3 1924 054 189 794 U. S. Congress. House. Comraittee on the Judiciary. Federal emr)loyees' compensation. Hearings. CORNELL UNIVERSITY LIBRARY NEW YORK STATE SCHOOL OF INDUSTRIAL AND LABOR RELATIONS the gift of The Family of Dr. I M. RuBiNOW 1875-1936 FEDEEAL EMPLOYEES' COMPENSATION HEARINGS BEFORE THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES SIXTY-THIRI) 'dONGRESS Second Session ON FEDERAL EMPLOYEES' COMPENSATION Serial 16-Part 1 MARCH 31, 1914 WASHINGTON GOVERNMENT PRIXTIXG OPPICB 19U OOI^TEKTS. Statement of— Page. Prof. Henry R. Seager, of New York 3 Mr. Royal Meeker, of Washington, D. C '. ....\ ; 18 Dr. John B. Andrews, of New York 26 Dr. I. M. Rubinow, of New York 37 Mr. WiUiam E. Russell, of New York 43 Dr. S. J. Walkley, of Milwaukee, Wis 43 Mr. Edward J. Cantwell, of Wjashington, D. C ; 44 II X 4p ,gy * Prof. Sbagee. Yes; it has been worked out rather carefully, irrot. Meeker, Commissioner of the United States Bureau of Labor Sta- tistics, can speak more authoritatively than I can, and he is to fol- low me. _ Mr. Danfoeth. I want to ask you about section 7 of the Mctrtlli- cuddy bill, as that is a new provision to me. It is the latter part of the provision, beginning at the top of page 4, line 2, and running through that section. What basis have you for that? Prof. Seagbe. Well, that is a common provision in the other laws, the idea being that if a young chap earning small wages as a learner was injured and that injury incapacitated him for the rest of his life, his compensation ought to be related not merely to the wages he was earning as a young fellow, but to the earnings he might rea- sonably expect to receive as he grew older. Mr. Danfoeth. Where are you going to get commissioners who could estimate that? Prof. Seageb. This commission will have to estimate it. For in- stance, he would be employed in a particular occupation. Normally as he grew older he would become a skilled worker and would com- mand a skilled worker's rate of pay. The commission would take this higher rate of pay into account in determining whether his com- pensation ought or ought not to be increased. Mr. Danfoeth. That would assume that all learners, as you term them in this bill, would become skilled workers? Prof. Seageb. That is for the commission to decide. This is merely permissive. Mr. Danfoeth. How can three men decide that ? Prof. Seagee. I think it could be decided with a reasonable degree of accuracy. Normally, the learner does become a skilled worker among wage earners. This, of course, would apply to a lower class of employees, and the maximum in any case, you see, is limited to $100, so that they could not go very far wrong in such a matter. However, this is merely permissive and it is not very important; but it is in operation in a number of the European laws. Mr. Danfoeth. What percentage of the laws contain this pro- vision ? Prof. Seagee. I am not able to state. Mr. Danfoeth. Is there any one here who is able to tell us ? Prof. Seagee. I think Mr. Beeman has data which will enable him to answer that question in a few moments. Mr. Danfoeth. It was a new provision to me, and I was curious to know how it could be carried out successfully. Prof. Seagee. I think it is not important, and if the committee lias any misgivings about its wisdom no great harm would come by reason of leaving it out. Mr. Webb. Does this bill apply to high-salaried officers ? Prof. Seagee. It does not go beyond $100 a month; those getting $100 or more would have their compensation for total disability lim- ited to $66.67 a month. Mr. WEiBB. A man getting a. salary of $3,000 a year upon being injured could only receive $66.67 ? JFEDEBAL EMPLOYEES' COMPENSATION. 15 Prof. Sbagbe. That is right; the idea being that a man receiving $3,000 a year ought to make some provision for his family himself. Mr. Flotd. Does this include high-salaried Government employees not engaged in hazardous employment? Prof. Seagee. Yes, sir. Mr. Floyd. Why should that be thought of at all ? Prof. Seagee. Because our feeling is that if an accident occurs in any employjnent it is hazardous. The mere fact that an accident is unusual is no reason why a man should not be compensated. Mr. FiiOYD. There are thousands of men engaged in work that is not hazardous and who do meet with accidents, and under a law of this sort somebody would have to raise the money to pay the com- pensation. But why should a man who is privileged to hold a high position that hundreds of people would desire to hold, and be anx- ious to hold, receive compensation if he should incur an accident, and which compensation the people of the country would have to pay ? Prof. Seagee. Because he is employed by the Government ; and we believe that the method suggested would spread it out over a wide group, so that it could be easily borne. You are applying the same system to the private employers, and why not to the Government ? Mr. Floyd. At the same time, those of us who happen to be in the Government service regard it as a great privilege; and I do not think those who do not enjoy the same privilege as these high-sal- aried men should be called on to contribute toward this compensa- tion in case of accidents. Prof. Seagee. I think the people of this country feel you are earn- ing your salaries, and do not take that position at all. , Mr. MoGiLLicTTDDY. They have their rights under the common law. Mr. Floyd. But somebody has got to pay. Of course, I am not referring to those who are engaged in hazardous employment. Prof. Seagee. This system is no different than that being imposed upon private employers, and it will only be ^ question of a short time before everybody in every kind of employment will be entitled to this compensation, and then the expense will spread out, and therefore ihuch more easily borne. Mr. McCoy. Is not that answered by Mr. McGillicuddy's sugges- tion, namely, that in any employment of a private nature the injured person has a right of action, regardless of the hazard of the employ- ment, if there is negligence? Prof. Seagee. Yes, sir. Mr. McCoy. And here the proposition is to give some compensa- tion to people who can not now bring an action? , Prof. Seagee. Yes. I think that is a convincing reason for a com- pensation system for Federal employees, because it is the only relief they have. Mr. Floyd. Where they are engaged in hazardous employment, like the manufacture of powder for the Government, or any other hazardous employment, I can see the absolute justice of it; but it does not seem right to undertake to give compensation for an injury incurred by a highTSalaried man who is not engaged in any hazard- ous employment. I do not think it is right to give him compensa- tion for an accident that might easily occur to him evfen if he had no such employment. 16 FEDEKAL EMPLOYEES' COMPENSATION. Prof. Seager. It seems to me there is the same reason to compen- sate such a man as a man engaged in hazardous employment. The remuneration, to some extent, kees take into account the hazard incurred, but the man in the nonhazardous employment who hap- pens to have ah exceptional form of accident would not be com- pensated by the rate at all, and to him the loss would be just as great as though he were in a hazardous employment. To answer the question that was asked a moment ago, the States which have a system similar to that which we were speaking of are California, Illinois, Iowa, New York, Ohio, and Wisconsin, and among the countries outside of the United States are England, Ger- many, and Russia. I will not take more of your time, because there are other advo- cates who are equally competent to speak. Mr. FitzHenrt. Do not those very laws require that the injured person shall be in line of duty as well as in the course of his em- ployment ? Prof. Seager. The phrase most commonly used in compensation acts is " arising out of and in the course of^his employment." The interpretation given to that language in some of the decisions has been, in our opinion, too narrow. Mr. FitzHenrt. It seems to me it has a well-known meaning in the law. Prof. Seager. But, as you know, the decisions in some cases have been vqry remarkable. Mr. FitzHbnry. But this very bill states " in the course of his em- ployment." Prof. Seager. Yes; but that is a somewhat broader expression. Of course, our feeling is that here we are creating a commission that is interested in having this law administered in a fair and just way, and that we could give such a commission somewhat broader powers under these circumstances, because the employee has no right to anything the commission will not concede to him, and we felt we could make our phraseology broader than if we were enacting a State law for private employers. Mr. FitzHenrt. This does not limit it to cases in which there is no liability. Prof. Seagkr. Of course, the United States Government has no liability. ' Mr. FitzHenrt. For instance, if an employee of the Treasury De- partment should get on a street car and in some way be injured through the negligence of the street railway company so that he could not perform his duty, or was permanently injured, would he come under the provisions of this bill ? Prof. Seager. I would say not. Mr. FitzHenrt. Then the law ought to be safeguarded. Prof. Seager. I think we might trust the commission to give it a reasonable construction. Mr. McCoy. But does not this bill provide in that event that the (jovernment shall be subrogated to whatever rights the employee has against a private individual or corporation ? Prof. Seager. Yes, sir. PEDEBAL employees' COMPENSATION. 