruption or complaint until the accident occurred, and even after the accident had occurred and he had been advised to consult his family doctor he tried to continue his work, apparently not realizing the seriousness of his condition. It is apparent, therefore, still assuming that the hernia was an old one, that prior to the accident it gave him no serious trouble and did not interfere with his work. But immediately after the accident the yard surgeon found him unfit for work. Therefore I am led to the conclusion that the accident so aggravated the hernia as to cause_ the incapacity — ^that if it had not been for the accident the ma,n might still be at work. This would bring the case within the principle laid down in the case of Philip Jarvis (C 1699; Bu. No. 3202), and the cases therein cited. I have the honor to advise^ therefore, that the evidence submitted is sufficient to justify the conclusion that the claimant's incapacity was due to the accident received in the course of employment on Jidy 16, 1909, and that the claim for compensation is established. 9. Consideration of evidence justifying approval of a claim on account of hernia which had existed several months before resulting in incapacity. [In re claim of O. D. KooDtz, Nov. 9, 1009 ; No. 1709.] This claim was considered in an opinion dated September 7, 1909. At that time it appeared that the claimant had been incapacitated from May 6, 1909, to May 31, 1909, inclusive, on account of a hernia which he claimed was the result of a fall in a drain about 12 o'clock on the night of September 30, 1908, but there was no evidence, aside from his own statement, tending to show that he felt a pain in the groin at the time and afterwards, or that there was any swelling, and no evidence at all as to whether he had hernia prior to the accident. In response to a request made by this Department through the Isthmian Canal Commission, the claimant submits an affidavit exe- cuted October 4, 1909, in which he states that he did not have hernia prior to the date of the accident ; that he could not remember whether he complained of pain in the groin, and, if so, to whom, but that he spoke of the swelling to other policemen whose names he can not now recall. There is also submitted an affidavit executed by A. J. Lechler, a fellow policeman, on October 12, 1909, in which the affiant states that during the month of September, 1908, he was located at Mamei and that one night the latter part of that month, the claimant came in with his clothes covered with mud, and in explanation said that he had slipped and fallen in a drain and that he had badly strained himself. There is also submitted a statement of Dr. A. B. Herrick, of the Ancon Hospital, who was the attending physician. This state- ment reads in part as follows : He was admitted May 6, 1909, stating that he first noticed a swelling In right side of groin about three or four months previous. Thinks he hurt himself at Mamei about this time, exact date unlinown. Now when he is on his feet for a long time the swelling appears and has pain. At operation small recent sacs were found on both sides. The findings at operation were consistent with the statement of the patient. OPINIONS OF SOLICITOE, DEPAETMENT OF LABOR. 685 Herulas of slow, gradual development, possibly with congenital weakness, would cause a slowly increasing Incapacity wtich mlglit take months or longer before interfering with active duty. In view of the further information above noted and the statement of Dr. Herrick to the effect that his findings at the operation were not inconsistent with the claimant's statement, I have the honor to recommend that the claim be approved. 10. Consideration of evidence justifying the disapproval of a claim hased upon death by suicide alleged to have been committed in a fit of temporary insanity caused by an accident received in the course of employment. [In re claim of J. K. Teachum, Nov. 10, 1909 ; No. 2058.] The above claim is submitted to this office with special reference to the question whether the evidence submitted is sufficient to show that the decedent died as the result of an injury received in the course of his employment in the Washington Navy Yard. The claimant's affidavit of claim is to the effect that on March 26, 1909, while the deceased employee was at his work in the navy yard he was struck on the head by a hammer which slipped from the hands of a fellow employee ; also, that some time later his back was strained on account of his having to sustain a heavy weight thrown upon him by a fellow workman. The date of the alleged injury to the back is not given. These injuries were such as to incapacitate the employee for work and were the proximate and real cause of his paralysis and death. The immediate cause of the death was asphyxiation under circum- stances which clearly indicate suicide. The claim seems to be based on the theory that the injury to the head or the strain on the back or both together caused paralysis or insanity or both, and that the employee was irresponsible at the time he took his own life. The physician's certificate is filled out by " Prof. H. N. D. Parker," who does not appear to be a duly authorized medical practitioner. In this certificate the cause of death is given as "Asphyxiation. Accidental. Probably caused by stroke of paralysis, No. 2, or by weakened mind — unable to fully comprehend acts of self or others," and the contributory cause was given as " the paralysis as the result of injury to head and spine, causing marked symptoms of insanity and lack of responsibility and unable to control himself." The date and circumstances attending the alleged injury to the back are not given, and no record of any such injury is to be found in the records of the navy yard. As to the injury to the head, the commandant of the navy yard, in an indorsement under date of October 20, 1909, makes a statement to the effect that it was merely a scalp wound, barely breaking the skin, and that the only time lost from work was the time necessary " to go to the yard dispensary, receive treatment, and return to work, in all a question of but a few minutes." There is no history of the wound after this. The de- ceased employee worked until April 15, 1909, from which date he was absent until his death, and at no time during this period was his absence claimed to be on account of any injury received in the navy yard. 686 woekmen's compensation under act of may 30, 1908. Even if it were assumed that the act of May 30, 1908, applied to a death by suicide while in a state of insanity caused by an accident in the course of employment, there is no evidence in this case to show that the death resulted either directly or indirectly from any injury received in the course of employment. I have the honor to advise, therefore, that the evidence presented is not sufficient to justify the approval of the claim. 11. Nothing in act to justify following a man after he has voluntarily severed the relation of employer and employee so as to give him the benefits of the act in case he should afterwards become incapacitated. [In re claim of G. B. Howley, Nov. 11, 1909 ; No. 610.] It appears from the record that the claimant, George B. Howley, met with an accident on November 23, 1908, resulting in a right inguinal hernia. He did not quit work until December 2, 1908, and returned to work January 6, 1909. He worked until January 18, 1909, inclusive, when he resigned, and two days later he sailed for the States on the steamship Panama. His claim for compensation, which had been filed, was approved under date of February 19, 1909, and his pay was continued until he left. He claims that on his voyage to the States he had his wound dressed by the ship surgeon. When he reached his destination, Covington, Ky., he consulted Dr. Eckman, who performed another operation. On October 28, 1909, Dr. Davis examined Mr. Howley for this Department, as provided in section 5 of the compensation act. The whole record is now submitted to this office with special reference to the question, "Whether the evidence presented is sufficient to warrent the approval of payment of com- pensation to the claimant for any time after January 6, 1909, the date of his return to work on the Isthmus?" Dr. A. B. Herrick, Chief of Surgical Clinic, Ancon Hospital, who was the attending physician and who performed the first operation, said in a statement dated August 30, 1909 : At the time of his discharge from this hospital (Dec. 29, 1908) the wound was perfectly healed and there were no signs of any compression of the cord. Dr. Williamson, the district physician, in a letter to the claim officer under date of September 4, 1909, said : Some time in January Dr. McPherson and I examined a man (whose name I do not recall) whose history corresponds to this case. He complained of pain in the right inguinal region following operation by Dr. Herrick for hernia. Examination showed excellent result, a good scar, and no cause for the pain. Dr. McPherson, superintendent of Taboga Sanitarium, to which institution Mr. Plowley was transferred on December 29, 1908, in a letter to the claim officer under date of September 11, 1909, said : I do recall a case — whether it is the same one mentioned by Dr. Williamson or not I do not know — where a man reported at the dispensary two or three times after a herniotomy, complaining of considerable pain at the site of operation. Examination in this case showed a most excellent i-esult, wound perfectly healed, and no apparent cause for the pain. Dr. Fulton, the ship surgeon on the Panama, in a letter under date of July 11, 1909, said : I have no data of my work on the steamship Panama other than what was turned in at the end of each trip. My recollection is that a man came in the OPINIONS OF SOLICITOE, DEPARTMENT OP LABOR. 687 offioe on boat asking for dressing for an unhealed wound; that I gave him what he asked for and never saw his wound. Further, that my impression was that his wound was not much, otherwise he would have shown It to me. Rather think him a sham. If this is not statement enough, send me a transcript of the report bearing on his case; this may refresh me. After receiving the transcript of report referred to Dr. Fulton, under date of July 15, 1909, made a further statement as follows : After reading my report of voyage 39 of steamship Panama, and careful thought, I am more firmly of the opinion that the man in question exhibited no wound to me; that he apparently was not suflEering; and that I gave him what he asked for and entered It in the report to cover material given out. He was about during the entire voyage and did not show any indications of being 111. Am of the opinion that if he had any bad results with a wound that it was owing to his own neglect. Dr. Eckman, who performed the second operation, in Covington, Ky., makes the following statement : In regard to George B. Howley, on whom I operated, I would say that the op- eration was done to relieve compression of the spermatic cord following an opera- tion for hernia, which was done iu the Isthmian Zone by a Government surgeon, as reported to me by Mr. Howley. The operation was absolutely essential to relieve pain from such constriction of the cord. Results have been satisfactory and patient will soon be able to resume his work. I would say that the constriction of the cord was caused by It being pulled up to the outside of the ring for several inches and shortening the distance between the ring and the bladder, thus making a tension on the cord between the bladder and the ring. Dr. Davis, who made the examination on behalf of this department, on October 28, 1909, made the following report : Mr. Howley's right inguinal hernia is entirely cured. There Is no pain, tenderness, or swelling; the parts are normal In every respect so far as the hernia is concerned, and it gives him no trouble whatever. Dr. Guy Eckman informs me th.it In the first operation the cord was drawn to the outer side, somewhat shortening It, and compression of the cord followed, making the second operation necessary. I am unable from present conditions to state cause or necessity of second operation. It is to be observed that aside from the statement of the physician who made the examination in Covington, there is no evidence that the v/ound was not healed when the claimant resigned his position on January 19 and left for the States. On the other hand, the three physicians who examined the man shortly before he left the Isthmus reported that the wound was healed, and the ship surgeon, though he did not examine the man, received the impression from his con- duct that he was a sham, or at any rate that the unhealed wound he claimed to have did not amount to much. Furthermore, unless the conditions which Dr. Eckman found to exist when he performed the second operation clearly indicate that on. January 19, 1909, the wound was not healed, and that Mr. Howley was not able to work at the time he severed his connection with the Isthmian Canal Commission by resigning, he must be regarded as entirely outside the scope of the compensation act. He claims com- pensation from February 1, on which date he was neither an em- ployee of the United States nor a beneficiary under the compensation act. If he is entitled to compensation at all, it must be from Janu- aiy 19. At the time he resigned he was at work for the Canal Com- mission, and so far as any evidence to the contrary is concerned, he 688 workmen's compensation under act of may 30, 1908. might have continued his work if he had chosen to do so. There is nothing in the compensation act which would justify following a man after he has A'oluntarily severed the relation of employer and employee, so as to entitle him to the benefits of the act in case he should afterwards become incapacitated, even though he might be able to trace the injury back to a cause wiiich arose in the course of his employment by the United States. I have the honor to advise, therefore, that the claimant is not en- titled to compensation under the act of May 30, 1908, for any time after January 6, 1909. IS. Consideration of evidence justifying the approval of a claim based on injury to leg though the employee had taken part in a parade. [In re claim of T. E. Carroll, Dec. 7, 1909 ; No. 2160.] The above claim is submitted to this office with special reference to the question whether there is sufficient evidence of connection between the alleged accident and the claimant's incapacity. In the immediate report of the injury it is stated that the time of the accident is unknown; that it is not known whether the accident arose out of or in the course of the employment, and that it is not known whether the accident was due to negligence or misconduct on the part of the injured employee. It is unfortunate that the circum- stances are such that these questions can not be more definitely an- swered. Other evidence in the records, for instance, the affidavit of the claimant, indicates that the accident did occur in the course of employment. The injured employee in his sworn statement describes the accident as follows: Fitting top carriage into pivot stand, the same requiring a revolving of top carriage by hand power, and the pivot stand held in place by a bar placed in hole of nut that fastens both together. While performing this operation I, in some manner, lost my footing and platform struck me on leg. Dr. McQuillan, who filled out the " physician's certificate " dated November 7, 1909, stated that the incapacity was due to the accident of October 6, 1909 ; that he first attended Carroll on October 13, and last attended him on November 6 ; and that the condition of the pa- tient was poor, due to the infection of the left leg, from which an ulcer resulted. Dr. Blackwood under date of October 23, 1909, makes the following report to the commandant: In obedience to your memorandum No. 16540/2, dated October 21, 1909, I have the honor to report that the therein-mentioned Thomas E. Carroll, ma- chinist, fipst class, was visited yesterday afternoon at his residence by Passed Asst. Surg. H. Shaw, United States Na'Vy, who found him suffering from a badly inflamed and infected wound at the seat of the original abrasion. He stated that after receiving treatment at the dispensary he consulted his doctor and was told that it would do him no harm to take part in a parade; accordingly he did so and his leg became much worse, and a slight degree of sepsis resulted. The lesion at the present time is in no way similar to that caused by the original injury, and, in my opinion, had proper discretion and successful medical treatment been applied, the present condition would not have resulted. It is therefore my opinion that the present condition is not due to the original injury, but to indiscretion following that injury, and that under ordinary cir- cumstances the patient could have returned to work in a few days, as originally stated. In his present condition he is unable to return to work, and probably will not be able to do so for about two weeks. OPINIONS OP SOLIOITOE, DEPARTMENT OP LABOR. 689 Dr. Blackwood in his letter of November 6, 1909, says : In my opinion the time that this man (Carroll) has been absent from his work was necessary, but should not have been so from the nature of his injury. Below will be found Dr. Rubinow's memorandum in regard to the cause of the sepsis referred to by the yard surgeon : There is no charge of fraud in this case. Claimant appeared in the navy- yard dispensary on October 12 with a slight abrasion of the left shin. Subse- quently this abrasion developed into infection, which caused disability, and on October 23 he was examined by Surg. Blackwood, who stated that the claim- ant would be unable to return to work for about two weeks. It is charged, however, that sepsis was due to the claimant's participation in a parade, which was permitted by his private physician. It Is questionable how far sepsis may be explained by such exercise If the abrasion had been properly dressed at the time of the first examination, as sepsis is understood to be due not to exercise but to introduction of the septic principle from the outside. It is believed that all the material facts contained in the record have been set forth above and the questions to be determined are whether there was negligence or misconduct on the part of the claim- ant and whether there is sufficient evidence to connect the accident with the incapacity. No one doubts that the claimant was incapaci- tated, but from Dr. Blackwood's statements it would appear that he thinks the incapacity was due to the " indiscretion " of the injured employee. The abrasion at first did not seem to be at all serious, but when it got worse instead of better the claimant went to the navy yard dis- pensary, where he was treated on October 12, and on the following day he was treated by his private physician. Dr. McQuillan. It may be, as stated by Dr. Blackwood, he should not have taken part in a parade when he did, yet it is to be noted that he was sufficiently cautious to consult his doctor before doing so and he was told that he could march in the parade. If any one was indiscrete in regard to this matter it was the doctor and not Mr. Carroll, and if " successful medical treatment " was not received that also was due to the fault of one of the physicians if properly chargeable to any one. At any rate, it clearly appears that the claimant was attended by physicians that he had every reason to believe were careful and competent. Cer- tainly no more would be expected of an ordinarily prudent man. To hold that the claimant was guilty of negligence or misconduct would be giving the statute a construction which would render its require- ments more exacting than could have been intended by the framers of a law designed to extend very practical benefits. Neither negligence nor misconduct is to be presumed from the mere happening of an accident. A preponderence of the evidence shows that the proximate cause of the incapacity was due to the accident. It has been held that a sting of an insect was the " proximate cause " of death ensuing from blood poisoning caused by the sting. (See Omberg v. U. S. Mutual Ace. Ass'n., 101 Ky., 303.) Or, as said by Mr. Justice Strong, "the proxi- mate cause is the efficient cause, the one that necessarily sets the other causes in operation." It is not understood how sepsis could have resulted from merely taking part in the parade. As was said by Dr. Rubinow, sepsis is not due to exercise but to the introduction of septic principles from the outside. Dorland, in his Medical Dic- tionary, says sepsis is " poisoning by the products of a putrefactive process." Conceding that exercise could produce sepsis, it would be 93364°— 15 44 690 wobkmen's compensation undbb act of may 30, 1908. as reasonable to suppose that it was caused by the exercise while at work after the accident as to assume that it was due to the exercise while in the parade, and if the former, the claimant can hardly be held at fault when he was advised to continue his work by the assist- ant surgeon of the navy yard. After carefully considering all the facts, I am of opinion that the injured employee was not guilty of either negligence or misconduct, that there is sufficient evidence to show that the accident was the proximate cause of the incapacity, and that the claim for compensa- tion should be allowed. 13. An injured employee is entitled to compensation no longer than his in- capacity is due to his original injury, and may not be paid because, on account of old age or other bodily infirmity, he is unable to resume work within year. [In re claim of Bliiah Blackhurst, Dec. 28, 1909 ; No. 1508.] In this case compensation was granted for a period of six months, ending December 14, 1909. For the purpose of determining whether or not the injured employee was able to resume work at the end of six months' period, the Secretary, in accordance with section 5 of the act of May 30, 1908, requested Dr. K. T. Bang, of New York City, to make a medical examination of the said injured employee. In a report, dated December 14, 1909, Dr. Bang reports that the "claimant is totally incapacitated for manual labor on account of his heart trouble and on account of rupture, arteriosclerosis, and senility. The injury of back and over ribs is well." He further states that he will be incaj)acitated for the " rest of life," and that there are " no objective evidences or remains of contusion of back and over ribs." From a reading of the report of Dr. Bang it appears that he has disposed of the question from a medical standpoint, as there is noth- ing contained therein which shows that claimant is at present inca- pacitated, either directly or indirectly, as a result of the injury re- ceived on June 14, 1909. On the other hand, he states most positively that the original injury is now well. In view of the foregoing, it may be stated here that although the injury and the present incapacity are connected in point of time, in that the claimant has not been able to resume work since he received the injury for which he was originally allowed compensation, yet his present inability to resume work is" not attributable to that in- jury. While a very loose construction of the act may bring him within the provisions thereof, it does not appear that a reasonable and sensible construction would do so, and as was said in the Mc- Allister case (C 76, Bu. No. 41) : The statutes shonld receive a sensible construction and one in harmony with its general purpose and spirit. It can not be presumed that the Congress intended thfit if an employee receives an injury which continues for more than 15 days he thereupon becomes entitled to compensation for one year, or until he is able to resume work, independent of whether this inability is due to the original injury or to some cause not in any way connected with the original Injury or with the beneficiary's employment. The purpose and spirit of the law preclude any such view. The incapacity for which compensation may be paid must be the result of an Injury received in the course of employment. If com- OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 691 pensation is granted on account of such an Injury, it must be because that in- jury has caused Incapacity, and when the incapacity caused by that injury ceasus thw right to compensation ends. In vieir of the foregoing, I am of opinion that the claimant is not entitled to receive compensation subsequent to December 14, 1909, as the present incapacity is not due to the original injury. 14. Cases in -which the discharge of claimant from' service held not to affect right to compensation. [In re claim of J. S. Smith, Apr. 7, 1910 ; No. 2325.] With the above claim there is submitted to this office a letter pre- pared for the signature of the Acting Secretary and addressed to the Public Printer, in which it is stated that the claimant has failed to establish a right to compensation for any time after November 20, 1909. It appears that on November 1, 1909, the claimant slipped and fell in such a way as to cause a contusion of the right hip and to strain the muscles of the back. He was incapacitated until November 21, 1909, when he resumed work. His claim for compensation was ap- proved to cover the period from November 1 to November 20, 1909, inclusive. It appears, further, that on February 4, 1910, a second period of incapacity began, and the employee has filed a claim to cover this incapacity. In the claim first filed the physician's certificate was made by Dr. M. O. Dumas, who gave the character and extent of the injury as " injury of right hip, result of fall backward, causing injury of sciatic nerve." In the claim now presented the physician's certificate is made by Dr. R. W. Palmer, who states that the incapacity is due to " rheumatism and sciatica, due to injury received in November, 1909," and under the head of " Remarks " he says : My opinion Is based upon the fact that the hip and leg, having never fully recovered from original severe contusion, have been left peculiarly susceptible to conditions causing either of the above-named symptoms, which might otherwise not be felt. While it seems to me like straining a point to assume that the rheumatism and sciatica are due to the original injury, yet in the face of the statement of Dr. Palmer that such is the fact I do not feel justified in recommending that the claim be disallowed. The report of Dr. Dumas, made last November, shows that the sciatic nerve was injured, and Dr. Palmer now reports that the present incapacity is due to sciatica and rheumatism. If the sciatica or rheumatism is due to the injury to the sciatic nerve received last November it is clear that the claim comes within the provisions of the law. The question here involved, and on which the right of the claimant turns, is a medical one, upon which I do not feel competent to express an opinion. I suggest, therefore, that an examination of the claimant be made under the provisions of section 5 of the compensation act, and that the examiner be specially requested to give the Department the benefit of his judgment as to the connection between the injury to the claim- ant's sciatic nerve last November and the rheumatism and sciatica causing the present incapacity. 692 woekmen's compensation under act of may 30, 1908. [In re claim of J. S. Smith, Apr. 21, 1910; No. 2325.] In accordance with a recommendation made by this office in an opinion dated April 7, 1910, Dr. N. F. Graham was requested to make an examination of the claimant herein and to give the Department the benefit of his judgment as to the connection between the injury to the claimant's sciatic nerve last November and the rheumatism and sciatica causing the present incapacity. In the opinion referred to I said : If the sciatica or rheumatism is due to the injury to the sciatic nerve, re- ceived last November, it is clear that the claim comes within the provisions of the law. The question here involved, and on which the right of the claimant turns, is a medical one, upon which I do not feel competent to express an opinion. On April 14, 1910, Dr. Graham made the examination requested, and his report is to the effect that the claimant could then do mod- erate work and that it was fair to say that his disability after Febru- ary 3, 1910, was due to the injury received last November. Under the head of " Kemarks," Dr. Graham adds : The claimant has the appearance of a strong, vigorous man; but a sciatica caused by an injury is often slowly recovered from, and it is my opinion that he has been incapacitated from a sciatica caused by an injury from February 3, 1910, to a recent date, and that he still suffers in a very slight degree from same. It appears, therefore, that the incapacity which began on Febru- ary 3, 1910, being due to the injury received last November, entitles the claimant to compensations during the period of such incapacity. The question now presented is, When, if at all, was the claimant able to resume work within the meaning of the law? As a matter of fact, he had not resumed work on April 14. But was he able to resume work on that date or prior thereto ? In the case of a man who is slowly recovering from an injury it is difficult, if not impossible, to fix a point of time before which it may be said with certainty that he was unable to work and after which it may be said with equal certainty that he was able to work. It seems from Dr. Graham's report that on April 14 Mr. Smith was still suffering in a very slight degree from his injury, but that he was then able to "do moderate work." The reasonable inference is that while he was able to take up the duties of his position he was not able to do as strenuous work or to work as long at a time as before the injury. In my opinion of June 2, 1909, 1 held that the act of May 30, 1908, granted to an injured employee the right to receive compensation " as long as he is unable to perform the labor for which he was employed and on which he was engaged at the time of his injury," and that he could not be required to perform any work whatever until able to resume the work of his regular employment. In that opinion I was considering the^ case of a man unable to perform the work that came within the scope of his original employment, but who might be able to perform other duties. In the present case the claimant is an un- skilled laborer, and it may be presumed that his strength and endur- ance are important factors in determining whether or not he be able to resume the work of his regular employment. As before indicated it is, perhaps, impossible to determine with any great degree of nicety the exact time of the termination of the OPINIONS OP SOLICITOK, DEPARTMENT OP LABOK. 693 claimant's incapacity. But some time must be fixed, and the Secre- tary of Commerce and Labor is charged with the duty of fixing such time. He is justified, therefore, in fixing a time which will, inhis judgment, come nearest to doing exact justice as between the United States and the claimant. In view of the beneficent intent of the statute I am of the opinion thit the circumstances in this case justify the conclusion that the claimant's incapacity lasted to and including the 14th of April, 1910, and that after that date he was able to resume work, and I have the honor to recommend that the claim be approved to cover the period from February 3, 1910, to April 14, 1910, both dates inclusive. [In re claim of J. S. Smith, Feb. 28, 1911 ; No. 2325.] This case has been before this office for consideration on several previous occasions. Claim for compensation was first filed by claim- ant on November 23, 1909, asking for compensation for injuries sus- tained in the course of employment at the Government Printing Office on November 1, 1909. The description of the accident as shown in the immediate report of injury is as follows: This accident occurred in the old building. Here the elevator is used both for passenger and freight service. A number of short boards had been placed on the tile flooring to protect the floor from damage by the trucks. This man was walking backwards from the elevator pulling a loaded truck after him. One of the boards slipped on the tile flooring, throwing him to the floor. The certificate of the attending physician stated that the injury caused incapacity for resuming work from November 2, 1909, to November 21, 1909, and in the schedule of work it was shown that the claimant was absent from his employment during that period. In view of the foregoing and the fact that claimant received his injury in the course of employment and without negligence or mis- conduct on his part, the claim was prepared for formal approval by this office under date of December 10, 1910, for the signature of the Secretary, authorizing the payment oi compensation from November 1 to November 20, 1909, inclusive. The claimant resumed work on November 21, 1909, but it further appears from the record that a second period of incapacity began and the employee filed another claim for compensation to cover this second period. The physician's certificate filed with the latter claim is made by Dr. P. W. Palmer, who states that the incapacity is due to " rheumatism and sciatica due to injury received in November 1909," and under the heading of " Remarks " he said : ' My opinion Is based upon the fact that the hip and leg having never fully recovered from original severe contusion, have been left peculiarly susceptible to conditions causing either of the above symptoms, which might otherwise not be felt. There being some doubt as to whether the sciatica or rheumatism was due to the original injury, it was suggested in the opinion of this office of April 7, 1910, that an examination be made under section 5 of the act, and that the examiner be specially requested to give the Department the benefit of his judgment as to the connection between the injury to the claimant's sciatic nerve on November 1, 1909 and the rheumatism and sciatica causing the present incapacity. ' The claimant was then examined on April 14, 1910, by" Dr. N. F. Graham in accordance with the above recommendation, and under' the 694 workmen's compensation under act of may 30, 1908. heading " Character and extent of injuries at the present time," he said: No objective signs of an injury to the right hip. Flinches when pressure is made over the sciatic nerve and he claims that he suffers pain when he stoops and rises. It is impossible to determine the degree of palnfulness, but in my opinion he suffers in a moderate degree from sciatica of the right side which at present would Interfere with heavy work or lifting, but he should be able now to do a fair amount of light work. Dr. Graham further states that it was fair to say that the claim- ant's disability after February 3, 1910, was due to the injury received on November 1, 1909, and in his " Eemarks " he says: The claimant has the appearance of a strong, vigorous man but a sciatica caused by an injury is often slowly recovered from and it Is my opinion that he has been incapacitated from a sciatica caused by an injury from February 3, 1910, to a recent date, and that he still suffers in a very slight degree from same. Upon receipt of Dr. Graham's report as above set out, this office, in its opinion of April 21, 1910, recommended that the claim be ap- proved to cover the period from February 3, 1910, to April 14, 1910, inclusive. The papers in this case are again before this office for consideration in connection with the claimant's request for the continuance of com- pensation, with special reference to the question whether claimant has established a legal right to compensation for any period sub- sequent to April 14, and if so, for what period. This claim is dated December 20, 1910, and asks for compensation from April 15, 1910. From the schedule of work attached to the certificate of the official superior, it appears that claimant did not return to work after February 3, 1910, and that he was discharged on February 15, 1910, before the expiration of the period for which compensation was con- tinued. Accompanying this claim is the certificate of Dr. S. G. Holmes, who states that he attended claimant from May 1, 1910, to December 2, 1910, during which period he was incapacitated on ac- count of injury to sciatic nerve. A blank form of physician's certifi- cate was forwarded to Dr. Holmes by the Bureau of Labor, with the request that he answer the questions contained therein, and also fur- nish a further statement giving reasons for believing that the present disability was caused by the original injury. The certificate, dated February 1, 1911, states that he visited claimant approximately 26 times between May 1 and December 2, 1910, and that the nature of illness or disability was : " Swelling of hip, knee, and ankle joint, with extreme pain." In describing the extent and condition of the injury, etc., he says: On examination patient was found to have redness and swelling in the gluteal muscle; also upon palpitation there was extreme pain over the sciatic region, swelling of the knee and aukle joint, extreme nervousness and partial loss of motion. Patient on convalescing complained of tingling sensation In the muscles of the entire limb. It further appears from the additional certificate of Dr. Holmes that claimant was confined to his home for about three weeks prior to July 1, 1910, and that permanent results from his injury are prob- able; that "upon strain or exposure he is very likely to have pains in the sciatic region." OPINIONS OF SOLICITOE, DEPARTMENT OF LABOR. 695 In a letter addressed to the Commissioner of Labor, dated Febru- ary 1, 1911, Dr. Holmes says: In replying to your inquiry as to why I thought the injury received by Mr. John S. Smith In the Printing Office was the cause of his physical condition, when he came under my observation, I make the following statement : I have known Mr. John S. Smith for 15 years. I have known him to be a very strong healthy robust man, practically suffering no ills of health at all. After the accident in the Government Printing Office he has constantly been under the care of some physician. Severe contused injuries of the nature of Mr. John S. Smith's commonly injure the deep-seated nerves and blood vessels of the region where the injury is received, and inflammations of the nerves are very slow to yield to treatment, which is true in Mr. Smith's ease. Under the long-continued antirheumatic treatment with electricity, Mr. John S. Smith finally became well enough to return to his daily vocation. A certificate from Dr. W. C. Williams, dated January 17, 1911, which is filed with the latter claim, is as follows : This certifies that John S. Smith called at my office on June 30, 1910, and was given electric massage for sciatica. From the evidence submitted in this case, it is clearly apparent that the question presented for determination hinges entirely upon the fact as to whether or not the claimant's incapacity, after April 14, 1910, was due to an ailment brought about by the injury sustained on November 1, 1909. The question is purely a medical one and can only be dealt with by this office through the statements of the phy- sicians whose certificates accompany the final claim. It will be noted that there was one medical examination made by a (Tovernment physician within the period of one year. This examina- tion was conducted by Dr. Graham in accordance with the direction of the Secretary pursuant to section 5 of the act. The examination was made on April 14, 1910, and disclosed the fact that claimant, on that date, was still incapacitated from a sciatica caused by an injury, and the doctor says " it was fair to say that claimant's disability after February 3, 1910, was due to an injury received on November 1, 1909." He further said that this ailment would interfere with heavy work, but he should be able now (April 14, 1910) to do a fair amount of light work. In a letter from the claimant, dated March 29, 1910, addressed to the Secretary, it appears that previous to the examination by Dr. Graham, the claimant attempted to perform light work. He says : When I returned to work I was compelled to lay off again February 4, 1910, because I suffered from the injury. I returned to work before I got well, because I was requested to report as early as possible on account of being be- hind with work. I was given light work, but suffered all the while. On two occasions I went to the doctor in the office for something to relieve me, but he said ho did not Imow what to give me. He advised me to see the doctor who had treated me as he would understand the case. I continued to work until I could work no longer. From the schedule of work it appears that on the date of Dr. Graham's^ examination, the claimant, was no longer an employee of the Printing Office ; that he was not given a further opportunity to test his fitness for such light work. "Why claimant was stricken from the rolls during the period of incapacity aod not given a reasonable time within which to recover from the injury* sustained in the course 696 WORKMEN 's COMPENSATION UNDER ACT OP MAY 30, 1908. of his employment is not apparent from the record, which is made somewhat confusing in view of the statement by Dr. Graham, that — The claimant has the appearance of a strong, vigorous man, but a sciatica caused by an injury is often slowly recovered from and it is my opinion that he has been incapacitated from a sciatica caused by an injury from February 3, 1910, to a recent date, and that he still suffers in a very slight degree from same. When this examination was made the claimant was no longer in the service of the Printing Office, but it is stated that he was suffering from the injury sustained there on November 1, 1909. The record also shows that two weeks after the examination by Dr. Graham, on April 14, 1910, the claimant consulted Dr. Holmes, who certified that he treated him for the same ailment from May 1 to December 2, 1910. Dr. Williams, whose certificate was previously quoted, states that on June 30, 1910, he gave the claimant one electric massage for sciatica, and requested him to return for further treat- ment. There is also a letter from Dr. Wm. J. Manning, medical and sanitary officer, Government Printing Office, dated January 4, 1911, in which he says: Under date of December 12, 1910, I examined Mr. Smith physically in regard to his application for remstatement in the Government Printing Ofilce. The ex- amination was very thorough and Mr. Smith responded fully to all the tests. Under date of February 8, 1911, Dr. Holmes, the attending physi- cian, was interviewed by Mr. Waite, of the Bureau of Labor, during which interview he made an additional statement in reference to the history of the case as shown by a report signed by Mr. Waite, which is as follows: That he first attended Smith during the first week of May, 1910, when he treated him for rheumatism, at Smith's home; that Smith was totally disabled up to August 1, 1910; that during the months of August, September, October, and November he saw Smith three or four times a month when he would come for electrical treatments and medicine ; that at such times Smith's leg and ankle would be swollen and inflamed to such an extent as to prevent him from work- ing; that Smith might have been able to work part of the time during these months for periods of four or five days at a time but that he was not entirely well until December; that to his knowledge Smith has not worked up to this time. It is seen from the foregoing that Dr. Williams certifies that on June 30, 1910, claimant was suffering from the injury sustained on November 1, 1909, and Dr. Holmes certifies that he was still suffering as late as December 2, 1910. Although Dr. Manning, who examined claimant for reinstatement on December 12, 1910, reports him as "fully able to perform a day's work," and a certificate signed by Smith and marked " Exhibit A" accompanies Dr. Manning's report, stating that on that date he was able to resume his employment, yet this evidence has no bearing upon claimant's condition during the period of time for which he would be entitled to compensation. From all of the medical evidence furnished in support of his physi- cal incapacity, and in the absence of any evidence to the contrary, it would clearly appear that claimant was incapacitated for resuming work from April 14, 1910, to December 2, 1910. As compensation, however, can only be paid for a period of one year, and as the original incapacity began on November 2, 1909, claimant is therefore only en- titled to compensation from April 15, 1910, to November 1, 1910, in- clusive, payment already having been made up to April 14, 1910, and I have the honor to recommend that the claim be approved for the continuance of compensation to that date. OPINIONS OF SOLICITOK, DEPARTMENT OP LABOE. [In re claim of A. n. Nason, Mar. 20, 1911 ; No. 2192.] 697 The above claim is resubmitted to this office for reconsideration, with reference to the question whether there is sufficient evidence of connection between the alleged accident and the incapacitj^. This claim has been previously considered by this office on two different occasions, and on each occasion it was held that there was not sufficient evidence of connection between the accident and the incapacity. An examination of the entire record, as now presented, shows that on November 16, 1908, claimant fell astride of a slat upon a target which he and a fellow workman were constructing, a result of which fall was an injury to the right testicle, producing hydrocele and to the membranous urethra, and that the said injury caused great ner- vousness to claimant, who at the date of injury was a man 74 years of age. A careful analysis of the evidence contained in the record estab- lishes beyond per adventure the following facts: Claimant and a fellow employee, Charles E. McNear, were, on November 16, 1908, engaged in constructing a target by nailing slats or strips upon two upright poles between 30 and 35 feet in height; this work was being done by the men standing on the lower slats while nailing on the upper ones. While in this position, at a height of about 30 feet above the ground, claimant's foot slipped from the slat upon which he was standing, causing him to fall astride the last slat which had been nailed on, and which was about 12 or 14 inches above the one on which he was standing. The foregoing facts are clearly established by the following state- ment of McNear addressed to the naval constructor under date of May 20, 1909 : Received your note and will reply to same. Mr. Nason and I were putting the slats on the target poles, and we were up near the top, and he was holding them up for me to nail them when he called to me to hold it, for one of his feet had slipped and let him down straddled of the slat, and he complained to me after that time that it hurt him to climb around or lift. It bothered him up to the time that he was discharged. It happened the last day we worked on the target, which was, as- near as I can remember, the Ust of October or the first of November. In further explanation of his knowledge on the subject, in a letter dated April 2, 1910, addressed by McNear to claimant, he says: Answering your further inquiry about the time of your hurt. I kept no record of my discharge, but am sure it was in November, 1908. To the best of my recollection should say you were injured about five days before we were discharged. We worked together until we were discharged at the same time, and I distinctly remember you complaining of every day after you were Injured and how it hurt you to climb or lug anything, and saying: " I will have to quit, Charlie, for I am growing worse instead of better " And when you got your discharge you said, " I am glad, for I should have to quit anyway." Claimant alleges that immediately after the accident he reported the same to his foreman, Wm. Courtenay, and this fact is satis- factorily established by the following statements of Courtenay : « i ^ ^ o, Mat 18, 1909. Constructor E. Snow, Boston Navy Yard. Deab Sie: Regarding Mr. Nason's injury on or about September 1 1908 I would say that I knew nothing of it until the next day when he told me ttat 698 WORKMEN- 's COMPENSATION UNDER ACT OF MAY 30, 1908. he slipped and hurt himself while putting battens on target raft. Seeing that his injury was not sufficient to stop him from working, I made no report of it, but remarked it was too bad and let it pass. Two or three days after said accident he was transferred from my " gang " to that of Mr. Messenger and I had heard no more of the matter. Januaey 8, 1910. Sib: In regard to Mr. Nason's injury, at the time I wrote Mr. Snow the letter it was about five or six months after Mr. Nason got hurt; and I could not state if he told me that evening or not, but I will make affidavit he did the next morning. That's as near as I remember. Aprii. 1, 1910. Naval Constructor Geoege H. Kock, United States Navy, Uavy Yard, Boston, Mass. Sib : As near as my recollection that I would think that it was three or lour days after Mr. Nason's injury that he was discharged. [Copy.] Abram H. Nason : I am willing to testify that the above man was hurt under my charge and notified me at the time. (Signed) William Cotjetenat, Ex-lea&ing man. [Letter from Courtenay to Nason, dated Apr. 23, 1909.] My Deab Heney: I have received your letter to-day, and I can assure you that I am sorry to hear of your trouble. I did not know that you were so injured until Charles McNear told me he was to see you. I remember of your saying that you felt sore after you slipped and fell on the slat, but, not thinking it serious, thought no more of it, and as the gang I had went to work on some where else I had not seen much of you until you were laid ofC. I have not seen the constructor, for of course I did not know how bad you were hurt at the time. You should have gone to the dispensary and have the doctor examine you at the time. It's the doctor who has all to do, I suppose, with things of that kind. I spoke to Mr. Greene about it to-day when I got your letter, and he said he thought it would be your place, as it is so long since you got hurt, to see Mr. Snow yourself and state your case to him. I can certify of you telling me you felt sore from slipping on the slats on the target raft. [Second letter, dated May 8, 1909.] Mr. Heney Nason. Deab Sib: I received your letter at the navy yard to-day, if I reported you getting hurt last fall. I have not, for, as I wrote to you before, I think you should have attended to that long before you got so ill ; that was your duty to do, so it is a long time since you got hurt, and it is no time for me to do that, or Mr. Greene. You should have seen the doctor after you got hurt. I would have gone to the doctor with you, but you neglected yourself. You will have to report to the doctor or Mr. Snow yourself and state your case to them, then refer to me and others that knew of you getting hurt, and I will state what I know about it. That is all I Intend to do or can do, as you put things off so long, and you should have said something concerning your hurt before you left the yard. The foregoing thoroughly establishes the fact that claimant re- ported his injury to his immediate superior, but that official acknowl- edges that he did not report it to headquarters for the reason that he thought the injury was trivial and of no consequence. Claimant continued at his work, although, as above evidenced suf- fering from the injury. On November 19, 1908, he was discharged for lack of work. After his discharge he states that he — continued to get worse, but did not think there was anything a doctor could do lor me, and I still hoped to get better. After about four months I had an OPINIONS 01' SOLICITOR, DEPARTMENT OF LABOR. 699 examination by Dr. Thompson, who came to attend In my family. I was always sound, and never had any trouble of that nature up to the time I was injured ; and there was nothing in the nature of my hurt that called for me at the time of the accident to go to the dispensary. There is furnished a physician's certificate from the attending physician, certifying that he first attended claimant on March 27, 1909, and that as a result of the injury sustained by him on Novem- ber 16, 1908, he had been incapacitated from resuming work from No- vember 16, 1908, to November 11, 1909, which latter date was the date of the certificate. The character and extent of the injuries are shown to be injury to the right testicle and the membranous urethra, as well as the nervous condition. Claimant was examined by the yard surgeon, who made the follow- ing report, under date of May 19, 1909 : Examination of A. H. Nason shows a weak, nervous man, feeble and unsteady in his movements, with marked tremor of both hands. He is a man well ad- vanced in life, and his condition is such that probably he will never again be fit to work at his trade. His condition seems to be due to a nervous collapse and old age. Thej-e is some tenderness of both testicles and a slight thickening of the scrotal integument. It is quite probable that an Injury such as he claims to have received might, in a man of his years, cause the marked neurasthenia that exists in this case. Claimant was again examined by the yard surgeon on January 6, 1910, and the following report was made : Examination made to-day shows that there has been no change for the better since the examination May 19, 1909; if anything, he is not quite so well. He is 74 years old ; the right testicle is enlarged and tender, the left testicle is about normal in size but extremely tender. There is a general neurasthenic condi- tion, with considerable muscular tremor. He complains of paroxysms of pain of frequent occurrence starting from the testicles, and when they occur he is helpless. He states that he was injured by falling astride a board while engaged in building a target, and that the testicles were crushed and injured. Such an accident might seriously injure the testicles and the pain and shock might cause a general nervous disturbance. But it is probable the extent of local damage from the injury and systemic disturbance were»exaggerated by the patient's advanced age. The accident occurred in November, 1908, and the man was not seen at this .office until six months' later, in May, 1909. This makes it difficult to make a very positive statement as to the extent to which his present condition may be attributed to the accident. The attending physician furnishes a detailed statement, under date of February 7, 1911, giving the history of the case since he first attended claimant, which is as follows: On March 27, 1909, I first attended Mr. Nason. Physical examination showed a large hydrocele of right testicle, considerable tenderness along the membra- nous urethra, and tenderness in the left testicle. The man was in a highly nervous state, and seemed physically undone. Treatment was directed to reducing and absorbing hydrocele through exter- nal applications and sedatives for nervousness. On May 6 hydrocele was tapped, removing about one-ha-lf cup of cerous fluid. Within a month the hydrocele recurred. From time of accident there was frequent desire to pass water during the day and once or twice at night ; with it also was some pain. I passed sound and found a tender and constricted place in the deep urethra, the cause of above frequent and painful micturition, and caused by accident, undoubtedly. There was no undue enlargement of prostate gland. The physical conditions found on March 27, 1909, were aU consistent with an accident that happened five months previous. 