17 Mr. McCoy. So that if he gets money from them it reduces the compensation which otherwise the Government would have to pay to him ? Prof. Seager. Yes, sir. Mr. Webb. Did the otlier States and the other countries provide compensation for those who w6re injured by reason of occupational diseases ? Prof. Seageb. Not all of them. England was the first country to introduce that provision ; Germany and Switzerland have introduced it, and there has been a recent decision under the Massachusetts law that the Massachusetts law which refers to " injuries " also embraces occupational diseases — ^that is, injuries from occupational diseases as well as from accidents. I should say that there is a marked tendency in that direction. It is held that occupational diseases, such as lead poisoning, are injuries of industry as much as direct accidents. ' Mr. Webb. Do we have employees engaged in making lead ? Prof. Sbagee. Indeed, we have. The Chairman. I want to call your attention to a difference be- tween this bill and the language of the Executive order dated March 20, 1914, issued by the President, and eflFective April 1 in the Canal Zone. The McGillicuddy bill provides as follows : Resulting from a personal Injnry sustained In tlie course of his employment and for the disability, deatli, or suspension from work of an employee resulting from an occupational disease contracted in tlie course of his employment. The words "in the course of his employment" are the words to which I especially call your attention. In this Executive order to • which I have directed your attention I find this to -be the language : The United States or the Panama Railroad Company shall pay compensation as hereinafter specified for personal injuries to their respective employees occur- ring on and after April first, nineteen hundred and fourteen', while such em- ployees are directly engaged in actual work In connection with the construc- tion, maintenance, operation, or sanitation of the Panama Canal or of the Panama Railroad or of any auxiliary canals, locks, or other works necessary and convenient for the construction, maintenance, operation, or sanitation of the Panama Canal', whether such injuries result in death or not. Now, do you think that the. language of the McGillicuddy bill — " in the course of his employment " — ^is as definite as the language that I have read? Prof. Seager. No ; I am sure that it is not. But I feel that it is perfectly safe to intrust the interpretation of this phrase to a com- mission, because it would represent the interests of the Government and it would have no reason to grant compensation when it was not justly due or not to grant it when it was justly due. That Execu- tive order was drawn with full consciousness of the limited fund that could be drawn on to pay compensation under it. In that respect and in a good many other respects The Chairman (interposing). Irrespective of the reasons, ought not the law be specific? Prof. Seager. I think it is specific. I think " in the course of his employment" is very specific, and any competent administrative body could say what it means. I might say that this language is the same language that is in the present law and the same language 37842— PT 1—14 2 18 FEDERAL EMPLOYEES' COMPENSATIOIf. as in the Rowland bill, in effect, so we are not proposing any change in this respect. The present law says, "in the course of such employment." Mr. McGiLLicuDDY. Mr. FitzHenry, if you ^^■ill look at section 30 you will find that covers exactly- your inquiry. Mr. Dyer. What dees that section say 1 Mr. McGiLLicuDDY. Section 30 provides: That if au injury or death for which compensation is payable under this act is caused under circumstances creating a legal liability in some person ether than the United States to pay damages therefor, and a beneficiaiy en- titled to compensation from the United States for such injury or death receives, as a result of a suit brought by him or on his behalf, or ;!S a result of a set- tlement made by him or on his behalf, any money or other property in satis- faction of the liability of such other person, such beneficiary shall, after deduct- ing the costs of suit and a reasonable attorney's fee, apply the money or other property so received in the foUovying manner, etc. Mr. Dyer. That would put the Government in the j)Osition of look- ing after the claims of employees who were injured in cases similar to the one mentioned by Mr. FitzHenry, going to or returning from work, would it not ? Mr. McCoy. I do not think so. If an employee has a clear case of action against the person responsible for the injury undoubtedly he would proceed, but the Government, under no circumstances, would be obliged to jjroceed to sue or feel under any obligation to sue under any right of subrogation. Mr. Dyer. Will the Government be liable in any instance for injuries to the employee that occur not in the line of his actual duty? Mr. McCoy. That is a different proposition. But there might be two liabilities ; there frequently are two persons liable for negligence. Now, the Government itself might be liable at common law, if it could be sued, and another person might be liable at comman law and could be sued. Mr. McGiLLicuDDY. In the first instance, anybody who receives an injury would have to prove it and in proving it the evidence would clearly show whether the Government was liable or whether a pri- vate citizen was liable. Mr. Dyer. What I want to understand is this : Is the scheme so broad that it would tal?:e in cases of that kind; that is, make the Government liable for a man's injury in going to or from work, and cases of that kind, where the Government had nothing whatever to do with it? This bill does not take in cases of that kind, does it? Prof. Seager. The language is the same as that of the present law, and that has not been held to include such cases. Mr. Dyer. Well, I do not think it would. The Chairman. The committee will be vei'y glad to hear from Mr. Eoyal Meeker. STATEMENT OF MR. ROYAL MEEKER, COMMISSIONER OF LABOR STATISTICS, DEPARTMENT OF LABOR. Mr. Meeker. I feel that a very large part of my thunder has already been used, and I will try to speak as briefly as possible. I want to make it perfectly clear that I do not represent the Depart- ment of Labor. I have had no opportunity to consult with the Sec- retary of Labor upon this question. I do speak for myself and for PEDEKAL employees' COMPENSATION. 19 the Bureau of Labor Statistics. The administration of the present' law is placed in my bureau. It does not really belong there at all; it should be placed elsewhere. I shall be pleased to furnish every: member of this committee with a recent bulletin, which the bureau has managed at last to get printed at the expense of the Senate, because our appropriation is not sufficient to enable us to print the material we so carefully collect and laborously compile. This bulle- tin deals with compensation laws now in force in this country and in foreign countries. It is a publication that will answer many of the questions that you have put to Prof. Seager. I want to enforce the point that was brought out, that there is no such thing as employer's liability in the Federal service. That con- stitutes a most excellent reason for the enactment of a very com- prehensive law to give to Federal employees compensation for in- juries they sustain in the service of the Federal Government. There is one feature of this bill that I suspect wiU come up at your later sittings, if it does not come up this morning, namely, the manner of compensation. This McGillicuddy bill provides for com- pensation on the basis of the loss of earning power sustained by the injured employee. Now, the bill that was presented and which may, for convenience, be called the Bureau of Labor Statistics bill, pro- vided for specific compensation for named injuries, in addition to compensation on the basis of loss of earning power. The reason it was submitted in that form was this: Under the present law — and it is a most inadequate law — a man may lose an eye and receive very small compensation therefor; it was felt that that worked an injustice to him, and I felt that the bill then known as the Kern-McGiUicuddy bill did not provide sufficient compensation for cases of that kind. I may say that all of the moot points, the points of difference, have been thrashed out by representatives of the American Association for Labor Legislation, representatives from my bureau, and others, and we have agreed that the best possible way that injuries can be taken care of is in the -way provided in the act before you, leaving specific compensation for named injuries out of account entirely, because oi difficulties of administration and other objections to that form of compensation. I am fully convinced that the only proper basis for compensation is the economic loss suffered by the injured em- ployee. The inadequacy of the present law is remedied by this pro- posed bill. The loss of an eye may result in no loss of earning power in the first instance, but perhaps after the passage of six months, a year, two years, or three years the injured employee may be reduced in salary, may lose his job, and may be obliged to take employment elsewhere at very much reduced compensation. The present law does not take care of that at all, but this latest draft of the McGillicuddy bill does take care of just that situation and takes care of it, in my judgment, amply and sufficiently. The thing that seems to me extremely important is this matter of occupational diseases. The trend of legislation is all in the direction of covering occupational diseases as well as accidents. Lead poison- ing is, in a way, an accident. When you come to consider occupa- tional diseases and compare them with industrial accidents they blend together. It is impossible to say where accidents leave off and diseases begin. There are difficulties that will come up in the ad- ministration of the law in regard to occupational diseases, and that 20 FBDEKAL employees' COMPENSATION. gives support to the plea for a commission of three to administer it. When we come to a definition of occupational diseases, just what is an occupational disease, certain difficulties will arise. But no legis- lation that is worth enacting is free from difficulties of administi'a- tion. There are difficulties, as I can assure you, in administrating the present law, but we are doing our best to put it into execution. Another point I want to speak of Mr. Danfobth (interposing). How many occupational diseases are there, approximately ? Mr. Meeker. A^ list has been prepared by the English Governmeiit, some 24, but that does not cover all of them. Mr. Danfoeth. Would that cover all that would be affected by this act — that is. Federal employees ? Mr. Meeker. I feel utterly incompetent to answer that question. Mr. Danfoeth. Can such a list be put into some of these statements by some of your witnesses ? Mr. Meekee. I think so. Mr. Danforth. If possible, I wish you would submit such a list as a part of your statement. Mr. Meeker. I shall be very glad to have such a statement sub- mitted. Mr. Danforth. I am perfectly ignorant of that subject and want information. Mr. Meekee. I think it would be ill advised to limit the number of occupational diseases to the published list as prepared by the British authorities, because a new occupational disease may arise at any time, or a disease that is not ordinarily included among a list of occupa- tional diseases may, because of particular circumstances, be rightly classed as an occupational disease. For example, " frost bite " is not ordinarily thought of as an occupational disease, if ii is regarded as a disease at all. But a rural mail driver suffering frobi "fro^t bite" incurred while driving his route would, in my judgment, bfe entitled to compensation. I think it should be left to the diSci^etion of the administrators of the law to determine what shall be classed as occupational disease in a particular case. I spieak from the adminis- tration end, naturally. I feel that the law as drawn does not leave too, much discretion to the commissioners. Mr. Webb. Suppose a man working on the Panama Canal should be bitten by a mosquito and contract yellow fever ; would that be an occupational disease? Mr. Meeker. Search me. However, I should say not, because he might be bitten by a mosquito while he was not at work. The mosquito does not constitute a risk peculiar to his occupation. Mr. Webb. If he should ca,tch pneumonia, would that be considered an occupational disease? Mr. Meeker. It would depend altogether upon circumstances, but in general the cases you have mentioned would not come within the scope of this bill. The phrase "arising out of employment" was intentionally left out of this bill, because it was thought desirable to diminish as much as possible the causes of litigation. In the bureau bill the phrase is included for the purpose of calling the attention of the members of this committee to that phraseology. The omission of the phrase in FEDERAL EMPLOYEES' COMPENSATION. 21 question makes t^ie bill a true compensation measure; while its in- clusion would make it a liability measure, putting the burden of proof upon the injured employee, the very person who should be relieved of that burden. In every claim for compensation under such a liability law, the injured employee must prove that he was injured through no negligence of his own or of his fellow employees ; that he was actually engaged in performing his regular assigned tasks according to orders. If he has departed a hairsbreadth from instructions, or has taken risks which might have been avoided by the hypothetical legal "person exercising reasonable caution," his claim may be disallowed. Now, it is up to you gentlemen to determine whether you want to enact a law which constitutes, in a measure, an insurance covering certain hours of the day, or whether you want to enact a law which covers merely the hazards of employment. I think the language of the Executive order applying to the Canal Zone is extremely dangerous language. If I were to draw a compensation act anew I would not incorporate that language in it, because I believe it will result, if . opportunity arises, in an immense amount of judicial interpretation, which will be most undesirable and expensive, in my judgment. Mr. Webb. The enlarging clause that you use is really at the ex- pense of the Government, and you tax the people in order to get sway from judicial interpretation. Would you not spend more money under that clause than under the clause used by the President? Mr. Meeker. I do not think so. The phrase employed in the present draft of the McGillicuddy bill is a phrase of long standing, and it has been subject to judicial interpretation, so that it is pretty clearly understood. Mr. Webb. All the present clause does is to insure a man's health and life during the eight hours he is engaged in actual work for the Government. Mr. Meeker. It must be in the course of employment, of course. Mr. Webb. Do you think a man ought to be paid by the Govern- ment for injuries received on the street? Mr. Meeker. If it is in the course of employment I think that is the sensible way to take care of it. Mr. Webb. What do you mean by "in the course of his employ- ment"? Suppose he is walking down the street, after his hours of labor are over, on his way home, and is injured or killed, would the Government be liable under your provisions? Mr. Meeker. It would not. Mr. Floyd. Let me suggest this kind of a case: A man is in the employ of the Government and he lives in an appartment house; he goes home and carelessly steps into an elevator shaft and kills himself. He certainly is in the course of employment, because that is his place of abode and he is at work every day. Would your bill cover that kind of a case ? Mr. Meeker. Certainly not. I can think of 10,000 cases that would be difBcult to decide. That would be up to the commission. But the case you are citing would not come under the law. The courts h^ve already passed upon that point. Mr. Flqyd. Pq you not think it would be wiser to put that specifi- cally in the law and not leave it to the commission? 