700 woekmbn's compensation undeb act of may 30, 1908. On May 6, when hydrocele was tapped, the wall was not thickened as in an old hydrocele. Mr. Nason has become a nervous wreck through injury to these parts. In my office record of case Mr. Nason said that he "was never iU before; always was able to work." Had been In a previous accident in the yard several years before, but had never reported it or at least did not lay off for the same. In these injuries to the private parts can be traced this nervous condition of Mr. Nason, a man previous to the accident in a stable mental and physical condition. I do not want it understood that the hydrocele was the entire cause of disability. About May 17, 1909, Mr. Nason received word to report for work. On that day I wrote to Mr. Snow, stating his condition and also a certificate to Mr. Alkendorf of inability to resume work on account of his physical condition and pain and tenderness about private parts. On May 19 Mr. Nason was examined by the dispensary doctor in the yard. This was two weeks after my tapping of the hydrocele, so that the fluid was only partially returned at that time and probably the doctor may have con- sidered my report a little amiss in the hydrocele; but on January 6, 1910, at the second examination he surely would have seen the hydrocele as it had re- curred by that time. From my personal knowledge of case, I see no reason why Mr. Nason is not entitled to the fullest compensation that the Government can give. From a consideration of the evidence as above set out, there appears to be no doubt whatever that the condition of claimant was directly due and traceable to the accident of November 16, 1908. When the claim was first presented, there was considerable conflict in regard to the date of the accident, but, nevertheless, all the evi- dence submitted supported the contention of claimant that he had at some time just before his discharge, met with an accident as described by him. The only discordant note in the entire record which would raise a slight doubt that the injury caused the subsequent incapacity is to be found in the report of the yard surgeon wherein he said that " his condition seems to be due to a nervous collapse and old age." This statement does not seem in harmony with the surrounding cir- cumstances of the case, for it is shown in the record that claimant, although 74 years of age, was, up to the time of quitting work, en- gaged upon laborious anS hazardous work, and this work he ap- parently performed to the entire satisfaction of his superior officers, for he was kept employed until the work ran out. This statement of the yard surgeon may be dismissed without further consideration as an assumption on his part, for in the next breath he gives his findings on examination, which findings would seem to explain the actual cause of the nervousness, rather than his assumption of the cause. His findings were as follows: There is some tenderness of both testicles and a slight thickening of the scrotal integument. It is quite probable that an injury such as he claims to have re- ceived might in a man of his years cause the marked neurasthenia that exists in this case. As the record now stands, it will be readily seen that the happening of the accident on November 16, 1908, is satisfactorily established by undisputed evidence and is acknowledged by the superior officers of claimant, and the condition found to exist is the most natural result of such an accident as claimant had. In addition, the medical evi- dence abundantly establishes the connection between the accident and the subsequent incapacity, in view of which I have the honor to recommend that the claim be now approved. OPINIONS OF SOLICITOR, DEPARTMENT OP LABOR. 701 [In re dalm of P. W. Andrews, Dec. 6, 1911 ; No. 7837.] The question in this case is whether the claimant's absence from ■work was necessitated by the injury received by him in the course of his employment. Tt appears, from the report of the injury made by the construction oiEcer, that the claimant, a colored laborer, was at work in a dry dock, removing chafing plate from the dredge Sumpter, and that while so at work, at 10 a. m., October 4, the chafing plate struck the trestle upon which he was standuig and capsized it, whereby the claimant was bruised on the chest, Tmee, and right shin. In his affidavit, claimant states : "Another set of hands were pulling on chafing iron with rope when same gave way suddenly, throwing down scaffold, throwing me to bottom of dock," resulting in " bad bruises and swell- ing of chest; also bruises on both legs." One of the witnesses states that the accident occurred in the manner described by the claimant, " except that Andrews was not thrown bodily to the bottom of the dock. The trestle upon which Andrews was standing turned oyer and he rode the trestle until it struck the bottom, the injuries being cause by the trestle striking him." . The attending physician certi- fies that he treated claimant from October 4, the date of the injury, to October 30, 1911, the date on which he was first able to return to work, making three visits per week. The injuries are described as — Chest bruised and contused and swollen, area 4 by 5 in two bruises of right knee and right leg and left leg; chest, right side below nipple, bruised and swollen. Two bruises of right knee; one bruise of right shin, and bruise of left leg. The medical officer of the yard states that claimant called at yard dispensary on date of the accident and that — He was examined by the hospital steward and found to have a vei-y slight contusion of the right breast and right knee, which was not severe enough to incapacitate him from work, and he left the dispensary, stating to the steward that he was going to return to work. The chief clerk states that he visited claimant at his home October 13, nine days after the accident, and that he — found Andrews up and dressed, but stating that he was under the doctor's care ; in fact, he was out in the yard when I went there. Andrews showed me his injuries, and I found three slight bruises on the right knee ; his skin was gone from the right shin, and claimed that he was seriously injured by a bruise under the right breast. He explained to me that there was a swelling there, but although I examined him closely, I could not detect it. Andrews's con- dition did not appear to me to be such as to prevent him from going to work, or from coming to the navy yard to report his injury. In a letter to the commandant, written at the instance of the claim- ant, his physician states — He consulted me for treatment October 4, 1911. I found him suffering from injuries for which I treated him until October 30, 1911. I also certify that he was positively unable to work during this period. In a further letter to the commandant, written at the latter's in- stance, the physician states, referring to the injuries, " all of which were certainly severe enough to incapacitate him from work. Ap- pearances would indicate that the injury was probably due to a falh" No conclusion can fairly be drawn from this evidence other than that the claimant was unable to work on account of his injuries from 702 workmen's compensation under act of may 30, 1908. the 5th to the 30th of October, inclusive. The fact that the hospital steward at the dispensary did not consider his injuries severe enough to incapacitate him from work is entitled to little weight, since only a physician would be competent to form an opinion on this point, and since the real effects of bruises such as the claimant sustained do not develop immediately. Doubtless, the claimant himself thought he would not be incapacitated, since he returned to work for the balance of the day. The fact that the chief clerk, although a layman, ob- served the outward signs of the claimant's injuries more than a week after the accident also tends to show that the claimant was actually disabled. However, the claimant's physician, who was the one best qualified, as well as in the best position to know, certifies emphatically as to the claimant's disability. Accordingly, there would be no doubt as to the claimant's right to compensation but for the fact that his discharge was recommended on the day of his injury and that he was actually discharged on the fol- lowing day. The circumstances relating to the discharge are as follows : The claimant states — On October 4 I was at work in the yard, having just reported two days before from a previous Injury, when I was again injured * * *. I then requested Mr. W. Dehon, labor overseer, to allow me to report to the hospital for treat- ment. He replied, " What in the hell is the matter with you ? " and then, with an oath, said, " You can go, but I will lay you off." I then reported to the hospital. The steward examined me, the doctor being sick. I then reported to my doctor for treatment and was sick until October 30, 1911. William Dehon, the foreman or overseer, states — Andrews was injured about 10 a. m., but the fact was not reported to me until 2 p. m., when he asked me for permission to go to the dispensary, which i granted. Some time afterwards I phoned to the hospital steward and was informed that Andrews was not injured enough to detain him from his work. Meanwhile I had recommended to the construction officer that Andrews be dis- charged on account of laziness. Andrews had never stated that he was so injured as to be unable to work until he had been before the construction officer and given an opportunity to submit a statement as to why he should not be discharged for cause. * * * Andrews's statement that I cursed him at the time I told him I was going to recommend his discharge is utterly false. In his recommendation for claimant's discharge, dated October 4, the foreman assigns the following reason: "I can get no work out of this man. He is lazy and won't work at anything he is put to do." The construction officer, in recommending the discharge to the commandant, states — This man has been employed at this yard a considerable length of time, but of late his work has been unsatisfactory on account of laziness, and the gang bosses have several times reported their inability to get a full day's worE out of Andrews. It is therefore considered to the interests of the Government to discharge this man. Andrews does not desire to submit a statement. The construction officer further states — Before recommendation for the discharge of Andrews was submitted to the commandant he was called to the construction officer's office and told that he was going to be recommended for discharge on account of indolence, and was given an opportunity to make a statement, written or verbal, if he desired. His only statement was that he could not understand why such charge was made against him, but he desired to submit no written statement. OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 703 The claimant, in a letter to the commandant, dated November 1, 1911, from which a quotation has already been made, stated — On October 31, 1911, I reported to the yard for duty. I was informed that charges had been preferred against me. Tour secretary suggested that I should forward you a statement of facts, which are as follows. * * » i have been employed in the yard for 10 years. I am surprised that charges of laziness have been preferred, as I have always attended to my duties, as all of the bosses well know. Thanking you for an investigation. In my opinion the claimant's discharge, under the circumstances, can not aifect his right to compensation. As the foreman himself states, he did not recommend the discharge until after the accident had occurred and claimant had applied to him for permission to go to the dispensary for treatment. The discharge was recommended on the ground of the claimant's alleged laziness and his reported unwill- ingness to work. This ground might have justified his discharge be- fore the accident, and even if it can be said to justify his discharge thereafter it can not interfere with his accrued right to compensation, inasmuch as it contributed nothing to the cause of his injury or in any way related thereto. It may be said, in passing, that the fact that claimant continued at work after his injury, which occurred at 10 in the morning, until 2 in the afternoon, before he asked to go to the dispensary, is not an evidence of laziness. It further appears that claimant had just returned to work on October 3, the day before the injury, from an absence of three months on account of a previous injury received in the course of his employment in the yard. If the claimant should have been discharged on October 5, the day following the accident, on account of lazinesSj he should never have been per- mitted to return to work, especially since he had been employed in this yard for 10 years and his laziness must have been well known. It IS noted that the commandant, in ordering claimant's discharge on October 5, does not appear to have been advised that the claimant had been injured on the previous day in the course of his employment, but acted on the recommendation of the construction officer, who ac- companied his recommendation for a discharge with the statement that the claimant " does not desire to submit a statement." It is also noted that upon receipt of claimant's letter, dated November 1, 1911. reciting his accident and submitting a statement of facts, the com- mandant called for reports and directed that a formal claim for com- pensation be forwarded to Andrews in case he desired to submit a claim for compensation. It is believed that the claim should be approved. 15. Cases in which the evidence was considered insufficient to estahlish the fact of an accident or injury in course of employment. [In re claim of M. G. Sedgewick, Apr. 14, 1910 ; No. 3185.] The above claim is submitted to this office with special reference to the question whether there is sufficient evidence of connection be- tween the alleged accident and the claimant's incapacity. The facts upon which the claim is based are as follows : Claimant states that while at work painting a building at the above mentioned navy yard, on September 17, 1909, he injured himself in coming down the ladder, by falling or slipping and striking Irs 704 workmen's compensation under act of may 30, 1908. testicles on a round of the same. Claimant remained away from work until January 4, 1910, and furnished a certificate of his attend- ing physician covering the entire period of time. In the immediate report the naval constructor gives the nature and extent of the in- jury as — Hernia of long standing, which had come down and showed signs of strangula- tion. This statement was evidently based upon a report of the yard sur- geon addressed to the commandant under date of September 17, 1909, wherein he reported his examination of claimant on that day. The aflSdavit of claimant contains an identical statement, and was evi- dently prepared by the yard officitils in their own language, instead of being prepared by, and in the language of, the claimant. The physician who attended the claimant gives the character and extent of the injuries as follows: "Injury to testicle; swollen, inflamed." The foregoing state of the record was not satisfactory to the Bureau of Labor, and Mr. Eubinow, of that bureau, was detailed to investigate the same. In the course of his investigation, statements were obtained from C. E. Trower, the immediate official superior, of the claimant; from claimant; from Dr. J. P. Jackson, who attended Sedgewick, as well as from a number of other persons, who Ime^ nothing about the matter. The result of this investigation throws considerable light on the subject and aids very materially in reaching a conclusion. The substance of the immediate superior's statement is as follows: He found claimant sitting on the curbstone, and was informed by him that he had fallen down the ladder; he pulled down his pants and exhibited his testicles, and which, in the reported language of tho superior, "were somewhat red and slightly swollen, but did not seem to be extra large." Upon examination of the claimant, he was not very clear as to the exact manner in which the accident occurred, but offered this explanation in his own language, as reported by Mr. Rubinow. I was coming down the ladder and my foot caught on a bolt sticking ont from the side of the ladder and I fell astride a round, mashing one of my testicles and injuring my hernia at the same time. At the end of his examination claimant produced a memorandum notebook, in which was a signed statement by his immediate official superior, as follows: On September IT, 1909, Mr. Sedgewick slipped on a ladder and hurt himself. In the examination Dr. Jackson made the folowing answers to various questions: Do you remember his condition the first time you examined him? Yes. He had a large and inflamed testicle, which he complained of being very painful. Was It any condition that could have bqpn caused by a fall? It is possible that It might have been caused by a fall. Did you find any evidence of hernia ? I don't remember that he had a hernia. He was simply suffering from an in- flamed testicle. Do you think an Inflamed testicle should keep a man from work three months? If you see it enlarged and a man tells you he has a pain it is impossible for one to tell whether he is able to go back to work, if he has the paiu. What was the reason for his incapacity? OPINIONS OF SOLICITOR, DEPAETMBNT OF LABOE. 705 Pain, swelling, and general Inflammation of the testicle When did you treat him last? I think it was In December. Did you treat him in January or February? No ; I think not. He came to me in February, and I filled out the certlflcate. I don't think I gave him any medication. In addition to the foregoing there is a jfurther statement which does not appear to be responsive to any question asked him, and which is as follows : Dr. Jackson states that, In his opinion, Sedgewick should have returned to work within 60 days after he was injured. (In a conversation with Mr. Rubinow relative to this case, he ex- plains that the foregoing statement was made by Dr. Jackson in a general conversation after he had completed his inquiries.) This statement would contradict the certificate of Dr. Jackson, wherein he certifies that claimant was incapacitated from September 17, 1909, to January 3, 1910, as the 60 days would have expired on November 17j 1909. It is noted in the report of Mr. Rubinow that he states that Dr. Jackson admitted to him that he filled out the certificate without giving it serious consideration, but no other certificate was obtained which would offset or explain the same. It further appears from the report of Mr. Rubinow that during the time Sedgewick was incapacitated he was receiving benefits from two beneficial societies and one accident insurance company. During his examination of claimant, Mr. Rubinow failed to question him as the amount he received from that source, but upon his return to Wash- ington he forwarded a series of questions on that subject to the con- structor of the yard for answer by claimant, which questions claim- ant refused to answer, as shown by letter of the constructor dated March 26, 1910. The feature of the case which raises a question whether Sedge- wick met with an accident which resulted in his incapacity is presented by the report of yard surgeon, I. W. Kite, dated September 17, 1909, based upon an examination made immediately after the alleged acci- dent, wherein he says : I have to report that M. G. Sedgewick, painter, applied to-day for treatment of a hernia of long standing, which had come down and showed signs of strangu- lation. He was given appropriate treatment, advised to go to his home, and at • once consult his physician. Opposed to this is the statement of Dr. Jackson, who treated the claimant, according to his testimony, from September 17 to some time in December, where he states : I don't remember that he had a hernia. He was simply suffering from an In- flamed testicle. From this it appears that the yard surgeon only found the hernia, while Dr. Jackson only found the swollen testicle. It is evident, however, that Sedgewick had a hernia, for in answer to the first question by Mr. Rubinow he states that he injured his hernia at the same time that he mashed his testicle. The question therefore appears to be this: Is there sufficient evi- dence to establish the happening of an accident as claimed by Sedge- wick which injured his testicles or was the condition of the testicles 93364°— 15 i5 706 workmen's compensation under act of may 30, 1908. due to the hernia? In order for a claimant to be entitled to com- pensation on account of injury received in the course of his employ- ment, among other things it is incumbent upon him to clearly estab- lish the fact that such injury arose in the course of his employment. Of course, employees are frequently injured to which injury there were no eyewitnesses, and the case is, therefore, not susceptible of proof of that nature, but generally in such cases there are corroborat- ing circumstances which support the claim of the injured employee. In this case, however, there appears to be lacking all the usual evi- dence in support of the claim. In the first place, it appears to be impossible for the accident to have occurred m the manner claimed by Sedgewick, for by reference to his affidavit it will be seen that he stated the ladder slipped, while in his testimony at the hearing he, claims that his " foot caught on a bolt sticking out from the side of the ladder." Upon an examination of the ladder it was found that there were no bolts which could have protruded, as stated by him. The fact that he has failed to make a reasonable and believable state- ment of the manner in which the accident happened would of itself throw a doubt upon the case, but in the second place, there is the statement of the yard surgeon, who examined him shortly there- after, which gives the cause of his incapacity as a hernia, showing signs of strangulation. Then, in the third place, is the indefinite, vacillating testimony of his physician, which, on its face, shows that he has failed to make a fair and impartial statement of his findings, his testimony being vague and evasive on material points. In the fourth place, there is the action of Sedgewick in failing to report for examination on October 4, when requested so to do, and his untenable ground for failure to so report. Further, when he did report on a direction dated October 18, it was found by the yard surgeon that he was then able to resume work,_ which he failed to do. These cir- cuinstances, when coupled with his failure to reasonably explain the manner in which the accident occurred, most certainly raise a sus- picion as to the bona fides of the claim, and this suspicion is further strengthened by the action of Sedgewick in refusing to answer the inquiries propounded to him with reference to the benefit and acci- dent payments he received during the period of his alleged incapacity. In view of all the circumstances, it appears that claimant has failed to sufficiently establish the happening of the alleged accident, and, for that reason the claim should be disallowed. [In re claim of R. B. Carpenter, Mar. 18, 1912 ; No. 7469.] This claim has been previously considered by this office on two occasions. When it was first submitted it was noted that the imme- diate report was not made out until two months after the alleged accident and a month after claimant returned to work, and that the claimant did not make out a claim until October 18, 1911, about six weeks after going back to work, also that there were no eyewitnesses to the accident. As the evidence presented was inconclusive, the papers were returned^ for further information, and for a statement from claimant as to his reason for not reporting the injury until two months after its occurrence. Upon receipt of this information, it was noted that the superior officer reiterated his previous statement that the claimant requested to be excused from work, as he was sick, OPINION'S OF SOLICITOE, DEPARTMENT OF LABOR. 707 and made no mention of having been injured in any way, and it was accordingly decided to obtain complete statements from the claimant and his foreman and superior officer relative to the alleged accident. The papers are now resubmitted with special reference to the two following questions: Did the accident occur in the course of employment? Is there sufficient evidence of connection between the alleged accident and the claimant's incapacity? In his affidavit claimant stated that on August 1, 1911, while lift- ing a box weighing 200 pounds he strained his knee. The reporting officer made the usual report, based upon claimant's statement, but modified the same by the following notation thereon : This man did not receive first aid at post hospital, and continued to work until 12 m. August 1, 1911, when he asked to he excused on account of sickness, and no report of the accident was made to this office until this date, October 4, 1911. Claimant was absent from work during the period beginning at noon on August 1 to 8 a. m. on September 5, 1911, and" furnished a physician's certificate covering that time. The certificate gives the dates of the first and last treatment as August 2 and 21, respectively, and states that the incapacity was due to a sprain of the left knee. In response to the first request for further information, the superior official, under date of December 20, 1911, made the following state- ment, in part, concerning the circumstances of the case : Mr. Robert E. Carpenter went to his foreman at noon on August 1, 1911, stating that he was slclc and desired to be excused, and made no mention of having been injured in any way. On August 2 he sent in word that his knee was lame and he c-ould not work, but there was no Intimation that it was due to injury received at this arsenal. He did not return until August 30, when he stated that he had strained his left Icnee lifting a box of receiver forgings from a truck at 11.30,a. m. on August 1, the date he went home as above stated. As the foreman had no knowledge of the injury until August 30, one month after it occurred, it was decided not to report the accident claimed until some further steps were taken by Mr. Carpenter, which was not until October 4, when he requested the blanks for submitting claim for compensation to injured em- ployees. Upon his return to work September 5 he submitted a certificate from Dr. W. D. Snively that he had been unable to work owing to a sprain of the left knee. When the papers were returned the second time, the official superior interrogated claimant; the examination was then reduced to writing and signed by Mr. Carpenter. In this examination he stated that there was no witness to the accident (the foreman of the shops and the superior officer also declare that there were no witnesses) ; and that he did not mention to anyone before leaving the arsenal that he had injured his knee and was obliged to go home on account of it, not even to his foreman when he requested permission to go home. He further stated that no one at the arsenal knew of his having in- jured his knee when he went home on August 1 ; that after returning home he did not see any of his fellow workmen or tell them of the cause of his absence; that so far as he knew the first knowledge at the arsenal of his knee being injured was conveyed to his foreman upon his return on August 30; and that he told his father to tele- phone, but he had so much business on hand that it slipped his (father's) mind. And his foreman, in his written statement, says : He (the claimant) came to me at noon of August 1, 1911, and asked per- mission to go home, stating that he did not feel well or that he was sick (just 708 workmen's compensation undbb act op may 30, 1908. which I can not now remember), but he made no mention whatever of having hurt or strained himsetf at the time. He did not report again for a period of 27J days, when he said that he had strained his Imee by lifting a box of re- ceivers onto a trucfe which was about 9 inches high, said box of receiver forg- ings weighing 179 pounds. No one seems to have seen him when he did it or no one knows why he lifted a box of receiver forgings alone, as we always have two men on the tr'jck when receiver forgings are delivered. Maj. Ames, United States' Army, in charge of the armory shops, also submits a statement corroborating the declarations of the superior officer and foreman that the claimant left the armory on August 1 stating that he was sick and without making any mention of having been injured. There were also obtained from the attending physicians two state- ments in writing bearing on the questions which claimant had been examined on, and the discrepancies and conflicts in the respective statements will appear from the following: Claimant stated that he went home the afternoon of the alleged injury and "went to bed, and there I stayed. I was in bed two weeks and a half, and then I got up around the house, and after a while I got outdoors." Claimant further stated that he thought the attending physician had made him six visits during the time he was off and that the approximate date of the first visit was August 4, but was unable to remember the date of the last visit prior to August 30, the date upon which he visited the arsenal and first personally re- ported his alleged injury. When asked why he put off calling a physician until August 4 he replied that he thought he " could fix it" with home remedies, and called the doctor after they failed to help him. On the other hand, the physician stated in his original certifi- cate, dated October 19, 1911, that he first attended claimant on August 2 and last examined him on August 21. In a later statement (undated) he stated that his records were not very accurate " because each of his (claimant's) visits were made to iny offtce." He also says that claimant " cawie to me, I believe, on August 2, of 1911." Further on in the same statement he says, "I bandaged the knee, as I remem- ber, and directed him to go home and give it rest. * * * j ^j^ not hear from him until about the 21st of August, when he came to my office." He further states, " On September 4, 1911, he again came to my office." In his last statement, dated February 7, 1912, the physician says, " That my records are clear that Mr. E. E. Carpenter called at my office on or about August 2, 1912, * * *, j ^\^ ^ot call at his home at any time near that date." Thus it is observed, from a comparison of the various statements of the claimant and his attending physician, that there is a direct contradiction of each other on matters about which there could hardly be a disagreement if both were inclined to detail the facts as they actually existed. The glaring discrepancies, as seen in their statements, can not be excused on the grounds of a lapse of memory, since they are of such importance that they would easily be remem- bered. Claimant is positive that he went to bed on the afternoon of August 1 and stayed there two weeks and a half. The physician is equally clear in his mind, and supported by his records, that claimant came to his office on August 2. If claimant had ^en in bed as alleged, how could he have gone to the physician's office ? Claimant says he only called the physician on August 4 after exhausting home OPINIONS OP SOLICITOR, DEPARTMENT OP LABOR. 709 remedies, while the physician is positive that he attended him on August 2, the day after the alleged injury. Again, the claimant says that the physician visited him six times, while it is apparent from the statement of the physician that he only saw him three times, viz, August 2 and 21 and September 4. When the foregoing circumstances of the case are considered in connection with the fact that when claimant asked to be excused from work on Augnist 1 he gave as his reason that he was sick, saying nothing about having received a strain of the knee to his foreman, it certainly seems reasonable that a strong doubt should be thrown on his subsequent contention that he received an injury in the course of his employment. Nothing was said about an injury, and evidently there were no indications from claimant's actions that he had been injured at the time he requested to be excused. As he was ap- parently uninjured when he left the arsenal at noon on August 1, it is entirely within the bounds of reason to suppose that he received his injury after that time. At any rate the only evidence presented of an injury in the course of employment is the unsupported state- ment of claimant to that effect, made at a remote time, subsequently to the alleged injury, and when this is considered in connection with all the other facts and circumstances surrounding the case, I am forced to the conclusion that there is not a satisfactory showing to establish the fact that claimant was injured in the course of his em- ployment. For the foregoing reason I have the honor to recommend that the claim be disapproved. 16. Case of an Injury caused by a fall, superinduced by vertigo. [In re claim of Eichard Cunningham, May 3, 1910 ; No. 3321.] The above claim is submitted to this office with special reference to the question whether the claim has been established. The facts in the case are as follows: Claimant was engaged in performing work on a scaffolding, and, while so employed, fell a distance of about 8 feet, landing on his head. The immediate report of the injury gives the following description of the accident : " Fell in a fainting fit." The nature and extent of the injury is given as " acute indigestion." The probable duration of disability is stated to be : " Twoor three days from date of injury." In the space for " Kemarks " it was said : This report was not made at time of accident, as it was not thought that the ease came within the scope of the act of May 30, 1908. Under date of February 25, 1910, the surgeon of the yard made the following report: The records of this office show that the within named Cunningham was brought to the dispensary at the yard October 23, 1909, with the information that he had had an attack of vertigo and had fallen from a staging while at work on the U. S. S. Florida. Some contusions about the body and a slight nose bleed were the only symptoms discernible at the time. A civilian physician, who had charge of his case, afterwards made report that Cunningham had sustained a fracture of the skull. In my opinion the symptoms displayed would not warrant such a diagnosis. Cunningham was In poor 710 workmen's compensation under act of mat 30, 1908. health at the time of his vertigo and fall, being thin, poorly nourished, and presented a condition strongly suggesting tubercular infection. It is, therefore, my opinion that his case does not coine under the act of May 30, 1908, granting compensation to injured Government employees. In his claim for compensation, sworn to on March 28, 1910, claim- ant gives the following as the cause of the injury : " The injury was caused by a fall from a scaffold which was not secured." The nature and extent of injury is thus described: "Was \m- conscious for four days and was unable to return to work for nine weeks." The physician's certificate is filled out by Dr. A. L. Carroll, who did not attend claimant, but who explains his reasons for making the certificate as follows: I personally did not see Eichard Cunningham when iU, but heard his family physician. Dr. Amador (deceased), tell of his condition, as above stated. In the certificate Dr. Carroll gives the character and extent of the injuries as follows: "Compound fracture of middle and anterior fossae of skull"; and the objective symptoms or signs, as "Uncon- scious; hemorrhage from ears, nose, and mouth; delirious, vomiting, weak pulse, etc." While it is noted that the foregoing description of the claimant's condition is based upon statements made by the attending physician, now deceased, to Dr. Carroll, it is believed that such testimony is entitled to full faith and credit, as a reputable physician would not undertake to misrepresent the matter. From this view of the case, it is apparent that there is a great and material discrepancy between the diagnosis of the yard surgeon and the findings of the physician who treated the claimant. The diagnosis of the yard surgeon was prob- ably based upon a single examination, made at the time claimant was taken to the dispensary for treatment, while that of the attending physician was based upon conditions found by him during a period from October 23 to December 15, 1909. It therefore appears that the latter physician was in a better position to make a correct diagnosis than the yard surgeon. In a letter dated March 4, 1910, the Acting Secretary requested " statements of the yard surgeon and yard officials as to their knowledge of the circumstances connected with the case," yet in reply thereto no further information of any value is offered. In the yard surgeon's report it is seen that he says : Cunningham was brought to the dispensary at this yard October 23, 1909, with the information that he had had an attack of vertigo and had fallen from a staging. It would, therefore, appear that he reached the conclusion stated by him upon the " information " furnished him by some one, not named, and that he did not have ample opportimity to secure a cor- rect diagnosis of the case. In compliance with the request to furnish statements of eyewit- nesses, there is furnished the following statement from a coemployee of the injured man : On Saturday, October 23, 1909, the injury of Richard Cunningham was caused by him stepping on the end of a plank that was not secured at the ends; the iJlank was 5 feet long, and he fell from the upper platform deck to the lower, at a distance of 8 feet of turret No. 5, and landed on his head. OPIKIONS OP SOLICITOR, DEPARTMENT OF LABOR. 711 From this latter statement, it is established beyond doubt that claimant had a fall from the scaffolding a distance of 8 feet, landing on his head. By comparing the condition reported by the yard sur- geon and the condition reported by Dr. Carroll with the statement of the eyewitness to the accident it is readily seen that the condition reported by Dr. Carroll is one that would most reasonably be ex- pected to follow such a fall as described by the eyewitness. From a consideration of the record as presented, I am of the opin- ion that a claim for compensation has been established, and that the claim should be allowed. 17. Cases in which the disability, though of a nature not obviously due to an accident or injury alleged, was held on the evidence to have been so caused. [In re claim of C. W. Boyee, July 27, 1910 ; No. 4045.] This claim is submitted to this office with special reference to the following question : Is there sufficient evidence of connection between the alleged accident and the claimant's incapacity ? The facts in this case, as shown by the record, are as follows : Claimant met with an accident on February 24, 1909, in the course of his employment, whereby he was very severely injured internally, consisting of a fracture of the pelvis and the eighth rib, and was incapacitated for duty until May 3, 1909, when he returned to work. On August 11, 1909, he again met with an accident, consisting of a slight abrasion of the scrotum, for which he was treated at the naval dispensary of the yard, and returned to work immediately thereafter. The records fail to show that this accident was reported by the yard officials. On January 7, 1910, claimant became incapacitated for work, and, under date of May 2, 1910, made a request for the necessary blanks upon which to file a claim for compensation under the act of May 30, 1908. Claimant has now filed his claim for compensation from January 7, 1910, basing the same upon the injury received by him on -August 11, 1909. With his claim he files a certificate of the attending physician (Dr. C. W. Birdsall) , who makes the following statement on the case : Great sensitiveness and pain over entire pelv'c region. Crushed testicle. Anal abscess, leaving a fistulous opening, and together with the history given. Tuber- culosis having developed in a general manner, in my opinion as a result of injury. Erratic movement of pelvis and hip joints. Anal fistula. Absorption of testicle injured and emaciation. Tuberculosis with all its symptoms. Fever, night sweats. Great pain and discomfort in injured parts. It is my judgment that tuberculosis was developed from Injuries received or as a result thereof. Upon receipt of the claim the captain of the yard detailed Asst. Surg. Shaw to examine claimant and report his findings thereon. Under date of June 2, 1910, the assistant surgeon made the following report : Charles W. Boyce is suffering from chronic tuberculosis of the lungs and intestinal tract and is incapacitated for labor. It is considered that there is no connection between the injury to his scrotum on August 11, 1909, and his present illness, as his genital organs show no evi- dence of injury. On February 24, 1909, Charles W. Boyce was injured in the line of duty at this yard. 712 workmen's compensation undee act of may so, 1908. Examination shows that the right Ilium was fractured, and the patient, Judging from the present appearanse of the right side of the pelvis, must have suffered a severe bruising at that time and, according to his accepted statement, was confined to his bed for about 10 weeks on account of his injuries. As there was a disagreement between the findings of the attending physician and those of the yard surgeon, the department, under date of June 28, 1910, requested Dr. Guy W. Latimer, of Hyattsville, to examine the claimant and to make a report of his findings. On July 11, 1910, Dr. Latimer made an examination and reported thereon, in part, as follows : Great emaciation, antemia, general weakness. Pulse 120, temperature lOOf. Respiration 40. Examination of chest shows tuberculosis of left apex with cavity. Dullness in right apex. Rough tubercular rales over left lung median line below fourth rib. Fistula in ano. Left testicle smaller than normal, with increased tenderness, especially along the cords. There is evidence of a fracture of right ilium as shown by deformity of the bone. There is evidence to show a former fracture of the eighth rib in nipple line. There is also flatness of the chest wall at the area about the size of a hand on left side. History of pleurisy on left side, October, 1909. History of cough from that date to this. Much pain in chest, left side. Tenderness over spine and sacrum and iliac fossae. Fistula said to cause great pain when bowels move. An injury sufficient to fracture the left eighth rib might also injure the lung and act as an exciting factor in the development of the tuberculosis. The con- finement incident to the injury of the pelvis may have been a factor in the de- velopment of his tuberculosis. The general shock of his injuries would cer- tainly have lowered his resistance to the tubercular process. I do not believe the Injury to the testicle August 11, 1909, is related to his present physical impairment, but I do believe the first injury, February 24, 1909, played an important part in his lowered resistance, permitting the tuberculosis to get a start. A careful examination and comparison of all the medical statements submitted reveals the fact that all the physicians practically agree upon one point, and that is that the present incapacity of claimant is due to tuberculosis, and that the claimant is in the last stages of that disease. There is virtually no evidence to show that his present condition is in any manner connected with the slight injury received by him on August 11, 1909. The statement of the attending physician, dated May 11, 1910, on this point is to the effect that claimant has a " crushed testicle," but this finding is not supported by the two la'ter statements of the yard surgeon and Dr. Latimer, dated respectively June 2, 1910, and July 11, 1910. It is true that Dr. Latimer says that he found the " lert testicle smaller than normal with increased tenderness, especially along the cords." This finding, he says, how- ever, is not due to the injury received on August 11, 1909. In view of the foregoing, it does not appear to me that. claimant has established any connection between his injury on August 11, 1909, and his incapacity beginning January 7, 1910. It does appear, how- ever, by the record, that there is ample evidence to sustain a finding that the present incapacity, beginning with January 7, 1910, is in a large measure due to the original injury received on February 24, 1909. On this point it may be said that all the physicians agree. Dr. Birdsall, the attending physician, says: It is my judgment that tuberculosis was developed from injuries received or as a result thereof. Yard Surg. L. W. Spratting gives his opinion as follows : It is my opinion that the injury of August 11, 1909, is in no way responsible for Mr. Boyce's present condition, but that it is in part due to the injury of OPINIONS OP SOLICITOE, DEPARTMENT OP LABOB. 713 February 24, 1909, the seriousness of the Injury and the prolongea confinement favoring the development of general tuberculosis. By reference to the report of Dr. Latimer it will be noted that he considered it most likely that the present tubercular condition is largely due to the injury of February 24, 1909. From a consideration of the entire record, as presented, I am of the opinion that the incapacity of claimant, beginning January 7, 1910, was attributable to the injury received by him on February 24, 1909, and that he should receive compensation for loss of time up to and in- cluding February 24, 1910, on account of such incapacity and injury. As section 1 of the act of May 30, 1908, only authorizes the pay- ' ment of compensation for one year after being injured, and as the original incapacity arose simultaneously with the happening of the accident on February 24, 1909, the claimant can not be compensated for any time after one year from that date. tin re claim of L. P. Perron, Nov. 27, 1911; No. 7055.] The remaining question to be decided in this case, the same having been considered on two previous occasions, is whether the claimant's disability was due to an injury received by him in the course of em- ployment. The claimant's injury is stated to be " acute sacro-iliac relaxation." In the immediate report of injury the same is said to have been in- curred as follows: At end of the day's work, in lifting box from floor upon press, strained lower portion of back. Could not straighten up for several minutes, until assisted by several other plate printers at adjacent presses, some of whom escorted him to his home. In the affidavit of claim the injury and the accident causing it are described as follows : Lifting the box containing my rags and tools from the floor up on the press after finishing printing I strained the ligaments supporting the sacro-iliac joints of the lower back. The ligaments being strained, the hips separated, allowing the spine to sink, causing a painful nervous condition and causing me to lose time. The director of the bureau, claimant's official superior, in a letter accompanying the claim, has the following to say respecting the box, in the lifting of which the claimant avers he was injured : In the room in which Mr. Perron works each plate printer is provided with a light pine box without lid, in which principally to keep his new rags. The box which Mr. Perron lifted weighed 28 pounds. * * * It was necessary for him at the close of each day, in order that the cleaners might wipe under his press, to lift this box from the floor under his press to the bed of his press, or approximately 3 feet. Upon an investigation being made of the contents of the box, it was found that Mr. Perron had in it some tools used in connection with his press and some old junk. * * * if these articles had not been in the box, its greatest weight, which includes his rags, would have been 12 pounds at the time he lifted it to the bed of his press. The director further states : I have carefully inquired into the nature and character of the alleged injury which Mr. Perron claims to have received. I find that the seat of Injury — that is, the, sacro-iliac synchondrosis — is a fixed (not movable) joint, where the sacrum, or lower section of the spine, is attached to the pelvis. This is con- sidered the strongest joint in the human body. It is the opinion of my inform- ant, a practitioner of medicine, that it would be impossible to produce a luxa- tion or displacement of this joint by lifting any weight, as other structures and Y14 workmen's compensation under act op may 30, 1908. tissues would lacerate and give way before the joint. It would require a direct blow or crushing influence to cause a separation of the parts, so firm and rigid Is this part of man's anatomy. As to the prolapse or sinking of the spine by reason of such an injury to one side, this could not occur, as the other side would be sufficient to sustain the spine. It is quite incomprehensible, in view of the foregoing, how anyone, unless there were a marked degeneracy of the tissues and bone owing to some con- stitutional disease, could be injured in the manner claimed by Mr. Perron— that is, by lifting a box whose total weight was 28 pounds. The physician, however, who first treated the claimant, and whose certificate is attached to the claim, certifies that the history of the accident given to him by the claimant was that the latter " was lift- ing workbox at closing time when he felt a sharp pain in back which increased in severity until adhesive was applied," and further states that, in his opinion, the disability from which the claimant suffered was due to this cause. In the face of this conflict in the evidence it was impossible to con- clude on the record, as it originally stood, that the disability from which the claimant suffered was attributable to the accident disclosed by him. That an accident did happen to the claimant, however, on the date specified is clear, inasmuch as it is stated in the immediate report of injury that, at the time, he was assisted by several other plate printers, some of whom escorted him to his home, and the names of three plate printers are given as eyewitnesses to the accident. Whether the injury from which claimant actually suffered (i. c., acute sacro-iliac relaxation) could have been caused in the manner stated by him (while lifting a box weighing 28 pounds) , and there- fore in the course of his enrployment, was essentially a question of medical opinion. It was accordingly decided to obtain the services of a medical expert employed by the Department. Pt. John Dunlop, of this city, to whom the claimant was referred for examination, re- ported as follows : I have just examined Mr. Perron, the man of whom you wrote me. The following is my report : I find that even at the present time there are signs of an injury to the sacro-iliac synchondrosis. I am not positive of the nature of the injury, nor could I be without an X-ray examination; but the least the injury could represent would be a relaxation of the joint. From my examina- tion I strongly suspect a dislocation. I notice in reading over the matter pertaining to the case, that your director had been informed that the sacro-iliac synchondrosis were fixed joints. This was the general opinion up to seven years ago, when Dr. Joel Goldthwait, of Boston, made his research in this direction. He found that these joints had everything in common with all other joints, and it was through his work thaz the injuries of this region were made clear. As I have previously stated, I do not think the applicant is well yet, nor do I feel that he can do any work well which requires any stooping or bending of the lower portion of his spine. With reference to the specific question whether the claimant re- ceived his injury in the manner described by him, Dr. Dunlop states : I wish to say that it is my opinion that the injury he received while lifting the box has certainly been the cause of all his trouble. Since the only doubt with respect to the bona fides of the claim arose by reason of the apparent improbability that so serious a result could have been produced by so slight a cause, and since this doubt is now set at rest by the testimony of Dr. Dunlop, it is clear that the claim must be regarded as established. It follows, therefore, that the claimant is entitled to compensation for all the time lost by him on account of his injury during the year next following the same. OPINIONS OP SOLIOITOE, DEPARTMENT OF LABOK. 715 [In re claim o£ J. J. Donovan, Jan. 12, 1912; No. 4321.] On June 9, 1910, the claimant in this case met with an accident in the course of his employment, whereby the first and third fingers ot his right hand were taken entirely off, the end of the second finger between the first and second joints was taken off, and the thumb very badly bruised and crushed, thus leaving him with only the little finger intact. The attending physician, however, certified under date of July 29, 1910, that the incapacity would not continue beyond July 31, 1910. This statement, of course, related only to the condition of the injured hand and had no reference to the ability of claimant to perform his usual duties. On August 1, 1910, he returned to his former employment, working intermittently thereat until January 24, 1911, since which time he has been incapacitated. The claim was duly approved for payment for the period beginning with the day after the accident and ending with July 31, 1910, and claimant sub- sequently made claim for continuance of compensation on account of the incapacity beginning January 24, 1911. To account for the absence from work there were furnished certifi- cates from the attending physician, wherein it was stated that the incapacity was due to neurasthenia and gastritis, and on July 29, 1911, an examination was made, by direction of the secretary, by Dr. Kalph B. Ober, of Springfield. In his report the examining physi- cian stated that the condition at that time was " advanced pulmonary tuberculosis," that hia condition was " very poor," and that the fingers had entirely healed. He further stated that the disability was due only to a possible shock to the system which might have arisen f pom the injury. It was also shown in the medical certificate of Dr. Ober that claimant had pleurisy about five years previously thereto, and that the shock of the operation might have had something to do with lighting up an old focus. As there was nothing in the record at that time which would show that the incapacity was in any way suffi- ciently connected with the original injury of June 9, 1910, it was recommended by me, in an opinion dated September 12, 1911, that further compensation be denied. The claim is again presented with additional evidence, consisting of affidavits from three physicians, and is submitted with the inquiry whether this additional evidence warrants a reversal of the action of September 15, 1911, in disapproving the claim for further payment. The affidavits now furnished are as follows : I hereby certify that Mr. John J. Donovan, of Springfield, was a strong, healthy man and showed no evidence of tuberculosis at the time he was injured at Springfield Armory in June, 1910. His injury caused severe shock, and ever since he has been failing in health. Tuberculosis has developed, and ho is un- able to perform any manual labor. I feel that the shock sustained at the time of injury has hastened development of tuberculosis. Robert F. Hovet, M. D. This is to certify that I made a physical examination of John J. Donovan in August, 1909, for admission into Miles Morgan Lodge, Ancient Order of United Workmen At that time he was in good health, and his lungs were free from indications of disease. B. B. Adams, M. D. I hereby certify that I have been the family physician of John J. Donovan, of No. 49 Ashley Street, for 11 years; was present at the operation In the Wesson Hospital following injury, and attended him during convalescence; to the best of my knowledge and belief his present condition is due to the shock and consequent lowered vitality resulting from injury. 716 workmen's compensation undee act of may 30, 1908. I can positively state that previous to accident he was a strong, rugged man, with no indication of or predisposition to the disease with which he is now Thomas F. Rioeden, M. D. From a consideration of this additional information, it appears that all three physicians are agreed that at the time of the accident claimant was apparently a strong, rugged, and healthy man, with no indication of or predisposition to the disease with which he is now affected, and that in the opinion of two of the physicians the present condition is due to the shock and consequent lowered vitality result- ing from the injury. This additional evidence puts an entirely different light on the case from that in which it was viewed when previously considered, and seems to bring the claim within that class of cases which have been heretofore passed upon by the Department, wherein diseases have developed as a result of injuries and are directly traceable and attributable thereto. In the case of August Pohl (C 6709, Bu. 13553), claimant received a blow on the lower quarter of the abdomen which either caused appendicitis or aggravated a diseased appendix, and it was held that the incapacity was the result of the accident. In the Atkinson case (C 6687, Bu. 10729), the employee came in contact with a live electric wire, causing him to fall a distance of 32 feet, whereby he was badly injured and unable to use his lower limbs. He afterwards became infected with typhoid germs, which infection, in the opinion of the attending physician, was made possible because of the inability to resist the disease on account of the lowered condi- tion of the vitality, and it was held that the death which resulted was traceable to the original injury. In the Boyce case (C 4045, Bu. 8752), claimant was severely in- jured internally, and in the opinion of the physician the confinement and general shock incident to the injury lowered the resistance to the tubercular process, and it was held that the tubercular condition found to exist was attributable to the original injury, the claim being accordingly approved for payment. As the claimant in this case has developed a condition of tubercu- losis, which condition is said by the physicians to be due to the shock and lowered vitality resulting from the original injuiy of June 9, 1912, I am of the opinion that the circumstances of the case are similar to those found in the above-quoted cases, and that the same principles are applicable thereto. I therefore conclude that the disability beginning on January 24, 1911, is due to the original injury of June 9, 1910, for which reason the claim should be approved for the remainder of the year following the beginning of the incapacity. [In re claim of F. J. Coiirnoyer, Jan. 16, 1912; No. 7561.] The above claim is submitted with the following inquiry : Is there sufficient evidence of connection between the alleged accident and the claimant's incapacity? This claim has been heretofore considered by this oflSce, but as the navy-yard officials stated in the reports that there was no evidence available which would justify them in recommending the claim for approval, they could only base their reports upon the statements made by claimant in his daiin affidavit. Before talring final action on the OPINIONS OF SOLICITOR, DEPAETMBNT OF LABOE. Yl7 claim in the condition as then presented, it was deemed advisable to make further efforts to secure more positive evidence of the happen- ing of the accident, or a clearer understanding of the circumstances surrounding the injury and its cause; so the papers were accordingly returned on November 21, 1911, for this purpose. In response to this request there are now furnished statements from persons having a knowledge of the injury and the circumstances con- nected therewith, as well as an additional statement by claimant, ex- plaining the matter in detail. In his original affidavit claimant gave the description of the acci- dent as follows: Water on dect, mixed with metal chips, flew in my face, causing blood poison. His additional statement, which throws more light on the nature and manner of his injury, is as follows : While working on the TJ. S. S. Wisconsin in the crew's water-closet, cutting out the partition on each side of the urine bowl, which had to be cut flush with the deck, there was loose cement, iron rust, old dry red lead, and water on deck, and probably some disinfectant. While cutting, some of the dirty water spat- tered in my face and eyes, and I was sweating ; not knowing any danger, wiped my face with my handkerchief ; this was poison dried into the skin. At 4 p. m. my eyes started to burn and face swell ; also hands. Thinking it nothing serious I went home. Next morning I could not open my eyes; had to call physician, \7hich called it poison from the work I mentioned above. I sent word by a brother workman to explain the case to my foreman, and tell my foreman to notify officials of yard to come and see my case, but no one came. It further appears that W. W. Caldwell was a witness to the con- dition described by claimant, and he furnishes the following state- ment of his knowledge on the subject : I was a witness to the accident in which Frank J. Coumoyer got his poison- ing, seeing the water and dirt spattering in his face, and noticed his eyes and face swelling shortly after it occurred. I certify the above true statement. The brother workman whom claimant mentions in his additional statement has also explained his knowledge of and connection with the case, as follows: This is to certify that Frank J. Cournoyer, on Tuesday evening, July 25, 1911. requested me, a brother workman, to report to his foreman, S. D. Gilkey, that on account of his face being poisoned and swollen from working in water-closet on U. S. S. Wisconsin he could not report for work, and to have his foreman report the matter to the proper officer, requesting that someone call at his home and get his statement of the accident. I reported, as requested, Wednesday a. m., July 26, 1911. Thus it is seen that the claim, as originally presented, contained practically no evidence to establish the happening of an accident other than the statement of claimant to that effect, the reporting offi- cer stating, under date of November 3, 1911, that no previous claim or report of injury was made to his office. It is now observed that claimant was injured, as alleged by him, on July 24, 1911; that he duly reported his injury through a fellow workman on the 26th of July ; and that, in a statement made by the master shipfitter, it is admitted that he, in turn, reported the injury to the chief carpenter on July 28, 1911. As the claim is supported by the certificate of the attending physician, wherein it is shown that claimant was incapacitated from July 25 to August 14, 1911, on ac- count of the injury, as alleged, I am of the opinion that the connection between the injury and incapacity is sufficiently established to justify the approval of the claim for payment. 718 workmen's compensation undbe act op may 30, 1908. [In re claim of J. ip. Hayden, Feb. 16, 1912 ; No. 5421.] The facts in this case are, briefly, as follows : Claimant was in- jured on or about June 1, 1910, which injury caused a hernia result- ing in incapacity on November 5, 1910. His claim for compensation was approved for six months, beginning November 5, 1910, and end- ing May 4, 1911. Payment of compensation was discontinued after December 27, 1910, as there was not sufficient evidence to show that his disability was due to the original injury. Claimant requested a reconsideration of his claim through Hon. William F. Murray, M. C., of Massachusetts, and in an opinion dated July 25, 1911, it was suggested that claimant be examined by a physician designated by the Secretary, with special reference to the question whether his present condition is due in part or in any manner to the injury re- ceived on or about June 1, 1910. The record, containing this phy- sician's report, is again before this office with the inquiry : Does addi- tional evidence warrant a reversal of the Secretary's action disapprov- ing the payment of compensation after December 27, 1910? The question involved is purely medical, and in view of the addi- tional evidence submitted it becomes necessary at this time to review the whole case and consider all of the medical evidence relevant thereto. It is noted in the papers which accompany the record that before claimant was engaged for service at the Isthmus he was required to undergo a rigid physical test, conducted by a physician employed by the Isthmian Canal Commission at the port of departure in New York. A copy of this physician's report has not been submitted, but it may be assumed from the fact that claimant was engaged for serv- ice and permitted to depart for the Canal Zone that he passed the medical examination successfully, and that his general physical condition was good at that time^ because he was advised in a memo- randum from the Isthmian Canal Commission, copy of which is filed with the record, and which was sent to him before presenting himself for examination, that — Such diseases as hernia, piles, weak lungs or heart, venereal diseases of all kinds, deformed limbs, loss of fingers, defective eyesight and hearing * * * and other serious iodily defects will be grounds for your rejection. * * * Should you be in doubt as to whether you can pass such an examina- tion it might be well for you to consult your own physician before you accept employment, asking him as to whether he thinks you can pass. Claimant was injured on or about June 1, 1910, but was not in- capacitated for work until November 5, 1910, on which date it be- came necessary for him to quit work and enter the Colon Hospital for treatment. The certificate of Dr. S. J. Taylor, of that hospital, shows that on claimant's admission his general condition was " good, and that he was suffering from " left inguinal hernia." An operation was performed and the patient transferred to Taboga Sanitarium on December 12, 1910. From the letter of the acting examiner of ac- counts, dated March 18, 1911, it is seen that claimant remained at this sanitarium until December 27, 1910, and from the letter of Dr. Lloyd Noland, acting superintendent of Colon Hospital, it is seen that he was given a certificate at Taboga for " injury in the line of duty." This same letter states that Mr. Hayden was readmitted to Colon hospital on December 28, 1910, and was discharged on January 20, 1911 ; that the diagnosis at this time was " chronic nephritis "with OPINIONS OF SOLICITOE, DBPABTMBNT OF LABOR. 719 arteriosclerosis," and that he was given a certificate of illness. The physician further stated that he examined claimant and found a first- class cure of the hernia. It was upon this report that the officials at the Isthmus stopped payments of compensation after December 27, 1910. After claimant's discharge from the Colon Hospital on January 20, 1911, he addressed a letter to the resident engineer, making applica- tion for leave of absence and requesting compensation for one year from the date of incapacity. Leave of absence was granted, and he returned to the United States to recuperate. The papers were re- ferred to the Department by the acting examiner of accounts, with a letter of transmittal, dated March 18, 1911^ requesting that an ex- amination of Mr. Hayden be made to ascertain his right to compensa- tion after December 27, 1910. Dr. E. M. Harding, of Boston, by direction of the Secretary, ex- amined claimant on April 21, i9il, and in his report makes the fol- lowing statement as to the general condition of claimant, the char- acter and extent of injuries, and the objective and subjective symptoms : Is confined to his house, much of the time being obliged to remain in bed. Is extremely weak and is easily fatigued. Is emaciated, and muscles are soft and flabby. A scar 2 inches in length is found running parallel with and about IJ inches above Poupart's ligament in the left groin. There is some fullness in the left iliao and inguinal region. A soft tumor atout 1 inch in diam,eter is felt at the middle of Poupart's ligament, left side. There is a slight tendency to bulge at the outer end of aliove-mentioned scar. Left ex- tern.al abdominal ring is not patulous. Is pale and anemic, and skin has a yellow, pasty look. Is able to move about the room slowly with the aid of a cane. There is dyspnoea after slight exercise. A mitral systatic murmur is heard. Heart's action is rapid and Irregular. There is general bronchitis. Tongue coated. He further states that claimant is still unable to resume work and that' his disability is "in part" due to the injury described in the above-mentioned order. In his "Remarks" he says : Aidomen is poorly nourished, somewhat distended with gas, and there is some general tenderness. A letter from Dr. H. E. Bragdon, of East Boston, Mass., dated June 16, 1911, accompanies the record, and is as follows: I have been asked to make a statement in the case of John F. Hayden, who was a rigger or derrick man at Panama up to January 23, 1911. While per- forming his duty, and in an attempt (successful) to prevent a bad accident, he lifted, and struggled desperately to handle a heavy boom which had fallen across some tracks. Though averting the accident, he himself was badly ruptured, and was subsequently operated upon at the Government hospital at Panama. Because of this accident and operation, plus the climatic conditions, he is to-day a complete wreck with tropical anemia and the common conditions resulting from long residence of white men in the Tropics. On August 7, 1911, claimant was again examined by Dr. Edw. H. Risley, of Boston, by direction of the Secretary, in accordance with the suggestion contained in the opinion of this office of July 25, 1911. His report is as follows : Present general condition of patient : Patient looks as if he recently recovered from a long sickness. Shows evi- dent loss of weight. Color is good and general conditions good, but not robust CharSicter and extent of the injuries at the present time : General physical examination negatives, except as follows: Pupils equal, but react sluggishly to light. Heart and lungs normal. No masses in abdomen. 720 WORKMEN ^S COMPENSATION UNDER ACT OF MAY 30, 1908. Eeflexes lively. In left inguinal region on removal of truss is a white, solid, linear scar. Inguinal ring barely admits tip of little finger. No impulse on cough. Hernia does not come down on cough or standing. Objective and subjective symptoms : No tenderness of scar itself. Patient shows evidence of tenderness, when palpated, all over abdomen, especially over left inguinal region. His only complaint is weakness and pain, with tenderness in the region of the old hernia. In ansAver to the question, "Is he still unable to resume work?" he says, " No, as far as any objective signs indicate." This physician was requested to give particular attention to the question as to whether claimant's present disability was due to the injury described, or to determine to what extent the same was at- tributable to said injury. He said : Examination of left Inguinal region shows an apparently successfully oper- ated inguinal hernia, with no impulse ou cough or standing, and no objective signs to account for the pain complained of. There seems to be no reason why this man can not work, as far as his hernia is concerned. He states that his local doctor has been treating him for " blotJd poisoning " since his return from the canal. What the nature of this disease was I am unable to state. No signs of syphilis. It seems likely that his weakness is due more to this than to his hernia. The foregoing constitutes all of the medical evidence in the case, and from the ^atements of the physician last quoted it is evident that as late as August 7, 1911, claimant was suffering from some internal trouble, for which he was being treated by his local doctor, stated by claimant to be " blood poisoning," the nature of which was unknown to Dr. Eisley, who says, " His present condition is due more to this than to his hernia." This physician states, in answer to the question whether claimant is still unable to resume work, " No, as far as any objective signs indicate," but from his reply to the question as to objective and subjective symptons it would seem that the subjective symptoms indicate a weakness which may be traceable to the original injury, as the physician further states that " patient shows evidence of tenderness when palpated, all over abdomen, es- pecially over left inguinal region. His only complaint is weakness and pain, with tenderness in the region of the old hernia." Surely this statement in itself, by the physician who last examined claimant, indicates some ailment in the vicinity of the injury received about June 1, 1910, and should be given some weight in determining claim- ant's right to further compensation. Dr. Bragdon, whose statement is also quoted, is probably the local doctor who has been treating claimant for " blood poisoning " since his return from the canal. While his statement fails to definitely connect the present incapacity with the original injury, yet, in view of the other medical testimony adduced, it supports the theory that claimant's incapacity, of whatever nature, may be attributable to the original injury, as this physiciansays: " Because of this accident and operation, plus the climatic conditions, he is to-day a complete wreck The examination made by Dr. E. M. Harding, the first physician who examined claimant by direction of the Secretary, on April 21, 1911, shows that on that date he was unable to resume work and that his disability was " in part " due to the original injury. His report, stating that "there is some fullness in the left iliac and inguinal region. A soft tumor about 1 inch in diameter is felt at the middle OPINIONS OF SOLICITOB, DEPARTMENT OF LABOR. 721 of Poupart's ligament, left side," and that " there is a slight tendency to bulge at the outer end of above-mentioned scar," indicates some weakness in the abdomen in the vicinity of the hernia and coincides with Dr. Kisley's report to that extent. The only evidence in the record which would warrant questioning the validity of the claim and upon which the Department's action in stopping payments of compensation before the expiration of the six months was based, is the statement by Dr. Lloyd Noland, acting su- perintendent of Colon Hospital, that he examined Mr. Harding upon his readmittance to the hospital, on December 28, 1910, and his diag- nosis showed " chronic nephritis with arteriosclerosis." " Nephritis " is defined in Dorland's Medical Dictionary as "inflamation of the kidneys," and " chronic nephritis " as " any variety having a rela- tively slow course." "Arteriosclerosis " is given as " abnormal hard- ness and dryness of the arterial coats, resulting from chronic inflam- mation of the intima." From this it may be said that claimant was, at that time, suffering from inflammation of the kidneys — of a variety having a relatively slow course. While there is no reason to doubt the correctness of Dr. Noland's diagnosis, yet the fact remains that claimant was just recovering from the effects of an injury, an opera- tion for hernia, and its Qonsequent confinement, and there is nothing in the statements of the other four physicians which touches upon the condition certified to by Dr. Noland, either before or after claim- ant's admission to Colon Hospital. The fact that claimant was permitted by the physician who exam- ined him at the port of departure to go to the Isthmus, would indi- cate that he was free from any physical defects at that time, as the memorandum from the Isthmian Canal Commission, above quoted, in enumerating the causes of rejection, says that " other serious bodily defects will be grounds for your rejection," and certainly such a dis- ease as "chronic nephritis, etc.," or a tendency to such a disease, would have been discovered and would have been a ground for rejection. When claimant was first admitted to Colon Hospital he was exam- ined by Dr. Taylor, who reported his general condition " good " with no mention whatever of any weakness in the kidneys or other internal ailment. The two physicians employed subsequently by the Government to examine claimant in the United States, with special attention to the present cause of disability, make no mention of the condition described by Dr. Noland, and if claimant's disability at that time was due to this condition, which is said to be chronic and of rela- tively slow course, it seems reasonable to suppose that they would have discovered it, or at least traces of its previous existence. How- over, the weakness in the abdomen and vicinity of the hernia may have been the result of this disease, unknown to the physicians. Admitting that claimant had suffered from this disease, it should be remembered that he was injured on or about June 1, 1910, and con- tinued performing the duties of his occupation until November 5, 1910, with the aid of a truss, when his condition became such that he was forced to quit work and enter the hospital. During this period, it is most natural to conclude that his physical condition was weak- ened and his health impaired, and if there was the slightest predispo- sition to disease, whether in the kidneys or other portions of the boay, 93364°— 15 46 722 WOEKMEN's compensation under act of may 30, 1908. it would undoubtedly have developed at this time, especially after the operation and confinement. The question, therefore, to be an- swered is whether " chronic nephritis with arteriosclerosis " could be caused under the above circumstances ; and, if so, whether the trouble for which claimant was being treated by his local doctor and to which Dr. Eisley attributed his weakness rather than to the hernia, was in fact this disease or its latent effects. Upon a consideration of all the medical evidence now before me I am of the opinion that claimant is, in any event, entitled to compensa- tion until April 21, 1911, when he was examined by Dr. Harding, who found " some fullness in the left iliac and inguinal region, a soft tumor about 1 inch in diameter being felt at the middle of Poupart's ligament, left side, and. a slight tendency to bulge at the outer end of above-mentioned scar," and who further stated that claimant's dis- ability, at that time, was " in part " due to the injury received about June 1, 1910. I have the honor therefore to recommend that payment of compensation be made until that date. In order to determine claimant's right to compensation after April 21, 1911, it is suggested that the papers in the case, including a copy of this opinion, be sub- mitted to Dr. Kisley, who examined him on August 7, 1911, and to the physician attending him and referred to in Dr. Eisley's report, with a request that they answer the question propounded in the pre- ceding paragraph. [In re claim of J. P. Hayden, Apr. 30, 1912 ; No. 5421.] Claimant in this case was incapacitated on November 4, 1910, as the result of a hernia. His claim for compensation was approved for a period of six months, but payments thereunder were discontinued after December 27, 1910, upon the statement of Dr. Noland, of Colon Plospifcal, Canal Zone, that his incapacity, after that date, was due to '^chronic nephritis with arteriosclerosis." Claimant contended, however, that he was entitled to compensation for the remainder of the compensation year which terminated November 4, 1911, and the case was_ resubmitted to this office with additional medical evidence. From this evidence it was found that Dr. Noland was the only phy- sician who diagnosed the case as " chronic nephritis with arterio- sclerosis," which condition was not mentioned in the reports of four other physcians who examined claimant after the injury. However, upon the strength of the Government physician's report as to the claimant's condition, this office in its opinion of February 16, 1912, held that compensation should be granted, in any event, until April 21, 1911, and in order to determine whether the claim should be allowed to November 4, 1911, it was suggested, in view of Dr. No- land's statement, that the papers be returned for statements from Dr. Bragdon, the attending physician, and Dr. Eisley. one of the Government physicians, as to whether " chronic nephritis with arte- riosclerosis " could be caused under the circumstances described and, if so, whether the trouble for which claimant was being treated by his own doctor (supposed to be blood poisoning) to which Dr. Eisley attributed his weakness rather than to hernia, was in fact this disease or its latent effects. This information was accordingly obtained and is now submitted to this office, together with the other papers, for an expression of opinion m the premises. OPINIONS OF SOLICITOR, DEPARTMENT OE LABOE. 723 Dr. Bragdon, the attending physician, under date of April 8, 1912, states : His operation wound is perfect and shows no defect whatever. That he was disabled because of it and has nearly died since does not admit of argiiroent I know of no reason to change my original statement relative to him. It's a clear-cut, honest case and exactly as stated by me. His previous statement, on June 16, 1911, is as follows : Through averting the accident he himself was badly ruptured and was subse- quently operated upon at the Government hospital at Panama. Because of this accident and operation, plus the climatic conditions, he is to-day a complete wreck, with tropical anemia and the common conditions resulting from long residence of white men in the Tropics. Dr. Risley, under date of March 5, 1912, referring to his previous examination, says : ■* * * As he made only one visit to my office and was then unable to pass any urine for me, I was unable to form any opinion as to the condition (if his kidneys. His heart was normal in size, action regular, no murmurs, and the pulse of good volume, and the tension did not seem increased. The blood pressure and tension were not measured, however, by instrument, but by the fcense of touch. There was no arcus senilis, and I made no note that his pal- pable arteries were hardened. // he had " chronic nephritis and arterioscle- rosis " at the time of my examination, August 7, 1911, it was not evident to me at my ewarmnation. The patient was evidently not in robust health. I believe I was requested to state whether, in my opinion, he was incapaci- tated for work as a result of his injury. My reply was that, as far as Ms hernia and the operation for its cure were concerned, he was able to resume work. It seemed to me at the time that his complaint of tenderness over the scar could not be very real or else he would not have been able to bear the pressure of his truss. I wish to state, therefore, that I consider that, as far as his hernia was concerned, he was able to resume work. Ajid, in anwer to the question of the relation of the chronic nephritis and arteriosclerosis to his injury, I do not believe that the Injury alone could be the direct cause of the conditions. /* is possible, however, that the injury, plus hard work, plus the presence over a considerable time of a troublesome hernia, plus ether and an operation, plus long confinement in the Tropics, may have teen the cause of his then present weakened condition. (What the exact cause of this condition was I was not ahle to determine at my examination in August.) And on March 7, 1912, he further states : In order to check up my previous observations and the above opinion, I sent for Mr. Hayden to come again to my office for examination. He reported to- day and I can make the following additional statement In regard to his present condition : Looks slightly stronger and better than at previous visit in August, 1911, but is still a little sallow and rather thin, and still uses a cane in walking' He has a very slight arcus senilis, but none of the palpable arteries are hardened. The heart is not enlarged. It is active and regular, volume fair, and tension not increased. There are no murmurs. Abdomen soft throughout' no masses or tenderness. The scar of the operation in the left inguinal region is solid, smooth, not tender; no impulse on cough or standing. No lumps or tumors In or near scar. Hemoglobin 65 per cent. Blood smear: Shows poly- morpho-nuclear cells 65 per cent, small mono-nuclear 30 per cent, and large mono-nuclear 5 per cent, 1 per cent essinophils; a normal blood-showing. No malarial organisms were seen. Urine: Night specimen, clear, slightly high colored acid. No albumen by acid or heat test ; no sugar. Urine : Day specimen clear, slightly high colored acid. No albumen by acid or heat test, no sugar. / think, therefore, that I have ruled out chronic nephritis and arteriosclerosis or any blood disease which could be detected by the above fairly complete ex- ammation. My statement in regard to Mr. Hayden's condition remains the same as when first made in August, 1911, and in my reviewed statement previous to seeing him a second time. I am compelled to state, however, in all fairness to the patient that he does not look robust and well, but as if he had been siek. 724 workmen's compensaiion xjndeb act of may 30, 1908. Whether this is due to his long inactivity, I am not able to say. Certainly no examination so far has shown any definite cause for his condition. From these statements it is seen that claimant's incapacity was not the result of chronic nephritis with arteriosclerosis, nor of any blood disease as supposed when the case was last considered by this office. Dr. Eisley, who examined him on August 7, 1911, and again on March 7, 1912, concludes his statement with the remark that " cer- tainly no examination so far has shown any definite cause for his condition." While the exact nature of his disability has not been determined, yet it is clearly the opinion of the attending physician that his patient's condition is due to " the accident and operation, plus the climatic conditions, etc.," and of the Government physician that " it is possible, however, that the injury, plus hard work, plus the presence over a considerable time of a troublesome hernia, plus ether and an operation, plus long confinement in the Tropics, may have been the cause of his then weakened condition." Considering, furthermore, the fact that claimant had continued at work after the accident, with the aid of a truss, from about June 1, 1910, until No- vember 5, 1910, which would necessarily tend to weaken his system previous to the operation, it is most reasonable to conclude that his incapacity, after a cure of the hernia was effected, was directly at- tributable thereto. Giving due consideration, therefore, to all of the medical testimony in the record at this time, together with the circumstances connected with claimant's injury and subsequent incapacity, the preponderence of evidence, in my judgment, is in favor of the claimant. It is my opinion therefore that his incapacity after April 21, 1911, was due to the original injury, and I have the honor to recommend that pav- ments be made for the remainder of the compensation year. 18. Cases in which compensation for disability denied because fact of an acci- dent or injury in course of employment not shown. [In re claim of C. B. Scanlan, Aug. 15, 1910 ; No. 4118.] The above claim for compensation is submitted to this office with special reference to the question whether the connection between the accident and incapacity is established. The immediate report gives the following description of the injury : His hand was broken out with eczema; while working on the "valves salt water irritated the sores. The reporting officer makes this further observation under the heading of " Nature and extent of injury:" Eczema back of hands and front of right ankle; chronic condition; not due to employment. Has same condition on foot. Claimant gives the following description and cause of the incapacity : On U. S. S. Connecticut, and in shop overhauling and installing brass valves; old and new work. The verdigris from valves and wetting my hands with salt water caused the back of hands to get very sore (on back of them), and fingers also Skin affection skin deep, aggravated by verdigris from brass valves and salt water. OPINIONS OP SOLICITOE, DEPARTMENT OP LABOR. 725 A physician's certificate is furnished, showing claimant incapaci- tated for resuming work from June 1 to July 2, 1910, and the char- acter and extent of injuries to be "Acute dermatitis, due to trau- matism and chemical contact." Under date of July 14, 1910, the yard surgeon makes the following report on the case : From a close observation of the above-named Scanlan I have the following comment to make : Scanlan presented himself at this dispensary, 10 a. m., June 1, 1910, displaying an eczematous condition of back of both hands, and alleging that It was due to exposure to salt water in the course of his employment in fitting certain valves. On questioning him he denied that the disease existed elsewhere on his body, but on requiring him to expose his shins, a similar con- dition was found on front of his right ankle. I am of the opinion that this eczema, both of hands and ankle, is chronic and not acute; has been of long standing, and has no connection whatever with performance of his labor as a majchinlst in this yard. Upon the foregoing report the superior officer recommends the disapproval of the claim. A consideration of the record establishes beyond peradventure the fact that prior to June 1, 1910, claimant was suffering from an eczematous trouble on his hands and legs, but up to that time the same had caused no inconvenience or incapacity for performing the usual duties of his occupation. Prior to that time he had been working on new and old brass valves, which work necessitated his putting his hands in salt water, and claimant alleges that as a result thereof the eczema became irritated to such an extent as to produce incapacity for the continuance of the work on which he was employed at the time. Upon the foregoing status of the case it will be seen that the ques- tion arises as above set forth. It will be noted that the point at issue involves a medical question, viz, was claimant incapacitated for per- forming his usual duties by reason of the chronic eczema from which he was suffering, or was the eczematous condition aggravated by the circumstances connected with the work to such an extent as to cause incapacity ? An examination of the record shows that medical testimony on this point is very meager and unsatisfactory. The yard surgeon states that the eczema is of a chronic nature, but he does not state whether that condition had been aggravated by the verdigris and salt water so as to produce incapacity. The claimant's physician is equally brief in his statement of the character and extent of the injuries. I have the honor, therefore, to recommend that before final action is taken upon this claim the papers be returned and the yard surgeon and claimant's physician be requested to give their views on the ques- tion as above outlined. [In re claim of C. B. Scanlan, Oct. 15, 1910 ; No. 4118.] The above claim is again referred to this office with special refer- ence to the question whether the connection is established between an injury received in the course of employment and the incapacity. In an opinion dated August 15, 1910, the claim was returned with a recommendation that statements be obtained from the yard surgeon and from the attending physician giving their view, from a medical standpoint, on the following question: Was claimant incapacitated 726 workmen's compensation under act of may 30, 1908. for performing his usual duties by reason of the chronic eczema from which he was suffering, or was the eczematous condition aggravated by the circumstances connected with the work to such an extent as to cause incapacity? In response to that request, there are now furnished the following statements : Dr. Banbury, the attending physician, states that — Patient was totally disabled from June 1 for one month, suffering from eczema of his hands. The condition is of a chronic form, but was aggravated by the duties he had to perform prior. to the above date. He is now able to work. The yard surgeon states as follows : Beyond the facts stated and professional opinion already expressed I learn further from memoranda on file in this oflSce and by inquiries that — Scanlan admitted to Master Machinist Coutts that he had the eczematous condition on his hands before beginning the particular work specified. That this particular work lasted for about three weeks, and during that period, while engaged on the work, he wore gloves to protect his hands. The affection of which Scanlan complains was more than a dermatitis. It was a chronic eczema presenting a typical appearance and indicating in every feature as having existed for a long time. The eczematous condition of his hands was not aggravated by his work, as he wore gloves for protection. Moreover, the affection on his hands was, at the time I examined him on June 1, 1910, when he first presented himself, no worse in degree or quality than the same affection on his foot, which had not come in contact with -brass work and salt water. An examination of these two statements will show that they are diametrically opposed to each other in the conclusions reached. The attending physician unqualifiedly states that the eczematous condi- tion was aggravated by the duties of claimant, while the yard surgeon is equally positive that the eczematous condition was not aggravated by his work. The statement of the latter, however, furnishes some information which was lacking when the claim was here before, in that it appears that while claimant was performing the class of work which he alleges aggravated his eczema he wore gloves to protect his hands. While the surgeon makes that statement on the strength of information furnished him, it is always advisable and preferable to secure the best evidence which the case is susceptible of furnishing. In this case there are other circiynstances which appear to sustain the findings of the yard surgeon, for it will be noted that at the time claimant reported his incapacity he denied having the trouble on any other part of his body but his hands, whereas upon examination of his ankles the surgeon found them to be in about the same condition as the hands. From a consideration of the record as it now stands, I am of the opinion that claimant has failed to establish by sufficient evidence the connection between the injury received in the course of his employ- ment and his incapacity beginning June 1, 1910, for which reason the claim can not be allowed. tin re claim of C. R. Ensey, Oct. 23, 1911 ; No. 6853.] This claim was originally prepared for approval, but as the infor- mation contained in the record did not appear to warrant the allow- ance of the claim, it was returned, under date of July 17, 1911 for the purposes, first, of ascertaining the nature of the duties performed by OPINIONS 01" SOLICITOE, DBPAETMENT OP LABOR. 727 claimant; secondly, for information showing the hazardousness of the occupation; and thirdly, for further evidence to show that the injury arose in the course of the employment. The claim was ac- cordingly returned to the Canal Zone, with a request that the addi- tional information desired be furnished, and it is now submitted with the following inquiries : 1. Does the claimant's occupation come within the scope of the act? 2. Did the accident occur- in the course of employment? 3. Is there sufficient evidence of connection between the alleged accident and the claimant's incapacity ? The additional information furnished consists of letters from the hospital physician and the claimant, respectively. The original physicians certificate gave the character of the injury as "left in- guinal hernia, recurrent," and it was stated that it was a " recent re- current hernia on left side." In his recent letter the physician makes the following explanation of the case : I have the honor to report Mr. C. R. Ensey was operated on In Ancon Hos- pital April 23, 1910, for left inguinal hernia and again May 6, 1911, for recurrent inguinal hernia, left side. It was found at the second operation that the hernia had not broken through at the site of the preceding operation, but at a small distance internal to it, and while we consider this kind of a condition a recurrence of the original hernia, yet in reality It is a new hernia developing near the site of the former hernia. The letter of claimant is as follows : As superintendent of laundry I have at times done some heavy work, such lis helping repair machine, also when work would be behind I have taken hold wherever needed, with a view of pushing the work by my example. I was discharged from hospital something over a year ago, cured of a hernia which annoyed me at that time. The second or recurrent hernia developed since that time, in another place, as told me by the doctor, and as I have done no other work of any kind since I was cured the first time, I feel that the recurrence was due to my employment in the laundry, being almost all the time on my feet and going up and down stairs many times a day in getting to and coming from the upper floor. As there are about 25 or more machines of various kinds in the laundry, besides an elevator, and my official duties require me to go around and among them, it seems to me that there is more or less hazardousness con- nected with my employment. As far as I can say, there was no accident that caused my injury, and I am unable to give any specific date when same was received. The hernia incapacitated me for duty, and when I had stood it as long as I could I finally entered the hospital, by the advice of Dr. Herrick, who was at that time acting superintendent, Ancon Hospital. The foregoing statements of the facts in the case practically con- stitute all the evidence upon which the questions asked must be answered, and a negative answer to any one of the inquiries will bar the claim from allowance. In most cases of this character the claim- ant usually makes out a prima facie case to establish the fact that the injury occurred in the course of the employment, but in this in- stance that element is absent, and as there is" no other evidence in the record to establish that fact, the case must fail. By reference to the letter of claimant it will be seen that he states : As far as I can say, there was no accident that caused my injury, and I am unable to give any specific date when same was received. Thus it is observed that claimant practically admits that his in- capacity is not due to an injury by accident in the course of his em- 728 workmen's compensation under act of may 30, 1908. ployment, as he evidently has no recollection that at any particular time he received a strain or injury -which would have produced the hernia, but on the other hand, his statement indicates that the condi- tion came on imperceptibly and by gradual growth, and the state- ment of the physician that this hernia was a recurrence of aformer one tends to show that claimant had a predisposition to hernia. As there is no evidence furnished to establish the fact that at a time certain and definite claimant was injured in the course of his employment, I am forced to the conclusion that the third inquir}^ pro- pounded must be answered in the negative, in view of which conclu- eion it is unnecessary to consider the other questions submitted. 19. Consideration of evidence justifying the approval of a claim based on in- capacity caused by hernia following an injury, notwithstanding medical examination may have shown prior existence of hernia. [In re claim of Auguatln Mlro, Feb. 6, 1911 ; No. 5435.] The above claim is submitted to this office with special reference to the question whether there is sufficient evidence of connection be- tween the alleged accident and the claimant's incapacity. The immediate report describes the accident as follows: With three other men he was carrying section through slide ahead of steam shovel 219. His feet stuck in the mud and he fell, and section fell across his Stomach. It is stated that there were three eyewitnesses to the accident, but no statements are furnished from these witnesses. In a supplemental affidavit, dated November 30, 1910, claimant gives the following account of the accident: While carrying section of rail to front of steam shovel No. 219, in cut between Eio Grande and Culebra, I stumbled on account of the mud and section struck me in tlie left groin. Tlien I felt considerable pain there, and I immediately told my Italian foreman, Carlos Baretto, who gave me a paper to go to Culebra Hospital, where I went without delay. On the same day, i. e., November 16, 1910, I was sent to Ancon Hospital, where I am at present. I have been working for the commission about 21 years and never had hernia before this. Thus it is noted that claimant alleges he met with the accident on November 16, 1910; that there were three eyewitnesses to the same, and that he immediately went to the hospital. There he was operated on, and the physician makes the following explanation of the case : Operation findings: Medium-sized old hernia; absolutely inconsistent with patient's statements. It will be observed that the physician states that the findings at the operation were inconsistent with the claimant's statement. To what particular statement of claimant this refers is not clear, though it is believed to be the one wherein he states that he never had hernia before. While it may be a fact that claimant did have a hernia, it may also be true that this hernia caused him no incapacity during his two and one-half years' employment on the canal. If, therefore, he sustained an injury on November 16, which aggravated the condition to such an extent as to cause the incapacity which began simul- taneously with the alleged happening of the accident, he would never- OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 729 theless be entitled to compensation. The Department has frequently ruled that claimant is entitled to compensation where an existing ailment, not interfering with his work, is aggravated by an injury received in the course of employment which disables him from per- forming the regular duties of his occupation. (See case of Philip Jarvis, C 1699, Bu. 3202). It is therefore recommended that the claim be returned for further evidence, if there be any, to show whether an injury was actually sustained November 16, 1910, and whether the claimant had been incapacitated on account of hernia prior thereto. [In re claim of Augustin Mlro, Mar. 18, 1911 ; No. 5435.] This claim has been previously considered by this office and is again submitted with special reference to the question whether there is suiScient evidence of connection between the alleged accident and the claimant's incapacity. In the immediate report of injury, it appears that claimant was injured while in course of employment, and without negligence or misconduct on his part, in the following manner : With three other men he was carrying section through slide ahead of steam shovel. 21!). His feet stuck in the mud and he fell and the section fell across his stomach. The names of three eyewitnesses to the accident appeared in the report, but their statements were not furnished. The claimant, in an affidavit, alleged that he was injured on November 16, 1910; that he immediately went to the hospital where an operation was performed for hernia, and that he never had hernia before. The physician who attended him certified as follows : Operation findings: Medium-sized old hernia; absolutely inconsistent with patient's statements. There being some doubt as to what particular statement of claimant the physician referred, this office, in its opinion of February 6, 1911, recommended that the claim be returned for further evidence, to show whether an injury was actually sustained on November 16, 1910, and whether claimant had been incapacitated on account of hernia prior thereto. The claim is again before this office with the affidavits of two eye- witnesses and an additional affidavit of claimant, which are as follows: On November 16, 1910, we were employed as laborers in the cut at Culebra, Canal Zone, in gang No. 697, around steam shovel No. 219. Augustin Miro, check No. 10311, was also employed there. About 11 o'clock in the morning of that day the foreman told Miro, three other men, and these deponents to carry a section of track to a point approximately 20 or 25 feet away. Miro was in front on the right-hand end of the .section, another man (since deceased) was in front in the center, and deponent Garcia was in front on the left-hand end. Deponent Alonzo and two other men held the rear of the section. On account of the lienvy rains there was a great deal of mud there, reaching to the knees; also many rocks. The men in front fell down, and Miro, with his arms outstretched, fell on top of the section, striking left side in the region of stomach against his end of the section. He got up and put both hands to that part of his body, exclaim- ing in a pained way that he hurt himself. He appeared to be about to sink to the ground and we took his arms and supported him comfortably to the groimd to rest himself. The foreman, Carlos Baretto (who is now in the hospital) came up to inquix'e what was the matter, and then Miro explained how he got hurt and said he couldn't work any more. Nobody else was hurt. Deponents then Y30 workmen's compensation under A,CT of may 30, 19US. resumed work, and in about 10 minutes the colored timekeeper gave Mlro a paper to go to the hospital. Then he went to the hospital. By that time he was able to walk without assistance. The claimant's additional affidavit, dated February 24, 1911, is as follows : I have heard read the affidavit made this day jointly by Fabrlciano Alonzo and Pedro Garcia concerning the manner In which I was injured on November 16, 1910, while carrying section of track in Culebra Cut, and the same is true in all respects. I have been working for the commission since June 8, 1908, and, with the exception of about two months in hospital on account of fever, lost no time from work on account of hernia nor Avas I treated for hernia at any time even without losing time from work. From the foregoing affidavits it is clear that claimant has satisfac- torily established the happening of the accident as alleged in his claim, and that he actually sustained an injury on November 16, 1910. In his affidavit, above quoted, he says that he " lost no time from work on account of hernia nor was I treated for hernia at any time even without losing time from work." The physician's certifi- cate, however, states that the operation disclosed a medium-sized old hernia. Therefore, in view of the fact that claimant met with the accident as alleged, and that the operation disclosed a hernia, it may reasonably be assumed that the injury sustained on November 16, 1910, was the exciting factor of an existing ailment, and as this office has previously ruled that in cases where such an ailment does not interfere with the work, but is aggravated by an injury received in the course of employment, without negligence or misconduct, which disables the claimant from the performances of the regular duties of his occupation, he is deemed to have suffered such an injury within the meaning of the act as would entitle him to compensation. (See case of Philip Jarvis, C 1699, Bu. 3202.) From the evidence as now furnished, I am of the opinion that the claimant has satisfactorily established the connection between the nccident and incapacity and, therefore, I have the honor to recommend that the claim be approved. 