22 FEDERAL EMPLOYEES' COMPENSATION. Mr. Meekee. If you commerce to enumerate you are bound to leave out something, and instead of making the administration of the law easy you make it more difficult and cumbersome. Mr. Webb. Have not the words "in line of duty " received such an interpretation by all of the courts of the United States as to make it advisable to use them, as Mr. FitzHenry suggested awhile ago? Mr. Meeker. I can not answer that question. Mr. FitzHenet. Is that not the difference, that you propose this measure as an insurance measure, whereas the use of the words that I have suggested would make it a compensation measure? Mr. Meekee. It is a compensation measure. Mr. FitzHenet. It would be compensation if it was in the course of his employment and in the line of his duty, and we always add the other phrase, "in the exercise of ordinary care," but that would not go in this bill. But do not the words that you are using in this very clause signify the difference in the character of the legislation? According to its present wording is it not an insurance proposition, whereas if it carried the other provision it would be a compensation propostion? That is a very material point for the consideration of the committee, and that is the reason I ask that question. Mr. Meeker. It is not an insurance law ; it is a compensation law, and it is based upon the loss of earning power on the part of the in- jured employees. Mr. FitzHenet. But that is injury received in course of employ- ment regardless of whether it is in the line of duty or not. You say " in the course of his employment, " but " in the line of his duty " has a well-known, definite, and specific meaning in every court jjl the land, and it seems to me you have left off one of the material elements. Mr. Meeker. The present law reads as the McGillicuddy bill reads. Mr. FitzHenet. I am speaking of the common law of the land. Mr. McCoT. If you put in the words " in the line of his duty" would not you immediately open up questions of contributory neglir gence and departure from instructions? , Mr. Meekee. That is just the danger we seek to avoid. Mr. FitzHenet. That should be taken care of in specific words. If it is the purpose of the Congress to assume all the liability, regard- less of the negligence of the fellow servant or of any risk of employ- ment, we should say so in this law. We should not leave it to the discretion of some commissioner. Mr. Meeker. Well, that is something that the Judiciary Com- mittee has to settle. In my judgment, the law will be a much more equitable law, a much easier law to carry into effect if you adopt the language as it now stands in the bill as drawn. Mr. Peterson. Suppose an employee in one department should be sent to another department on some business, and he should, instead of going directly to that place, go to some other place and be injured. Do you think the Government ought to pay for such an injury as that? Mr. MoGiLLicuDDT. He would not have to be paid under this bill. Mr. Peterson. But if you are going to make it an insurance Mr. MoGiLLicuDDT (interposing). I know; but that would not be in the line of his employment. He would be on the way to his em- ployment. FEDEKAL EMPLOYEES' COMPENSATION. 23 Mr. Petebson. But it would be in the line of his duty. Mr. McGiLLicrt>DY. It is outside of the course of his employment Mr. FitzHeney. Take this case, for instance: Take a mail car- rier who gets his mail, gets on the street car, and goes away out north on Fourteenth Street, as he would in the ordinary course of his business. Suppose something should happen that would cause a wreck; suppose two cars should come together, and he would be thrown out of a window, and his throat would be cut or his arm cut off. There would be an injury sustained by him in the course of his employment. Mr. McGiLLicuDDY. According to what you said, as I understood it, it is not in the course of his employment. Mr. FitzHeney. Well, that is a more pat question, because there it is in line with his duty. Mr. Meekee. Might I ask a question, Mr. Chairman? Suppose a man was riding on a street car in the course of his employment; suppose he is employed by the Bureau of Labor Statistics; suppose he goes by street car on business of the bureau, and meets with an accident and is injured. Is there any good reason why he should Hot receive compensation? Does it make any difference whether he is smashed up in a street car or in the offices of the bureau? Mr. Webb. Suppose he was riding his own horse to his place of employment, and the horse threw him and broke his neck? Mr. Meekee. Is he in the course of his employment? I leave it to you. Prof. Seagee. Might I interject right here that the phrase " in the course of such employment," used in the Federal employees' com- pensation act of May 30, 1908, has been uniformly construed by the Secretary of Commerce and Labor and now by the Secretary of Labor as not including injuries suffered by the workman while going to and from his work or while at his home. (See claim of Gilkey, claim of Green, claim of Cassidy, and claim of Flaherty, reported on pp. 223-226 of the " Opinions of the Solicitor for the Department of Commerce and Labor dealing with workmen's compensation under the act of Congress * * * approved May 30, 1908.") A similar phrase is used in the English act and has many times been construed to the same effect. (See Holness v. Mackay & Davis, 1 Minton- Senhouse Workmen's Compensation Cases, 13 ; Benson v. Lancashire & Yorkshire Ry. Co., 6 ibid, 20; Smilt v. Colliery Co., 5 ibid, 14; Gilman v. Dorman Long & Co., 4 Butterworth's Workmen's Com- pensation Cases, 279; Noland v. Porter & Sons, 2 ibid, 106.) The authorities are collated and the question discussed fully in an article by Francis H. Bohlen, of the University of Pennsylvania Law School, in the Harvard Law Eeview for March, 1912. A similar phrase is found in almost all of the 23 compensation acts now in force in this country, and in no case, so far as we are advised, has it ever been construed so as to grant compensation to a man on his way to and from work, unless upon the premises of the employer or unless while engaged in the performance of his duties. It is. of course, not intended to be argued that a man performing official duties outside of Government reservations should not be compensated if injured. Such compensaion is granted by all compensation acts both in this country and abroad. 24 e'ederal employees' compensation. Mr. Meeker. I had intended to speak foi- just a moment about the constitution of the commission, but as there are several other speak- ers to be heard I will omit that. I do wish to submit something in regard to the cost of administration and compensation under this bill. I have asked that a statement be prepared in my bureau, esti- mating the cost under the bill before you. Under the present lav the compensation is specific in character for named injuries; It is very difficult to niake an accurate estimate as to what the cost will be under this new bill, but I would like to have our best attempt at an estimate incorporated in my remarks. Estimate of Compensation Costs Under the McGillicuddy Bill, H. B. 15222. United States Department of Labor. Bureau of Labor Satistics, Washington, April 2, IBlJf. Great difficulty exists iri connection with any attempt to estimate costs under tliis bill, for the reason that the present law is of limited scope both as to the number of employees covered and the time during which compensation is pay- able. Experience under foreign laws is of little value, for the reason that o£9ce employees and ipdustrial employees are separated, while under this act there is a considerable body of each group. The fact remains that under the present law the majority of industrial employees are included, the chief hazard not cov- ered by It being in connection with the Postal Service. It is also true that sta- tistics have been secured from all departments of the Government with the attempt of furnishing just such facts as are sought for here in connection with the number of accidents that should be compensated under an inclusive law. The experience of the first three years has been presented in a printed report of the Secretary of Commerce and Labor, in which also are shown the total costs of compensation paid on account of injuries in the Life-Saving Service aad the Eailway Mail Service. Under the provisions of law relative to these two branches of service disabled employees are given full pay for one year; in the Life-Savlng Service payment during the second year of disability may be made in the discretion of the Secretary of the Treasury, while iu the Postal Service 50 per cent of the injured clerli's salary may be paid during part o'r all of the second year of disability. A death benefit of $2,000 is also provided for railway mail clerks, and a year's pa.y to the widow or children under 16 years of age of a workman killed in the Life-Saving Service. There was paid in the year 1909-10, $180,000, under the act of May 30, 190S, •to employees in the United States, and $156,340 to employees on the Canal Zone. The Life-Saving Service called for payments amounting to $11,980, and the Rail- way Mail Service for payments amounting to $99,220, the total for the year being, in round numbers, $447,500. For the next year the payments aggregated $482,358. Under the present act it is estimated that of 4,662 accidents reported during the yefir ending June 30, 1912, 3,480 were to workmen included uuder the act and 1,182 to workmen not so included. Of the total number, 543 were reported as able to return to work within 3 days, while 1,321 suiTered disabilities con- tinuing for more than 3 but not more than 15 days. From a study of the figures showing the number of persons added by reason of the inclusion of all employees and the number of cases added by reason of the inclusiou of the period from 3 to 15 days, it is evident that the nuniber of claims would be approximately doubled. However, 1,321 of these cases would be short-term cases — i. e., from 3 to 15 days — so that the bulk of the 2 0O7 cases added in 1912 would increase the amount of compensation paid only by the addition of short-term benefits. An examination of the reports for the year 1913 discloses practically the same proportions. There were 2,466 claims made during the year ending June 30, 1913, under the present law. It is estimated that under the JrcGillicuddy bill there might have been 2.100 cases ffdded, but of these 1,464 wei-e for a period vaiying from 3 to 15 days. It must be remetpbered that the present law compensates only for the first year, so that the figures for continuing disabilities are not as trustworthy as would be the case if the injuries were followed up for the purpose of compeusa- fion for longer period. Reports were requested, however, for all injuries oc- casioning t'otal disability beyond 365 days. In 1912 there were 79 such cases FEDEEAL EMPLOYEES' COMPENSATION. 25 reporterl, aucl in 3913, 36 such ciises. There were, besides tliese, 121 deatlis in 1012 and 102 deatlis in 1913. This makes a total of 200 continuing cases for the first year named and 138 for the second year, or less than 5 per cent foi\ the iSrst year and less than 3 per cent for the second year named. These figures' are corroborated by the data for 1909-10. Omitting the Canal Zone, 8.92 per cent-of all injuries were fatal, while in 1910-1], 2.68 per cent were fatal. Add to these the number of cases reported as extending beyond 365 d.^ys and it makes a total of 5.38 per cent of all cases in 1909-30 calling for coiupensation beyond one year, while in 1930-11 this number amounted to 4.19 per cent of the total. Permanent partial disability caused by maiming must be considered also in this connection, and for the year 1909-10 8 per cent of all claims allowed were for cases in which there was some degree of mainaing; in 1910-11 the number of cases of maiming amounted to 7 per cent of the compensated cases for the year. It is evident that the materialin hand does not run absolutely along the same lines, but in view of the fact that the larger percentage of the ca§es of maiming are losses of fingers or parts of fingers, which in mqny cases would not cause a reduction in wages and therefore would give rise to no prolonged compensation payments, it is clear that the estimate made after a careful discussion of the data that not more than 10 pei: cent of all accidents would give rise to con- tinuing disabilities is a liberal one, so far as can be determined from the data secured during the administration of the act of May 30, 1908. Referring now to the fact that the Government is at the present time paying out between four and five hundred thousand dollars under existing laws, wl^ich provide for full payment of wages during the term of disability, not exceeding one year, it is evident that the substituticin of a law provicjiug two-thirds iiay dur- ing the term of disability would reduce the expense for the first year by ane- third, in so far as the law applies to persons receiving benefits under existing laws. Inasmuch as at least one-half the additions would be for short-term disa,bilities, it seems probable that the extension of the law to cover all classes of employees would result in no actual increase in the amounts expended. Another feature of the present laws can not be ignored in the light of admin- istrative experience. It is the uniform conclusion that the intent of a com- pensation law Is to afford relief and prevent distress on account of disability incurred in course of employment, and that it is not practicable, if desirable, . to pay to a workman not employed equal wages to the amount that he was earn- ing while employed. Certain expenses of food, clothing, and travel are saved to a man who is at home, while the provision of the bill which provides medical care looks after the extra burden accruing in case of injury. To offer a man the same wagps while not employed as when employed puts too heavy a strain on the integrity of a certain class of workmen, and even if not intentionally dishonest, it is a medical fact well demonstrated in experience that a person requires some stimulus in order to induce him to take up the activities of his employment after they have been laid down for a time by reason of injury or enfeeblement of the body. It can not be denied that cases of malingering have occurred under the administration of the present act of May 30, 1908, and, as the law is drafted and administered, it is impossible to exercise the necessary supervision to entirely prevent such occurrences. With a reduction of the rate of compensation to two-thirds of the pay, and the limitation of $66J as the monthly maximum aniount that any workman could receive as compensation, re- gardless of the amount that he may be receiving as earnings when employed, there would be afforded a degree of stimulus to return to work, while the opportunity of continuing linemployment without loss of pay would be withdrawn. It is believed, therefore, that the proposed bill would involve an expense for the first year not exceeding the amount named, namely, $500,000, and in all probability falling below it, by reason of the fact that in the $482,000 paid out in the year 1910-11, for Instance, there were many cases in which the amount of compensa- tion paid was to persons receiving in excess of $66§ per month as benefits. Indeed, of the fatal compensated cases during that year under the act of May 30, 1908, 22 of the 119 received from $900 to $2,500 for the year's benefits, while of the nonfatal cases for that year SlO of the 2,818 compensated cases were of workmen receiving from $900 to $2,500. Under the act in question no year's payment on account of an individual injury could exceed $800. The cost of medical attention must of course be added to these amounts, and In this field the office has absolutely no experience. It is a fact, however, that in the principal establishment and places of employment under the Govern- 26 FEDEKAL EMPLOYEES' COMPENSATIOlir, ment a medical officer is maintained who uniformly gives first-aid treatment, and frequently dresses slight injuries so that a considerable saving would be effected over what would be the ease if no such provision existed. Under the New Jersey law, of the 6,635 accidents' reported during the year ending October 31, 1912, 2,365 were classed as trivial and not requiring medi- cal aid. The average cost of medical aid for cases of less than two weeks duration was $4.04, while for cases receiving compensation the average was $21.17. The total number of accidents thus accounted for is in excess of the number reported during the year 1913 in the entire Government service with the exception of the Isthmian Canal. Mr. McCoy. Mr. Chairman, in that connection I would like to say that I wrote a letter to each of these departments, and if the committee thinks it is worth while I will put in the record a copy of the letter and the answer received from each department. I think they will throw some light on the proposition. The Chairman. We would be glad if you would do so. STATEMENT OF DE. JOHN B. ANDREWS, SECRETARY OF THE AMERICAN ASSOCIATION FOR LABOR LEGISLATION, NEW YORK CITY. The Chairman. Now, we will be pleased to hear from Dr. John B. Andrews. I see that you are down, Dr. Andrews, as secretary of the American Association for Labor Legislation. What is your association ? ■>■ Dr. Andrews. The American Association for Labor Legislation is one of 16 national sections of the International Association for Labor Legislation. It is a scientific society that is interested in securing more uniform and better drafted protective labor legislation in the interest of the whole community. The Chairman. Is it allied with the American Federation of Labor ? Dr. Andrews. No, sir. It is a scientific society. The Chairman. It is an association composed of scientists and not of labor men? Dr. Andrews. Members are from all the different groups in the community. The Chairman. Are they laborers or merely scientists? Dr. Andrews. A considerable number of members are active labor men. Tliere are other men, like Prof. Seager, who are economists; there are others who are physicians, public officials, employers, legis- lators, lawyers, judges, and other far-sighted and public-spirited men and women. Mr. Peterson. When was your association organized ? Dr. Andrews. It was organized in this country in February, 1906, and it is devoted especially to securing safe and sanitary conditions of employment and to the efficient enforcement of wise labor laws. It has made numerous investigations and publishes a quarterly scientific journal, and each year it holds two big national conferences and many smaller ones for the discussion of labor problems. Thus we are enabled to call into our councils experts in every field. Great emphasis is placed on prevention. Our method of securing reforni is: First, to study facts concerning a given condition ; second, to insist on enforcement of existing laws ; third, to draft necessary new measures ; fourth, to encourage the en- actment of desirable laws. FEDEKAL EMPLOYEES' COMPENSATION. 