20. Consideration of evidence justifying approval of claim made after employee had quit the service of the United States, tiit based on an injury received while in the service, it appearing that he knew nothing of the compensa- tion act and quit because he was unable to continue work. [In re claim of T. H. Watson, Feb. 14, 19H ; No. 55«6.] Tlie claimant in this case was injured (in the course of his employ- ment and without negligence or misconduct on his part) Aprd 27, 1909. Claim for compensation was filed October 3, 1910, 17 months after the injury. In the meantime the claimant had resigned from the service of the Isthmian Canal Commission, in which he had been employed. May 15, 1909, some two or three weeks after the injury. The case is submitted with reference to the question whether there is sufficient evidence of incapacity resulting from the injury to warrant the approval of payment of compensation. The claimant is a carpenter, and was injured while working at the Gorgona shops. In lowering a truss he was accidentally thrown into the air, and in falling, received the injury. After the accident OPINIONS OF SOLICITOR, DEPABTMENT OF LABOE. 731' he was taken to Ancon Hospital, where he remained and was treated for 14 days, or until May 11, 1909. On that date he returned to work, worked five days, and resigned May 15, 1909. From the date of the accident until May 11, 1909, when he left the hospital, he received pay on " account of meritorious sick leave." From May 11 to May 15, when he resigned, ho received pay for services. The physician at the hospital described the injury as " contusion of right thigh, abrasion and contusion of left arm, pain, disability, and stiffness of muscles adjacent," and further stated that the claimant was " practically well when discharged." On returning to the United States claimant was treated by a physician at his home, in KnoxvUle, Tenn., from June 2, 1909, to August 12, 1910. This physician certi- fies that claimant's injury was a " fracture of hip and contusion of soft parts of arms"; that the results of this injury are, in his opinion, likely to be permanent, and are " tenderness and pain in hip and knee, atrophy of gluteal muscles, ' referred pain ' to knee indicates hip-joint disease." He further states that claimant "is still (Sept. 30, 1910) having trouble from above injury. He is not able to do manual labor most of the time." On August 9, 1909, about three months subsequent to the date of injury, and after his return home, claimant wrote as follows to an official of the quartermaster's department of the Canal Commission : What would be the chances of getting a job with you if I was down there? Who must I write to about getting my medal for my service over there? I went there in January, 1907, and came away in May, 1909. Hoping I may hear from you soon, etc. In an affidavit filed by claimant in support of his claim it is said : * * * He struck the floor with such force his right hip was badly hurt, and was confined in the hospital, where he was treated for said hurt for 14 days. After being released returned to work. His hip was bady fractured from the fall, so much so that he was unable to get around to do good work. He then resigned on account of the fractured hip. His physical condition on August 6, 1909, when he filed his application for reemployment, was good, except his hip. The commission refused to reemploy him. * * * gmce his return to the States he has been able to do about one-half work. For three months after his return he was not able to do any work whatever. Tlie reason he did not file sooner was, he did not know he could recover damage until he wrote to the commission, who sent him a blank application, which he filled out and filed. Upon a careful consideration of the facts in this case I think it is apparent that the claim is a meritorious one. The fact that the claimant was injured in the course of his employment is established, and taking all the evidence together, it is clear that the injury was not only more serious than at first supposed, either by the physician by whom he was first treated or by himself, but that the injury, in- stead of consisting of a mere contusion of the hip, turned out to be a fracture, resulting in hip disease, disabling the claimant for many months and probably permanently. The fact that the claimant re- turned to work shortly after his injury, worked five days, in the light of subsequent developmentsj shows that the gravity of his in- jury was not appreciated at the time, which is further shown by the fact that he could not do good work and felt obliged to resign. The fact that he applied for reemployment some four months after the injury merely shows that, being in good general health at the time, he did not even then foresee the result of his injury. The inability "732 woekmen's compensation under act op may 30, 1908. of the claimant to resume "work, in the sense of the compensation act, is shown by the fact that he has since been unable to work at his trade except intermittently. By reason of his leaving his employ- ment so soon after the accident, it is not surprising that he should have been ignorant of his right to claim compensation. In view of this ignorance, and in view of the progressive nature of his injury, the delay in filing his claim is not unreasonable. (Trost case, C 2397, Bu. 1517.) The chief difficulty in the way of allowing the claim is the fact that the claimant, by his own act, ceased to be an employee of the United States before the accrual of any right to actual compensation under the act. Claimant was paid his wages up to the time of his resignation, either on account of services rendered or " on account of meritorious sick leave." Having up to that time already received the exact equivalent of any compensation due him under the act, he is not entitled to any further compensation for that period. The question is, therefore, whether any right to compensa- tion follows the claimant after such a severance of the relation of employer and employee, notwithstanding that his subsequent disa- bility is directly traceable to an injury previously received in the course of employment, without negligence or misconduct on his part. As stated in the Howley case (C 610, Bu. 1987) : There is nothing in the compensation act which would justify following a man after he has voluntarily severed the relation of employer and employee so as to entitle him to the benefits of the act in ease he should afterwards become incapacitated, even though he might be able to trace the injury back to a cause which arose in the course of his employment by the United States. In that case the employee received compensation under the act covering several weeks. When he returned to work, he was, accord- ing to the statements of three physicians, fully recovered. After working a time he voluntarily resigned and left his place of employ- ment in the Canal Zone and returned to his home in the States. Considering these facts, the opinion above referred to said: It is to be observed that, aside from the statement of the physician who made the examination in Covington, there is no evidence that the wound was not healed when the claimant resigned his position on January 19 and left for the States. On the other hand, the three physicians who examised the man shortly before he left the Isthmus reported that the wound was healed. * * * Furthermore, unless the conditions which Dr. Eckman found to exist when he performed the second operation clearly indicate that on January 19, 1909, the wound was not healed, and that Mr. Howley teas not able to work at the time he severed his connection with the Isthmian Canal Commission hy resign^ ing, he must be regarded as entirely outside the scope of the compensation act. If he is entitled to compensation at all, it must be from January 19. At the time he resigned he was at work for the Canal Commission, and, so far as any evidence to the contrary is concerned, he might have continued his work if he had chosen to do so. In the present case, however, the man was ignorant of his right to compensation, and he resigned or quit simply because he could not go on with his work. He was injured and was incapacitated for 14 days, during which he was absent on sick leave. Then he tried to, and did, in a sense, resume work, but after five days found he was unable to continue, and, on account of his injury and not knowing that he would be entitled to any compensation from the Government, he resigned and left the Isthmus for his home. His was not such a voluntary resignation as was spoken of in the Howley case. As there indicated, if it had been found that Mr. Howley was, on January 19, OPINIONS OP SOLICITOR, DBPAETMBNT OF LABOR. 733 when he resigned, unable to work hj reason of his injury, the decision in that case would have been different. The fact that at the time of the resignation the claimant herein had not been incapacitated for more than 15 days does not affect his right to compensation. If by reason of his injury he was compelled to quit his work after five days of effort to work and he was then unable to work for two days, his right to compensation accrued under the provisions of the act as construed in the Wells case (C 19, Bu. 135), and the amount received on account of meritorious sick leave should, under the decision of the comptroller in the Shandley case (15 Comp. Dec, 394), be refunded or regarded as refunded. The payment thus made on account of meritorious sick leave might then be made or be deemed to have been made under the compensation act. Subsequent payments would necessarily be made under that act. Based on the considerations above indicated, the conclusion is reached that the claimant in this case is entitled to the benefits of the compensation act. 21. Cases in which the effect of claimant's resignation from service upon right to compensation is considered. [In re claim of Charles Salzmann, May 6, 1911 ; No. 3162.] The above claim was originally approved for payment for a period of six months ending July 13, 1910, on March 29, 1910, and payments were accordingly made thereunder. As claimant did not report for work at that time, the Department requested Dr. Bang, of New York City, to make an examination and report on the case. The report of Dr. Bang, dated August 10, 1910, stated that " some. atrophy of L. leg will always remain. L. leg motion is normal. Clt. is fit to go back to work now. L. leg will get stronger in time." This report showing that claimant was able to go to work at that time, and there being no medical evidence to the contrary, further compensation was denied on August 18, 1910. Upon receiving notice of the disapproval of the claim, Salzmann wrote a letter and made an affidavit under date of October 21, 1910, explaining the case and furnished five medical certificates. The affidavit is as follows : Upon the recommendation of the medical examining board, Colon Hospital, approved by Col. Goethals, chairman and chief engineer, I was authorized to go to the United States and remain there for recuperation for two months — June 12 to August 12, 1910. Subsequently this period was extended for 30 days additional. I left Colon on June 12, 1910, and arrived in New York June 18, 1910. Between June 18 and June 28, I remained at the home of my married sister, Mrs. William Ihnken, 109 Cantallo Street, Weehawken, N. J. During this time I did no work whatever, just rested. June 28, I went to Dr. C. Hoenig, 928 Hudson Street, Hoboken, N. J., for treatment, as per certificate herewith. Soon after he went to Europe and thereafter I placed myself in the hands of Dr. Phillip J. Genther, 384 Court Street, Brooklyn, N. Y., as per certificate also attached hereto, showing that he treated me three or four times up to September 12, 1910. From June 28 to September 12 I did no work whatever. I was In the German Hospital, New York, for two weeks, August 11 to August 25, 1910, as per paid receipts here- with, but this had nothing to do with my injury, being treated for kidney trouble, and I only mentioned it to show that I was not working. I showed them my leg and they said they could do nothing with it. During all this time, June 12 to September 12, my leg pained me and was stiff, and I can even now hardly walk on it. It is stiff at the bottom. 734 workmen's compensation undbb act of may 30, 1908. After September 12, I received no further treatment from any doctor, but I continued to bathe my leg in hot water, as I had been instructed to do by Dr. Noland of Colon Hospital, who also told me that I would have to depend very largely on nature to cure my leg. Dr. Noland also suggested to me that if I went to a doctor about once a month that that would be suflBcient so far as requiring medical advice and guidance was concerned. Between September 12 and October 5, when I sailed from New York to re- turn to the Isthmus, I was not able to work and actually did no work. My authorized leave, however, expired September 12, 1910. I arrived on the Isthmus October 11, 1910, and the following day reported for duty. One of the medical certificates is from Dr. Lloyd Noland of the Colon Hospital, which certifies to the incapacity up to the time claim- ant left for his home on June 12, 1910. Another one is from Dr. Hoening, of Hoboken, N. J., dated June 28, 1910, wherein it is stated that — The wound on his leg * * * left side is healed with anesthesia of the median side of the left fqot. Another certificate, which bears no date, is from Dr. P. J. Genther, of Brooklyn, N. Y., in which he says : Mr. Charles Salemann residing at Weehawken, N. J., suffering from the effects of a lacerated wound of the left leg. I have seen him three or four times between June 12 and September 12, 1910. The other two certificates have no bearing on the injury as stated by claimant in his aflSdavit. From September 12, 1910, until his re- turn to work, claimant received no medical treatment, but followed the directions given him by the physician at Colon, and bathed the injured leg in hot water. On October 5, 1910, he sailed for the Isthmus, reaching there on October 11, and immediately reported for duty, but he was informed that he had been discharged on July 13, 1910. After visiting a number of officials, he was finally, on October 17, put to work at a reduced rate of wages, the reason for which does not appear from the record. Under date of November 20, 1910, he handed in his resignation to take effect on November 25, 1910, stat- ing therein that he resigned " on account of unsatisfactory wages." Subsequently thereto, viz, on December 17, 1910, he again became incapacitated from his original injury to such an extent that he was sent to Colon Hospital. The physician's certificate shows that he was still under treatment at that place on February 22, 1911. Under date of April 7, 1911, the claim was approved for payment from November 23, 1910, to January 13, 1911, at which time it was not known that claimant had resigned on " account of unsatisfactory wages," it being shown by the record that on November 23, 1910, he was compelled to quit work on account of his leg. (See affidavit of claimant dated Mar. 21, 1911.) At that time, however, he had ten- dered his resignation to take effect on November 25, 1910. Notice of the approval having been received at the Canal Zone, the papers were returned with the original resignation of claimant, so that the same could be considered in connection with the claim. Upon a review of the entire record in this case it appears from the medical testimony and the affidavit of claimant that he was incapaci- tated for performing his usual work on account of the injury received on January 13, 1910, from that date to the time when he decided to return to work, which was about October 5, 1910. From October 5 to 17 he was engaged in returning from his home to his place of em- ployment, and in taking the necessary steps for reinstatement. This OPINIONS OP SOLICITOR, DEPARTMENT OP LABOR. 735 latter period of absence from work was occasioned by reason of the injury, and may be said to be incidental thereto as a part of the time claimant is unable to resume wor)s on account of the injury. The only statement in the testimony to show that claimant was able to resume work prior to the time he did is found in the report of Dr. Bang, wherein he says : " Clt. is fit to go back to work now." (Aug. 10, 1910.) This, of coilrse, was a matter of opinion on the part of the physician, based upon his examination. His findings, howcTer, and subsequent developments tend to show that he was evidently mis- taken in that regard. He found upon examination that there was " some atrophy of L. leg," being the one which was injured, and that the " L. leg will get stronger in time." The findings prove con- clusively that claimant had not entirely recovered at the time he stated that claimant was able to go back to work, and the fact- that claimant again became incapacitated from the same injury within a short time after he resumed work certainly bears out the contention of claimant that he had not entirely recovered on August 10, 1910, and justifies his action in not returning to work at that time. The question as to what further compensation claimant is entitled to is somewhat involved in doubt. It has been noted that on Novem- ber 20, 1910, he resigned, to take effect on November 25, on account of unsatisfactory wages. If the circumstances of the case ended there, the principle laid down in Howley's case (C 610) would be applicable, and no further compensation would be allowable. In that case I said: At the time tie resigned lie was at work for the canal commission, and so far as any evidence to the contrary is concerned, he might have continued at his work if he had chosen to do so. There is nothing in the compensation act which would justify following a man after he has voluntarily severed the relation of employer and employee, so as to entitle him to the benefits of the act In case he should afterwards become incapacitated, even though he might be able to trace the Injury back to a cause which arose in the course of his employment by the United States. But it is seen from the affidavit of claimant, dated March 21, 1911, that he says : I worked at this job from October 17th, 10, to and including Nov. 22/10. During this period, October 17th to Nov. 22/10, my leg always troubled me. Nov. 23rd, 10, I was compelled to quit on account of my leg. From Nov. 23rd to Dec. 10th, 10, I was in quarters and all during this time I used linament on my leg. This, however, seemed to do little or no good. My leg during this period was very painful, and on Dec. 17th, 10, I went to see Dr. Noland and was advised by him, after being examined, that I had best come in the hospital for treatment. I was In Colon Hospital from Dec. 17/10 to Feb'y 22nd. This period being covered by a certificate from Dr. Noland. Although my last stay in the hospital covered a period of two months, my leg did not Improve with the treatment and is now as painful as ever. I am unable to keep my weight on It for any length of time. It is observed from the foregoing that prior to the resignation becoming effective the status of claimant had changed from that of an employee performing services for the Government to that of a beneficiary under the compensation act. The act provides for the payment of compensation to persons employed by the United States, who are injured in the course of employment, without negligence or misconduct on their part, for a period of one year should the in- capacity last that long. Upon receiving an injury under those condi- tions an inchoate right to compensation immediately attaches, and 736 "workmen's compensation under act op may 30, 1908. when the incapacity to resume work exists for a period of more than 15 days the right becomes complete. If it is to be believed that claimant actually became incapacitated on November 23, 1910, then his status as a beneficiary attaches, and there was no field for the operation of the resignation on November 25, 1910, as the reason for the resignation ceased when the incapacity became efl'ective ; therefore the claimant would be entitled to compensation from November 23, 1910, to January 13, 1911, which would cover the year for which claimant was entitled to compensation on account of the injury of January 13, 1910. On the other hand, if it were shown that claimant was only feigning incapacity on November 23, 1910, for the purpose of securing compensation, then the resignation would have become effective on November 25, 1910, and claimant would no longer be an employee of the United States, and any incapacity arising after that date would be barred from compensation under the Howley case. There is nothing in the record to show that this was the case in the present instance, so, unless the Isthmian Canal Commission can pro- duce satisfactory evidence to establish that fact, I am of the opinion that claimant is entitled to the further payment of compensation for all time lost on account of the injury between July 13, 1910, and January 13, 1911. [In re claim of Louis Wardlow, July 3, 1911 ; No. 5913.] The above claim is referred to this office with the following inquiry : Is claimant entitled to further compensation for time lost after February 15, 1911? Under date of February 20, 1911, claim was approved in favor of this claimant for the time between August 9 and 12, 1910, and from January 7 to 28, 1911. Claimant returned to work on January 30, 1911, and continued thereat until February 15, 1911. He has now filed claim for continuance of compensation to date from the latter date. In support of the claim there is furnished a certificate from the at- tending physician, dated May 15, 1911, wherein it is said that the further period of incapacity is indefinite. It is also stated that " a fistula (rectal) has persisted, notwithstanding treatment, until the present time." In explanation of the claim, the officer in charge of the arsenal makes the following statement, under date of May 16, 1911 : 1. I have the honor to inclose claim for compensation of employee in the case of Louis Wardlow. 2. Louis Wardlow resigned February 16, 1911, since which date he has not been an employee of this arsenal. 3. This man claimed compensation in claim submitted February 9, 1911, and pay for 21 days to include January 28, 1911, was allowed by the Secretary of Commerce and Labor. 4. It is thought that this man is not entitled to compensation since he was separated from the service by resignation. His service was not such as to make reemployment desirable. There is a further report from the same official, dated June 3, 1911, to the following effect, which was in reply to a letter from the Acting Secretary requesting further information : In response to the request of the Acting Secretary of the Department of Com- merce and Labor, I would report that Mr. Louis Wardlow resigned on February OPINIONS OF SOLICITOR, DBPABTMENT OF LABOR. 737 16 without making any reference to his disability. He had worked to Include February 15, and had made no complaint of his disability. It is understood that he resigned his position at this arsenal for the purpose of enlisting in the Army, and, in fact, he did make application to the recruiting officer at this post for enlistment. There is also furnished a further statement from the attending physician, dated June 2, 1911, in regard to the condition of claimant, which, in part, is as follows : Under certain conditions he is now able to do some work, but a certain dis- ability persists. He may be able to work for a time and then may be compelled to rest for a time. The condition is one which gets better and then worse. It is noted that claimant makes the following statement in his ap- plication for further compensation dated May 15, 1911 : * * * received pay up to about January 27 ; since that time have severed all connections with the Government, but am unable to work. Resumed work about January 27, 1911, and continued until February 15, from which date I claim pay. There are two points of difficulty in the way of an allowance of this claim. First, claimant is no longer an employee of the United States, and, second, it is not altogether clear that he is unable to resume work. The claimant was injured in June, 1910, and has been allowed compensation for a few days in August, 1910, and for about three weeks in January, 1911. In spite of the length of time that has elapsed since the receipt of an apparently trifling injury, so far as the record shows, and so far as anything to the contrary appears, he still suffers from the effects of that injury. Notwithstanding the injury, however, he worked at his employment from the middle of August, 1910, to early in January, 1911, and, following an absence of three weeks in January, he again worked at his employment until Febru- ary 15, 1911, when he resigned. His present claim is for compensa- tion for alleged disability following the date last named. Ordinarily, "there is nothing in the compensation act which would justify fol- lowing a man after he has voluntarily severed the relation of em- ployer and employee, so far as to entitle him to the benefits of the act in case he should afterward become incapacitated, even though he might be able to trace the injury back to a cause which arose in the course of his employment by the United States." (Howley case, C 610, Nov. 11, 1909.) On the other hand, compensation may be pay- able notwithstanding the fact that the injured person may be sep- arated from the service, as where he has been discharged or where he has resigned in ignorance of his right to compensation, or under a mistaken belief that his injury has been cured. (17 Comp. Dec, 568; Watson case, C 5566, Feb. 14, 1911.) In the present case the circum- stances under which the claimant resigned from the service are not clear, and it is recommended that further information be obtained on this point. The claimant states that he is now unable to work. This statement is not easy of belief, when it is remembered that the claimant's injury, sustained a year ago, consisted merely of a bruise in the groin, which developed into an abscess and later into a fistula; that he continued at work, following the injury, from the latter part of Jime until August 9, 1910, and from August 12 until January 7, 1911, and again from January 30 to February 15, 1911, the date of his resignation. If, as reported by claimant's official superior, claimant resigned for 93364°— 15 47 738 workmen's compensation undee act op may 30, 1908. the purpose of enlisting in the Army, it can not be supposed that his resignation was in any way due to a disability caused by his injury. Before finally passing on the claim, therefore, it is thought that addi- tional information should be had directly bearing on the question whethor or not claimant is unable to resume work by reason of any disability attributable to his original injury in June, 1910, [In re claim of Louis Wardlow, Aug. 22, 1911 ; No. 5913.] The above claim is resubmitted to this office with special reference to the question whether claimant is entitled to further compensation for time lost after February 15, 1911. Under date of July 3, 1911, this claim was returned by this office, with the recommendation that further, evidence be secured with ref- erence, first, to the reason why claimant resigned from the service on February 15, 1911, and, secondly, whether claimant is unable to. re- sume work on account of any disability attributable to the original injury in June, 1910. In compliance with these recommendations, further evidence is now submitted in the form of a statement from claimant, giving his reason for resigning and a statement from a physician who examined claimant on August 2, 1911, by direction of the Secretary. In examining the statement of claimant, it is found that he re- signed from the service because of the fact that he had some trouble with his immediate superior, after which time he states that he was unable to do work which was acceptable to the said superior. It further appears that up to the time of his resignation on February 15, 1911, he had continued at his work, and that the former injury had nothing whatever to do with the resignation ; that, furthermore, since the resignation, claimant has on several occasions made appli- cation for reinstatement. It is noted that claimant contends that he was unable to do any heavy work, but at the same time he returned to his former work on January 30, 1911, continued thereat until the date of his resignation, and during this time it appears that he was able to do his former work, and, from his desire to be reinstated after his resignation, it would appear that he was still able to do the same work. The certificate of the examining physician states, "at present patient is able to do light work," and that the disability is due to the original injury. The medical evidence, therefore, shows that at the date of the examination, viz, August 2, 1911, claimant was still suffering from the effects of his injury, though able to do light work. On the other hand, the statement of claimant shows, together with the circumstances as above related, that at the time of the resignation he had returned to and was performing the same character of work he was doing at the time of the injury. In view of this, I am of the opinion that the principle laid down in Howley's case (C 610) is applicable, wherein it was held: There Is nothing In the compensation act which would justify following a man after he has voluntarily severed the relation of employer and employee, so far as to entitle him to the benefits of the act in case he should afterwards become incapacitated, even though he might be able to trace the injury bact to a cause which arose In the course of his employment by the United States. For this reason the claim should be disapproved. OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 739 [In re claim of C. E. Bennett, Oct. 16, 1911 ; No. 7388.] From the papers herewith it is observed that claimant was first employed on December 5, 1910, and that shortly after starting on his work he received an injury on the left leg caused by a stone rolling down the hill where he was engaged, strikmg him on the leg. About three 'hours thereafter he reported the injury and showed the result thereof to his foreman, at the same time stating that he intended quitting his job and going to work for Crump's mill. He was then paid by the foreman out of his own pocket for the few hours' work he had performed, and his name was not entered on the pay roll of employees. He then left for Crump's mill, a distance of between 2 and 3 miles, walking this distance, and the foreman states that he was informed that claimant went to work immediately on his arrival there. In his affidavit claimant alleges that he was injured at 9.30 a. m. on December 5, 1910; that he was in bed for six weeks; that he has been incapacitated ever since he was hurt; that he was then (Apr. 18, 1911) unable to do his ordinary work; and that he left his employ- ment on January 6, because he was not able to do the work; and that his leg gave him so much trouble that he could not work regu- larly. No physician's certificate is furnished by claimant, the ab- sence of which is explained by him on the ground that his attending physician is now dead, having died on January 18, 1911. There is no question but that claimaijt was injured in the course of his employment without negligence or misconduct on his part, as shown by the record. Upon the face of the record, however, these two questions are apparent : 1. Did claimant quit work because of the injury or for some other reason? 2. Did the injury cause incapacity for performing the duties of the work upon which he was engaged ? Upon the first question there is a direct and positive conflict in the evidence furnished. The foreman, on one hand, says that he quit to seek other employment, and did immediately thereafter enter into that employment after walking between 2 and 3 miles. Claimant, on the other hand, contends that he was immediately thereafter incapaci- tated, and that he left the employment on January 6, 1911. An ex- amination of the records by the War Department reveals the fact that the name of the claimant does not appear on any of the pay rolls dur- ing that period of time, so it would appear that this fact supports the statement of the foreman that claimant did not continue in the em- ployment after December 5. 1910, and this fact may, therefore, be said to be satisfactorily established. This being true, it follows that claim- ant resigned on December 5, 1910, and immediately thereafter took up other employment, and that at the time he resigned he did not allege that it was on account of the injury, but because he wanted to secure employment elsewhere. In view of this fact it appears that the con- clusion rreached in the case of George B. Howley (C 610) is ap- plicable, wherein it was held : That there is nothing In the act which would justify following a man after he has voluntarily severed his relation of employer and employee to entitle him to the benefits of the act in case he should afterwards become incapaci- tated, even though he might be able to trace the injury back to a case which arose in the course of employment. 740 WOEKMEN 'S COMPENSATION UNDEB ACT OF MAY 30, 1908. As this conclusion indicates that the claim can not be allowed, it is unnecessary to consider the second inquiry above set out, but it may be said, while passing on the matter, that there is not sufficient evi- dence to establish the fact that the injury caused incapacity, and in the present condition of the record the claim could not be recom- mended for approval for that reason were it otherwise allowable. 2S. Circumstances held to corroborate claimant's unsupported statement as to injury in tlie absence of proof to the contrary. [In re claim of J. W. Davis, July 20, 1911; No. 6664.] The papers in this case were returned on June 10, 1911, with a recommendation that further statements be secured before final action was taken on the claim, as it did not appear at that time that there was sufficient evidence at hand to satisfactorily establish the hap- pening of an accident, or that the incapacity was due to an injury received in the course of employment. There are now furnished statements by the claimant and the engi- neer in charge of the work and an affidavit of claimant dated July 5, 1911. When the record was first presented it was stated therein that the accident resulted from a stone being dropped by an Indian who was helping claimant in his work, but no statement was fur- nished from the Indian. As it was thought that such statement could easily be scoured, recommenSation was made to that effect. It now appears from the statement of the engineer that the Indians who were then employed on the work are no longer there, and it is im- possible to identify or locate the man who was helping claimant at that time. As the Indian was the only person present at the time of the accident, it is therefore impossible to secure any eyewitness testi- mony corroborative of the happening of the accident. It then appears that the happening of the accident can only be established in this case by the affidavit of claimant and the circumstances surrounding the case. In his supplemental affidavit of July 5, 1911, claimant makes the following additional explanation of the accident and resulting injury : Affiant further says that at no time prior to the 9th day of February, 1911, when the said injury was sustained by affiant at Eoosevelt, has he suffered any injury of any kind or nature to either of his legs, nor has he had any trouble of any kind or nature prior to said date to either of his legs ; and affiant further states that the injury sustained by him, as aforesaid, was caused by an Indian in the employ of said Reclamation Service ; that the name of said Indian is unknown to affiant, except that he was called Harry; that the tribe of said Indian is unknown to affiant; that the said Indian was working as a helper to affiant only for a period of about three days prior to said injury, and did not work as his helper thereafter; that it is impossible for affiant, owing to the above circumstances, to obtain a statement from this Indian, and affiant states that he is without means to go to Roosevelt to locate said Indian; affiant further states that since he left the employment of the said Reclamation Service and up to and including the present time he has been unable to follow Ms work as a stonecutter and has been only able to eke out a bare existence by doing odd jobs which required no skill and little labor. The statement of claimant that he had not suffered a prior injury was desired because of the fact that the Government physician who first attended him made the following statement: In my opinion Mr. Davis's injury dates back to a long time before coming here, although it would be hard to make that statement as a positive fact OPINIONS OF SOLICITOR, DEPARTMENT OP LABOR. 741 The fact that claimant had performed his work up to within a few weeks after the alleged accident, together with his affidavit deny- ing a prior injury to the leg, would seem to effectually dispose of the presumption of the physician that there had been a previous injury. In a letter dated March 29, 1911, from the field clerk to the engi- neer in charge, there is the following statement: I know of very little concerning the case that is not covered by the letter of Dr. Holm. I first learned of the injury on the, day Davis reported to the doctor for treatment. Upon the statement of the latter that, in his opinion the in- jury caused by the falling stone had simply aggravated an old trouble, and that the stone bruise, of itself, was not serious enough to cause absence from work, and as the injured man had remained at work steadily for about 10 days after the accident, I concluded that a report (required by the act of May 30, 1908, In cases of disability) was not necessary in this instance. Thus it is seen from this statement that there is evidence that the claimant had a stone bruise. The physician to whom this refers is the Government physician who made a report on the case dated March 14, 1911, but in that report he said nothing about there being a stone bruise. In that statement he assumed that there had been a prior injury, but he further stated that " dropping a rock on it undoubtedly aggravated his condition." From a review of the entire record as now presented, it may be said that if full faith and credit is given to the affidavits of claimant, wherein he says that prior to the time of the alleged accident he had no trouble with his leg, and, that subsequently thereto, and up to the present time, as shown by the medical statements, the infection of the Teg has gradually increased from a mere ulcer below the knee to an infection of the entire leg, then it may be safe to assume that claim- ant met with the accident as claimed by him. There is nothing in the record worthy of consideration to dispute the same, as the only thing found to raise any question was the statement of the Govern- ment physician that in his opinion there had been a prior injury. And even this statement was made with a reservation wherein he said " although it would be hard to make that statement as a positive fact." It therefore appears that the statement of claimant with regard to the happening of the accident is amply supported by cijcumstances of such a nature as to justify giving full faith and credit to his statement, so I am of the opinion that there is sufficient evidence in the record to establish the happening of an accident, as alleged by claimant on February 9, 1911, and that the incapacity beginning February 26, 1911, is directly due and traceable to the said accident. In view of that conclusion, I have the honor to recommend that the claim be approved for payment. 23. Additional evidence sought by department held to establish fact of injury as alleged. [In re claim of CliflEord Westberg, Dec. 27, 1911 ; No. 7538.] This claim was returned by this office under date of November 11, 1911, with the suggestion that further information be secured. The claim was accordingly returned to the yard officials with a request that the information desired by this office be furnished. The infer- 742 WORKMEN ^S COMPENSATION UNDEE ACT OF MAY 30, 1908. mation wanted consisted of inquiries showing, first, whether there were any witnesses to the happening of the accident ; second, the nature of the investigation made by the chief carpenter with the facts as developed by that investigation instead of the general conclusion reached by him ; third, a detailed statement from claimant as to the circumstances surrounding the accident; fourth, affidavits from any persons having knowledge of claimant's condition from September 25 to October 23 ; fifth, statement from yard surgeon showing whether the condition found by him on examination the day after the injury was consistent with the condition as reported by the attending physician ; and sixth, an expression of opinion by the yard surgeon as to whether the condition reported by the attending physician was likely to cause incapacity for one month. In response to the request for further information there is now furnished a statement showing that there were no witnesses present at the time of the accident, a detailed statement by claimant, and a further certificate from his attending physician, and an affidavit from a person having knowledge of his condition during the early part of October. The information called for in inquiry number 2, above, has not been furnished, nor is there any explanation given of the failure to do so. The fifth and sixth inquiries are answered by a statement from the yard surgeon to the effect that all he knows of the case is found in his indorsement of October 28, 1911, which statement is not responsive to the inquiry and has no reference whatever to the same. Thus it is seen that claimant has furnished everything requested of him, but the yard officials have failed to furnish any additional information which might be of some material assistance in reaching an intelligent conclusion in a case in which they have raised a doubt as to the period of incapacity claimed. In addition to the original medical certificate showing 10 treat- ments during the period from September 24 to October 22, 1911, there is now furnished the following certificate of the attending physician : Clifford Westberg, 325 Lexington Avenue, city, has been attended by me for a contused and. sprained left ankle from September 23 to October 23, 1911, and during this time he was continuously ill and unfitted for work. Claimant further describes the accident and surrounding circum- stances as follows : Sir: In reply to your letter of December 1, 1911, in regard to my injury, I was working in dynamo trunk of U. S. S. Florida, on a hurry-up job, drilling on the bulkhead, when the plank on which I was working turned and my left ankle came in contact with cross beam of scaffold, at 4.30 p. m., September 22. I went to navy-yard doctor Saturday, September 23, and was told to go to my own doctor, tlnable to go to work Monday, September 25, and under the care of Dr. Patterson until October 23. An affidavit is furnished to the following effect : This is to certify that I have known Mr. Clifford Westberg for some years, and that during the early part of October, 1911, he was lame and unable to work, the result, as I understand, of an accident to his leg or ankle while at work in the navy yard in BKOOklyn. The foregoing constitutes all the additional evidence which has been furnished, and when considered in connection with the entire OPINIONS OF SOLICITOR, DEPARTMENT OP LABOR. 743 record in the case, it may be concluded that the following facts are sufficiently established : That at 4.30 o'clock p. m. on September 22, 1911, claimant was injured as alleged by him; that on September 23, at 10 a. m., he reported to the yard surgeon, who examined his injury and advised him to go to his own doctor for treatment; that on September 24 he was first treated by his own physician, who also gave him nine additional treatments between the first treatment on September 24 and the last treatment on October 22, 1911; that the nature of the injury was a sprain and contusion of the left ankle, resulting in swelling, discoloration, tenderness, pain, and inability to use the foot. The only thing in the record to raise a doubt as to the validity of the claim is a statement by the chief carpenter, stating that he had investigated the statements made in the record and found no evidence showing an injury in the course of employment. When called upon for an explanation of this statement which would show the nature of the' investigation made and for a statement of the facts found upon which the conclusion was reached, the record is silent, and apparently no eflforts have been made by the yard officials to supply this infor- mation. In addition to the doubt raised by the statement of the chief car- penter, another doubt was raised as to the period of incapacity by the following statement of the yard surgeon : Westberg reported at this office September 23, 1911, displaying a contusion (slight) of left foot, which he claims he received the previous day in the course of his employment aboard the U. S. S. Florida. He was given first treatment and directed to resume work. The first intimation this department had of Westberg's absence from the yard on account of the above-mentioned injury was on October 21, 1911, when he called at this office and stated that he would return to work October 23. Owing to the above circumstances and the trivial nature of his injury, as known to me, I am of the opinion that it is not a case for compensation. Thus it is seen that the yard surgeon was of the opinion that the injury was trivial and should not cause incapacity, yet, as stated by claimant, which statement stands uncontradicted in the record, he advised treatment by claimant's physician. Following this advice claimant secured the attention of a physician, who treated the injury about 10 times, and who from his knowledge of the injury certifies that claimant was continuously ill and unfitted for work during the period of time claimed. Again, it is noted that when the yard surgeon is requested to state whether the condition shown by the attending physician is consistent with his findings and whether such condition would have caused incapacity for the period claimed he fails or re- fuses to answer the question, contenting himself with the mere state- ment that all he knows of the case is contained in his indorsement of October 28, 1911. In further support of his contention that he was incapacitated claimant furnishes an affidavit which shows that in the early part of October he was lame, and this was some days after the accident. If the injury was as trivial as thought by the yard surgeon, it is rather strange that it should have caused lameness several days afterwards, yet the affidavit states that he was lame in the early part of October and the injury was received September 22, 1911. 744 WOEKMEN 's COMPENSATION UNDER ACT OF MAY 30, 1908. From a consideration of the record as now made up I am of the opinion that the preponderance of the best evidence in the case fully establishes the fact that claimant was incapacitated for resuming work during the period claimed by him, for which reason the claim should be approved for payment. 24. An employee who after an injury had resumed work pursuant to orders, being assigned to lighter duties and was again injured, resulting in immediate incapacity, held to have established a new claim. [In re claim of W. E. Fletcher, May 21, 1912 ; No. 6997.] In this case the question arises whether the incapacity, which began on January 10, 1912, was a recurrence of the original injury of May 25, 1911, or a new injury. The facts in the case under which the question arises are as follows : Claimant was first injured about May 25, 1911, and as it appeared to be trivial, he continued at his work until June 12, 1911, when he became incapacitated for work as a result thereof, and a claim was accordingly approved for a six months' period ending December 11, 1911. In the meantime, viz, on October 9, 1911, he was ordered to return to work of a lighter character than usual, and he continued thereat until January 9, when, as stated in his letter dated May 2, 1912, he " was rehurt by a kerosene tank being rolled against my knee." An immediate report of the matter was made out at once and forwarded, but it was stated therein that the incapacity was due to " a reoccurrence of the prior injury, and has been caused by minor strains and bruises incident to his regular employment, the original injury perhaps not having completely healed." With this understanding of the matter, the claim was again ap- proved for the period ending June 12, 1912, being the end of the compensation year, and claimant has accordingly been paid up to the present time under that approval. It now appears that the present incapacity is of serious moment, requiring an operation, so under date. of May 2, 1912, claimant ad- dressed a letter to the yard construction officer setting forth therein that on January 10, 1912, he met with another accident of a definite nature whereby he was incapacitated, and asking that his claim be approved so that the compensation year would begin with the in- capacity immediately succeeding the injury. The matter was then referred to the yard surgeon, who made the following report under dateof May 8, 1912: This is clearly a case of aggravation of the original injury caused by a re- Injury in January, 1912. Up to this time the knee was very slowly improving, but in my opinion this reinjury seriously increased the trouble, making an operation advisable. Thus, the condition practically amounts to a new injury. Upon receipt of this report the construction officer made the follow- ing recommendations under date of May 9, 1912 : From investigation and from the statements contained in the letter within and the second indorsement thereon the construction officer is of the opinion that the present injury of W. R. Fletcher should be considered as having been incurred on January 10, 1912, he having ceased on October 9, 1911, to be out of employment on account of the previous injury. While a portion of the present injury Is undoubtedly a continuance of the previous injury, still it is OPINION'S OP SOLICITOR, DEPABTMENT OF LABOR. 745 my opinion thnt in view of the second injury he should be entitled to compen- sation for one year from January 10, 1912, unless able to go to work at an earlier date by reason of recovery. Thus it is observed that on January 10, 1912, claimant had so far recovered from his original injury of May 25, 1911, that he was able to perform the regular duties of his employment, although not en- tirely well, and while in the performance of these duties he met with a definite accident which immediately thereafter incapacitated him for work. This accident may have been a trivial one, and had it happened to one who was in perfect physical condition it might not have caused incapacity. I can perceive no distinction between a case of this character and one wherein the employee has an existing ailment which is lighted up and aggravated by a slight accident which would not of itself have caused incapacity but for the pre- existing condition. This office has had occasion in a number of cases to consider the same question, and it has been invariably held that under such cir- cumstances the claimant has been injured within the meaning of that word as used in the compensation act. (See C 1308, Bu. 3444, and C 6709, Bu. 13553.) From a consideration of the facts as now presented by claimant and the yard officials I am of the opinion that the present incapacity should be attributed to the injury received on January 10, 1912, from which date claimant would be entitled to compensation for all time lost during the year following, and which is satisfactorily shown to be due to that injury. 