2T As one of the 16 sections of the International Association for Labor Legislation we are enabled to further extend our outlook and to draw on the experience of Europe. Founded in 1900, the inter- national body maintains headquarters in a government building at Basel, Switzerland, where it translates and publishes monthly the- new labor laws of all countries. The international office brings about uniform labor laws by international treaties. One treaty already signed by 14 governments prohibits the night work of women; an- other signed by 9 prohibits the use of poisonous phosphorus in matches. The passage in 1912 of the American Association's bill abolishing the use of phosphorus in match manufacture places the United States in line with the most progressive European countries. Other treaties of equal weight are now under consideration. Prevention of occupational accidents or diseases must be preceded by knowledge of their causes. In 1906 facts as to the extent of these- evils were practically nil. After careful consideration, our associa- tion drew the first law requiring physicians to report specific occu- pational diseases. Now 15 States are gathering such data. Our special committee of experts drafted a standard schedule for report- ing industrial accidents, which has been adopted by the leading in- dustrial States. Our investigations show that danger of lead poisoning lurks in nearly 150 trades, necessitating rigid rules for cleanliness. A bill tO' prevent occupational diseases was drafted; and laws have already been enacted in Massachusetts, Missouri, Ohio, and Pennsylvania, as well as in Illinois, to protect their workers. Other " trade poisons " are under investigation. But legislation fails of its purpose if administration is defective, " Better labor laws better enforced," is our slogan. The association has a committee on factory inspection, which through cooperation with State officials has secured better administration in more than a dozen States — thus insuring safer and healthier conditions. Society is beginning to understand that the financial loss incurred through occupational disease or accident should not be borne by the workman alone. The Kem-McGillicuddy bill provides adequate compensation for the Nation's civilian employees suffering either accidents or occupational diseases. In June, 1913, through our com- mittee on social insurance we held the first national conference on that subject. The first American conference on industrial diseases was called by our association in June, 1910, and the second in 1912. Prevention of industrial accidents formed the main topic of the meeting of 1911. This year we held the first national conference on unemployment. In planning new measures, all available data in regard to the practical experience of other communities is collected and examined. In this way we are accumulating a valuable specialized library, which includes reports of investigations, recent court decisions, and texts of labor laws of all States and countries. Thus we are becoming a clearing house for information on industrial subjects. Our library and information bureau may be freely coneulted by members. Our American Labor Legislation Review, issued quarterly, is the only scientific labor magazine in this country. It contains expert reports on actual conditions and articles on industrial topics of immediate interest. The Bulletin of the International Labor Office, published 28 ■ FEDERAL EMPLOYEES' COMPENSATION. monthly in English, keeps members in touch with the advance of labor legislation of the entire world. These two official journals are everywhere recognized as authoritative. We realize that our association is but focusing the spirit of the time and directing it toward concrete results. From every viewpoint the need of safe, hygienic, and reasonably comfortable conditions for wage earners is seen. We are advocating and securing such condi- tions. Our work is but begun. To extend it a large, intelligent, and democratic membership is required, and we invite tlie cooperation of every earnest man and woman who believes in our program. Mr. Webb. Where do you get your money to run the organization ? Dr. Anokews. Our association is supported entirely by voluntary contributions of members and friends. The minimum annual mem- bership fee for individufils is $3; associate members pay $5 to $25; contributing members, $25 to $100 ; sustaining members, $100 or more. Mr. Webb. How many members have you? Dr. Andrews. We have more than 3,500, representing every State in the Union. Mr. FitzHeney. Have you a constitution and by-la Ws ? Dr. Andrews. They are published in our journal each year. I will gladly send you a copy. They outline the purposes of the association. Mr. FitzHenrt. Could you incorporate them in your remarks? Dr. Andrews. Yes, sir. They are: "To serve as a bond of union to those who believe in the necessity of protecting labor legislation; to facilitate the study of labor legislation, and, in particular, to fur- nish to members of the association information on the laws in force and on their application in different States; to promote uniformity of labor legislation in the United States ; to encourage the study of labor conditions in the United States with a view to promoting desir- able labor legislation." Mr. Floyd. 'Are there any manufacturers or representatives of in- dustrial corporations in your association? Dr. Andrews. Yes, sir; a considerable number, particularly those f)rogressive employers who are very anxious to clean up their estab- lishments and who wish to prevent accidents and occupational dis- eases and thereby conserve the vitality and efficiency of their wage earners. The Chairman. Do any of the employees belong to it? Dr. Andrews. Yes, sir. Mr. McCoy. Is not John Mitchell a member of your association? Dr. Andrews. Yes, sir ; he is a member of the executive committee, of which the following are also members : Jojin R. Commons, of the Federal Relations Commission; Ernst Freund, of the Chicago Uni- versity Law School; Charles P. Neill, formerly Commissioner of Labor; Frederick L. Hoffman, statistician of the Prudential Insur- ance Co.; Paul U. Kellogg, editor of the Survey; and Henry W. Farnam, of Yale University. Mr. McCoy. Mr. Mitchell has recently been appointed to the New York State Compensation Commission.' Dr. Andrews. Now, gentlemen, if I may proceed, I wish to speak briefly in support of Representative McGillicuddy's bill. I assume that the general principle of compensation is accepted by this com^ mittee as it was adopted by Congress six years ago. I also take it for granted that the existing compensation act of May 30, 1908, is FEDERAL EMPLOYEES' COMPENSATION. 29 •v^ery unsatisfactory to all who have examined its provisions in the light of the workmen's compensation legislation and experience of recent y6ars. Surely any compensation law that fails so distinctly to include in its benefits more than about one- fourth of the employees in its field, and provides a scale of compensation so aptly characterized by its admin- istrators as " pitifully and disgracefully small," and which at the same time takes no account of the chief end of compensation, the prevention of occupational injuries, naturally suggests the need for a new law. But I wish to address myself directly to one particular aspect of this bill. The existing inadequate law of 1908 falls far short of the best European practice in failing to make definite provision for em- ployees incapacitated by occupational disease. The expense of broken machines is borne by the industry which passes the burden on to society. We have in recent years arranged that so also must be borne the financial expense of broken legs and arms. Gradually we have come to realize that this same principle must be extended to include incapacity due to arms paralyzed by lead poisoning or incapacity due to other diseases of occupation. The experience of the various States on this point is instructive. In Massachusetts the supreme court of the State, on the 2d day of this month, handed down a decision — in the case of Hurle v. Ameri- can Mutual Liability Insurance Co. — ^to the effect that disease caused by occupational conditions may be treated as a personal injury un- der the Massachusetts workmen's compensaition act. The employee in this case, who worked several years in the power house of a cord- age company, became totally incapacitated for work by optic neuritis, causing total loss of vision in both eyes, induced by poisonous gasies which he inhaled about 70 times a day at the peepholes of a gas- prbducer installatioii. The supreme court holds