25. In this case the superior officer of claimant recommended that claimant , be paid for only a certain number of days, but gave no satisfactory reason for same. As the medical evidence appeared to substantiate contention of claimant, it was decided that a claim, was established. [In re claim of Frank W. Smith, May 1, 1914.] This claim is specially submitted to this office with the following inquiry: Should the approvals of February 7, 1914, and February 26, 1914, be canceled, in view of the additional information furnished by the Forest Service? Claimant was employed in the Forest Service of the Department of Agriculture, and on June 18, 1913, he was injured, in the course of his employment, by the overturning of a hay wagon upon which he was riding. The fact of his receiving the injury is clearly es- tablished by the reports of his superior officers. The immediate report of the injury, however, was not made out imtil November 4, 1913, which delay is explained thereon to have been due to the fact that the injury was considered only trivial and that he would be able to return to work in a few days. It will be noted, however, that a period of nearly five months elapsed between the date of the accident and the date of the report. Under date of January 19, 1914, the claimant made affidavit, set- ting forth the fact of his injury, wherein he stated that he had been incapacitated from Jime 18, 1913 — the date of the accident^to the date of the affidavit, and that he had not been able to do any work during the interim. Claimant also furnished a certificate from his "746 workmen's compensation under act of mat 30, 1908. attending physician, bearing the same date as his affidavit, wherein it was shown that he first treated the injuries on June 21 and last treated them on August 6, 1913, claimant visiting his office 10 or 12 times during that period. The nature of the injuries are given as "rupture of tendons and muscles of right ankle." It is further stated . that claimant was unable to walk without crutches, but to what period of time this latter remark applies is not clear, since the last treatment was given on August 6, 1913, while the certificate is dated January 19, 1914. The physician further certified that claim- ant was still unable to resume work at the date of the certificate and that he was unable to say when he would be able, but that, owing to age of claimant " and extent of injuries," he was of the opinion that it would be some time before he would be able to perform manual labor. The claim finally reached the Department of Labor sometime dur- ing the month of February, 1914, and as the medical evidence sup- ported the claim of injury and incapacity the same was approved to February 18, 1914. As the record then showed that claimant was still incapacitated, and with no reports to the contrary from the Forest Service officials, the department directed claimant to report to some physician who had not previously treated him; so on February 16, 1914, he reported to Dr. H. P. Belknap, of Prineville, Oreg., who ex- amined him, reporting that he was still unable to resume his work; that he could not tell when he would be able to do so ; and that it would probably be six months or longer. He further states that claimant was lame in right ankle and that he could not bear any weight on that foot for any period of time. Upon this further medi- cal evidence of incapacity being received the claim was again ap- proved on February 26, 1914, for the remainder of the compensation year, subject to the terms and conditions of the original approval with reference to establishing the fact of incapacity subsequerit to the date of the last medical examination or to the satisfaction of his superior officers. Under date of March 19, 1914, the department was advised by an attorney representing claimant that the Forest Service officials had refused to pay the claim on the ground that the work upon which he was engaged was being done by that service for Cook and Wheeler Counties, Oreg., and that the money for his wages was furnished from that source. This letter of the attorney was then forwarded to the Chief Forester and his attention invited to the same, and on May 5, 1914, a letter was received in reply,' forwarding copies of corre- spondence from the district forester at Portland, Oreg., and calling attention to the development of certain facts connected with the case which were not previously shown. It was further stated that pay- ment under the authorizations of February 7 and 26, 1914, would be deferred until a further decision had been received after considera- tion of the new facts. From an investigation of this new evidence it appears that it has relation to the question of the incapacity of claimant subsequent to the date of the accident, and is in the form of a letter from the forest supervisor, Homer Ross, dated April 9, 1914. In this letter the super- visor states that after the camp closed and claimant had gone to Prineville he frequently saw him on the street; that claimant after- OPINIONS OP SOLICITOR, DEPARTMENT OF LABOR. Y47 wards went to the mountains on a camping trip; from there to a ranch on Upper Crooked River, where he was stopping at the time he fell from his wagon and hurt himself again; that he had heard very little of him since last August, when he appeared to be all right; that on April 4, 1914, the deputy supervisor and himself were travel- ing up Crooked River, when their auto became mired, and that claim- ant and another man came out of a near-by house to assist them. He noticed that claimant did not then limp, and that he used a 40-pound pole to help pry the auto out of the mud; that claimant told them that he had hauled a wagonload of dirt and chips and dumped them in that hole. In conclusion the supervisor states that he would not recommend that the claim be approved for more than 100 days. Upon what grounds he bases this conclusion is not disclosed by anything in the letter nor by anything in the record, so very little weight can be given to a recommendation of this character, especially in view of the medi- cal evidence which has been submitted. Now that the compensation year is nearly ended the recommendations come very tardily, so that the department is handicapped in making the necessary medical in- vestigation. As the supervisor states that he observed Smith, as soon after the accident as last August, and that he appeared to be all right at that time, it is not understood why he did not state that fact wlien he forwarded the immediate report in November or when he for- warded his certificate dated January 19, 1914, in which latter cer- tificate he stated that it had been impossible for him to observe Mr. Smith since camp closed down on September 3, 1913. As the matter now stands, the medical evidence substantiates the contention of claimant that he was incapacitated until February 16, 1914. While it does not affirmatively appear from the medical evi- dence that claimant was under the care of a physician from August 6, 1913, until February 16, 1914, yet the fact that the attending physician certified that the incapacity had not terminated on the former date and the examining physician found him incapacitated in the same manner on the latter date would raise the presumption that he was incapacitated in the meantime, especially as the attend- ing physician certified on January 19, 1914, that in his opinion it would be some time before he would be able to perform manual labor. It might be here stated that if the supervisor had reported the fact at the time he first concluded that Smith was all right the de- partment would have been in a position to call for the usual ex- amination in such cases and in all probability the question could have been then more definitely settled; but it seems as though this question was only raised after the supervisor found that he was in error in determining that the claimant was not entitled to compensa- tion because of the fact that he was paid from funds furnished by the Oregon counties. In view of the foregoing I am of the opinion that claimant should be paid in accordance with the approvals as heretofore made, sub- ject, of course, to satisfactory medical evidence being furnished to show further incapacity subsequent to date of last medical examina- tion, on February 16, 1914. 748 woBKMEnr's compensation under act of may 30, 1908. 26. Claimant contended that she struck and injured her arm. while at work in the Bureau of Engraving and Printing; she made no immediate report, as it did not cause incapacity at the time. Review of circum- stances showed same compatible with the truth of statement, and claim held to be established. [In re claim of Cornelia V. Johnson, Feb. 10, 1914.] This claim is" submitted with the following inquiries: Is there sufficient evidence to establish the fact of injury as alleged? If so, is there sufficient evidence of connection between the injury and sub- sequent incaijacity? The claimant in her affidavit alleges that about July 15, 1913, while at work in the Bureau of Engraving and Printing, she struck her arm on the frame of the press, bruising the same and resulting in an abscess; that on September 13, 1913, she became incapacitated, and so remained until September 29, at which time she returned to work, and again becoming incapacitated for the period from Novem- ber 5'to 19, 1913. It also appears that no official report of the alleged injury was made to the bureau officials until the date on which the incapacity began, when an immediate report of injury was made out and for- warded to this department. The medical officer of the bureau re- ports that at that time he found her right elbow infected, and that she attributed her infection to an injury sustained in July, as stated in her claim. He further states that in his opinion it is possible, but improbable, that an injury of such character would not cause incapacity until two months after its occurrence. The immediate report states that there were no witnesses to the accident, but in an interview at the Bureau of Labor Statistics claimant said that when she struck the arm she — dropped the sheet and Mr. Walsh (the printer for whom she was working) laid his plate on the press, and as I dropped the sheet I said, " Oh, I nearly knocked my arm off." He just looked at me and said nothing. I didn't know whether he didn't understand me or didn't care to ask me about it, so I just reached over and picked up the sheet, and just then the messenger came in and I was still holding my arm and he wanted to know what in the world was the matter, and I told him ; I just told him how bad I had struck my arm, and I think he asked me if I was going to work, and I said, " Oh, yes ; it will probably stop hurting after awhile." When asked if she said anything more about the injury to Mr. Walsh, she replied as follows: No; but then Mr. Walsh never says anything to me and I seldom to him, except to call his attention to the work. In answer to further questions along this line, she further said : He must have heard me ; I couldn't say he did hear. I said no more about it; I was only indignant at his treatment. I didn't say anything more to him. I just knew that from Mr. Walsh's indifference that I was just either to con- tinue with my work or leave and go home, and I didn't think it was necessary to go home. The printer, Mr. Walsh," in a statement dated January 16, 1914, has this to say : Ip compliance with your request for a statement of facts within my knovyledge concerning the alleged injury to my assistant, Cornelia V. Johnson, I beg to state that I was not a witness to the accident, and that no mention or report of same was made to me by the above-named employee. My first intima- OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 749 tlon of an accident was about two months after the date of its alleged occurrence, and came about by Inquiry of the foreman as to whether I had any knowledge thereof. The messenger boy referred to by claimant made the following statement in this connection : In compliance with your request for a statement of facts within my knowl- edge concerning the alleged injury to Cornelia V. Johnson, I beg to state that I was not a witness to the accident. On the date of the alleged injury the above-named employee stated to me that she had struck her arm against the press and that it pained her very much. She exposed her arm, but there was no visible evidence of an injury. In addition to the foregoing the claimant has furnished, at the request of officials of the Bureau of Labor Statistics, statements from several fellow employees, all of whom state that they were told by claimant of the injury immediately thereafter, and that during the interim between the injury and incapacity she had told them that she was treating the arm and that it gave her pain. The trouble with this case is the same as is found in many such cases where employees suffer an injury which at the time appears to be trivial, but which later on produces incapacity, and because of its being trivial at first no report is made at headquarters, consequently no investigation is made when the matter is fresh in the minds of those present or who are familiar with the surrounding circum- stances. In this case apparently the only person who would have wit- nessed the injury or incidents connected therewith was the printer, H. H. Walsh, a white man, while claimant, who is his assistant, is a colored woman. From the statements made by claimant at the Bureau of Labor Statistics it is apparent that there exists some prejudice, for she repeatedly stated that although she had worked for Mr. Walsh for over a year the only conversation between them related to the work at hand. If this be true, then his alleged action at the time of the injury would appear to be in keeping therewith, and the same reasons would appear to influence him in not caring to know anything of the injury. Under the circumstances it would seem only reasonable to consider his statement in the light of the prevailing conditions. Now, as to the likelihood of a person being injured in the manner alleged, similar cases have heretofore arisen in the Bureau of En- graving and Printing, owing to the crowded conditions under which the work is performed ; consequently there is nothing unusual in the happening of such an accident. And now as to the probability of such an injury not causing incapacity until about two months there- after, this would not seem to be an unreasonable time, especially since, as claimant alleges, she was nursing and treating the injured arm during that time, which would in all probability have the effect of staying the incapacity even though it did not effect a cure. As all the circumstances appear to be compatible with the truth of claimant's statement in regard to her injury, and as she is sup- ported in her contention by the statement of the messenger boy who happened along immediately after the injury, it would appear that a claim has been satisfactorily established, there being no positive evidence in the record to contradict her statement made under oath. In consideration of the foregoing I have the honor to recommend that the claim be approved for payment. 750 workmen's compensation under act of may 30, 1908. 27. The hospital sergeant reported that the injury should not have caused incapacity for more than 15 days, while the attending physician cer- tified to incapacity beyond that date. In view of all the circumstances the claim, was allowed. [In re claim of Samuel N. Williamson, Not. 19, 1913.] This claim is submitted with the following inquiry: Is the em- ployee entitled to compensation, and if so, for what period ? Claimant is employed as a skilled laborer in the Frankford Arse- nal, at Philadelphia, and under date of October 16, 1913, the superior officer of that place reported that on October 13, 1913, the claimant had sprained the muscles of back and chest. The cause of the injury is shown to have arisen from the fact that his feet slipped while in the act of lifting the lid from a whizzer. This injury, however, caused no incapacity, but from the affidavit of claimant it appears that he continued on at his work, and on the following day, while in the act of moving a barrel of steel chips, he injured his back and side to such an extent as to compel him to quit work at 9 a. m. It also appears that he applied for and received first-aid treatment at the arsenal dispensary immediately after his injury on October 14. The attending physician certified that he first attended claimant on October 14 and last treated him on November 1, the approximate number of treatments during that time being 12. He further states in the certificate, which bears date of November 3, that claimant had not at that time sufficiently recovered to resume work, but that he would try to do so on November 5. Under the heading of " Remarks " he also says that " this claimant was not bodily sick and the nature of his accident required rest, principally for the parts." In a report by the superior official, dated November 6, 1913, it is shown that claimant was absent from October 14 to November 4, 1913, but there is nothing in the record to show whether he returned to work after the latter date. In this report there is a statement by the same officer who made the original injury report (which ap- parently conflicts with the latter report), wherein he said in the first report that claimant " applied for and received first-aid treatment at the dispensary," while in the last report of November 6 he says, " No first-aid treatment was given, inasmuch as the alleged accident was supposed to have occurred on the day previous." The questions as presented seem to arise from a statement made to the superior officer by Sergt. Arendt, of the hospital force, wherein he stated that he did not doubt that the man strained himself, but that there was no justifi- cation whatever for him to require over 15 days to accomplish a cure for such a slight injury. This conclusion of the sergeant is evidently based on two examinations, naturally of a superficial character, made by him. One was made immediately after the injury on October 14 and the other about 20 days thereafter, so it may safely be assumed from this fact that he was not in as good a position to understand the character of the injury and the resulting effects as was the attending physician, who examined him and treated the injury about 12 times between October 14 and November 1. Furthermore, from the report of the sergeant, dated November 4, it will be observed that he exam- ined claimant on that date and found " a slight pain on the seventh rib about the median line." It is therefore evident from this report alone that claimant had not thoroughly recovered from his injury, OPINIONS OF SOLICITOK, DEPARTMENT OF LABOR. 751 which substantiates the report of the attending physician. As the latter was of the opinion that what claimant most needed was rest, and as he was in a better position to understand the nature of the case than the hospital sergeant, I am of the opinion that the evidence furnished establishes the fact that claimant was incapacitated for a period of more than 15 days. The exact period of this incapacity can not be learned from the record, as the attending physician certi- fied that he would be incapacitated beyond the date of his certificate and the official reports do not show whether claimant had returned to work at the time of the last report, on November 6, 1913. 28. Claimant suffered an injury which aggravated an existing acute nephri- tis causing incapacity, the injury itself not being sufficient to produce incapacity. Claim held to have been established. [In re claim of H. Hickman, Dec. 1, 1913.] This claim is submitted with the inquiry whether the incapacity subsequent to August 27, 1913, was due to an injury of August 23, 1913. It appears from the immediate report that on August 23, 1913, while claimant was leaving his place of employment he was struck on the back by flying rock, causing a contusion of the back beneath the right shoulder blade or scapula. He was immediately thereafter attended by the Government physician attached to the Keclamation Service at that camp, and the above-mentioned report stated that he would be incapacitated for " four or five days." It appears from the report of termination of disability, however, that claimant re- turned to work on August 24, the day following his injury. From this it would appear that instead of being incapacitated for four or five days, as the Government physician stated would probably be the case, the claimant returned to work on the next day, and continued thereat for several successive days thereafter. On August 28, 1913, however, he was forced to quit work on account of his physical con- dition. The Government physician who attended him was the same one who treated the injury and who thought that claimant would be incapacitated for four or five days as a result of that injury. In this certificate it is shown that he treated the injury three or four times and that he also treated claimant for acute parenchymatous nephritis, which developed five days after the injury and which in- capacitated him until September 28. By way of explanation, the physician makes the following state- ment in his certificate: The acute nephritis may have been aggravated by the injury, but do not believe it could have been caused by the blow upon the back. The time lost, with the exception of one day, was from the inflammation of the kidneys and not from the injury. While the question regarding the disability due to the nephritis is a medical one, yet the physician does not definitely certify that the nephritis did not arise from the injury; but, on the other hand, there appears from his statement to be a doubt in his mind in reference to the connection between the injury and the nephritis, for he states that " the acute nephritis may have been aggravated by the injury." 752 workmen's coMPENSAnoif under act op may 30, 1908. When the circumstances of the case are considered it certainly appears reasonable to believe that the nephritis was either aggravated or produced by the blow. It wiU be noted that, notwithstanding an injury severe and serious enough to cause the physician to think that incapacity would immediately follow for four or five days, claimant returned to and performed his usual work during those four or five days. When the nature of the injury is considered in coimection with the strain and exposure during those four or five days, it would appear that any little doubt arising should be resolved in favor of claimant and that his claim should be approved. * 29. The claimant in this case was not given an opportunity to file a claim immediately following the injury. So, owing to misunderstanding, it was some time before he was permitted to file same. The local officials in the field of the Forest Service contended that claimant was not injured as alleged, and cited the fact that he had worked in a coal mine subsequent to his alleged injury. TIpon consideration of all evidence submitted it was concluded that claimant had been injured as alleged by him, and the medical evidence further established the fact of an injury from the nature of which incapacity could be pre- sumed. [In re claim of Frank J. Llssy, Oct. 31, 1914.] Under date of May 4, 1914, this claim was disapproved by the department, with the following qualification : The above action will be reconsidered In the event additional evidence is furnished in support of the claim. In accordance with the foregoing suggestion claimant has fur- nished some new and additional evidence, and the claim is now sub- mitted to this office with the following query: Does the additional evidence warrant a reversal of the department's action of May 4, 1914, disapproving claim ? As the claim has not heretofore been specially considered by this office, for at the time of the disapproval it appeared that there was considerable doubt whether the incapacity was due to the injury as alleged by claimant, the record as now presented will be considered as a whole, together with the new evidence submitted. From an examination of the correspondence in the case it would appear that the trouble originated from the manner in which the case was handled at the beginning by the local officials of the Forest Service, by whose action claimant was practically prevented from filing a formal claim within a short time after his injury, so that when they were ready to permit him to file a claim he had left the immediate locality and could not be reached, thus delaying the claimant from filing his claim for several months and depriving this department of opportunity for observation and medical examination of the claimant. It appears by a letter dated March 14, 1914, from the district for- ester to the Forester that claimant was injured on October 28, 1913, while employed by the Forest Service as road laborer on the Eoutt National Forest; that on November 12 he (claimant) filed with the forest supervisor at Steamboat Springs a general affidavit concerning OPINIONS OF SOLICITOR, DEPARTMENT OF LABOR. 753 his injury, and also a certificate signed by his physician, Dr. F. J. Blackmer. Notwithstanding all this, an immediate report of the injury was not made out until February 17, 1914, and was not received in the Department of Labor until March 19, 1914. The claim affidavit was sworn to on February 11, 1914, and reached the department on the same day as the immediate report and the report of termination of disability, viz, March 19, 1914. Thus it will be seen that, although the injury arose on October 28, 1913, no report whatever was made to this department until March 19, 1914. The reason for this delay as given by the district forester is that at the time claimant was injured he, with other Government laborers of the Forest Service, was working on a road which was being paid for from a fund con- tributed by citizens who were working in cooperation with the Forest Service in the construction of the project. In view of the fact that the supervisor did not think Lissy was entitled to make claim the matter was submitted to the office of the Forester, who in turn presented it to the Assistant to the Solicitor for the Department of Agriculture for his opinion. That official, while intimating that the claim was a proper one, stated that the matter was one to be determined by the other department when the claim should reach it. The papers were then returned to the supervisor, who was instructed to furnish claimant with proper blank forms for submitting his claim. As stated above, claimant then made affidavit on regular blank form for that purpose, dated February 11, 1914, wherein he alleged that on October 28, 1913, at 4 o'clock p. m., while " driving go-devil on Rabbit Ear Pass Road, Routt National Forest," he was thrown from go-devil and struck by corner of same on left chest, and that the nature of injury was " fracture of left fifth rib." He further stated that the incapacity began on October 28, 1913, and that he was not, at the date of affidavit, able to resume work. In answer to the question of work performed since the injury, he further stated that he had done two or three days' light work fixing up yard on his ranch and about 18 or 20 days in coal bank (Puritan mine). The certificate of the attending physician, dated February 17, 1914, shows that he first treated claimant on " about November 5 " and last treated him " about November 10," giving him three treat- ments during that time. The nature of the disability, he said, was "two or three ribs broken." The signs and symptoms were shown to be "swelling of soft parts over ribs, swelling on ribs, pain on motion of affected side, and tenderness on pressure." The treatment given was " strapping with adhesive." It is also stated that claimant was disabled, but the physician did not Imow the period of such disability or whether it had terminated at the date of his certificate. The history of the injury, as given the physician by claimant, was that he "was jerked from a plank grader and struck edge of same with chest." The schedule of work since injury shows that claimant worked on October 31, November 2, 4, 5, and 6, he being absent on October 29 and 30, November 1 and 3. In a memorandum for the forest supervisor from the forest ranger, under whom claimant worked, dated November 15, 1913, the latter 93364°— 15 48 754 "woekmen's compensation tjndee act of mat 30, 1908. reported that Lissy was employed with others using the go-devil, and that on October 28 and 29 there were a great many falls or spills, but that he did not think anyone was badly hurt, as the men would get up and go on with the work as usual; that on October 30 Lissy said he was not feeling well and was going to town ; the next day he worked, and, as shown by the schedule above, was off and on until November 6. On November 2, when Lissy reported to him that he was not feeling well, that he gave him light work that day, and on November 8 he told Lissy that if he was sick he had best go to town, to which he replied there was no use, as he would work along as he felt like it. The ranger says that he then insisted on claimant going down to Steamboat Springs, a neighboring town. Claimant said he would go down and get some medicine and come back to camp, but the ranger said he need not come back, as the work would not last much longer ; so claimant left camp on Novem- ber 9 under the above circumstances, as under such directions from the ranger he was unable to stay there longer. And some idea may be had of the state of mind of the ranger when it is noted from his report of November 15, 1913, about two weeks after the injury, that he states: "I believe him (claimant) a fake and 'grub-line' man." Under these circumstances it is no wonder the injured man packed his bed, weighing 45 pounds, and walked with it over muddy roads for a distance of 14 miles, as stated by the ranger, rather than be compelled to live in a camp with a person in supervision thereof exhibiting such feelings. It then appears that, on November 12, 1913, three days after leaving the camp, claimant filed with the forest supervisor at Steamboat Springs a general affidavit concerning his injury and also a sworn certificate by his physician. The affidavit and certificate follow: GENEEAL AFFIDAVIT. That on October 28, 191.3, while working on the Rabbit Ear Road in the em- ploj- of the Forest Service, I was injured by being thrown from a go-devil and striking my left chest on the corner of same. At the time and subsequently there was a great deal of pain and tenderness at the point of injury, especially when taking a deep breath, or using the left arm. I was put to doing light work for about a week, except for one day, the 30th, when I went to tovm for jnediciue for myself for the injury. I was put to heavy work on November 5 and 6, but found I was unable to continue doing it because of the pain it caused me. I came to town November 9 and consulted a doctor November 10, who said he thought my rib was broken, and that I should not work for some time. If I recover and find myself able to do hard work as before the injury, I will accept pay equivalent to my wages — at a dollar and a half a day and board — for the period of my disability, plus the doctor bill. physician's certificate. November 12, 1913. This is to certify that on November 10 I examined P. J. Lissy as to the effect of an injury received about two weeks before. In my opinion he sus- tained at that time a fracture of the left fifth rib, about in the nipple line. There is an enlargement of the rib at this point, with surrounding pain and tenderness. In my opinion he will not be able to work for at least two weeks. It further appears that at the time clainjant made out his claim, on February 11, 1914, he advised the Government official that he had spent some time working in a coal mine ; so the explanation of that was made thereon. This fact then appeared to raise some doubt as OPINIONS OF SOLICITOR, DEPAETMENT OF LABOR. 755 to whether he had been and was still disabled as a result of the injury of October 28, 1913. It is shown by the mine company's re- ports that he worked in the mines from December 4, 1913, to Janu- ary 31, 1914. Claimant swears that during the first half of Febru- ary he was in Denver, taking treatment for his injury, returning to the mines and working therein the latter half of the month as well as thereafterwards. In support of his claim of treatment in Denver there is furnished the following certificate from the county hospital, datedOctober 14, 1914: To whom it may concern: Mr. F. J. Lissy came to the clinic of the University of Colorado Medical School at Thirteenth and Wei ton Streets on February 9, 1914. He complained of pain in left shoulder. This pain was increased with raising arm above head. Some pain upon pressure over deltoid. Mr. lilssy came for treatment also on February 11, 1914. The following treat- ment was prescribed: (1) Sodium salicylate, 10 grains every four hours; (2) rub shoulder with chloroform liniment; (3) paint shoulder with tincture of iodine at night. Claimant was then, on October 17, 1914, examined by direction of this department hj a physician who had never been connected in any way with the case, and this physician states that the disability had not at that date terminated; that it would probably continue indefi- nitely; that the incapacity was due to the injury described; that claimant has been a powerful man, but is 50 per cent below par now ; that the evidence or fractured rib is "provisional callus, and in reply to the question "Was the employee, in your opinion, injured as described above ? " he says, " Never saw him before, but his story is well connected and sounds as though the truth." In an affidavit dated August 29, 1914, claimant contends that while he has performed work of various kinds since he was injured he has been bothered much, first by the injury of the chest and then imme- diately followed by the lame arm and shoulder and dropsy of the heart, all of which, he says, seem to develop from the injury; that while working he has been unable to make full hand, but had to be cautious, and that he was still unable to do hard work; that before the injury he was able-bodied and healthy; that he never was sick or injured, and that he was not aware of anything, except the injury, which could have brought on the lame shoulder and dropsy. There is also in the record evidence from a fellow workman setting forth that he was present when Lissy was thrown, on October 28, and that he complained to him that he had been injured. From a review of the case as above set forth it is plainly clear that the evidence abundantly establishes the fact that claimant sus- tained a fall from the go-devil, as contended by him ; that such fall caused him an injury in the form of a fractured rib or ribs; that he did everything that could have been expected of him to establish his right to compensation immediately after the injury; that the medical evidence clearly establishes the fact that claimant was incapacitated, is still incapacitated, and that he will probably be incapacitated for an indefinite period, and, although the compensation year is now nearing the end, claimant has not yet been paid anything on account of his injury. As I said above, there is no question now but that the claim should be approved, but owing to the unfortunate manner in which the claim was handled by the officials of the Forest. Service 756 woekmen's compensation undee act of may 30, 1908. it is almost impossible to arrive at a proper compensation for claim- ant. As has been seen above, under the necessity of the case of ex- isting, claimant, in his injured condition, with one or more frac- tured ribs, has been compelled to perform the hardest kind of manual labor, viz, that of working in a coal mine, thereby further injuring and aggravating his physical condition. The delay in filing the proper and necessary reports as required by the law in this case is somewhat similar to the delay found in a previous case arising in the same service, viz, that of Frank W. Smith, which was considered by this office in an opinion of May 11, 1914. In that case the claimant was injured on Jime 13, 1913, while the immediate report was not made out until November 3, 1913, thereby causing confusion in the consideration of the claim. In or- der that injured employees may get the benefit of the act at a time when it is most needed, as intended by Congress, that claims may be more intelligently acted upon when the circumstances are fresh in the minds of those interested and connected therewith, and that medical examinations may be made by direction of the Secretary in necessary cases before the end of the compensation period, it would seem necessary that such delays be avoided and that proper reports be made in all cases wherein an employee covered by the act is injured. 30. An injury in the nature of a strain which lights up, excites, or aggra.- vates a preexisting ailment, thereby producing incapacity when the existing ailment had not previously caused incapacity, was held to be the result of the injury. [In re claim of Richard Halloran, Feb. 2, 1915.] This claim is submitted with the inquiry whether there is sufficient evidence of connection between the incapacity and the alleged acci- dent in the course of employment. The facts in this case were considered by this office on a previous occasion, and in a memorandum dated December 10, 1914, it was stated at page 4 thereof that the fact was satisfactorily established by the record that claimant was injured as alleged by him. At that time, however, there was medical evidence in the record tending to show that the entire period of incapacity was not due to the injury, but to other causes; consequently recommendation was made that further additional evidence be secured on this point as well as re- garding the circumstances connected with the happening of the iiccident. The matter raising a doubt whether the entire period of incapacity was due to the accident is found in a report from the yard surgeon, dated August 19, 1914, wherein he says : Upon physical exaniiuation I found that the symptoms of which he chiefly complained were directly referable to marked swelling of his legs," a large amount of fluid in his abdomen (general dropsy), and a very grave valvular heart lesion with failing compensation. It was not until I had him remove his trousers that I discovered a right inguinal hernia — o swelling which, he thought had been developing since the strain above referred to. The question for settlement, then, appears to be this : Was the condition found by the yard surgeon on August 10, 1914, excepting, of course, the hernia, referable to or connected with the stram causing the hernia in any manner whatsoever? OPINIONS OP SOLICITOR, DEPARTMENT OP LABOR. 757 In response to further inquiry the yard surgeon makes the fol- lowing statement in a letter of December 29, 1914 : With reference to the last paragraph of the brief of the Acting Solicitor I can positively state that tills man's heart disease and consequent disability from weakness and dropsy must have existed long — probably years^-prior to date of alleged injury, and that there could be no casual relation between the rupture and the disabling disease, unless it were, as barely suggested in paragraph 5 of my letter of August 19, that the disease predisposed to rup- ture, and that no one could assert. The most that could be said is that the two conditions were coincidental. The record shows that " Employee was advised at the time of Injury to report to doctor, but did not do so, thinking injury was slight," and I doubt if he would have made any complaint of his rupture for an indefinite time had he not been weak and disabled from concurrent disease ; in fact, he had nothing to say about it until I questioned him regard- ing it. In connection with the report of the yard surgeon dated August 19, 1914, the following inquiry was submitted to the attending physi- cian by the department : The attending physician in the present incapacity should be requested to state whether the hernia of itself caused incapacity for any period of time ; and if so, such period should be given. He should also advise whether in his opinion the strain alleged to have been suffered on July 22 had any relation to the con- dition found by the yard surgeon as set forth in his report of August 19. In reply to this inquiry the attending physician makes the fol- lowing statement under date of January 11, 1915 : On August 11, 1914, .1 examined Richard Halloran and found an inguinal hernia, which I confined by a truss. This Is really what he complained of and for which he consulted me. It gave him suflicient discomfort and caused enough distress to incapacitate him for a period of 10 days. At the end of 10 days he said it gave him no trouble, but on account of his heart lesion and general dropsy I persuaded him not to resume his work at the yard. I believe his statement that he was not ruptured prior to July 22, 1914. The increased intra-abdominal pressure may have been a factor in causing the hernia, but the real cause was undoubtedly the strain he exerted in closing a window while at work at Mare Island. From a careful review of the evidence as presented it may be said to establish the following facts: So far as the record shows the claimant, who is 65 years of age, had up to the time of the strain performed the duties of his occupa- tion to the satisfaction of his superior officers. Admitting that he had the general dropsical condition and the very grave valvular heart lesion with failing compensation, as described by the yard surgeon, still it is not apparent that these conditions interfered in any manner with his ability to perform his work. However, after receiving the strain as alleged by him, a different physical condition arose, resulting in incapacity. When claimant first called on the yard surgeon he merely said that he did not feel well, at the same time ascribing his condition to a strain which he stated he had sus- tained about three weeks previously. Apparently he did not realize the actual condition caused by the strain, viz, the hernia, for he said nothing- whatever to the surgeon about such a matter. The surgeon thereupon advised claimant to consult his own physician in reference to his general condition. This he did, the physician pre- scribing the wearing of a truss, so that at the end of 10 days, so far as the hernia was concerned, claimant could have returned to work. However, on account of the heart lesion and the general dropsy the 758 workmen's compensation under act of may 30, 1908. physician advised him not to resume his work at the yard, and so far as the incapacity directly chargeable to the hernia is concerned it would not have continued for a period of more than 15 days, and the claim could not be allowed. When, however, it is observed that the heart and dropsy had not caused incapacity previously to the injury of July 22, 1914, it may fairly be assumed that the strain and resulting hernia lighted up, excited, or aggravated a preexisting condition so as to produce in- capacity where such incapacity would not have at that time resulted but for the injury. Summing up the facts as above outlined, it would appear that the principle adopted in the case of Philip Jarvis (Op. Sol., 219) would be applicable here. In that case it was concluded by the department that " a physical injury which aggravates a previous ailment so as to disable an employee where disabiUty would not have been caused but for such previous ailment is an injury within the act." Applying the conclusion there reached to the facts as found' in this case I am of the opinion that the incapacity following the injury was directly attrib- utable and traceable thereto, for which reason the claim should be approved for payment. 31. The claimant was discharged from the Govemm.eiit hospital for leaving that place without permission before recovery. . The date of discharge was previous to the expiration of the 15-day period. As the certificate from the hospital attendant showed that claimant's incapacity would have extended beyond the 15-day period, it was held that he was entitled to compensation to the date shown that it was presumed the incapacity would terminate. [In re claim of William Grace, Mar. 24, 1915.] The above-mentioned claim has been submitted to this office with special reference to the following inquiry: Has claimant estab- lished a right to compensation under the act of May 30, 1908; and if so, for what period ? When first presented to the department this claim was prepared for disapproval on the ground that there was not sufficient evidence in the record to show that the incapacity continued for more than 15 days. The record, however, at that time did show that claimant was injured at 2 p. m. on June 3, 1913;. that he was immediately sent to St. Louis by train ; that on the following day he was admitted to the United States marine hospital at that place and that the injured foot was treated daily until June 15. There is a further notation on the physician's certificate wherein it is said that "clinical record states that patient was ' discharged for leaving hospital without per- mission; foot almost well.'" In answer to the query whether the patient had recovered, the (Tovernment physician stated that he had, "presumably," and that he was first able to work " about June 15 to 20, 1913." While claim- ant still contends that he has not yet recovered and that he is not able to perform the work he previously did, yet he does not furnish any other evidence to establish his incapacity beyond the time he left the hospital. On January 13 of the present year he was examined by OPINIONS OP SOLICITOR, DEPAETMENT OF LABOB, 759 a physician designated by the department, who reported the sub- jective symptoms as " no feeling, anaesthesia of first and second toes all around." The examining physician says, however, that he thought claimant was able to resume his work and that he had then just walked 31 squares to his office and did not seem particularly wearied or lame. It will be noted that the injury occurred on June 3, :i913, and this examination took place on January 13, 1915, or over 18 months after the injury; consequently the condition found at this last examination is not of much assistance in determining how long claimant was incapacitated during the compensation year ending June 3, 1914. It does, however, give some credence to the contention of claimant that his incapacity continued after June 15, 1913. In this he also appears to be supported by the hospital records, for while it is stated that he left that place on June 15, it is also stated by the hospital physician that he would probably be able to resume work " about June 15 to 20, 1913." As the physician evidently last saw claimant on June 15, he must have reached the conclusion, based (in his knowledge of the condition of the foot, that claimant would hardly -be able to resume work before June 20, 1913. Admitting this to be true, then it is apparent that the medical evidence in the case satisfactorily establishes the fact that the injury continued for more than 15 days. The only evidence in the record to substantiate the incapacity beyond June 20, 1913, is the statement of claimant to that effect, and as he says that he did not have further medical attention it would appear to be rather difficult for him to furnish satisfactory evidence of incapacity beyond June 20, 1913. However, should he be able to furnish additional evidence to show further incapacity the claim can then be approved for such time as the incapacity is established. 32. Claimant was thrown from a scafEold upon which, he was working by an engine running into it. He continued at work for some time after reporting to the yard dispensary, and subsequently developed brain trouble causing incapacity. It was held that connection was suflS,- ciently established between the injury and the incapacity caused by the brain trouble. [In re claim of William Smith, Mar. 30, 1915.] This claim has been prepared for disapproval on the ground that there is insufficient evidence to connect the incapacity from January 8 to February 2, and from February 10 to February 23, 1915, with an injury sustained by -claimant on June 27, 1913. The report of injury in this case was made out under date of February 24, 1915, wherein it is stated that on June 27, 1913, an engine backed against scaffold and threw claimant off. Under date of July 17, 1913, the medical officer made the following report to the commandant : Smith reported at the dispensary June 27, 1913, with slight contusions of the neck, shoulders, and hands, the result of a fall from a scafCold. He was a new man in the yard and could not give his tag number or where he worked, and was requested to go to his foreman and get these facts and report at the dispensary. He failed to return and his case was forgotten. He returned to-day and stated that he was suffering pain in the neck, back, and hands, and had since the fall. 760 workmen's COMPEKSATION TTNDBE ACT OP MAY 30, 1908. Upou the examination of this man there was no evidence of any injury, and he was advised to return to work. The foregoing report probably explains why the immediate report of the accident was not made prior to February 24, 1915. The de- scription of the accident as given by claimant is as follows : Scaffold fell from under me, throwing me on a concrete floor, and a piece of timber fell on my stomach. The nature of injuries he gives as — Bruised head and skinned and bruised shoulders, neck, arms, and back. It is also shown that there were seven witnesses to the accident, who give the following joint description of the accident : We the undersigned witnessed this accident to William Smith happen in the following manner: While building the frame shed on the west side of B. M. shop a yard engine carrying freight cars to be weighed struck and knocked down a scaffold which we had built through the window, throwing Smitli to the ground. One of the witnesses also makes the following additional statement : I met Mr. Smith on day of accident in a dazed condition at the dispensary. He told me at the time he was knocked from a scaffold on which he had been working. He was in a bewildered condition. I ask him if he was sunstruck. He then told me of the fall. The medical officer in a certificate dated February 27, 1915, states that claimant was suffering from "neurasthenia," and he further says that " as a period of 18 months elapsed between the injury of June 27, 1913, and January 9, 1915, it is questionable if any connec- tion exists between the injury and the illness." The certificate of the attending physician shows that he treated clainiant from January 2 to February 19, 1915, for "injury to muscles of neck with possible cerebellar complications (blood clot)." The extent and condition of the injury he describes as follows : Marked tension and soreness (superficial and deep) on pressure over above muscles and tissues at base of skull. Exaggerated knee jerks and marked nervousness. Symptoms: Pains, loss of weight and appetite, sleeplessness, weakness. The description of treatment is as follows : Wasserman and spinal fluid negative, KI; acetic and salicylic acids, NaBr; tonics. In response to the inquiry as to whether there were any perma- nent results of the injury, the physician says: "Being brain injury, is a very indefinite condition." In further reply to the inquiry whether the condition found was due to the injury of June 27, 1913, the physician states: Yes ; for I can find no other condition to account for same. From a review of the testimony in the case as presented it is clearly established that on June 27, 1913, while claimant was at work on a scaffold the same was knocked from under him by a steam engine strilring it; that he immediately went to the yard dispensary for treatment, where it was discovered that he had contusions of the neck, shoulders, and hands. What treatment was given him there, if any, the record does not show. It is noted, however, from the medical officer's report of July 17, 1913, that when claimant reported OPINIONS or SOLICITOE, DEPARTMENT OF LABOB. 761 there he could not give his tag number or tell where he worked, which, from the report, appeared to be of more importance to secure than treating the injured employee. When this statement is con- sidered in connection with the statement of the witness who " met Smith on day of accident in a dazed condition at the dispensary," and the further fact that Smith had fallen some distance, striking on a concrete floor, it can well be imagined that claimant must have suffered a serious injury to his brain at that time. This fact being so plainly and abundantly established, it is only reasonable to conclude that the condition found by the attending physician is the most natural and probable result of the injury of January 27, 1913. In view of the foregoing I have the honor to recommend that the claim be approved for such period as claimant has been incapacitated, beginning January 8, 1915. XXIX. "SUBMIT TO MEDICAL EXAMINATION." 1. The law requires an examination at least once in six months during inca- pacity, and contemplates that payment of compensation be not author- ized for a longer period than six months at a time, even though the disability is permanent in its nature. [In re claim of Sam Haynes, Dec. 2, 1908 ; No. 215.] This claim is founded upon the loss of a right arm and injuries to head and right side incurred October 16, 1908, while claimant, in the course of his employment and without any negligence or miscon- duct on his part, was attempting to board a train. He missed his footing and fell on the rail. The questions submitted are (1) whether in cases of permanent disability the Secretary is authorized to approve the payment of compensation for one year, and (2) does the loss of the right arm by an artisan or laborer constitute permanent disabilitv? Section 5 of the act of May 30, 1908, is: That the employee shall, whenever and as often as required by the Secretary of [Commerce and] Labor, at least once in six months, submit to medical ex- amination to be provided and paid for under the direction of the Secretary, and if such employee refuses to submit to or obstructs such examinations his or her right to compensation shall be lost for the period covered by the con- tinuance of such refusal or obstruction. In pursuance of this section the following regulations, among others, were promulgated: If the claim is approved, the compensation will be granted during disability, but for a period not exceeding six months. In order to secure this compensation the injured employee on each pay day must file with the disbursing officer a certificate that he is still unable to resume work (Form C. A. 7), which certificate must be attested by a physician and approved by his official superior. In order to secure compensation for more than six months, application must be made on Form C. A. 8 for a medical examination at the end of that period by a physician provided by the Secretary of [Commerce and] Labor. Unless such examination is made, or if the examination discloses that the injured em- ployee is no longer unable to resume work, the compensation payments will be discontinued at the end of the six-months period. If the injured employee's condition as disclosed by such medical examination justifies it the disability payments will be continued in the same manner as before. 762 woekmen's compensation under act op may 30, 1908. Upon the receipt of approval or disapproval of continuance of compensation payments the ofBcial superior will immediately notify the Injured employee concerned. The law provides for a medical examination at least once in six months, and the Secretary can not approve payment of compensation for a longer period than six months at a time, the presumption being that such medical examination may reveal that the claimant by that time has recovered sufficiently to resume his work. The precise question as to whether an injury is permanent or not can not- arise under this act, which provides only for compensation for incapacity for work. The continuance of the injury is only im- portant for the purpose of ascertaining when the injured party is able to resume work. The six months' period has been fixed for further examination to ascertain that fact. There is no doubt that the disability in this case will continue for six months. Such con- clusion may be assumed as a matter of fact. Claimant's position as a brakeman on a dirt train made of him a laborer depending entirely for his livelihood upon the work of his hands, and it would take him a long time to adjust himself to his changed condition sufficiently to make a living in other pursuits. At any rate, the loss of his right hand disabled him for doing the manual labor of his usual avocation. It is my opinion, therefore, that he should be compensated for loss of time for six months subject to the right of continuance of such compensation for another period of six months thereafter if at the end of the first period he is still found to be incapacitated for work. Z. The duty of claimants to submit to medical examination at least once in siz months is miandatory upon them, but the obligatiQn of the Secre- tary to provide such an examination is directory, so that a right to compensation is not lost by the latter's failure to act. [In re claim of Fellclano VlUalranca, May 21, 1909 ; No. 395.] The claimant in this case had his right foot so badly crushed by a railroad car that it became necessary to amputate the foot. The accident occurred on September 27, 1908. His claim for compensa- tion was approved by the Secretary under date of January 16, 1909, for a period not exceeding six months beginning with the date of the accident. This period expired March 27, 1909. The papers in the case are now referred to this office, with the request for an opinion as to whether an examination by a physician designated by the Secretary of [Commerce and] Labor is necessary in order to satisfy the provisions of section 5 of the act of May 30, 1908, in cases where permanent disability is evident from the nature of the injury. The section referred to provides as follows : Sec. 5. That the employee shall, whenever and as often as required by the Secretary of [Commerce and] Labor, at least once In six months, submit to medical examination, to be provided and paid for under the direction of the Secretary, and if such employee refuses to submit to or obstructs such ex- amination his or her right to compensation shall be lost for the period covered by the continuance of such refusal or obstruction. This section is directed to the employee who is claiming compensa- tion. It requires him, as a condition precedent to his right to a con- OPINIONS OP SOLIOITOE, DEPAKTMENT OP LABOR. 763 tinuance of compensation, to submit to medical examinations "when- ever and as often as required by the Secretary of [Commerce and] Labor,'' and that if he " refuses to submit to or obstructs such ex- amination his or her right to compensation shall be lost for the period covered by the continuance of such refusal or obstruction." This is the substance of the section, and it is in its very nature mandatory so far as the employee is concerned, for it specifically makes his right to the compensation depend upon his submission to the examinations provided for. But the section contains these words, " at least once in six months." These are evidently directed to the Secretary. They indicate an intention on the part of the legislature that not more than six months should elapse between any two examinations. But the statute does not in terms say that the Secretary shall require an examination or make the right of the employee depend upon the action of the Secretary in providing for such examinations. The question whether a duty imposed by statute upon a ministerial or ex- ecutive Officer, the performance or nonperformance of which affects the rights of others, is merely directory to the officer and only confers on parties injured a right of action against the officer, or, on the other hand, is a condition to fix the rights of other parties as between themselves, is a very common, but often a very difficult one to decide. Its decision depends mainly upon a consideration of the nature of the duty thus imposed in its relation to the rights of parties to be affected, but often also upon the proper construction of the language employed In the statute as being chiefly directed to the officer, or as declaratory of a principle governing the rights of parties. (Peabody v. Stark, 83 U. S., 242.) Statutory prescriptions in regard to the time, form, and mode of proceeding by public functionaries are generally directory, as they are not of the essence of the thing to be done, but are given simply with a view to secure system, uniformity, and dispatch in the conduct of public business. (26 A. & E. Ency. of Law, 689.) There is no universal rule by which directory provisions may, under all circumstances, be distinguished from those which are mandatory. Where the provision is in affirmative words and there are no negative words, and it relates to the time or manner of doing the acts which constitute the chief purpose of the law, or those Incidental or subsidiary thereto, by an official person, the provision has been usually treated as directory. Generally it is so, but it is a question of intention. Where a statute is affirmative it does not necessarily imply that the mode or time mentioned in it are exclusive, and that the act pro- vided for, if done at a different time or in a different manner, will not have effect. Such is the literal implication, it is true; but since the letter may be modified to give effect to the intention, that implication is often prevented by another implication, namely, that the legislature intends what is reasonable and especially that the act shall have effect; that its purpose shall not be thwarted by any trivial omission or a departure from it in some formal, incidental, and comparatively unimportant particular. (Sutherland on Stat. Construction, sec. 447.) Generally speaking, the authorities above cited were dealing, in the language quoted, with provisions of law which were mandatory in form and where the word " shall " was employed. As stated in 7 Words and Phrases, 6463, " the words ' may ' and 'shall,' when used in a statute, will sometimes be read interchange- ably, as will best express the legislative intent." As the words " at least once in six months " are directed to the Secretary and not to the injured employee, and as the compensation is not made to depend upon such an examination as is contemplated by the statute being made " at least once in six months," I am of opinion that the provision is directory rather than mandatory. I do not mean to say, however, that the Secretary would be justified in 764 woekmen's compensation under act of may 30, 1908. ignoring the provision. It should be complied with as an expression of the legislative intent, but if, for any reason, the Secretary does not require the examination, the right of the employee to compensation is not defeated. The examination may be made after the expiration of six months, and, so far as the statute is concerned, the employee does not lose his right to the compensation between the expiration of the six-months period and the date of the examination. It should be borne in mind, however, that where the Secretary has authorized the payment of compensation limited to a " period of six months be- ginning with the date of the accident," no compensation beyond such period can be paid until further authority is given by the Secretary. See opinion in case of William Bowen (C 349, May 4, 1909, Bu. No. 1563). The conclusion so far reached still leaves unanswered the specific question asked. It appears that the claimant was so injured as to make necessary the amputation of his foot, and the loss of his foot constitutes his incapacity to resume work as a laborer or brakeman. Under these circumstances, what could be the purpose of a further examination? In his original certificate the attending physician re- ported that the employee was permanently incapacitated. It would be ridiculous and' absurd, it seems to me, to require the employee to submit to an examination which could only develop the fact that nature had not worked a miracle and had not furnished him with a new foot. As stated by the Supreme Court in the case of Lou A. Bew (144 U. S., 47-59), "Nothing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or absurd conclusion." The legislature can not be presumed to have intended that the Secretary should req^uire a medical examination in a case where the very nature of the injury precludes the possibility of the injured employee resuming his work. The only purpose of the examination is to enable the Secretary to determine whether the employee is able to resume work, and where he is already satisfied the reason for the examination fails. It is assumed in this case that, aside from the claimant's inability to resume the work of a laborer or brakeman, he has not entered upon some other employment with which the loss of his foot does not seriously interfere, and which employment yields the same or greater pay than he was receiving at the time of the accident. I have the honor to advise, therefore, that the provision contained in section 5 of the act of May 30, 1908, so far as it relates to the duty of the Secretary to require an examination at least once in six months, is merely directory, and that in cases where permanent disability is evident from the nature of the injury the Secretary may authorize the payment for compensation for a period of one year from the date of the accident without requiring the injured employee to submit to an examination " at least once in six months." The conclusion reached above makes it unnecessary to consider the further question asked in this case as to the detail of an Army sur- geon by the Secretary of War to make the examination contemplated by section 5. OPINIONS OF SOLICITOE, DEPARTMENT OP LABOB. 765 3. If the Secretary so directs, an examination made by a naval surgeon designated by the Secretary of the Navy to examine an employee to determine his right to continued compensation would be a compliance with the act. [In re claim of Enrique Vlllanueva, June 26, 1909 ; No. 1224.] The above claim was approved for payment under date of June 12, 1909. It is now submitted to this office with special reference to the question whether the detail by the Secretary of the Navy of a naval surgeon to make an examination of the injured employee to determine his right to compensation beyond the period of six months covered by the said approval of June 12, 1909, would be a compliance with section 5 of the act of May 30, 1908. The section referred to provides that the employee shall, whenever and as often as required by the Secretary of [Commerce and] Labor, submit to medical examination, to be provided and paid for under the direction of the Secretary of [Commerce and] Labor. The Secre- tary is not restricted to any particular class of physicians whom he may designate to make such examinations, nor to the compensation therefor, nor to how it shall be paid. All that the statute requires is that these examinations shall be provided and paid for "under the direction of the Secretary," the evident purpose being to make the examiner the medical adviser of the Secretary and to free him from any obligation to the employee. As long as the employee is not required to pay for the examination, his interests can not be preju- diced, no matter how the examiner is paid or whether he be paid at all or not. A naval surgeon is under the jurisdiction of the Secretary of the Navy. If, upon request of the Secretary of [Commerce and] Labor, the Secretary of the Navy details such naval surgeon to make the examination contemplated by section 5, the examination will have been provided by the Secretary of [Commerce and] Labor within the spirit and reason of the a^t just as truly as though he had employed a civilian physician and directed him to make the examination. Fur- thermore, it may be a literal compliance with the letter of the statute if the Secretary of [Commerce and] Labor directs that the examina- tions contemplated by the statute be made by such naval surgeons as may be detailed for the purpose by the Secretary of the Navy. If a naval surgeon detailed to make an examination makes no extra charge for such examination, still, as the ernployee is not called upon to make any payment therefor, the spirit of the law is com- plied with. I have to advise, therefore, that, if the Secretary of [Commerce and] Labor so directs, an examination made by a naval surgeon de- tailed for the purpose by the Secretary of the Navy would be a compliance with the requirements of section 5 of the act of May 30. 1908. 4. In order to defeat a right to compensation for refusal to submit to an examination, it is necessary that such examination shall have been directed by the Secretary, that it be made without expense to the employee, and that the employee be advised that such examination is required by the Secretary. [In re claim of J. E. Mayott, Feb. 5, 1910 ; No. 2142.] On September 9, 1909, while the claimant was working at a plan- ing machine, his right thumb accidentally came in contact with the 766 workmen's compensation undeb act or mat 30, 1908. knives and was badly cut, causing immediate incapacity. He resumed his work on October 29, 1909. Under date of November 15, 1909, the Secretary of [Commerce and] Labor authorized payment of compen- sation from the time of the injury to and including October 28, 1909. It appears, however, that as a result of the same injury it became necessary for him to again suspend his work from November 5 to No- vember 14, and again on December 6, 1909, since which latter date he has not been at work. Under date of November 14, 1909, Dr. C. E. Phillips certified that the claimant had been unfit for work on ac- count of injury through no fault of his own from November 5 to November 14, 1909, this being his second period of incapacity as a result of the original injury. The claim is resubmitted to this office with special reference to the question jyhether the examination made by Dr. Phillips and the certificate given by him is a sufficient com- pliance with the terms of section 5 of the act of May 30, 1908, to warrant the approval of compensation for a period of six months from November 5, 1909, reference being had to certain correspond- ence in regard to the employment of certain physicians in the service of the Isthmian Canal Commission to make examinations of injured employees. It appears from the correspondence above referred to that in a letter dated February 6, 1909, the Secretary of [Conmierce and] Labor asked the Isthmian Canal Commission if the superintendents in charge of the hospitals at Colon and Ancon and the district phy- sicians in the employ of the commission might be utilized in making the examinations contemplated by section 5 of the act of May 30, 1908, and if so, the commission was requested to issue the necessary orders to the officers indicated and to send to this department a list of their names and addresses, that they might be furnished with the necessary blanks and instructions for conducting such examinations. Under date of March 9, 1909, the commission acquiesced in the sug- gestion of this department and gave the names of certain physicians. In this list appears the name of Dr. John L. Philips, superintendent of Ancon Hospital, but not that of Dr. C. E. Phillips. Under date of March 16, 1909, the Secretary of [Commerce and] Labor, in a letter addressed to the commission, designated the physicians named to make examinations of injured employees applying for a continuance of compensation, and in order to avoid delay in the making of such examinations it was agreed that when an examination was desired the direction would be sent through the official channels of the com- mission, without naming a particular physician to make such ex- amination, leaving it for the employee's official superior to direct him to appear before such one of the physicians named as could, with the least delay and inconvenience to all concerned, make such examination. This course has been pursued for several months. The record now before me does not disclose that the claimant was ever directed by the Secretary of [Commerce and] Labor to submit to a medical examination, or that Dr. C. E. Phillips was ever author- ized, directly or indirectly, to make such examination. The section under which the Secretary is authorized to require medical examinations reads as follows : That the employee shall, whenever and as often as required by the Secre- tary of [Commerce and] Labor, at least once In six months, submit to medical examination, to be provided and paid for under the direction of the Secretary; OPINIONS OF SOLICITOR, DEPARTMENT OP LABOR. 767 and if such employee refuses to submit to or obstructs such examination his or her right to compensation shall be lost for the period covered by the con- tinuance of such refusal or obstruction. If the claimant had refused to submit to an examination by Dr. C. E. Phillips, would his right to compensation have been lost for the period covered by the refusal? Without some evidence that the Secretary of [Commerce and] Labor required such examination and provided that it be made by Dr. C. E. Phillips, it seems clear that it would not. Then it follows that such an examination was not such an examination as is contemplated by the section quoted. It does not follow, however, that such examination is insufficient to warrant the allowance of compensation for the period covered by Dr. Phillips's certificate. The basis of the right to compensation is the incapacity caused by the injury, and whatever is sufficient to satisfy the Secretary in this regard is sufficient to warrant payment. In this particular case the injury began on September 9, 1909, and the first six months thereafter will not have expired until March 9, 1910. So, assuming that the Secretary may not authorize payment of compensation for a longer period than six months without requir- ing such an examination as is contemplated by section 5, there is nothing to prevent the allowance of compensation up to the present time. But the specific inquiry presented to this office is. May the Secre- tary now authorize payment for a period of six months from Novem- ber 5, 1909? In my opinion of May 21, 1909, in the case of Feliciano Villa- fran-ca (C 392, Bu. Ko. 1762), after reaching the conclusion that the words " at least once in six months " being addressed to the Secretary and not to the employee are directory rather than mandatory, I said : * * * I do not mean to say, however, that the Secretary would be justified in ignoring the provision. It should be complied with as an expression of the legislative intent; but if for any reason the Secretary does not require the examination, the right of the employee to compensation is not defeated. The examination may be made after the expiration of six months, and, so far as the statute is concerned, the employee does not lose his right to the compensa- tion between the expiration of the six months' period and the date of the examination. Having reached the conclusion that the examination made by Dr. Phillips is not such an examination as is contemplated by section 5, and the first six months after the injury not having expired, and there being no evidence to show that the man is permanently in- capacitated, I am of opinion that the Secretary would not be justified in approving 'at this time the payment of Compensation for six months from November 5, 1909. Such an approval would be directly contrary to the expressed direction of the Congress. In this case a further question is presented, viz, Whether the com- mission might, in response to the request of the Secretary of [Com- merce and] Labor, proceed with the examination of beneficiaries at the end of six months without waiting for instructions from the Secretary of this department, the report of such examinations to be submitted to the department on the prescribed form ? It is thought that the plan here suggested would, if not in contravention to the statute, expedite the passing upon claims for continuance of com- pensation. 768 workmen's compensation under act of may 30, 1908. As will be seen by the above statement of the correspondence be- tween this department and the Isthmian Canal Commission, it has for some time been the custom of the Secretary to direct that an examination be made, leaving it for the officers of the commission to designate which of the physicians should make the examination. I see no legal objection to this custom. Such physicians are pro- vided and paid by the Secretary of [Commerce and] Labor within the meaning of the statute. If a beneficiary is directed to submit to an examination by one of such physicians, such beneficiary could not refuse to submit to such examination without subjecting himself to loss of right to compensation during the period of such refusal. But must the Secretary, when he requires that an employee submit to an examination, send a special notice addressed to such employee in person, or may he direct in general terms that all employees who claim or may claim compensation for a longer period than six months submit to an examination by a designated physician, and leave it for the officers and employees of another department to no- tify all such employees and instruct each as to the physician who will make such examination ? All that the statute requires is " that the employee shall, whenever and so often as required by the Secre- tary of [Commerce and] Labor, at least once in six months, submit to medical examination." I do not see that it is necessary that the Secretary address the employee personally. So far as the employee is concerned, he must be given to understand that the examination is required by the Secretary, so that if he refuses to submit to such examination his right to compensation will be lost for the period covered by such refusal. XXX. QUESTIONS OP A GENERAL NATURE ARISING UNDER THE ACT. Reopening and reviewing claims previously passed upon hy the former Jiead of a department. 1. Claim had been disapproved by the former head of the Department of Commerce and Labor, which action was subsequently sustained by the head of the Department of Labor. Upon furnishing new evidence claim was reopened and allowed. [In re claim of James Kinney, Feb. 19, 1914.] The claim is submitted with the following inquiry: Should the action of the Secretary of Commerce and Labor in disapproving the claim on March 3, 1913, which action was sustained by the Secretary of Labor on June 14, 1913, be reversed ? Attention is invited to the statements and afiidavits filed since the case was acted upon. The record shows that on January 21, 1913, claimant made affidavit to the effect that on December 22, 1912, while engaged upon work connected with a barge being constructed he " stumbled and fell on timbers," incapacity resulting therefrom, beginning on December 30, 1912, due to an injury of the leg. No immediate report was made by the superior ofiicial of claimant, but in lieu thereof there was filed a letter from the project engineer dated January 37, 1913, setting forth his reasons for not making the OPINIONS OF SOLICITOR, DEPABTMENT OF LABOE. 769 usual report. In his letter he recommended adversely to the claim, and in substance made the following statement: That J. E. Ludy,. the foreman on the barge work saw Kinney stumble and fall on or about the date given by him, and assisted him to get up ; he asked him if he was hurt, receiving a reply that he was not; claimant con- tinued to work 8 or 10 days thereafter, and upon completion of the barge he "was laid off with the rest of the force and left the work — still without saying anything to indicate that he was injured. About two weeks afterwards Kinney called at the office and requested to be allowed to make a claim, saying he had been confined to his residence on account of the injury. There is also a letter from the Government physician on the work, dated February 17, 1913, in which he attempts to explain his medical certificate of January 20, 1913. In the latter he certified that he first attended claimant on account of the injury on December 22, 1912; that at the date of the certificate claimant was not able to resume work, and that the incapacity would probably continue for three weeks more. In his letter of February 17 he says that Kinney first came to him for treatment on December 28, and not December 22, and at this time he at once advised Kinney not to return to work with his leg in the condition it was in at that time, but he did so return to work against his advice. He also said that at that time he had treated the injury about 20 times. In this letter he also made the further statement : This man is addicted to tlie use of alcoliolic drink and tliis has in great measure delayed his recovery. He stumbles a great deal when drunk. There is also a statement from Ludy, the foreman, under date of February 17, 1913, wherein he said that claimant continued to work through to December 31, when he was laid off with the rest of the force on that date. In a statement of February 17, 1913, claimant says that while the injury hurt him it did not cause incapacity and did not warrant his consulting a doctor until December 26, at which time he reported to the Government physician, and that at that time he thought that any necessary reports would be made by the Government physician. He also stated in this letter that he worked through the 31st of December. The timekeeper who investigated the case reported on February 14, 1913, that he was unable to find anyone except Mr. Ludy, the fore- man, who seemed to have any knowledge of the accident, and the impression he received from his investigation was that if anyone else saw it it was too trivial to notice and must have been forgotten. In view of the uncertainty shown by the records as well as the con- flicting statements contained therein, the claim was, on March 3, 1913, disapproved by the Acting Secretary of Commerce and Labor for the reason that the evidence furnished was insufficient to establish the fact that the disability was caused by the injury sustained at the time of the fall on December 22, 1912. Under date of May 14, 1913, new evidence was filed by an attorney in behalf of claimant, with a request for a review of the case upon that ground, and on May 16, 1913, claimant was duly advised that the claim would be reconsidered in connection with the additional evi- dence furnished. 93364°— 15 49. 770 woekmen's compensation tjndek act of may 30, 1908. The case was then accordingly reopened by this department and .further efforts were made to secure additional evidence through the officials of the Eeclamation Service. The witnesses who had made affi- davits for claimant were interviewed by the latter officials, and a synopsis of their statements was reduced to writing. A report on title same gave a description of the witnesses, with an opinion on their credibility. The evidence then submitted was considered by the Bureau of Labor Statistics, with the result that under date of June 14, 1913, the Reclamation Service and the attorney for claimant were advised that the former conclusion of the Department of Commerce and Labor was adhered to by this department. A further request was then made by claimant's attorney for a public hearing at Yuma, Ariz., but as the department was not in a position to grant such hearing the attorney was advised that if he could make satisfactory arrangements with the officials of the Recla- mation Service for such a hearing that this would be satisfactory to this department and that the depositions so taken could be forwarded here as a basis for a reconsideration of the case, or in lieu of such an arrangement that additional evidence could then be furnished by claimant and the Reclamation Service with opportunity for each party to review the evidence of the other, which latter plan was adopted. This additional information consists of affidavits from claimant, from several fellow workmen, some eyewitnesses to the fall, and others to surrounding circumstances and conditions existing afterward ; from the attending and an examining physician, together with a statement from the project engineer reviewing the foregoing. From a review of the entire record as now presented a better under- standing of the circumstances of the case can be had as well as of the conflicting statements which were found in the record as first pre- sented. In the first place the contention of claimant in regard to his fall was supported by the statement of Foreman Ludy, dated February 17, 1913, wherein he says that he " assisted him in getting to his feet and thought no more of the matter." In this statement, however, the foreman made an erroneous remark to the eflfect that claimant " continued to work through the 31st of December and was laid off with the rest of the force on that date, the barge work being com- pleted." In the second place, the Government physician caused confusion ol the record by the manner in which his certificate dated January 20, 1913, was made out. In this certificate he gave the date of fii'st treatment as December 22, 1912, and stated that the disability began on that date ; that patient was confined to his bed for one week ; that he had not recovered on that date; and that the incapacity would probably continue for three weeks more. He further certified thai in his opinion the incapacity was due to the injury described by claimant, and that there would probably be permanent results from the same. After making the foregoing imequivocal statements in regard to his knowledge of the injury, with the date of first treatment shown therein, the Government physician, for some reason not shown by the record, made a further statement under date of February 17, 1913, modifying and altering his previous certificate in the follow- OPINIONS OP SOLIOITO?, DEPABTMBNT OP LABOE. 771 ing manner : That instead of first treating claimant on December 22, as stated in his official certificate, he had first treated him on Decem- ber 28, and at the time of first treatment " claimant did not say he was hurt on Government work, but merely stated that his leg had stiffened up, and made some vague reference to an old injury." How the medical officer can reconcile his action in making the official medical certificate as made by him with the facts as related in his letter of February 17, 1913, can not be understood, for if " claimant did not say he was hurt on Government work, but merely stated that his leg had stiffened up and made some vague, reference to an old injury," why did he certify on January 20, 1913, that the condition found by him at the first examination was due to the injury as de- scribed by claimant in his affidavit on the reverse side of the sheet upon which the certificate appeared? Furthermore, it is plainly evident from his various statements that he either kept no official record of the matter or an indifferent and unreliable one at most. To add to the confusion, the medical officer made the further state- ment that " This man is addicted to the use of alcoholic drink, and this has in great measure delayed his recovery. He stumbles a great deal when drunk." As the question submitted to the physician con- cerned the connection between the fall and the incapacity, the con- nection between that statement and question presented is not ap- parent, but only serves to show the change of heart on the part of the physician between the dates of his two certificates. In the third place, the claimant was examined on February 14, 1913, by Dr. H. V. Clymer, by direction of the department, and in his certificate of that date he stated that claimant was then unable to resume his occupation, and that in his opinion the incapacity was due to the injury as described by claimant. In a letter dated February 17, 1913, claimant stated that the fall occurred on or about December 22, 1913 (1912), and, while it hurt him, it did not warrant going to the Government physician until December 26, 1912, and that he did not report the injury to head- quarters because he supposed that would be attended to by the physi- cian, who told claimant he would so report. He also said that on further conversation with the doctor he was advised to inquire at headquarters whether his time was going on, which he did on Janu- ary 17, 1913. From the foregoing it will be observed that ©laimant says he first went to the Government physician on December 26, while the physi- cian gives two different dates, viz, December 22 and 28. With the record in this confused condition, the claim was on March 3, 1913, disapproved for the reason, as stated therein, that there was insuffi- cient evidence that disability was sustained in the course of employ- ment. Upon receipt of notice of such disapproval claimant secured the services of an attorney, who filed a supplemental affidavit made by the former, together with affidavits from a number of fellow em- ployees, and requested that the case be reopened and reviewed in the light of this additional evidence. In this latter affidavit claimant gives the date of the fall as on December 23, 1912, instead of December 22, as given in his claim ; 772 workmen's compensation under act of may 30, 1908. that he continued on at work until December 30, instead of Decem- ber 31, as previously given, and that in the meantime, on December 26, he went to the Government physician for treatment, as the injury had continued to grow worse each day after its receipt until about the middle of the afternoon of December 30 he was compelled to quit work, securing a horse and wagon from a fellow worlanan to convey him to his room, where he was confined until January 4, when he was only able to get to the town once a day to get a meal, and that it was not until January 17, 1913, that he was able to move around freely. The other affidavits were made by seven fellow employees, who stated that they had actual knowledge of the facts contained therein, which facts related to the witnessing of the fall, and the further fact that subsequently thereto the claimant limped when he walked. The attorney was then notified under date of May 16, 1913, that the claim would be reconsidered in connection with the additional evi- dence furnished. The additional evidence was then submitted to the Reclamation Service officials for investigation and report. On June 4, 1913, the project engineer reported that the employees who had made . the affidavits had been interviewed and briefs of the interviews were forwarded with the report. Of the 7 interviewed 3 stated that they witnessed the fall and 4 stated that they did not witness the fall, but based their statements on what they had heard. Thus it will be noted that there is no doubt but that 3 fellow em- ployees saw the fall, which, in addition to the foreman who assisted him in arising after the fall, made 4 eyewitnesses to the accident, to say nothing of the affidavit of claimant to that effect. With the record in that condition the claim was again considered, and under date of June 14, 1913, letters were prepared for the signature of the Acting Secretary, addressed to the Director of the Reclamation Service and the attorney for claimant, advising that the previous action of the Secretary of Commerce and Labor in dis- approving the claim on the ground that there was insufficient evidence that disability was caused by an injury in the course of employment should in the opinion of the signer thereof be adhered to; On October 1, 1913, a letter was addressed to the Secretary of this department by Senator Ashurst, of Arizona, quoting from a letter of the attorney for claimant, wherein he objected to the manner in which the claim had been handled and requested a review and re- hearing of the whole matter by a public hearing to be held at Yuma, Ariz., so that he would have an opportunity to examine and cross- examine the witnesses. In response to this request the attorney was notified to furnish such matter as he desired and that the case would be reconsidered. Accordingly the attorney filed for consideration a further affidavit by claimant and additional affidavits from five of the seven work- men who had previously made affidavit, as well as an affidavit from another employee who had not previously testified, and also affi- davits from the physician who examined claimant at the direction of the department and from a physician who examined him on Novem- ber 22, 1913. The evidence thus submitted was forwarded to the Reclamation Service for review and for any further evidence that might seem proper under the circumstances. There was then sub- otiNious bv sOLioiToa, cepaetmbnt op labob. 773 mitted under date of January 28, 1914, a communication from the project engineer together with a report dated December 29, 1913, and a statement from Mr. Ludy, the foreman, who witnessed the fall. In the communication from the project engineer he says that contrary to the claimant's statement he was carried on the roll to December 31, 1912, an examination of the roll shows that the last day he was paid for was December 30, 1912, while the foreman, in his report of February 17, 1913, stated that Kinney " continued to work through the 31st of December and was laid off with the rest of the force on that date, the barge work being completed." Thus it is noted that there was a discrepancy in the record between the report of the project engineer and the foreman as to the date of the begin- ning of the incapacity, and that the original statement of claimant in that respect is borne out by the pay roll. In the statement of Mr. Ludy he says that claimant said nothing more to him about being injured after the fall until about a month later, but that he heard that Kinney was to see a doctor while he was yet working on the barge, but he thought it was for rheumatism or some chronic complaint, and that he was quite lame when he quit work. Why he thought claimant was suffering from rheumatism is not explained, and there is nothing in the record which would war- rant drawing a conclusion of that character, as there is nothing found therein from which such an inference could fairly be drawn. There is some further evidence in this connection with reference to claimant leaving the work on December 30 and going home in a team belonging to a fellow workman, but it seems needless to consider this in view of the fact that it is satisfactorily established by the record that December 30 was the last day on which he worked. Further affidavits in rebuttal were also furnished by the attorney wherein the claimant fixed the day of his injury as December 23, 1912, instead of December 22, and his first visit to the Government physician as " December 26, 1912, the day after Christmas," but that on that date he did not see Dr. Henri Ap John, but saw his assistant. Dr. O. I. Tower, and later, on January 2, 1913, while laid up in bed, he saw Dr. Ap John ; that he also saw Dr. Tower again on December 30, the day he quit work ; that he informed the foreman on December 26 and 30 of his condition — told him that he was compelled to see the doctor; and that he exhibited the injured knee to Ludy twice on December 30. He further states that Dr. Tower attended him at his room on the following day, December 31, at which time he informed claimant that he had on the previous afternoon officially reported him disabled from the said injury. There was also furnished affidavits in support of the character of claimant and the witnesses who supported his claim, but it does not appear necessary to give consideration to this subject in view of the other evidence in the case. The attorney for claimant has forwarded quite a lengthy brief in the case, wherein he has gone into the various phases of the case with great care and attention, but it is not deemed necessary to con- sider the brief further, as the settlement of the question depends upon the evidence as submitted. In this connection it is unnecessary to review in detail here all the evidence submitted for consideration, so in reaching a conclusion ref- 774 workmen's COMPElfSATlON UNDER ACT OS* MAY SO, 1908. erence only will be made to the evidence which is found to satisfac- torily establish the claim, since the matter contained in the record has been fully set forth above. That claimant had a fall as alleged in his affidavit of January 21, 1913, can not be doubted, for he is supported in his claim on that point by his foreman, Ludy, as well as by the testimony of Ole T. Beverfjord, Chas. O. G. Cooper, Alvin M. Phillips, Mike Olaota, and J. J. Brandenburg, fellow workmen, who witnessed the fall. Owing to the erroneous statement in the medical certificate signed by Dr. Ap John, as shown by his later explanatory statemeat as well as by statement of claimant that he did not see Dr. Ap John until January 2, 1913, it is impossible to definitely fix the exact date when claimant was first treated unless we accept his statement to that effect, which would place it at December 26. However, claimant lost no time on account of the injury until December 31, when it is evi- dent that he first became unable to proceed with his work. However, in that certificate it was shown that on January 20, 1913. claimant was still incapacitated and would probably so continue for three weeks more, consequently it must be concluded, in the absence of any- thing in the record to show that the incapacity was due to other causes, that it was a direct result of the fall on December 33. As to the subsequent incapacity, an examination was made by the depart- ment physician on February 14, 1913, when he was found to be still incapacitated as a result of the injury. This, in connection with the affidavits of Drs. Clymer and Knotts, bearing date of November 22, 1913, together with the statements of various witnesses v.ho have observed claimant since the injury, lead to the conclusion that claim- ant has been incapacitated since December 30, 1912, as a result of his injury of December 23, 1912, for which reason the former action of the Department of Commerce and Labor of March 3, 1913, and the previous action of this department of June 14, 1913, should be re- voked and canceled and the claim be now approved for payment upon the record as now presented. 2. There is no authority for the head of a department, in the absence of new and controlling evidence that the settlement was made upon an erroneous or incomplete showing of facts, to reopen a case that has been disallowed by a predecessor. [In re claim of G. A. Erlckson, Jan. 7, 1914.] This claim is submitted with the following inquiry: Does the record contain new evidence upon a material point or show that a mistake in matters of fact was made, to give the Secretary of Labor authority to reconsider the case? It appears from the papers that this claim was considered during the administration of the executive head of the former Department of Commerce and Labor, which department in a sense was the prede- cessor of the Department of Labor, and that under date of Janu- ary 17, 1913, after consideration thereof, the claim was disapproved for the following reason : It appears that the incapacity was not the result of a definite accident In the course of employment. The matter is now submitted to the Secretary of Labor with a request from claimant that the case be reopened with a view of allow- fitlifidiif^ OP soLioiTOB, depaktMent of labob. 77^ ing the claim at this time. An examination of the record shows some correspondence on the subject since the action of January 17, 1913, but nothing is found therein in the way of new and controlling evidence upon a material point to show that the action of the pre- ceding administration was taken upon an erroneous or incomplete statement of facts. In the absence of such a showing there is no authority for the present administration to reopen the case, for, as was said by the Comptroller of the Treasury in 19 Comptroller's Decisions, 114: I think by the great weight of authority It is very well settled that heads of departments or other executive or administrative oflScers of the Government may not reopen claims that have been disallowed by their predecessors in the absence of new and controlling evidence that the settlement was made upon an erroneous or Incomplete showing of facts. In view of the foregoing, it appears that the inquiry submitted should be answered in the negative. " Incapaciti/ prolonged iy refusal to follow medical advice." 1. Claimant was advised by the Government physician who treated the injury to perform lig^ht work in the way of exercise. Held that claim- ant was entitled to compensation until he was able to resume his regular duties. [In re claim of John Elcherson, May 23, 1913.] This claim is specially submitted to this office with the following inquiry: Whether an employee is entitled to compensation when dis- ability is prolonged and recovery retarded by his refusal to follow instructions of the attending physician ? The question as submitted in this case arises from the fact that the Reclamation Service physician is of the opinion that claimant should return to light work, although he has not recovered to such an extent so as to be able to resume the regular duties of his employ- ment, the physician taking the view that a little work each day will benefit him more than anything else. This claim was originally approved for payment under date of October 18, 1912, for a period of six months ending March 14, 1913, and on the latter date claimant made application for a continuance of compensation payment, his request being accompanied by a certificate under the same date signed by the Reclamation Service physician. This certificate states that claimant was examined on that date " and that he is still unable to perform his work on account of dislocation of right hip sustained at Arrowrock, September 14, 1912." There is also in the record a letter from the construction engineer to the director, dated May 15, 1913, wherein it is stated that the " hip is slowly improving," and, again, in the same letter there is found the following statement : We all agree that Richerson is not able to return to the work that he was doing when he was hurt. It therefore appears conceded by the officials and physician of the Government that as late as May 15, 1913, the claimant had not sufficiently recovered to resume the regular duties of his occupation. 776 workmen's compensation under act of may 30, 1908. Consequently it is not within the province of his superior oflScer to order him to return to work of a different character. This question was fully considered in an opinion by the Solicitor for the Depart- ment of [Commerce and] Labor (Op. Sol., 347), wherein it was decided that there was "no authority to require such employees to perform any work whatever, until able to resume the work of the regular employment." Referring now to the question as submitted — ^that is, whether a claimant is entitled to compensation when incapacity is prolonged by refusal to follow the advice of the attending physician — it does not clearly appear that such is the case in this instance, for it is apparent from the record that the advice of the physician related more to returning to light work for the purpose of exercise than to following a course of treatment. In connection with the suggestion that claimant refused to follow instructions of the attending. physician, reference is made to Opinions of the Solicitor, page 373, wherein it was held : There is no provision in the law or regulations which requires an injured employee to receive medical attention or to take the advice of a physician, it being assumed that every person will use his best judgment in bringing about a recovery. * * * He is the one most interested in that matter, and the exercise of this judgment contrary to the opinion of the physician can not operate to defeat the claim so long as the incapacity endures. As the official superior has stated that claimant was still incapaci- tated for his regular work on May 15, 1913, it would appear that no question can be raised as to the payment of compensation to that date, and the inference is that he will never be able to perform his usual duties. In order that the department may be more fully advised as to the actual condition of claimant it is suggested that he be examined in accordance with section 5 of the compensation act. "Services and employments without the act." 1. A skilled laborer employed in the Office of the Supervising Architect of the Treasury Department is not covered by the act, as that branch of the service was not included either specifically or by implication. [In re claim of J. U. D. Briscoe, Oct. 10, 1913.] The question submitted herein is whether the service in which claimant is employed is covered by the compensation act. It appears that claimant is employed as a skilled laborer in the Office of the Supervising Architect of the Treasury Department, his particular work being in the " duplicating gallery " thereof. The character of work performed in that branch of the office is stated by the acting superintendent in a memorandum dated Septem- ber 29, 1913, to be as follows : The processes involved are the coating of the paper, preparation of prints by exposure to' the sun in frames or in electric blue-printing machines, washing and developing, trimming, and pacljing of the prints. The paper from which these prints is made is delivered at the Treasury Department in rolls weighing approximately 500 pounds and is conveyed from the fourth floor of the Treasury to the duplicating gallery on the roof by skilled laborers from the duplicating gallery. OPINIONS OP SOLICITOE, DEPAETMBNT OP LABOE. Ill From the foregoing description of the work in that office it will be seen that the principal work consists of coating of the blue-print paper, preparation of prints by exposing them to the sun or electric blue-printing machines, and developing the prints. This work is more in the nature of that performed in a photographic studio, and it would not be seriously contended that the work of such latter places would bring them within the term " manufacturing establish- ment." This being true, it is equally clear that the place of employ- ment in this case can not be said to be such an establishment, and as the branch of the service is not otherwise specifically included in the act it is plain that the " duplicating gallery " is not covered therein. In view of this conclusion I have the honor to recommend that the claim be disapproved for that reason. XXXII. DECISIONS OP THE COMPTROLLER OE THE TREASURY. UISCELIANEOUS DECISIONS OF THE COUFTROIIEB NOT AFFEARINQ ELSEWHERE IN THIS COUFILATION. [Comptroller Traeewell to the Secretary of the Treasury, Dec. 26, 1908.] " Compensation under the act is exclusive in oases of injury." 