that a broad inter- pretation of the Massachusetts law justifies the administrative board in finding in favor of this victim who is blinded in middle life. But thie compensation laws of other States are differently worded and variously interpreted. In Wisconsin, for example, the State cotamission has regretfully denied the right of compensation to vic- tims of occupational disease, and changes in the law are contem- plated for the purpose of embracing them in the future. In Ohio thfe administrative board thought it could not compensate a victim of lead poisoning, but the superior court at Cincinnati recently or- dered them to pay. In Michigan the administrative board awarded compensation for lead poisoning and was sustained by the lower courts, but now awaits a decision by the supreme court. Cases are pending in other States having compensation laws, and the move- ment is becoming general to correct the obvious mistakes made by those who drafted the original laws and failed to appreciate the intolerable injustice of denying compensation to the victims of occu- pational disease. Under our present inadequate law for Federal employees experi- ence has been similar. Last year the United States Government published its first official report upon the operation of this law. Sixty-six closely printed pages of this report are devoted to embar- rassing questions which have arisen because of claims arising out of •30 FEDERAL EMPLOYEES' COMPENSATION. occupational diseases. The administration in its awards had been as hberal as could be expected under the unfortunate legislative restrictions. The solicitor for the department took a keen interest in its operation. He was faithful and alert. And one of his most urgent recommendations for a change in the law was that it be extended to embrace occupational diseases. A few typical cases will illustrate this need. A man I know, named Schroeder, went to work in the Federal navy yard at Brooklyn. One of our big war ships, the Ohio, came to the dock, and Schroeder was sent down into the water-tight com- partments called " cofferdams " to burn off the old coat of paint in preparation for a new. As a result of breathing the fumes and dust of the lead paint Schroeder was incapacitated for work by acute lead poisoning. He lost 37 days on this account, and he applied to the Government for the payment of compensation. This statement was made by the attorney for the United States. Government : The question in this case is whetlier acute lead poisoning contracted in the course of employment is an injury within the meaning of the compensation act. If the inhalation of noxious gases is a necessary incident to the workman's employment, there can be nothing accidental in the injury resulting therefrom. This latter consideration disposes of the present case. * * « 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. Schroeder got not one penny. Aside from the fact that lead poisoning in this case was really preventable; aside from the fact that several enlightened nations have absolutely prohibited the use of poisonous lead paints for the interior of their warships; and aside from the fact that there was no one to warn Schroeder of the dangerous nature of his occupation, there is one big final reason why this decision of Uncle Sam's attor-_ ney was even more unfortunate than it was necessary. The financial' cost of this unnecessary case of acute lead poisoning, in addition to the personal suffering, fell upon poor Schroeder. Most men will agree that such financial losses should fall upon the employer. In this case the employer was the Nation, which means all of us, you and me. We owe Schroeder something more than an apology. While the Federal Government is publishing excellent reports on lesid poison'^ ing in the factories of private employers and is translating and dis- tributing in fat volumes the workmen's compensation laws of Euro- pean countries, can the United States afford to do less than make provision for reasonably safe work places in the Government serv- ice? And can this country afford to ignore the good example of these European laws, which provide compensation for such victims of occupational diseases? A few months after the unfortunate Schroeder case a man named Hill Avas employed at placing floor plates in the engine room of the warship St. Louis in the Puget Sound Navy Yard. Meantime 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," PEDEEAL EMPLO tees' COMPENSATIOX. 31 Which means — disease of vision from imperfect sensation of the retina, witiiout organic lesion of the eye. This disease incapacited Hill on the thirteenth day after his first exposure to the poison. The exposure lasted only seven days. Said the solicitor: It is accordingly possible to refer the claimant's injury to an event callable of being fixed in point of time. In the second place, the injury to the claim- ant'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 ship fitter related to the laying of plates in the boiler room ; the painting was being done by others. And this claim was approved. But if, instead of Hill, one of the painters had been poisoned and incapacitated by the fumes of lead paint, a similar claim would not have been allowed by the solicitor. This is made perfectly clear by his decision in the John Freiman case. John was a laborer in the Boston Navy Yard, and it was his duty to scale off lead-painted compartments on ships. He became inca- pacitated by " lead poisoning contracted in the course of his employ- ment," and his superior officer certified that the injury was not due to negligence or misconduct. After John had suffered several weeks as a result of " painter's colic " and chronic lead poisoning, his claim was submitted. It was necessary to decide whether the law applies to diseases due to the occupation. The solicitor declared : 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 poisoniug or " painter's colic." The difficulties involved in legal technicalities become apparent. The following story, verbatim from the Government report — page 201, Opinions of the Solicitor for the Department of Commerce and Labor dealing with workmen's compensation. 1912 — about -William Murray, who suffered with compressed-air illness, strikingly illus- trates the point : The claimant in this case is a laborer employed by the Reclamation Service at Arizona shaft, Colorado Kiver 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 origi- nally presented the claim wa.* disallowed on the ground that the bends is a disease, and diseases contracted in the course of emi)loyment as distinguished from in.iuries of an accidental nature are not within the operation of the com- pensation 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 men to leave work, as, on account of the bends, it is generally regarded as very hazardous. And the former decision was reversed. The solicitor has passed upon other cases of occupational disease, with some decidedly interesting results. Mary A. Crellin was a folder of heavy paper at the Government Printing Office, Continuous strain upon her fingers and wrist caused a degeneration of the tendon sheath. A tumor or cystic ?2 FEDERAL EMPLOYEES' COMPENSATION. growth developed. Mary was obliged to have it surgically removed. Then she thought the Government, and not she, ought to stand, the loss of wages due to her incapacity. This attracted attention. Said the medical officer of the Government Printing Office : 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 similar condition, but of such size as not to interfere with the manipulation of the hand. The solicitor decided that in this tendon degeneration there was " no accidental element." It was " not due to injury." It was " d^e to excessive use " in the service of Uncle Sam. Mary's claim was denied. The question may faifly be raised as to whether it is not a. bit unfair to administrative officials to place them under the embar- rassment of interpreting a statute so as to cover, for example, some but not all cases of occupational lead poisoning. Would it not be miich better plainly to include occupational diseases in the law ? Occupational disease names, including such popular terms as " lead colic," phossy jaw," and the compressed-air worker's " bends " are suggestive The principle is admitted that workmen should be compensated for injuries by accident arising out of their employment. It is only consistent that incapacity caused by diseases due to the employment should also be included. Some diseases are, in the ordinary use of the term, accidental. But many people work where trade dis- eases of an insidious nature are contracted and where there is con- stant risk of illness on that account. These diseases are as seri- ous as accidents. There is no social justification for drawing an arbitrary line of distinction — ^the principle of compensation is no longer in an experimental stage. A compensation law should in- clude, says Sir Thomas Oliver, the leading English authority on the subject, " industrial diseases, the consequences of which may be immediate or remote, and which are often more severe than accidents." It requires no further argument — - Says Dr. Hoffman of the Prudential Insurance Co. of America — to sustain the conclusion, that while compensation for industrial diseases affects a relatively smaller number of men than compensation for industrial acci- dents, the principle itself applies equally to both classes of injuries, and it is simply a question of political and social justice that the pecuniary burdens resulting from these deplorable occurrences should not be borne by the em- ployees. In the most advanced countries of Europe, including England, Germany, and Switzerland, provision is made by national legisla- tion for ' occupational disease compensation. Surely the United States should now, while enacting a new law, provide for its own Government employees incapacitated in the course of their employ- ment by injuries or occupational diseases a system of administration which will result in safety and sanitation coupled with compensa- tion at least equivalent to that furnished by the most progressive nations of the world. FEDERAL EMPLOYEES' COMPENSATIOlf. 