1. Where an employee is embraced within the provisions of the compensa- tion act and is injured the time lost can only be paid in the manner and in accordance with the conditions named in said act. By your reference of the 15th instant you request my decision of the question presented in a letter from the Director of the Bureau of Engraving and Printing dated December 8, 1908, as follows: I inclose herewith a claim of Mr. Patrick H. Sbanley for compensation for injury that disabled him from performing his worii of machinist In the Bureau of Engraving and Printing from August 24 to September 14, 1908, inclusive. In his affidavit to the claim Mr. Shanley states that he received no compensa- tion from the Government for any part of the period for which the claim is made. The fact is, however, that Mr. Shanley was paid on the rolls of the bureau for the full period of absence while continuously unable to resume work, but the time of absence represented by such payment was deducted from his regular annual leave. This deduction of time, I assume, is his ground for stat- ing that he received no compensation for any part of the period. I have the honor therefore to submit the question to be decided by proper authority whether the deduction of time from Mr. Shanley's annual leave is to be regarded as an offset to the payment. My signature to a certificate to the claim is withheld pending your instruc- tions in the matter. The act of May 30, 1908 (35 Stat., 556), provides: That when, on or after August first, nineteen hundred and eight, any person employed by the United States as an artisan or laborer in any of its manu- facturing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortification work or in hazardous employment on con- struction work in the reclamation of arid lands or the management and control of the same, or in hazardous employment under the Isthmian Canal Com- mission is injured in the course of such employment such employee shall be entitled to receive for one year thereafter unless such employee, in the opinion of the Secretary of [Commerce and] Labor, be sooner able to resume work, the same pay as if he continued to be employed, such payment to be made under such regulations as the Secretary of Commerce and Labor may prescribe : Provided, That no compensation shall be paid under this act where the injury Is due to tlie negligence or misconduct of the employee injured, nor unless 778 WORKMEN^S COMPENSATION tliTDER ACt Ol' MAY 30, 190S. said injury shall continue for more than fifteen days. All questions of negligence or misconduct shall be determined by the Secretary of [Commerce and] Labor. * * • Sec. 3. That whenever an accident occurs to any employee embraced within the terms of the first section of this act and which results in death or a prob- able incapacity for work, it shall be the duty of the official superior of such employee to at once report such accident and the injury resulting therefrom to the head of his bureau or independent office, and his report shall be immediately communicated 'through regular official channels to the Secretary of [Commerce and] Labor. * * • What such report shall contain is then specified. One of these is, " any other matters required by such rules and regulations as the Secretary of [Commerce and] Labor may prescribe." It is also pro- vided that " the head of each department or independent oifice shall have power, however, to charge a special official with the duty of making such reports." Section 4 of the act provides that : * * * In the case of incapacity for work lasting more than fifteen days, the injured party desiring to take the benefit of this act shall, within a reasonable period after the expiration of such time, file with his official superior, to be forwarded through regular official channels to the Secretary of [Commerce and] Labor, an affidavit setting forth the grounds of his claim for compensation, to be accompanied by certificate of the attending physician as to the cause and nature of the injury and probable duration of the incapacity, or the nonproduc- tion of the certificate shall be satisfactorily accounted for. If the Secretary of [Commerce and] Labor shall find from the report and affidavit or other evidence produced by the claimant or his or her legal representatives, or from such addi- tional investigation as the Secretary of [Commerce and] Labor may direct, that a claim for compensation is established under this act, the compensation to be paid shall be determined, as provided under this act and approved for payment, by the Secretary of [Commerce and] Labor. * » * Sec. 7. That the United States shall not exempt itself from liability under this act by any contract, agreement, rule, or regulation, and any such contract, agreement, rule, or regulation shall be pro tanto void. Sec. 8. That all acts or parts of acts in conflict herewith or providing a different scale of compensation or otherwise regulating its payment are hereby repealed. It appears from the statement of the Director of the Bureau of Engraving and Printing that Mr. Shanley has already been paid compensation as if he had been actually employed during the period in question. His absence on account of the injury was charged to his annual leave of absence. If Mr. Shanley is an employee who is embraced within the pro- visions of the act of May 30, 1908, supra, the payment to him was unauthorized, for the reason that said act is exclusive, and persons entitled to compensation under it for time lost on account of injuries received in the course of their employment can only be paid in the manner and in accordance with the conditions named in said act. (15 Comp. Dec, 115, 161.) The cases cited were decisions rendered upon the request of the chairman of the Isthmian Canal Commission construing the act of May 30, 1908, supra, as it applied to that service. In the second of these decisions, dated September 26, 1908, this office said : An employee who comes within the provisions of the act of May 30, 1908, is not entitled to receive pay by virtue of the terms of his contract, but can only be paid under the terms and conditions and upon compliance with the act of May 30, 1908. OPINIONS OF SOLICITOR, DBPABTMENT OF LABOR. 779 In view of the fact, however, that the claim for such compensation must be submitted to the Secretary of [Commerce and] Labor, who is required to find from the reports and affidavit or other evidence whether a claim for compensation under said act is established, I am of the opinion that his construction of said act as to the class of claims embraced within it should be followed by this office unless such construction raises a question of law independent of fact and is clearly wrong. (Bates & Guild Co. v. Payne, 194 U. S., 106, 109.) Whether or not this is a claim that comes within the provision of this act is not therefore decided. Mr. Shanley having been paid compensation for the time for which he now claims pay under the act of May 30, 1908, and having now submitted a claim for pay under said act, you should require him to refund the amount paid to him as erroneously paid and transmit his claim for adjudication under the provision of said act. If this should be done he would have standing to his credit the number of days' leave that he lost on account of said injury. In this way, and in this way only, should Mr. Shanley be given the benefit of the leave with which he was charged while he was absent injured. If the Secretary of [Commerce and] Labor has decided, or should decide, that the employees of the Bureau of Engraving and Printing are entitled to compensation while absent on account of injuries re- ceived in the course of employment under the act of May 30, 1908, only such compensation as is approved for absence on account of such injuries under the provisions of said act should be paid to said employees. If they come within the provision of said act, ciaeir pay is governed by it and they can only be paid under it. (15 Comp. Dec, 394^398.) [Comptroller Tracewell to the Auditor for the State and Other Departments Mar. 18, 1909.] " Manufacturing establishment." 1. The Governinent Printing Office was held to be a manufacturing estab- lishment within the meaning of the compensation act. "Appropriation from which payable." 1. The appropriation from which the employee is being paid before injury or death must of necessity be used to pay the compensation provided by the act for injury or death. The Auditor for the State and Other Departments has submitted for approval, disapproval, or modification a decision dated March 11, 1909, as follows : There Is before this office the account of Jolin S. Leech, formerly Public Printer, for the month of September, 1908. Voucher 15, a pay roll, shows a payment to James A. Simmons, an employee of the Government Printing Office, under the provisions of the act of May 30, 1908. (35 Stat., 556.) Attached to the roll is a specific approval by the Secretary of [Commerce and] Labor of the employee's claim for compensation, together with certificates showing compli- ance with certain requirements established in his case by the Secretary. The benefits of the act apply to " any person employed by the United States as an artisan or laborer in any of Its manufacturing establishments, arsenals, or navy yards." * * * In considering whether or not the Government Printing Office comes within the category of a manufacturing establishment I have reached an affirmative conclusion. Without attempting to cite or discuss the definitions of " manufacturing " in the various dictionaries, I think the word may be properly applied to an establishment engaged in the production VSO workmen's COMPENSATiOiT tJiffiER ACT 6^ MAY 30, 1&08. of printing and binding in the shape of completed books. More particularly does this proposition seem tenable In view of the scope and spirit of the act. The object is to benefit employees whose work has the element of hazard. One of the chief circumstances of hazard which must have been within the view of Congress — the danger that attends the use of machinery — is present as fully in the Government Printing Office, with its large equipment of machinery and its many mechanical cutting devices, as it is in almost any other establishment of the Government. I decide, therefore, that the Government Printing Office is a manufacturing establishment within the meaning of the act, and, further, that the appropria- tion chargeable with the compensation of the employee during his Incapacity is that from which he would have been paid had he remained in actual em- ployment — in the present case " Public printing and binding, 1909.'" The facts show that Mr. Simmons was a laborer. Section 1 of the act of May 30, 1908 (35 Stat., 556), extends the benefits of the act to — any person employed by the United States as an artisan or laborer in any of its manufacturing establishments, * * *. Section 4 of said act (35 Stat., 556) further provides that — If the Secretary of [Commerce and] Labor shall find from the report and .-iffidiivit or other evidence iirodnced by the claimant or his or her legal repre- sentatives, or from such additional investigation as the Secretary of [Com- merce and] Labor may direct, that a claim for compensation is established under this act, the compensation to be paid shall be determined as provided under this act and approved for payment by the Secretary of [Commerce and] Labor. By section 4 of the act Congress committed to the Secretary of [Commerce and] Labor the duty of determining whether or not "a claim for compensation is established " under the act. His construc- tion of said act as to the class of claims embraced within it should therefore be followed, unless such construction raises a question of law and is clearly wrong. (15 Comp. Dec, 397 ; Bates & Guild Co. v. Payne, 194 U. S., 106, 109.) The Secretary of [Commerce and] Labor has in this instance found that the claim of a laborer employed in the Government Printing Office is " established " within the meaning of such act, as evidenced by his approval of said claim, thereby construing the Government Printing Office to be a " mamif acturing establishment " within the meaning of section 1 of the act. His construction in this respect is not clearly wrong for reasons stated by the auditor and in view of the decision of the court in the case of Press Printing Co. v. State Board of Assessors (51 N. J. Law, 75) to the effect that a company incor- porated for the purpose of printing and publishing books and general ]ob printing is a manufacturing company. (See also In re Kenyon, 1 Utah, 47, 48.) Said construction should' therefore be followed by the auditor. The appropriation named by the auditor seems to be the correct one, and, in fact, is tlie only ai)propriat.ion which can be used with which to affect the payment intended and provided by Congress. In fact, in the administration of the act the appropriation from which the employee is being paid before injury or death must of necessity be used to pay the compensation provided by the act for injury or death. Congress, in so far as I am advised, has made no particular appropriation out of which these claims are to be paid. It is also evident from a reading of the entire act that it was the intent of Congress that these paynients should be speedily made and out of OPINIONS OF SOLICITOK, DEPARTMENT OP LABOR. 781 the appropriation from which the employee was being paid at the time of the accident which incapacitated him for work or caused his death. The taking from appropriations made to accomplish certain results, which may in some instances be large, with which to continue on the rolls disabled and dead employees will in some instances cause serious delay and a failure to accomplish the main purpose for which the appropriation was made ; but this responsibility is with Congress and not with those who are called upon to administer the law. The auditor's decision is approved. (15 Comp. Dec, 554r-556.) [Comptroller Tracewell to the Secretary of Commerce and Labor, Mar. 25, 1909.] " Medical examinations." 1. The medical examinations to be made by direction of the Secretary, as provided for in the act, should be paid for by the Government, the contingent appropriation for the department being available for such purpose. I am in receipt of your submission of the 20th instant, which reads : The act of May 30, 1908, " granting to certain employees of the United States the right to receive from it compensation for injuries sustained in the course of their employment," contains the following section : " Sec. 5. That the employee shall, whenever and as often as required by the Secretary of [CJommerce and] Labor, at least once in six months, submit to med- ical examination, to be provided and paid for under the direction of the Secre- tary, and if such employee refuses to submit to or obstructs such examination his or her right to compensation shall be lost for the period covered by the con- tinuance of such refusal or obstruction." This section seems to authorize and require the Secretary of [Commerce and] Labor to provide and pay for medical examinations at least once in six months, and that compensation shall, in no case, be paid for a period of more than six months without such examination, but my attention has not been called to any appropriation out of which I feel justified in paying therefor. In a number of cases the employee has been receiving compensation under the act for six months, and I am desirous of providing for the examinations contemplated by section above quoted so that the compensation in proper cases may be continued, and I have to request your decision as to whether there is any appropriation available for the purpose indicated, and if so, what appropri- ation is so available. If you find that there is no appropriation available for the purpose indicated, I have to request that you advise me as to whether I am authorized to take either of the courses below indicated, and if so, which course or courses. 1. Pursuant to the provision " that the employee shall, whenever and as often as required by the Secretary of [Commerce and] Labor, at least once in six months, submit to medical examination, to be provided and paid for under the direction of the Secretary," would I be authorized to require the claimant to submit to a medical examination to be made by a physician selected by me for the purpose and to direct that such examination shall be paid for by the claim- ant himself? 2. If the claimant, whether voluntary or under protest, consents to and does pay for the examination, would this course be in contravention of that pro- vision of section 3679, Kevised Statutes, as amended by the act of February 27, 1906, which reads as follows: " Nor shall any department or any officer of the Government accept voluntary service for the Government or employ personal service in excess of that author- ized by law, except in cases of sudden emergency involving the loss of human life or the destruction of property." 3. Would contracts made with examining physicians subject to future appro- priations be in violation of that provision of section 3679, Kevised Statutes, as amended by the act of February 27, 1906, which reads as follows : " No executive department or other Government establishment of the United States shall expend. In any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any con- tract or other obligation for the future payment of money in excess of such appropriations unless such contract or obligation is authorized by law." 782 workmen's compensation under act oe mat 30, 1908. For your further information I may add that so far as injuries to employees under the Isthmian Canal Commission are concerned, the difficulty has been met through an arrangement with that commission whereby certain members of the medical staff in the employ of the commission have been designated by me to make the examinations required, in addition to their usual duties and without extra compensation. Similar arrangements would have been made in connec- tion with other Government establishments in which injuries may occur, except for the fact that it was found, after fully canvassing the situation, that there existed no corresponding medical corps available for the purpose. Should the procedure indicated in paragraph No. 1, of this letter, be allowable under the circumstances, it would be possible for me to arrange, through the Interior Department, to select from the roster of examining surgeons of the Pension Bureau the necessary physicians to make the required examinations throughout the country generally, and to designate physicians to make such examinations in individual cases, with the understanding that the fee, not to exceed $2 for each examination, should be paid by the claimant. The first question involved is whether there is an appropriation under your department available for use to defray the expenses inci- dent to the medical examinations provided for in section 5 of the act set out in your letter. I am of the opinion that it was the intent of Congress that the United States should pay for these medical examinations, and not the claimants. While it is true that Congress did not directly make an appropriation td pay for these examinations, it is also true that it did not make a specific appropriation to pay the compensation pro- vided while being carried on the rolls while disabled, or to pay the beneficiaries named in the act the amounts directed when death ensues from injuries incurred in the line of duty. But the act is a beneficial and humane one, and ought not to fail on account of a technical con- struction of the use of an appropriation. I have previously held — and I think correctly^ — that the appropriation available to- pay the employees or laborers while at work was intended by Congress to pay them the compensations provided when injured and the beneficiaries named when death results from injuries received under the terms of this law. It is quite evident such was the congressional intent, how- ever injurious such construction may prove in the performance of the objects for which these appropriations were primarily made. It will no doubt prove in certain cases extremely difficult, if not impossible, to do the things for which the appropriations were made and use a considerable portion of it to pay disabled employees and the benefici- aries of those who die from injuries. The contingent appropriation for your department for the current fiscal year (see Digest of Appropriations, 455, 456) is broad in its language, closing as follows: And all other miscellaneous items and necessary expenses not included in the foregoing. Congress placed the duty of making these medical examinations upon you, and I am of the opinion that the cost of making them is a necessary expense not included in the list of expenses specifically set out in the appropriation in question. A different construction would possibly defeat this highly beneficial legislation, at least until an appropriation can be procured. Considering my answer to the above I do not deem it proper to attempt to answer your questions numbered 1, 2, and 3, or either of them. In fact, neither of them presents a question of your use of an OPINIONS OF SOLICITOR, DEPAETMENT OF LABOE. 783 appropriation, and any opinion that I might render would be only of an advisory nature, and they should more properly be answered by the Attorney General. (15 Comp. Dec, 581-584.) [Comptroller Tracewell to the chairman of the Isthmian Canal Commission, Apr. 20, 1909.] " Widow, marriage of." 1. The marriage of a widow during the compensation year does not har her from the benefits of the act. I have received your letter of March 27, 1909, in which you request my decision of a question raised in the letter of the examiner of accounts, dated March 27, 1909, as follows: Milton B. Arthur, employed as a pitman in the central division, was killed December 12, 1908, by the explosion at Bas Obispo. On January 8, 1909, Amelia Arthur, widow of Milton B. Arthur, made cla-im for compensation under section 2 of the act of May 30, 1908, and said claim was approved by the Secretary of [Commerce and] Labor on February 11, 1909, as evidenced by his certificate 1929 approving the payment of compensation to Amelia Arthur, for the period begin- ning December 13, 1908, and ending December 12, 1909, both dates inclusive, to the amount of 32 cents silver per hour, the full amount to be paid to Amelia Arthur, widow of the deceased employee, for her own use. On February 20, 1909, Amelia Arthur was married to Ernest Beckels. I have the honor to request that this letter with the accompanying certificate and voucher be transmitted by you to the Comptroller of the Treasury, with the request that he render a decision whether the compensation approved by the Secretary of Commerce and Labor can be paid to Amelia Beckels from De- cember 13, 1908, to February 20, 1909, and also, whether it can be paid after February 20, and until December 12, 1909. In the case under consideration there appears to have been neither children nor dependent parents. The facts in the case are fully set .forth in the letter of the examiner of accounts, supra. Does the marriage of the widow in this case, within the year for which compensation is approved, affect her right to the payment of the same? Section 2 of the act of May 30, 1908 (35 Stat., 556) , provides as follows : Sec. 2. That if any artisan or laborer so employed shall die during the said year by reason of such injury received in the course of such employment, leav- ing a widow, or a child or children under sixteen years of age, or a dependent parent, such widow and child or children and dependent parent shall be entitled to receive, in such portions and under such regulations as the Secretary of [Commerce and] Labor may prescribe, the same amount, for the remainder of the said year, that said artisan or laborer would be entitled to receive as pay if such employee were alive and continued to be employed : Provided, That if the widow shall die at any time during the said year her portion of said amount shall be added to the amount to be paid to the remaining beneficiaries under the provisions of this section, If there be any. The act of May 30, 1908, supra, is in the nature of a gratuity, de- signed to benefit all Government employees coming within its pur- view, and its terms should be given a liberal construction favorable to the employees and the beneficiaries named in case of the death of the employee. The manifest purpose of section 2, supra, is to give the widow (and children and dependent parents, ir any) the right to receive the same amount that the artisan or laborer would be entitled to receive as pay if such employee were alive and continued to be employed. 784 wobkmen's compensation under act of may 30, 1908. The proviso in section 2, supra, mves the right of survivorship to the children if the widow dies. If Congress had intended the widow to lose her right to the payment of the compensation in case of her marriage they would have, undoubtedly, so provided. In the absence of such limitations in the act, I am of opinion that payment may be made as approved to Amelia Arthur, notwithstand- ing her marriage to Ernest Beckels within the period for which payment of compensation is approved by the Secretary of [Commerce and] Labor. (15 Comp. Dec., 646-648.) [Comptroller Traeewell to the Secretary of War, Nov. 3, 1909.] " Parent." 1. The word " parent " in the act may be applied to include both parents. You request my decision of a question stated in a letter dated October 26, 1909, from Edward H. Shultz, major. Corps of Engi- neers, as follows: I have the honor to transmit herewith, for approval as to the form of voucher submitted, voucher for $117, in favor of Robert William Hubbard and Laura Hubbard, parents of Henry William Hubbard, deceased, for compensation on account of accidental death of said Henry William Hubbard. The approval of the claim by the Department of [Commerce and] Labor is attached to voucher. It is intended to pay this voucher by two separate checks, and as this is the first claim of this nature that has come up for payment, it is desired to have the approval of the department as to the voucher covering this payment, and in order to establish a precedent in the payment of any future claim of this nature. The certificate of approval of the Secretary of [Commerce and] Labor is as follows : SiK : I have the honor to inform you that the claim of Robert William Hub- • bard and Mrs. Laura Hubbard, 909 South Sixteenth Street, St. Joseph, Mo., for compensation on account of the death of the person described below, has been examined, and I find from the evidence submitted that the said claim has been established under the act of May 30, 1908. In accordance with the authority conferred upon me by the said act, I hereby approve the payment of compensa- tion to the aforesaid claimant at a rate equal to the amount the deceased em- ployee would have been entitled to receive as pay If such employee were alive and continued to be employed for the period beginning August 13, 1909, and ending August 12, 1910, both dates inclusive, to be apjjortioned as follows : The entire payment to be made to Robert William Hubbard and Mrs. Laura Hubbard, parents of the deceased employee, in equal parts. Respectfully, Obmsbt McHabg, Assistant Secretary of [Commerce and'] Laior. The Secbetaby op War, Washington, D. C. Description of deceased employee. — Henry William Hubbard, stoker. Engineer Department, fleet improving Missouri River, Wathena, Kans., drowned August 12, 1909. Reporting office, Kansas City, Mo. Section 2 of the act of May 30, 1908 (35 Stat., 556), provides: That if any artisan or laborer so employed shall die during the said year by reason of such injury received in the course of such employment, leaving a widow, or a child or children under sixteen years of age, or a dependent parent, such widow and child or children and dependent parent shall be entitled to re- ceive, in such portion and under such regulations as the Secretary of [Commerce and] Labor may prescribe, the same amount, for the remainder of the said year, that said artisan or laborer would be entitled to receive as pay if such employe^ were alive and continued to be employed. OPINIONS OF SOLIOITOE, DEPAHTMBNT OF LABOR, 785 Section 1 of the Eevised Statutes provides that : In determining the meaning of the Revised Statutes or of any act or resolu- tion of Congress passed subsequent to February twenty-fifth, eighteen hundred and seventy-one, words importing the singular number may extend and be ap- plied to several persons or things, * * * The word parent in the act of May 30, 1908, supra, does import the singular number, but I am of the opinion that under section 1 of the Eevised Statutes it may be so applied as to include both parents. The Secretary of [Commerce and] Labor is given power to apportion the payments to be made among the various beneficiaries. This being true, and the word " parent " being so used that it does not indicate a preference for either parent, I am of the opinion that he would have a right to apportion the payment to be made to the de- pendent parents between them where they are both living and de- pendent. The parent or parents to be paid must, however, be dependent. It does not aifirmatively appear from the approval of the Secretary of [Commerce and] Labor whether he has determined the fact that the parents are dependent or not. The record, so far as it is before me, being silent respecting this fact, and it being a fact which must have been established before the Secretary of [Commerce and] Labor could have rightly acted, it will be presumed that such fact was properly brought to his knowledge. (Settlemeier v. Sullivan, 97 U. S., 444, 449.) I can not refrain, however, from saying that in my opinion it would be a much better practice if the approval of the claim by the Secretary of [Commerce and] Labor should in such cases state that the payees were dependent parents. A copy of this decision will be transmitted to him. You are advised that it should be stated upon the face of voucher ' that the payment is to the dependent parents. When corrected as mdicated you are authorized to pay the voucher if otherwise correct. (16 Comp. Dec, 290-293.) [Comptroller Tracewell to the Secretary of War, Nov. 4, 1909.] " The persons entitled to compensation under the act or their legal repre- sentatives." 1. Where an employee is em.braced within the provisions of the compensa- tion act and is injured the time lost can only be paid in the manner and in accordance with the conditions nam.ed in said act. By your authority the Chief of Engineers requests my decision of a question to be gathered from his letter of October 28, 1909, and accompanying papers. While the question submitted is not clearly or properly stated, I conclude it to be — Whether the act of May 30, 1908 (35 Stat., 556) , which provides compensation to certain employees of the United States for injuries sustained in the course of their employment, is exclusive and takes away whatever authority may theretofore have existed in the execu- tive branch of the Government to contract or provide for compensa- tion in any other form or to any other class of employees. This question was carefully considered and elaborately discussed in two decisions to the chairman of the Isthmian Canal Commission, 93364°— 15 50 786 woekmen's compensation under act of may 30, 1908. found in 15 Comptroller's Decisions, 115 and 161, to which your attention is invited. Your attention is also invited to the decision of this office of Decemher 26, 1908 (15 Comp. Dec, 394). The arguments presented in the papers submitted by you have been carefully examined, and I see no reason to change the views expressed in the decisions men- tioned above. Eeferring to Circular No. 16, of August 5, 1899, from the Office of the Chief of Engineers, relating to leaves of absence of employees outside of Washington and to the suggestion that the authority for said circular being based on the acts of March 15, 1898 (30 Stat., 316) ; July 7, 1898 (39 Stat., 653) ; and February 24, 1899 (30 Stat., 890), your attention is invited to the views expressed in a decision found in 7 Comptroller's Decisions, 125, 126. [Comptroller Tracewell to the Secretary of tfie Interior, Dec. 10, 1909.] 2. So long as the injury continues the employee is entitled to his status at the time of the injury and must be paid compensation as if he con- tinued to be employed. I am in receipt of your letter of December 4, 1909, requesting my decision of a question therein presented, as follows : When the first compensation payments to injured employees under the act of May 30, 1908 (35 Stat., 556), were made by special fiscal agents of the Reclamation Service, the question arose whether per diem employees were entitled to pay for Sundays and legal holidays during the period of their dis- ability. On January 19, 1909, a letter was written to the Secretary of [Com- merce and] Labor, requesting his opinion on this point, and in his letter of January 30, 1909, the Secretary of [Commerce and] Labor expressed the opinion that the employees " should not he paid for Sundays and legal holidays during their period of disability unless it had heen the custom for them to work reg- uarly on such days." Copies of these letters are inclosed heriewith. Acting on this opinion of the Secretary of [Commerce and] Labor, instructions were Issued in service order No. 94, relative to disability claims, that " a claimant should be paid on the same basis regarding Sundays and holidays as though he continued to be employed." Such payments were accordingly made by the special fiscal agents, but vouchers including such payments have lately been suspended by the Auditor for the Interior Department for authority to make payments for Sundays. In order to meet the possible objections service order No. 129 was issued, giving the following instructions : "Whenever payments under the act of May 30, 1908, include compensation for Sundays or legal holidays, the usual form of certificate given on page 7 of the circular under said act should be amended to read as follows: "Approved in accordance with the order of the Secretary of [Commerce and] Labor, dated , under the act of May 30, 1908, in pursuance of certificate of disability hereto attached. Other employees of the same class and em- ployed at the same place were required to and did work on such Sundays and legal holidays." On referring this service order to the Auditor for the Interior Department to ascertain whether such certificate would be considered suflielent evidence of the authority of the fiscal agent to make such payments, the auditor stated that under section 8 of the act of July 31, 1894 (28 Stat, 208), the Comptroller of the Treasury alone has jurisdiction to render advance decisions upon any question involving a payment to be made by disbursing oflBicers. Your decision is therefore requested whether per diem employees are en- titled to pay for Sundays and legal holidays under the act of May 30. 1908 ; and If so, whether a certificate of the form stated In service order No, 129 should he regarded as authority to make such payments. OPINIONS OF SOLICITOK, DEPARTMENT OB' LABOR. 787 The act referred to in your request for a decision of the question therein involved has for its basic idea that the works on which the person is injured, and thereby disabled from work, are going works, and that the same conditions of employment would continue during the period of enforced absence on account of the injury received as existed when the injury happened. It necessarily follows that if when injured the class of workmen to which he belonged are required to work on Sundays and holidays he is entitled for such period of absence to be paid for such Sundays and holidays ; if not so required to work, he would not be so entitled. No other construction of the act would pay an injured employee on the same basis as if he con- tinued to be employed. (See 15 Comp. Dec, 464.) The certificate appears to be sufficient. [Comptroller Traeewell to the chairman of the Isthmian Canal Commission, Jan. 24, 1910.] 3. Payment may be made to the legal representatives, who in this case appear to be the parents of decedent, of any amount due and unpaid for the period between date of injury and date of death. (See Comp. Dec, Feb. 7, 1914, holding contra.) I am in receipt of a communication of January 7, 1910, from Capt. F. C. Boggs, chief of office, as follows : I am transmitting herewith affidavits of Rafael Martiu and Juliana Salgado, fatlier and mother, respectively, of Bnemesio Miguel Martin, who was l^illed on May 3, 1909, while in the employment of the Isthmian Canal Commission. These affidavits were filed to cover the compensation due the deceased under the act of May 30, 1908 (35 Stat., 556), from February 5 to March 28, 1909, inclusive, during which period he was unable to work on account of an injury received while In the course of employment. The original approval of the claim, of the Acting Secretary of [Commerce and] Labor, of May 8, 1909, together with certificates of the physicians, covering the period mentioned, and certificate of the assistant chief engineer of the division in which Martin was employed, showing the date of return to duty, are also inclosed herewith. If payment can properly be made to any of the parties named In the aflSdavlts, will you please approve such payment and return the papers to this office? The inquiry is treated as having been submitted by your direction. The only question in the submission is understood to be whether pay- ment is authorized to be made of the employee's pay for the period from February 5, 1909, to March 28, 1909, for injuries received in an accident on February 5, 1909. The fact that other compensation may be payable because of the accident on May 3, 1909, in which the employee was killed, does not affect the question, except in so far as the subsequent death of the employee requires it to be determined whether there is any one to whom under the statute payment can be made for the prior injuries. The act of May 30, 1908 (35 Stat., 556), provides by section 1 that where certain employees of the United States are injured in the course of their employment, " such employee shall be entitled to receive for one year thereafter, unless such employee * * * be sooner able to resume work, the same pay as if he continued to be employed." The act also authorizes the compensation only where the incapacity for work continues longer than 15 days, and by section 4 "the in- jured party desiring to take the benefit of this act shall, within a reasonable period *fter the expiration of such time, file with his official superior, to be forwarded through regular official channels 788 workmen's compensation under act of may 30, 1908. to the Secretary of [Commerce and] Labor, an affidavit setting forth the grounds of his claim for compensation. These provisions of the act are understood to have been complied with in the present case, but the employee's application for compen- sation was not approved by the Secretary of [Commerce and] Labor until May 8, 1909 — five days after the employee's death from another injury. The Secretary approved the payment of compensation to the employee " at the rate of 40 cents silver per hour, excepting any time for which he may have received payment for services, for a pe- riod not exceeding six months from date of accident." After the acci- dent of February 5, 1909, the employee is reported to have returned to work March 29, 1909. The affidavits are submitted of Rafael Martin and Juliana Salgado, from which it appears that they are the father and mother of the employee, resident in Spain; that he died intestate, unmarried, and without children ; and that there are four brothers and sisters under the guardianship of the parents. The affidavits are in the nature of a claim by the parents for payment to them of $77.40 due from the United States for compensation to the employee as a laborer on the Isthmian Canal. The compensation of $77.40 claimed is understood to be the pay for the period of the employee's disability by the injury of February 5, 1909. The first section of the act of May .30, 1908, supra, contemplates payment to the injured employee himself for injuries not resulting in death. Under the terms of the act the claim for such compensa- tion must be made by the employee. When he has complied with the act and the regulations of the Secretary of [Commerce and] Labor in pursuance thereof, his rights are fixed and payment is contingent only on approval of the claim by the Secretary. If the claim is approved, but payment can not be made to the employee by reason of death from causes other than the particular injury for which com- pensation was claimed, the question which arises, as in the present case, is whether payment of the allowed claim can be made to the legal representatives of the employee. In the case of a pure gratuity,' if it is not reduced to possession of the donee it lapses, and payment thereof can not be made to the legal representatives in the event of death. An example of such a gratuity appears in the case considered in 16 Comptroller's Deci- sions, 124, relative to the grant by Congress of one month's extra pay to officers and employees of the Senate and House of Eepresentatives. The act of May 30, 1908, however, is entitled "An act granting to cer- tain employees of the United States the right to receive from it com- pensation for injuries sustained in the course of their employment." While the act is in the nature of a gratuity (15 Comp. Dec, 647), its provisions have mainly a compensatory jjurpose. The compensation which is authorized to be made for injuries not resulting in death is of the " same pay as if he continued to be employed." The provision in reality is nothing more than an authority to pay the employee his pay for the period of disability and distinguishes this particular pro- vision of the act from the general principles which control in the case of pure gratuities. By section 6 of the act it is provided that the payments under the act " are only to be made to the beneficiaries or their legal representa- OPINIONS OF SOLIOITOE, DEPAETMENT OP LABOE. 789 tives other than assignees, and shall not be subject to the claims of creditors." This section seems to have been expressly meant to meet questions affecting payments under the act when all else but payment has been complied with. It undoubtedly applies to the first section of the act and would prohibit payment to an assignee or creditor of the beneficiary therein designated. This must be because the "legal representatives" referred to in the sixth section of the act have reference to the legal representatives of the beneficiary under the first section of the act as well as the beneficiaries named by the other sections of the act ; and if this be so, there seems to be no reason why the limitation of payments by section 6 " to the beneficiaries or their legal representatives " should not be accepted as permitting the legal representatives to receive payment of the approved claim of a de- ceased employee for injuries not resulting in death. This view is not to be understood as construing section 6 as enlarging the benefi- ciaries who may file a claim in the first instance, but is expressed only with reference to those who may receive payment of a claim previously filed by the employee for injuries not resulting in death. In the present case I am of opinion payment may be made to the legal representatives, who appear to be the parents of the deceased employee, of the amount due and unpaid for the actual period of dis- ability upon the claim of the employee approved by the Secretary of [Commerce and] Labor for the injuries sustained in the accident of February 5, 1909. (16 Comp. Dec, 477^80.) [ComptroUer Tracewell to the Secretary of War, May 9, 1912.] 4, "he act shows the intent to be that whatever comiiensation is due an em- ployee who becomes deceased after filing an injury claim is for the benefit of those naturally depending on him.. The purpose of the act negatives the payment of compensation to an administrator who does not represent a beneficiary. (See Comp. Dec, Feb. 7, 1914, holding contra.) By your authority the Chief of Engineers, United States Army, submitted for the action of this office a voucher in favor of H. A. Hansen, administrator of William Carson, deceased, for $171, com- pensation from November 21, 1911, to January 1, 1912, for injury sustained by said William Carson in course of employment as pile- driver helper in the work of improving Humboldt Harbor and Bay, Cal. The question is whether payment would be authorized to an ad- ministrator of the compensation for injury sustained by an employee provided by the act of May 30, 1908. (35 Stat., 556.) Section 1 of said act provides that when any person employed by the United States as an artisan or laborer in certain works is injured in the course of such employment — such employee shall be entitled to receive for one year thereafter, unless such employee, in the opinion of the Secretary of [Commerce and] Labor, be sooner able to resume work, the same pay as if he continued to be employed, such pay- ment to be made under such regulations as the Secretary of [Commerce and] Labor may prescribe. The act also contains provisions as follows : Sec. 2. That if any artisan or laborer so employed shall die during the said year by reason of such injury received in the course of such employment, leav- 790 workmen's compensation under act op may 30, 1908. ing a widow, or a child or children under 16 years of age, or a dependent parent, such widow and child or children and dependent parent shall be entitled to recelye, in such portions and under such regulations as the Secretary of [Com- merce and] Labor may prescribe, the same amount, for the remainder of the said year, that said artisan or laborer would be entitled to receive as pay if such employee were alive and continued to be employed : Provided, That if the widow shall die at any time during the said year her portion of said amount shall be added to the amount to be paid to the remaining beneficiaries under the pi"o- visions of this section, if there be any. * * * Sec. 4. That in the case of any accident which shall result in death, the per- fcons entitled to compensation under this act or their legal representatives shall, within ninety days after such death, file with the Secretary of [Commerce and] Labor an affidavit setting forth their relationjjhip to the deceased and the ground of their claim for compensation under the provisions of this act. * * * Sec. 6. That payments under this act are only to be made to the beneficiaries or their legal representatives other than assignees, and shall not be subject to the claims of creditors. The employee, William Carson, in affidavit December 12, 1911, _ made claim for injuries sustained, and died January 2, 1912. Notice of his death was not received until January 18, 1912, and the Secre- tary of [Commerce and] Labor approved his claim January 11, 1912, authorizing payment of compensation for time not beyond May 20, 1912. An administrator was appointed February 9, 1912, and the voucher submitted proposes to pay him the compensation to January 1, 1912. He reports that the employee was never married and did not leave a widow, children, or dependent parent. It does not appear whether the employee's death was in conse- quence of the injuries received; but be that as it may, he had made claim for compensation, and his right thereto was determined under section 1 of the act of 1908, supra. The primary intent of that section is to make provision for the employee during a limited period of disability and it contemplates malting the payment to the employee himself; in fact there is no clear provision in the act for making payment of the compensation under section 1 to any other than the employee. By section 6 the payments under the act may be made only "to the beneficiaries or their legal representatives," and the payments are also excluded from assignment and from the claims of creditors. It is a limitation on the payments that may be made, and the term " legal representatives " as used in the sixth section of the act does not require that payment be made to an administrator of the estate of the employee who acts for the general purposes of such estate. The act as a whole shows the intent to be that whatever compen- sation is provided under the several sections of the act is for the employee and those naturally dependent on him. They are un- doubtedly the beneficiaries contemplated by the act, and there is no such provision as shows an intention to benefit the estate of the employee. The purposes as expressed in the act negative the payment of the compensation to an administrator who does not represent a bene- ficiary but represents only the estate generally of the employee. Such payment would appear especially negatived where none exist of those expressly mentioned by the act as beneficiaries, as in the present case, and I view payment of the voucher submitted as not authorized by any provision of said act of 1908. (18 Comp. Dec, 872-874.) OPlliflONS OP S6LICIT0K, DEPAETMENT OF LABOR, 791 [Comptroller Downey to Auditor for the Interior Department, Feb. 7, 1914.] 5. Where a claim has been perfected by an injured employee and he dies before receiving payment his administrator may collect the fund and distribute same subject to the administration of the court in which the trust is pending. (This opinion practically overrules and supplants previous opinions found at pp. 787 and 789.) M. T. Murray, special fiscal agent, United States Reclamation Service, applied January li, 1914, for revision of the action of the Auditor for the Interior Department by settlement No. 8618, dated November 29, 1913, in disallowing him credit for payment of $54.96 made to Paul M. Wood, administrator of the estate of John R. Wood, deceased, for compensation or disability pay provided by the act of May 30, 1908 (35 Stat, 556), from December 6 to 29, 1912. The auditor disallowed the credit because : The act of May 30, 1908 (35 Stat., 556), authorizes payment of the compensa- tion provided for therein only to the employee, his widow, children, or depend- ent parents. Payment is not authorized to an administrator who does not rep- resent a beneficiary, but only the estate generally of the employee * * *. (18 Comp. Dec, 872.) John E. Wood, while employed in the Reclamation Service, was injured on December 5, 1911, and on December 22 made claim for compensation under the act of May 30, 1908, which claim was ap- proved by the Secretary of [Commerce and] Labor on January 16, 1912. He was absent from work on account of the injury from De- cember 6 to 29, 1911, inclusive. Voucher covering payment for the said period was transmitted for payment to the project engineer's office at Mitchell, Nebr., and was received there on the night of Feb- ruary 9, 1912, but on the evening of that day Wood was instantly killed in another accident. Section 1 of the act of May 30, 1908, provides that when a person employed by the United States as an artisan or laborer in certain works is injured in the course of such employment — * * * such employee shall be entitled to receive for one year thereafter, unless such employee, in the opinion of the Secretary of [Commerce and] Labor, be sooner able to resume work, the same pay as if he continued to be em- ployed * * *. The only question involved in this case is the propriety, under the circumstances, of payment to the administrator. It must be reinembered that the injuries for which claim was made by the deceased were not the injuries from which he died. He had recovered from those injuries, had returned to work, had perfected his claim, and it had been passed upon and certified. His right thereto had been fixed. The subsequent accident which resulted in his death beat the voucher to him by a few hours. The sole beneficiary, under the first section of the act, is the injured employee. Under the second section the beneficiaries are his widow or child or children under 16 years of age or dependent parents, but they are beneficiaries only when death results during the year " from such injury," not another and different injury. Section 3 is solely as to procedure. Section 4, in its reference to " persons entitled to compensation under this act or their legal representatives " refers to a case where death has resulted from the injuries for which coni- pensation is sought. Otherwise it is as to procedure. Section 5 is 792 workmen's compensation under act op may 30, 1908. as to examinations. This is all of the act except section 6, which provides : That payments under this act are only to be made to the beneficiaries or their legal representatives other than assignees, and shall not be subject to the claims of creditors. Two contingencies are provided for and two classes of bene- ficiaries. One where the employee is injured and incapacitated for work, but survives and becomes himself the beneficiary. The other where he dies as the result of the injury and others become the bene- ficiaries. That this man was subsequently injured and died is a separate and distinct matter and has no bearing on the case in hand. He was himself the sole beneficiary during all the period for which compensation was authorized on account of the injury in question. It has been correctly held that the benefit conferred by this statute is not a pure gratuity. (16 Comp. Dec, 477.) The provision is for a continuance during disability of "the same pay as if he con- tinued to be employed." It is also spoken of in the act as " compensa- tion." It is in lieu of that which an injured employee might recover of a private corporation by an action at law. These matters have a bearing on the real question for determina- tion, and are cited for that reason in view of the fact that on that question the decisions of the office are conflicting. In Comptroller's Decisions, volume 16, page 477, where the facts were much as in this case, but where payment was claimed by a father and mother, the then comptroller, referring to section 6, well said : This section seems to have been expressly meant to meet questions affecting payments under the act, when all else but payment has been complied with. It undoubtedly applies to the first section of the act and would prohibit payment to an assignee or creditor of the beneficiary therein designated. This must be because the " legal representatives " referred to in the sixth section of the act have reference to the legal representatives of the beneficiary under the first section of the act as well as the beneficiaries named by the other sections of the act; and if this be so, there seems to be no reason why the limitation of pay- ments by section 6 " to the beneficiaries or their legal representatives " should not be accepted as permitting the legal representatives to receive payment of- the approved claim of a deceased employee for injuries not resulting in death. This view is not to be understood as construing section 6 as enlarging the benefi- ciaries who may file a claim in the first instance, but is expressed only in refer- ence to those who may receive payment of a claim previously filed by the em- ployee for injuries not resulting in death. In concluding the comptroller held that payment might be made to the " legal representatives," adding, " Who appear to be the parents of the deceased employee." The comptroller knew, as we all know, that " legal representatives " of deceased persons are, in contemplation of law, executors and ad- ministrators, but he evidently invoked the rules of construction which, in some cases, permit heirs or next of kin to be regarded as within the term. This idea is borne out by the case in 18 Comptroller's Decisions, 395, wherein authorities are cited justifying this sort of a construction. In that case, where claim was made by a widow and payment au- thorized to her on that construction of the term "legal representa- tives," the comptroller, referring again to section 6, said : " I do not think the words ' legal representatives ' are here used as meaning only OPINIONS OP SOLICITOE, DEPARTMENT OF LABOH. 793 executors or administrators," and, concluding the case, he says : " The language of section 6, supra, viz, ' legal representatives ' other than assignees, standing alone, seems to show that executors and adminis- trators are not the only persons meant." The use of the word only " in both quotations is significant. The language can be interpreted only as a concession not to be questioned that " legal representatives " necessarily means executors and adminis- trators and a contention that the words were not to be strictly so limited but were meant to include others also. In the face of these two cases, well reasoned on sound principles, the decision (18 Comp. Dec, 872) is difficult of comprehension, especially as it does not in any specific way refer to, modify, or dis- tinguish either of the cases above cited. In the case last cited it is said, " In fact, there is no clear provision in the act for making payment of the compensation under section 1 to any other than the employee." It had been theretofore held (16 Comp. Dec, 477) that section 6 applied to section 1. And it is also said, as the basis of the conclusion, that payment may not be made to an administrator, that " The purposes as expressed in the act negative the payment of the compensation to an administrator who does not represent a beneficiary, biit represents only the estate generally." This statement can only be justified upon the conclusion that " legal representatives" means an administrator if there be widow, minor children, or dependent parents surviving, and does not mean an administrator if no such relatives survive. Such a conclusion can hardly be justified. An administrator is not the " legal representative " of persons in life. In the administration of an estate he must conserve the in- terests of surviving heirs, but he is the " legal representative " of the decedent and no one else. Construction to carry out assumed inten- tion must have a firmer foundation before it can be permitted to violate established principles. In the case under consideration the pay to which this man was found to be entitled was his before his death, although not reduced to possession, just as much as if it was pay earned by actual labor. Section 2 has no reference to such a case. If section 6 applies to section 1 this pay could go only to the beneficiary, the injured employee, or his legal representative, subject to certain restrictions. If section 6 does not apply to section 1 the law will take care of the case equally as well. We need not in this case determine anything as to the right to institute a claim. We are concerned only with the pay due under a perfected and allowed claim, a right fixed during the life of the em- ployee. There is nothing in the act providing against payment to an administrator in such a case, and there is too much of established principle to permit of a conclusion based on a mere assumption as to intention. I do not overlook the fact that an administrator ordinarily first pays creditors of his trust estate and that section 6 provides that payments shall not be subject to the claims of creditors. If, again, section 6 does apply to section 1, which in this respect at least, for manifest reasons, I seriously doubt, we need not con- Y94 woekmen's compensation under act of may 30, 1908. cern ourselves about this provision. The administrator will take the money subject to any proper limitation on its use and his ac- countability for its proper administration is to the court in which the trust is pending. The action of the auditor is overruled and a certificate of dif- ferences will issue in favor of appellant for $54.96. 18 Comptroller's Decisions, 872, is disapproved. [Comptroller Tracewell to the Secretary of the Treasury, Nov. 26, 1912.] "Appropriation for fiscal year." '■ Disability pay of temporary employee." 1. Where the period of incapacity covers more than one fiscal year payment should only be made for the time of incapacity during each fiscal year from the appropriation for that year. A temporary employee who is injured and whose incapacity continues beyond his term of appoint- ment is entitled to pay during incapacity, regardless of termination of employment. By your reference of the '22d instant, requesting my decision thereon, I am in receipt of the following letter from the Secretary of [Commerce and] Labor: This department is in receipt of a report of discontinuance of compensation payments in the case of William A. Baumback, temporary plate printer. Bureau of Engraving and Printing, injured August 27, 1912, stating that payments had been discontinued on account of termination of temporary appointment. Under date of October 2, 1912, the employee's claim for compensation was ap- proved by this department for such time as he might be disabled on account of his injury, up to and including February 28, 1913. The compensation act provides that an employee receiving compensation under it — " Shall be entitled to receive for one year thereafter, unless such employee, in the opinion of the Secretary of [Commerce and] Labor, be sooner able to resume work, the same pay as if he continued to be employed " ; and. further, that if an employee shall die during the year on account of his injuries, his dependents shall be entitled to receive — " * * * the same anioimt for the remainder of said year." A regular employee is clearly entitled to compensation during disability, but not to exceed one year. I can see no reason for interpreting the law differently in the case of a temporary employee, as the law itself makes no distinction be- tween permanent and temporary employees, but refers to — " * * * any person employed by the United States as an artisan or la- borer." To make such a distinction would be unfair to a temporary employee, and. In case of his death, work a hardship on his dependents if they could receive com- pensation only for the period of his temporary appointment. In my opinion Mr. Baumback Is entitled to the benefits of the act as long as his disability continues and the action of the Bureau of Engraving and Print- ing in discontinuing compensation payments was not warranted under the law. The matter is brought to your attention for such action as you may deem necessary, in order that the employee may receive the compensation contem- plated by the law. The act of May 30, 1908 (35 Stat., 556), granting to certain em- ployees of the United States the right to receive from it compensation for injuries sustained in the course of their employment, provides: That when, on or after August first, nineteen hundred and eight, any person employed by the United States as an artisan or laborer in any of its manufac- turing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortification work, or In hazardous employment on construction work in the reclamation of arid lands or the management and control of the same, or in hazardous employment under the Isthmian Canal Commission, Is injured in the course of such employment, such employee shall be entitled to OPINIONS OF SOLICITOE, DEPABTMENT OP LABOB. 795 receive for one year thereafter, unless such employee, In the opinion of the Secretary of [Commerce and] Labor, be sooner able to resume work, the same pay as if he continued to 6e employed, such payment to be made under such regulations as the Secretary of [Commerce and] Labor may prescribe : Provided, That no compensation shall be paid under this act where the injury is due to the negligence or misconduct of the employee injured, nor unless said injury shall continue for more than fifteen days. All questions of negligence or mis- conduct shall be determined by the Secretary of [Commerce and] Labor. ******* Sec. 7. That the United States shall not exempt Itself from liability under this act by any contract, agreement, rule, or regulation, and any such contract, agreement, rule, or regulation shall be pro tanto void. Sec. 8. That all acts or parts of acts in conflict herewith or providing a dif- ferent scale of compensation or otherwise regulating its payment are hereby repealed. The Director of the Bureau of Engraving and Printing in a letter of November 20, 1912, to the Secretary of the Treasury states relative to the employee in question : Mr. Baumback, ou July 29, 1912, was appointed a temporary plate printer for 60 days from August 7, 1912, the date of oath. He claims to have sprained his arm pulling a press on August 27,. 1912, which is the last day he has been at work. His services were discontinued at the expiration of his temporary ap- pointment — Saturday, October 5, 1912. His claim for compensation payments on account of the injury was approved by the Department of [Commerce and] Labor and he was paid from the date of the injury to the time his temporary appointment expired. In 17 Comptroller's Decisions, 568,'involving the right of an injured employee to be paid disability pay subsequent to the date on which he was discharged from a navy yard because his services were no longer required " on account of lack of work," it was said : The first section quoted above from the compensation for injuries act pro- vides that the beneficiary — " * * * shall be entitled to receive for one year thereafter, unless such employee, in the opinion of the Secretary of [Commerce and] Labor, be sooner able to resume work, the same pay as if he continued to he employed * * *." This language makes it clear that the beneficiary is entitled to his pay during incapacity for work on account of the injury at any time for one year after the injury, whether he is borne on the rolls as an employee or not. It he has been discharged, he is entitled to receive pay " as if he continued to be employed." Sections 7 and 8, supra, show how carefully Congress intended to guard the right given by the act. If Miller is otherwise entitled to the pay provided by the act, I am of the opinion that his right to receive it is not alfected by his discharge of November 30, 1910. Likewise, in the present case, if the employee in question is other- wise entitled to the pay provided by the act, his right to receive it is not affected by the fact that when he was injured he was working under a temporary appointment which afterwards lapsed prior to his recovery from the injury. The act makes no distinction what- ever between temporary and permanent employees. [Comptroller Downey to the Public Printer, Oct. 29, 1913.] 2. Where the period of incapacity covers more than one fiscal year payment should only be made for the time of incapacity, regardless of termi- nation of employment. I have your letter of the 25th instant, as follows : Under date of October 17, 1913, the Acting Secretary of the Department of Labor advised me that Miss Minnie E. Howard has established a right to com- 796 woekmen's compensation under act of may 30, 1908. Ijensation under the act of May 30, 1908, for an injury received in the Govern- ment Printing Office on February 10, 1911, and that he approved the payment of compensation to the claimant at a rate equal to the pay she would have re- ceived if she had continued to be employed, such compensation to cover the time between February 11, 1911, and February 11, 1912, both dates inclusive, excepting any time for which the claimant may have received or shall receive other pay or compensation from the United States. The payments authorized covered the following periods: March 14 to April 29, 1911, inclusive; May 27, 1911; June 6 to June 17, 1911. inclusive; June 26 to December 3, 1911, inclusive; and December 18, 1911, to January 17, 1912, inclusive. By fiscal years the amounts of compensation due are as follows: From March 14 to June 30, 1911, $134.40; from July 1, 1911, to January 17, 1912, .$883.32. Upon consideration of the above facts a ruling is requested by you as to whether the entire amount of said claim should be paid from the appropriation for public printing and binding 1914, or whether it is chargeable against the appropriations for public printing and binding for the fiscal years during which said claim accrued and payable therefrom so far as such appropriations may be available. The act of May 30, 1908, (35 Stat., 556), provides: That when, on or after August first, nineteen hundred and eight, any person employed by the United States as an artisan or laborer in any of its manufac- turing establishments, * * * is injured in the course of such employment, such enployee shall be entitled to receive for one year thereafter, unless such employee, in the opinion of the Secretary of [Commerce and] Labor, be sooner able to resume work, the same pay as if he continued to be employed, such pay- ment to be made under such regulations as the Secretary of [Commerce andl Labor may prescribe: * * * It appears from your submission that the Secretary of Labor has found, in accordance with the authority vested in him by the above- cited act, "that a claim for compensation is established"; that the compensation to be paid has been determined as provided in said act ; and that the only question now presented is as to the appropria- tion from which said compensation is to be paid. In a decision of this office of January 26, 1909 (15 Comp. Dec, 461, 464) , with reference to this same law, it was said : * * * The statute seems to be based upon the assumption of a continua- tion of his pay status at the time of the injury for one year thereafter, unless he was sooner able to resume work. He is to be paid during the period the same pay as if he continued to be employed. His pay on account of the injury is based on a status that the statute assumed would have continued but for the injury. The payment should therefore be made in accordance with this assumed status. * * * 3. The act of May 30, 1908, refers to the payment as " compensation " and contemplates a continuing liability, and that the payments will be made as they accrue or would accrue if the employee had lived and continued to be em- ployed. * * * In March, 1909, the Auditor for the State and Other Departments submitted for approval, disapproval, or modification a decision in which he held — That the appropriation chargeable with the compensation of the employee dur- ing his incapacity is that from which he would have been paid had he remained in actual employment. In approving said decision Comptroller Tracewell said (15 Comp. Dec, 554, 556) : The appropriation named by the Auditor seems to be the correct one, and, in fact, is the only appropriation which can be used with which to effect the pay- ment intended and provided by Congress. I agree with the views expressed in those decisions. OPINIONS OF SOLICITOR, DEPARTMENT OP LABOR. 797 The period for which compensation under the act of May 30, 1908, supra, was authorized covered parts of two fiscal years, to wit, fiscal 'year 1911 and fiscal year 1912. It was during these years that the liability accrued and it is to the appropriations for these years that the compensation is chargeable. I understand that there is an unexpended balance of the appro- priation for public printing and binding 1912, from which payment of the amount properly chargeable to that appropriation can be made, but that the unexpended balance of the appropriation for public printing and binding 1911 was covered into the surplus fund June 30, 1913, as required by law. Such being the case, payment of the compensation accruing prior to July 1, 1911, in this case, if not paid prior to July 1, 1913, can not be made until the amount thereof shall have been certified to Congress as a legal claim and an appro- priation made therefor. The question submitted is answered accordingly. [Comptroller Downey to Auditor for the Navy Department, Dec. 1, 1913.] " Leave status of injured employee." 1. The leave allowed certain employees of the Government by the act of Feb- ruary 1, 1901, accrues during the period such employee is disabled and receiving pay under the act of May 30, 1908, the same as if he worked. Joseph W. Lewis, molder. United States navy vard, Philadelphia, Pa., applied October 24, 1913, for a revision of settlement by the Auditor for the Navy Department — No. 122231, dated October 11, 1913 — whereby he was disallowed his claim for one day's pay de- ducted from leave with pay. The auditor states the disallowance as follows: Claimant received 14 days' leave with pay during his last service year. One day's leave was deducted on account of absence on account of injury. It is considered that the comptroller's decision of May 2, 1903 (9 Comp. Dec, 606), covers this case. The act of February 1, 1901 (31 Stat., 746), granting leaves with pay to certain per diem employees of the Government, is as follows : That each and every employee of the navy yards, gun factories, naval sta- tions, and arsenals of the Tlnited States Government be, and is hereby, granted fifteen working days' leave of absence each year without forfeiture of pay dur- ing such leave: Provided, That it shall be lawful to allow pro rata leave only to those serving twelve consecutive months or more : And provided further, That in all cases the heads of divisions shall have discretion as to the time when the leave can best be allowed without detriment to the service and that abseuee on account of sickness shall be deducted from the leave hereby granted. The decision of May 4, 1903 (9 Comp. Dec, 606), was a construc- tion of the law by this office, and it was held that the pro rata leave was dependent upon service. This decision was long before the enactment of the disability-pay act, and, therefore, that act was not in contemplation in construing the leave law. It was, however, held by my predecessor, by decision of January 30, 1913 (64 MS. Comp. Dec, 594), that the leave allowed by the act of February 1, 1901, does not accumulate while the employee is absent and receiving com- pensation under the disability act. 798 workmen's compensation undee act of may 30, 1908. The appellant's case is this: His service year in which the claim for leave is made (which was not his first year of service) began May 20, 1912. He was granted four days' leave without pay, August 19 to 22; was absent two and a half days without leave; Avas dis- abled from injury received September 6 for 24 days, receiving pay during that period under the act of May 30, 1908 (35 Stat., 556) ; and was given 14 days' leave with pay, one day of the full allowance being deducted on account of absence from service by reason of the disability resulting from the injury. The act of May 30, 1908 (35 Stat., 556), is in part as follows: That when, on or after August first, nineteen hundred and eight, any person employed by the United States as an artisan or laborer in any of its manu- racturing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortification worli, or in hazardous employment on con- struction work in the reclamation of arid lands or the management and control of the same, or in hazardous employment under the Isthmian Canal Commis- sion, is injured in the course of such employment, such employee shall be en- titled to receive for one year thereafter, unless such employee, in the opinion of the Secretary of [Commerce and] Labor, be sooner able to resume work, the same pay as if he continued to be employed, * * * ; Provided, That no com- pensation shall be paid under this act where the injury is due to the negligence or misconduct of the employee injured, nor unless said injury shall continue for .ntiore than fifteen days. * * * This is a provision that an employee of the Government engaged in more or less hazardous service who is injured without fault on his part and disability results so that he can not work shall receive pay " as if he continued to be employed." It seems to me that the intent of the law is to treat such employee just as if he continued to serve ; that is, as if in a service status, a status in which leave accrues. It is a beneficial statute, as is the leave law, and, by a well-recognized rule as to such laws, each should receive a liberal construction. To hold that leave does not accrue during the disability when he. is treated as to pay the same as if serving can not be considered a liberal construction. While the particular question in this case was not under con- sideration in my decision of June 6, 1913 (19 Comp. Dec, 787), in which the construction of these statutes was involved, it was said : The act (disability act) clearly contemplates that no deduction and nothing detrimental shall i-esult to the employees from its provisions. * * * The act of 1908 puts the employee outside the status contemplated by the act of 1901, and the fact that the employee has been absent on account of in- juries under the act of 1908 has no bearing on the leave to be granted the employee under the act of 1901, * * *. I can not agree with the decision of January 30, 1913, supra, hold- ing that leaves do not accumulate while the employee is absent from work and receiving disability pay, but I am of opinion that the ap- pellant might legally have been granted his full 15 days' leave for his last service year. The leave act of February 1, 1901, does not provide pay for leave but leave with pay, and if the leave is not actually granted the em- ployee is not entitled to leave pay. It was held, nowever, in 12 Comptroller's Decisions, 398, that — for so much time as they worked when entitled to leave of absence without for- feiture of pay in the latter part of the year they may be paid for an equal amount of time they were absent by permission without pay in the early part of the year. OPINIONS OP SOLICITOR, DEPABTMENT OP LABOB. 799 In accordance with this holding the appellant will now be allowed liay for one of the four days he was absent by permission in August. His pay was at the rate of $3.52 per day. The auditor's settlement is disaffirmed, and a difference is found in favor of the appellant of $3.52. A certificate will be issued accord- ingly. 2. The leave allowed certain employees of the Government by the act of Feb- ruary 1, 1901, accrues during the period such employee is disabled and receiving pay imder the act of May 30, 1908, the same as if he worked. [Comptroller Downey to the Secretary of the Navy, Dec. 8, 1913.] I have your letter of the 2d instant requesting a decision as to whether or not you are authorized to pay James W. Smith, a chipper and calker at the New York Navy Yard, for leave of absence with pay at the rate of 15 working days per year in accordance with the act of February 1, 1901 (31 Stat., 746), under the following cir- cumstances : Smith has been employed at various times in the above capacity at the navy yard. New York, since February 15, 1904, and his con- duct and workmanship has been marked, respectively, "good" and "excellent." He was last employed on April 11, 1912, and was injured on May 20, 1912, a canvas used to cover turret No. 3 on the Utah striking him on the head, which incapacitated him for a period of 95J days, for which he received $313.24. He returned to work on September 9, 1912, and was again injured November 9, 1912, while working on turret No. 6 on the Arkansas, receiving a contusion and a lacerated wound to his right eyeball, and is still incapacitated. The yard surgeon examined him on November 8, 1913, in connec- tion with this injury and reported that Smith is not physically qualified for employment as chipper and calker in said yard. In view of this statement the yard authorities recommended that Smith be not reinstated to his former position, as he is not qualified to perform the duties required of men of his grade. This last injury covers a period of absence extending over one year, and Smith received on November 15, 1913, payments aggre- gating $1,026.64, or one year's compensation, in accordance with the provisions of the act of May 30, 1908 (35 Stat., 556) , which entitles certain employees of the United States, including artisans and laborers at navy yards, who may be injured in the course of their employment to receive for one year after injury the same pay as if they had continued to be employed, unless sooner able to return to work, provided the injury is not due to the negligence or misconduct of the employee and is of more than 15 days' duration. The act of February 1, 1901 (31 Stat., 746), provides: That each and every employee of the navy yards, gun factories, naval sta- tions, and arsenals of the United States Government be, and Is hereby, granted 15 working days' leave of absence each year without forfeiture of pay during such leave : Provided, That it shall be lawful to allow pro rata leave only to those serving 12 consecutive months or more: And provided further, That in all cases the heads of divisions shall have discretion as to the time when the leave can best be allowed without detriment to the service, and the absence on account of sickness shall be deducted from the leave hereby granted. 800 workmen's compensation under act of may 30, 1908. The acts of May 30, 1908, and February 1, 1901, supra, are sep- arate and distinct in their operation, and therefore independent of each other for purposes of this question. Both are beneficial acts, hence should be construed with liberality. (See 19 Comp. Dec, 787.) The real question resolves itself into this: Shall Smith now be given 15 working days' leave of absence with pay for his first service year, and in addition thereto the same rate, pro rata, from the end of the first service year (April 11, 1913) until November 8, 1913, the date when the last installment of the year's disability compensation became due, on which date he ceased to earn leave, but still remained in the service, though absent by permission. In my decision of December 1, 1913, in the Lewis case in reference to the act of May 30, 1908, it was held that— * * * It seems to me that the intent of the law is to treat such employee Just as if he continued to serve; that is, as if in a service status — a status in which leave accrues. It follows, therefore, that leave accrues imder this act — while such empiloyee is injured and unable to work — ^in like manner as if he were not injured and able to perform his daily task. (19 Comp. Dec, 787.) You are therefore authorized to grant Smith leave of absence at the rate of 15 working days per year from April 11, 1912, to Novem- ber 8, 1913, both dates inclusive, less the leave, if any, heretofore granted. No leave can accrue after November 8, 1913. REGULATIONS CONCERNING THE DUTIES OF EMPLOYEES, OFFICIAL SUPERIORS, AND MEDICAL OFFICERS. DUTIES OF EMPLOYEES. 1. Reports of injuries. — Whenever any. injury is sustained by an employee in the course of his employment, he shall immediately re- port the same to his official superior, if he is able to do so, giving also a statement of the facts and the names of witnesses, if any. 2. First-aid treatment. — No matter how slight the injury Hiistained, the injured employee shall immediately apply to the dispensary or medical officer, if there be one, for examination and for first-aid treatment, and it shall be the duty of his official superioi' to direct him to do so. 3. Reports of disabiMty. — In case the disability arises pome time after the injury has been received, it shall be the duty of the injured employee to notify his official superior within 48 hours from the beginning of such disability. 4. Treatment. — It shall be the duty of each injured employee intending to take advantage of the provisions of the act to obtain necessary medical and surgical treatment and to comply with all reasonable orders for treatment and conduct which the attending physician may give. He shall also submit to such medical examina- tions as his official superior may from time to time direct. 5. Notices of continuing disability. — Every employee injured in the course of employment who is unable to return to work because of such injury shall, within 24 hours, inform his official superior of such fact, either in person or by mail, telephone, or messenger. Such notice shall be given by the injured employee or for him every week, unless, in the opinion of the official superior, the permanent nature of the injury makes this notice unnecessary. Such notice should state when the injured employee was last seen by his attending physician. 6. Examinations. — For the j)urpose of the medical exa>ainations prescribed by the act, the injured employee shall appear at the dis- pensary of the establishment whenever directed to do so; but if he claims to be unable to present himself for such examination the medi- cal officer or other officially designated physician may call at the I'esi- dence of the injured employee in order to make an examination. The injured employee shall be entitled to have his attending physician present during such examination. 7. Disagreements. — If the injured employee refuses to accept the opinion of the official examining physician as to his ability to resume work, either because of a different opinion held by his private physi- cian or for any other reason, the employee shall immediately so report to his official superior, who will in turn report the same to the Secre- tary of Labor. 8. Emaminations iy order of the Department of Labor. — On re- ceipt of reports concerning disagreement between the claimant or his physician and the official examining physician, the Secretary of Labor will immediately order an examination of the claimant by 93364°— 15 51 801 802 workmen's compensation xindeb act of may 30, 1908. a physician designated by him, so as to ascertain the claimant's physical condition; and if the employee refuses to submit to or obstructs such examination the right to compensation shall be lost for the period covered by the continuance of such refusal or obstruc- tion. 9. Claims. — ^The claim, properly filled out,, must be presented by the injured employee to his official superior, who shall forward the same, with the statements of witnesses, if there were witnesses, through the regular official channels for transmission to the Secre- tary of Labor. 10. Certificates. — In cases of continuing disability the injured em- ployee shall furnish such medical certificates from time to time as the official superior may require. 11. Disregard of instructions. — Where an injured employee shall fail to make any of the reports prescribed in these regulations, or refuses to submit himself to examination by the medical officer or other officially designated physician, when ordered by his official superior to do so, such refusal Or failure will be considered by the Secretary of Labor as presumptive evidence, against his right to compensation under the law. DUTIES OF OFFICIAL SUPEKIORS. 12. Record of accident. — ^Whenever an accident causing injury to an employee comes to the knowledge of the person in charge of such employee he should immediately secure a record of the cause and nature of the accident and the nature and extent of the injury, however slight. The names and testimony of witnesses should also be secured, and the employee directed to apply to the dispensary or medical officer, if there be one, for examination and first-aid treat- ment. 13. Reports of injuries. — ^AU injuries which prevent the employee from performing work for one day or longer should be reported to the Secretary of Labor by the official superior of such employee, on the form provided for that purpose, within 48 hours after such injuries have been brought to the notice of such official superior. The reports called for in paragraphs numbered 1, 3, 13, 14, and 16 should be made for all employees regardless of the application of the provisions governing compensation. 14-. Report of termination of disability. — ^Whenever a person who has been reported disabled by an accident is able to return to work his official superior should immediately report the termination of such disability to the Secretary of Labor on the proper form. 15. Disagreements. — The official superior should make immediate report directly to the Secretary of Labor of all cases of disagree- ment between the injured employee and the official examining phy- sician as to the ability of the employee to resume work. 16. Report of death. — Whenever an injury received in the course of .employment results in death, either immediately or within one year thereafter, such death should be reported on the proper form as soon as possible after the knowledge of such death reaches the official superior of the deceased employee. 17. Blanks to be furnished. — Whenever the official superior of an injured employee has reason to believe, from the statement of the medical officer or other officially designated physician or from any OPINIONS OF SOLICITOE, DEPARTMENT OP LABOR. 803 other evidence, that disability has lasted more than 15 days he should furnish such employee with a blank form for claim and call his attention to the provisions of the compensation act. Blank forms should be furnished upon request to any employee wishing to make a claim. 18. Indorsement of claims. — The official superior or other person designated should either fill out and sign the certificate of approval provided for that purpose or indicate the reasons for his refusal to give his approval. In either case statements of witnesses, if any, and copies of the records of the examination of the claimant by the medical officer or officially designated physician, if such examinations have been made, should be attached to the claim and the entire record submitted to the Secretary of Labor, to whom the determination of the validity of all claims is committed by the act. 19. Claims to ie forwarded. — ^AU claims for compensation, when filled out and presented by injured employees to their official supe- riors, should be forwarded by them through the regular official chan- nels for transmission to the Secretary of Labor. No letter of transmittal is necessary. All information desired should be made part of the indorsement on such claims. 20. Approval or disapproval. — Notice of the approval or disap- proval of claims will be forwarded from the office of the Secretary of Labor to the heads of the respective departments or independent . offices for transmittal to the official superior of the employee. 21. Payments. — Payments, under this law should be made at the regular intervals at which salaries are paid to all employees, except payments accrued before the receipt of the approved claim, which should be made as soon after the receipt of the approval as possible so as to avoid unnecessary hardship to the employee. If subsistence is furnished during employment but not during the period of dis- ability the value of the subsistence should be allowed to the injured workman during disability in addition to the wages usually paid in cash. When compensation is approved for a fixed period, payments may be made on the authority of such approval without further evidence. When compensation is approved for an indefinite period, each pay- ment shall be based upon the certificate, signed by the claimant and approved by the claimant's official superior, to the effect that during the time covered by the said payment the claimant was unable to resume work and that inability to so resume work was the result of the injury for which compensation was granted. In no case shall annual leave be charged against any portion of the period for which compensation is due. 22. Certificates. — If the claimant's superior officer is unable to satisfy himself that the claimant was unable to resume work for any period for which compensation is claimed, he may require that the claimant submit to him a certificate from a duly authorized medical practitioner showing the continuance of the inability to resume work. 23. Special examinations. — If this medical certificate is satisfac- tory to the official superior, he should then approve payment ; but if the certificate does not satisfy him he may require the medical officer or officially designated physician, where such is available, to examine the claimant for the purpose of ascertaining whether the disability still exists. 804 woekmen's compensation undee act of may 30, 1908. ^4- Payments withheld. — In all cases where the continuance of dis- ability has not been proved to the satisfaction of the superior officer, or where the results of the examination of the claimant by the medi- cal officer or officially designated physician are contradictory to the statements of the attending physician, payments should be withheld and a report of these facts should be immediately forwarded directly to the Secretary of Labor. A detailed report of the examination oi the claimant by the medical officer or officially designated physician, if any has been made, should accompany this report, together with the statement of the employee and a certificate of his attending physician. f5. Examination iy physician of Department of Labor. — On re- ceipt of reports concerning disagreement between the claimant or his physician and the official superior, the Secretary of Labor will immediately order an examination of the claimant by a physician designated by him, so as to ascertain the claimant's ability to return to work. 26. Decision. — The decision of the department will then be com- municated to the official superior. If the claim of the injured person be sustained, the amount due him should be paid as soon as possible after the receipt of the decision. 21/. Discontinuance of payjnents. — When payments are discon- tinued because of recovery or other reason, such fact should be re- ported to the Department of Labor on the blanks furnished for that purpose. 28. Examination at end of six mon^As.— Whenever compensation has been paid for any case of disability for five months and there is a possibility of the disability lasting so as to extend over six months, the official superior of the injured employee should report the fact to the Secretary of Labor, so as to enable him to order as soon as pos- sible a medical examination. 29. Death. — ^Whenever a person in the employ of the Government shall die as the result of injury received in the course of his employ- ment, and his wife, his children under 16 years of age, or his parents desire to claim payment under this act, they should be furnished with blank forms of claim for compensation. If the official superior has reason to believe that the person so injured is covered by the pro- visions of the law, he should inform the dependent relatives, if the names and addresses of such relatives can be ascertained by him, of the necessary procedure under the law and the provision as to the 90-day limit. If the persons who may be entitled to compensation on account of the death of an employee are located in a foreign country, they may file their affidavits of claim, respectivelj^, with the consular officer of the United States located most conveniently, and any affidavit so filed within 90 days after the death will be considered as having been duly filed with the Secretary of Labor as required by section 4 of the compensation act. 30. Death benefits. — Claims for compensation on account of death should be forwarded to the Secretary of Labor. If the claim be established and compensation is due to more than one person the Secretary of Labor will designate the portion to be paid to each claimant. 31. Employees to have laws and regulations. — Copies of the law and the regulations should be on hand in each establishrheht and, OPINIONS OP SOLICITOR, DBPAETMENT OF LABOR. 805 upon request, furnished free to all employees for their information and guidance. A summary prepared by the Secretary of Labor, presenting the principal provisions of the compensation act and the regulations governing its application, should be posted in establishments affected by the act, in such numbers and places as to be easily accessible to all the workmen. DUTIES or MEDICAL OFEICEES. 32. First-aid treatment. — The medical officer of each establish- ment or his assistant, where such services are available, should render such immediate aid as is necessary to each employee of the establish- ment injured while on duty, and make a report to the head of the establishment of the exact extent of the injury and the nature of the treatment administered, and a detailed record of the same should be kept on file in his office. 33. Subsequent examinations. — The medical officer or officially des- ignated physician should examine the injured employee as frequently as is necessary in his opinion or in the opinion of the head of the establishment during the absence of such employee from his work. SJf.. Records. — A record of each examination by the medical officer or officially designated physician should be made in detail and con- tain an accurate description of the general condition of the employee, the state of the injuries, and an opinion as to whether the disability still continues. Such record should be kept on file in the office of the medical officer or officially designated physician, and reports of the findings should be made to the head of the establishment. 35. Treatment. — The medical officer or officially designated physi- cian should ascertain whether the injured employee is under treat- ment of a duly licensed practitioner of medicine, and if he finds this not to be the case he should inform the injured employee of the necessity of medical attendance whenever such necessity exists. 36. Opinion as to termination of disability. — The medical officer or officially designated physician making any examination should in- fopm the injured employee of his opinion concerning the continuance or termination of disability. BLANK FORMS REQUIRED. The following blank forms are required for the purposes of admin- istering the act: C. A. — lb. Report of Injury. C. A. — 2b. Report of Termination .of Disability. C. A. — 3a. Report of Death from Injury. C. A. — 4b. Claim for Compensation on Account of Injury. C. A. — 7a. Certificate of Disability. C. A. — 8. Request for Medical Examination. C. A. — 15a. Report of Compensation Paid. 0. A. — 16b. Claim for Compensation on Account of Death. C. A. — 19a. Regulations Governing the Application of the Act of May 30, 1908. C. A. — 20a. Notice of Right to Compensation (for posting). A supply of these forms will be furnished each department and independent establishment by the Secretary of Labor, upon request. Official superiors should procure necessary forms from the head of their department, bureau, or establishment. INDEX TO OPINIONS. Page. Adler, Frank 63,64,65,66,67 Adolphus, A. B 46 Agard, Fltz 560 Alcee, E.V 61,424 Allaway, Thomas 582 AUen, T. S. S 359 Alleyne, Archibald 444 Alston, Frank ; , . . . 417 Anaya, Salomon 445 Andrews, P. W 701 Arata, C. M 264 Armistead, G.M 305 Arnold, Pliny M 158 Arnold, W.E 156 Atkins, Tohn 295 Atkinson, J. B 235 Avery, Jack 617 Bacema, Nicholas 420 Badolato, Samuele 630,631,632 BaUey,E.B '. 297 Baker, S. W., jr 100 Baugh, R. W 691 Belgrave, Levi 580 Bell, George 120 Belmon, Constantin 442 Bennett, C.E 739 Bernard, Emanual L 323 Black, J. D 79,80 Blaokhurst, Elijah 690 Blaine, Edward 117 Block, Harry 420,421 Blount, Hinton 137 Bowen, William 340 Boyan, J. H 524 Boyce, C. W 711 Brahm, T. C 629 Branch, G. W 576 Brinkley, William A 603 Briscoe, J. U. D 776 Bristow, John P 150 Britt, William A 179 Broughton, Joseph 628 Brown, J. B 102 Brown, R. L 137 Brown, William P 328 BuUard, F. S 140 Bunce, William 224 Bunting, Richard 478 Burgess, W.E 148 Burke, C. A 139 Bums, J. J 451 Butler, Xavier 602 Buzby, H. F 141 Cadwalader, Ray 182 Cale, C. E 142 Callender, Lyall 637 Page. Carey, Clara 139 Carney, John 173 Carpenter, B. E 706 Carrero, Placido 489 Carroll, David 367 CarroU, T. E 688 Carter, Simeon 426 Cassar, Joseph 474 Cassidy, James 180 Cassidy, J. O 289 Cemich, William H 639 Chambers, Joseph 291,293 Clark, A.E 49,120,188,194,200,381 Clark, BasilE 270 Clark, Edward 468 Clark, George 486 Clarke, David 468 Clarke, F. A. P 133 Clements,E. B 228 Coates, William 356 Cohn, Howard 523 Coleman, Robert 544 Colmeneiro, Miguel 414,415 Connor, S.J 330 Corrigan, J. J., jr 62 Cournoyer, F. J 716 Cousins, Edgar 443 Cowan, A. J 184 Coward, James 437 Crandall, William G 77 Crawford, Joseph W 56 Creamer, Sylvester B 109 Crellin,M. A K3 Crooks, Z.M 449,450,451 Cunningham, J. C 81,82 Cunningham, Richard 709 Currie, Daniel 416 Cutno, James 435 Dabbs. J. S.Jr ^93 Dale, James 437 Davis, A. D 516 Davis, C. B 402 Davis, J. W 74) Davis, Joe 481 Devine, Edvard 277 Dieselman, J. C 401 Donaldson, Albert 59 Donovan, J. J 715 Dray, William E 640 Drummond, E. A 343 Duer, Clifford H 507 DufEy, Frank 594 DuPuy, J. L 448 Eaton, Joseph 153 Edghill, Wesley 423 Edmonds, Edward 259 807 808 WOEKMElir 's COMPENSATION TJNDEE ACT OF MAY 30, 1908. Page. EUett, P. C 112 EUlott.J. W S21 EUmore, Washington 243 Encinas, Juan 601 Ensey, C. E 726 Erickson, G. A 774 Esselman, Leon ' 581 Estorga, Asencion 566 Etienne, William 163 Evenson, Sigurd 187 Ewald, William 418 Eahey, William P 283 Eeltis, A. H 123 Fenton,H. L 127 Eenz, Arthur E 116 Fernandez, Manuel 187 Fernandez, Mariano 690 Filler, Harry 663 Fitzpatriok, C. C 309 Flaherty, E. J 490 Flaherty, Patrick 290 Flemmings, Cornelius 225 Fletcher, W.E 744 Flora, C,B 226 Fogg, Seymore 609 Forde, Joseph 309 Forfar, Robert 355 Fosse, L.M 360 Foster, James 667 Fowler, A. W 180 rowler,C 419 Fraser, Wm. W 464 Frates, W. S 510 Gamboa, Ernesto 484 Garcia, Leon 586 Garcia, Leonardo 611 Garcia, Santos 425 Garsia, Adolphus 166 George, Robert 469 Gerow, William 282 Gilflllen, Joseph 654 Gilkey , Joseph 288 Gill, Henry 170 Gilson, Thomas J 326 Giovanni, Pinna 287 Glass, H.S 393 Golden, J. P 68,159 Gonzales.M. T 583,584,585 Gfinzales, Ramon Z 333 Goodley, William 619 Grace, William 758 Graham, E.R 629 Grant, J. M 94 Grant, Leon 660 Grant, W.L 682 Gray, J. B 118 Gray, Thomas A. , jr 643 Green, Alexander 288 Green, L.B 237 Green, M.T.J 101 Guerin, M 324 Guiseppe, Canu 467 Hadlock,C. H 453,495 Haley, Joseph D 255 Halloran, Richard 756 Hamilton, J. W 379 Page. Hansen, O.B 179 Hanson, John 51 Harding, J. F 553 Harmon, G. B 347. Harris, Robert 598 Hairffl, Mrs. R: 285 Hayden, J. P 718,722 Haynes, Sam 761 Hays, J. D , 86 Headley. James 482 Henry, Isiah 635 Herrera, Jose 457 Herron, Leander 124 Hewitt, Elizabeth 248 Hickman, H 751 Hicks, Richard 217,218 Hight, Francis 496 Hill, E. L •. 242,369 Hinds, William 429 Hogan, Michael 180 Holden, Walter E 268 Horn, Elsie 1 504,506 Hott,C. E 89,302 House, Bennie 325 Howell, Stanley 549 Howley, G. B 686 Huff, F.J 567,568 Humphrey, Mrs. Harriet M Ill Hunt, Granville 413 Hurtt, LeonC 384 Hutton, W. P 408,409 Inniss, Dudley 81,160 Irving, J. B 249 lyes, Wesley GuUey 175 Jackson, Alexander 518 Jackson, Edgar 320 Jackson, John 60 Jarvis, Alexander 174 Jarvis, Philip 219 Jefferson, J. E 664 Jerman, Joseph 152 Jenkins, Samuel 334 Jewell, Samuel 182 Jiminez, Jesus 657 Johnson, Albert 185 Johnson , Cornelia V 748 Johnson, Frank 364 Jones, A. T 86 Jones, Charles 602 Jones, J. F 165 Joos, Gottlob 303 Joseph, John 294 Jule, Willard E 261 Kahalewai, Solomon 498 Karumbellas, Kaustin N 614 Kaui, David 620 Kearney, John T 147 Keating, P.J 91 Kelly, D.J 337 Kennedy, M. A 131 Kenney, Ben 67 Kent, L. B 439 Kinney, James 768 Kline, William L 92 Koontz, O. D 294,684 OPINIONS OF SOLIOITOB, DEPARTMENT OP LABOE, 809 Eorp, J. J 379 Kramer, David 322 Kuehnip, F. C 665 Lacorte, Atanacio 340 Lagerholm, Fritzihoa 104 Lambert, John 122 La Mire, G. E 61 Lamkin, John 128 Lanzy, Ed 373 Lawrence, A. J 178 Lemanes, Manuel 613 Lemont, Walter 442 Leon, August 447 Leonard, Nicholas 312 Lewis, C.C 679 i^indsay, William P 608 Lipscomb, K 50 Lissy, Frank J 752 Little, Joseph ' 78,84 Liverpool, Josephus 440 Lloyd, Wm.M 247 Lopez, Elroy 282 Lopez, E. R 417 Luttrell, T. F 219 Lyte, G. D 397 McAllister, A. C 680 McAllister, Wm. H 121 McCarrel, William 607 McCarthy, Edward 461 McCormiok, M. D 186 McCrae, George 375 McCreery,Eli 134 McDermott, Charles 455 McDonald, Albert 602 McEntee, J. W 362 McFadden, Wm. E 396 McMurray, Alexander 571 McSorley, John F 331 Mack, E.J 524 Mackay, Finlay 136,176 Mamo,J.H 623 Malone.J. L 343 Manaloc, Antonio 383 Mann, Samuel 479 Manning, D.C 279 Maradakis, Georgios 530 Marcey, Carrie E '. 536 Marks, Isaac 433 Martin, N.M 624 Martinez, Antonio 499 Masan,J. W. D 589 Mayott.J. E 765 Meeker, H.L 75 Meissner, E.J 131 Melchor, G. P 646 Melling,!. R 129 Michel, August 177,178 Mlgeles,Jose 162 Miller, Isadore - 108 Miller, Wm.R 381 Miro, Augustin 728,729 Montes, Juan 153 Moore, J. B 143 Moore, W.G 74 Morales, Viotorino 295 Morang, E. S 534 Morgan, D.H 177 Morris, J. R 403 Morton, D.O 472 Mullins, S. J 58 MulverhiU, J. F 672 Munn, William F 597 Munoz, A. G 635 Murray, Wm 239 Nason.A. H 697 Naval constructor. Boston Navy Yard (query of) 345 Nellis, James..' 288 Nelson, Andrew 470 Nelson, E.D 532,534 Nicholas, J. V 125 Nlemeier, Edward (alias W. J.) 551 Noriega, Ysmael 378 Nurse, George 628 O'Brien, Michael 380 Olson, J. P 136,141 Osborne, Elemo 513 Osboumo, Simeon 606 Osgood, F.T 391 Ourand, H. A 209 Pagliarulo, Antonio 603 Palacios, Eloy 162 Panganiban, Bonifacio 468 Pangbum, J. H 138 Papius, Popanjc 314 Passus, Pete 371 Patton, Parker 593 Pedez, Elias 171 Pedrick, B. G 71 Pefler, Sam 72 Pennycooke, James 425 Pent, T. C 181 Perkins, Charles 579 Perron, L.F 670,713 Petry, J. H 453 Pickett, LW 80 Pohl, Auga'it , 223 Poole, Canady 522 Posey, T. A 183 Potter, Robert K , 272 Powers, S. A 214,622 Price, Stephen 163 Prioleau, T. G 61 Pyrah, Jacob : 129 Ransom, William H 103 Rawlins, .\llen ; 170 Eedbum, I'-rank 154 Redondo, J. G 563 Rees, William £99 Reeves, A. F 73 Reinburg, A. L 398 Reisinger, C. L 161 Renwiok, Altman 172 Richerson, John 775 Ricketts, Ferdinand 428 Riggs, C. H 155 Ripley, Leonard C 110 Roberts, J. W 422 Roberts, S.J 127 810 workmen's compensation undee act of may 30, 1908. Page. Robinson, J. E 386 Eobinson, H. L 389 Eock, Theodore 5'3 EookweU, A. M 307 Eodriguez, A. G 661 Rodriguez, Bulogio 227 Rollins, James W 153 Rugan, B. A 285 Ryan , James 145 Ryan, M. J 428 Sabanas, Halecio 427 Salzmann, Charles 733 Sanders, Charles H 114 Sargent, Margaret B 275 Scanlan.C. B 724,726 Sohenli:,C. B 147 Schlechter, John J 331 Schlosser, J. W 133 Schroeder, C. L 210 Schultz, Frank 496 Scott, Jack 595 Sedgewick, M. G 703 Sellos, Pete 387 Sheeran, John 207 Sheppard, A. H 98 siietler, Curtis A 108 Short, C.L 462 Simmons, Arnold 430 Simpson, H. G 316,319 Simpson, L. C 676 Skill, J. W 167 Small, David 164 Smith, Frank W 745 Smith, G. H 186 Smith, James 531 Smith, J. S 691,692,693 Smith, Ted 541 Smith, William 394,396,759 Springer, Everett 267 Stanley, Julius 673,674 Strayer,H. C 446 Strong, Albert 132 Sturdevant, J. C 106 Sturgeon, James 669 Sullivan, Joseph L 609 Summers, Chris 58 Taylor, FrankE 542 Taylor, W.H 411 Teachum, J. K 685 Thayer, Randolph A 266 Page. Thennard, Joseph 167 Thomas, J. A 619,620 Thompson, H. A 512 Thompson, R. F 390 Thompson, Samuel 165 Thomson, W. B 447,448 Tieman, T. F 454 Torres, Ramon 412,413 Towie, Constintine 665 Trahey, G. W 105 Trammell, J. V 244 Traviso, Pedro 161 Treiman, John 204 Turner, Eobert 406 Turner, S. A 626,527 Tyrrell, Walter J 646 VanSittert, E. H 90,169 Veseth, J. A 122,185 ViUafranca, Feliciano 676,762 Villanueva, Enrique 765 Vulicas, Marcus 63 Wagner, Charles 666 Walsh, J. J 231 Wardlow, Louis 736,738 Ware, Aaron 335 Washington, N. C 181 Waters, John V , 110 Watson, T. H 730 Webb, Walter 336 Weigand, C. A 404,405 Weil, P.C 677 Weissenbom, Emil F 388 Wells, O. P 515 Westberg, Clifford 741 Wharton, Wm 316 Whiteman, P. M 84 Wilhelm, George W 608 Wilkes, Andrew 213 Williams, E.E 88 Williams, Francis 459 Williamson, Samuel N 750 Wilson, Walter 456 Winn, Benjamin F 389 Wite, J. S. K 221 Withy, Charles J 273 Wood, James 436 Worthington, George 126 Wygant, G. W 118 Zacias, L. T 62 Zupa, John 688 OPINIONS OF ATTORNEY GENERAI,. Eendercd to the Secretary of Commerce and Labor, in re case of— A. E. Clark, May 17, 1909 200 John Sheeran, Apr. 26, 1910 207 W. P. Button, Aug. 21, 1911 409 H. G. Simpson, May 22, 1912 319 Rendered to Secretary of Labor Apr. 3, 1913, in re— Final authority to administer act 45 OPINIONS OF SOLICITOR, DEPARTMENT OP LABOR. 811 DECISIONS OF THX! OOSIFTBOIXEB OF THE TBEASVKT. Rendered to Auditor for the Interior Department, Feb. 7, 1914 791 Rendered to Auditor for the Navy Department, Dec. 1, 1913 797 Rendered to Auditor lor the State and other Departments, Mar. 18, 1909 779 Rendered to Chairman Isthmian Canal Commission — Apr. 20, 1909 783 Jan. 24, 1910 787 Rendered to Public Printer, Oct. 29, 1913 795 Rendered to Secretary of Commerce and Labor- Mar. 25, 1909 „ 781 Not. 28, 1911 (Sullivan case) 609 Rendered to Secretary of the Interior, Dec. 10, 1909 786 Rendered to Secretary of the Navy- June 19, 1909 (Adler case) 67 Dec. 8, 1913 799 Rendered to Secretary of the Treasury- Dec. 26,1908 777 Nov. 26, 1912 794 Rendered to Secretary of War- Jan. 26, 1909 (Huff case) 668 Nov. 3, 1909 784 Nov. 4, 1909 785 May 9, 1912 789 o DATE DUE i 1 GAVLORO PHINTEDINU S K Cornell University Library HD7816.U6A31915 Opinions of the solicitor for the Depart 3 1924 002 405 201 M lU UW M (! 1 • WTtTtttt ^HillilHIIltliiiillililHiiliiitiniilti 1 1 n t i ! 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