33 WHY CONGIiESS SHOULD PASS THE KERN-m'gILUCUDDY BILI-. The existing Federal law, granting to certain enaployees of tiie United States the ri^t to compensation for injuries received in the course of their employment, went into effect on August 1, 1908. Since then it has several times been extended in scope. However, in spite of its benefits, which are admitted to have been substantial and real, the law still falls iar short of what it should be if workmen who lose their health, their limbs, or their life in the service of the Nation are to receive justice. WEAKNESSES OF THE EXISTING LAW (aCT OF MAY 30, 1908). One of the serious shortcomings of the existing law is that it con- fines its benefits to only one-fourth of the Government's 400,000 civilian employees. " During the three years from August 1, 1908, to July 1, 1911," announced Solicitor Earl, of the Department of Commerce and Labor, in December, 1912, " 21,033 injuries were re- ported, of which 670 were fatal." Claims were made in only 7,622 cases, 363 of which were on account of fatal injuries. "What" of the 307 injuries resulting in death and the 13,104 lesser injuries, on ac- coimt of which no claim was made? They were simply not covered by the act," says Solicitor Earl. Fortunately, some of these fatalities were in the Life-Saving and in the Railway Mail Service where limited compensation is provided by special laws. Another serious shortcoming is that the workman who contracts, an occupational disease, such as lead poisoning, as the necessary and inevitable consequence of his work, is debarred from compensation. The leading parliaments of the world have agreed that the worker who is incapacitated by occupational disease should not be debarred from compensation merely because the cause of his incapacity is gradual and not sudden. A feature unsatisfactory alike to administrative officials and to workmen is that no incapacity lasting less than 15 days is com- pensated, but if the injury lasts more man 15 days, compensation is paid from the date of the injury. With the " waiting' time " thus unwisely extended, the temptation to malinger is encouraged ; on the other hand, many deserving cases are deprived of indemnity. The severest indictmjent against the act, however, is against the , ., ^^^^^^ °- CLAYTON, Alabama, OhMrman. CHARLES .^ PAPT ™'*v''',™"''"- •'^^^^ ''■ C^«^W- New York. JOHN r FTOYlt A I ' ^'^ ""'■ -fO^™ ''■ PETERSON, Indiana. R Y TH^AS Vf^rr-. -^^ J- MITCHELL, Massachusetts. H GAw ANn nnppft ? ?'• Andrew j. Volstead, Minnesota. H. GARLAND DUPRfi, Louisiana. .TOHN M. NELSON, Wisconsin ^i^l "^ ^- ^"^^^^ ^^"^ ^^'^^y- DICK T. MORGAN, Oklahoma DANIEL J. McGILLICUDDY, Maine. HENRY G. DANPORTH New York JACK BEALL, Texas. L. c. DYER, Missouri. ' JOSIDPH TAGGART, Kansas. GEORGE S. GRAHAM, Pennsylvania LOUIS PITZHBNRY, Illinois. WALTER M. CHANDLER. New York. J. J. SpeiohTj Olertc, PEDEEAL EMPLOYEES' COMPENSATION. Serial 16, Part 2. Subcommittee No. 2 of the Committee on the Judiciary, House op Representatives, Friday, April 3, 1914. The subcommittee this day met, Hon. Walter I. McCoy presiding. STATEMENTS OF DR. JOHN B. ANDREWS AND MR. MIDDLETON BEAMAN. Mr. Beaman. I submit the following for the record : SUMMARY OF PRINCIPAL FEATURES OF KERN-m'gILLICUDDY BILL. r Sixty-third Congress^ second session H. R. 15222.] WHAT EMPLOYEES GRANTED COMPENSATION. All civilian officers and employees of the United States and the Panama Railroad Co. FOB WHAT COMPENSATION IS GRANTED. The bill provides compensation for disability or death of an employee re- sulting from personal injury sustained or occupational disease contracted in the course of his employment. It also provides compensation in case an em- ployee is suspended from work in order to prevent his disability from an occu- pational disease. No compensation is allowed if the injury is caused by the employee's inten- tion to bring about the injury or death of himself or of another. 45 46 FEDERAL EMPLOYEES' COMPEHTSATION. AMOUNT OF COMPENSATION. DisaMUty payments. Total disability : 66§ per cent of the monthly pay during the continuance of disability, not to exceed $66.67 a month, and not less than $33.33, unless em- ployee's monthly pay is less than $83.33, in which case compensation is full pay. Partial disability: 66f per cent of the difference between the monthly pay at the time of the injury and the monthly wage-earning capacity after the beginning of the partial disability, not to exceed $66.67 per month. If the employee refuses to work after suitable work is furnished to or secured for him by United States, no compensation is allowed while the refusal continues. Medical, surgical, and hospital services and supplies for a reasonable time and in a reasonable amount. No compensation for first three days of disability, except medical, etc., services, and supplier. If employee has unused annual or sick leave he may, subject to approval of head of department, substitute it for compensation until used up. DEATH PAYMENTS. To the widow, if no child, 35 per cent of monthly pay of deceased employee until death. In case of marriage lump sum equal to three years' compensation. To widower, if no child, 35 per cent if wholly dependent, and a propor- tionate amount if partly dependent, payable until death or marriage. To widow or widower, if there is a child, the above amounts and in addi- tion 10 per cent for each child not to exceed a total of 66f per cent for widow or widower and children. Compensation on account of any child ceases when he dies, marries, or reaches 18, or if over 18 and incapable of self-support, becomes capable of self-support. To the children, if no widow or widower, 25 per cent for one child and 10 per cent additional for each additional child, not to exceed a total of 661 per cent. Ciompensation of each child ceases when he dies, marries, or- reaches 18, or if over 18 and incapable of self-support, becomes capable of self-support. To the parents, 25 per cent for one wholly dependent and 40 per cent if both wholly dependent. Proportionate amount if partly dependent. These percentages paid if no widow, widower, or child. If there is a widow, widower, or child, parents receive so much of these percentages as when added to total percentages payable to widowi widower, and children will not exceed total of 66§ per cent. To brothers and sisters, grandparents and grand children 20 per cent if one wholly dependent, and 30 per cent if more than one. If no one wholly depend- ent and one or more partly dependent 10 per cent divided share and share alike. These percentages paid if no widow, widower, child, or dependent parent. If there is, a widow, widower, child, or dependent parent there shall be paid so much of these percentages as when added to total percentages payable to widow, widower, children, and dependent parent will not exceed total of 66§ per cent. Payments to last two classes continue for eight years from the time of the death of the Injured employee unless before that time the beneficiary dies, marries, or ceases to be dependent or reaches IS, or if over 18 and incapable of self-support becomes capable of self-support. In computing compensation in case of death, the monthly pay of the injured employee shall be considered not to be more than $100 nor less than $50, but total monthly death payments shall not exceed the actual monthly pay of the employee. Burial expenses up to $100 and transportation of body to home in discretion of administrative officials. COMMUTATION INTO LUMP SUM. In case of death or permanent disability administrative officials may com- mute periodical payments into a lump sum equal to present value of all future payments if the beneficiary is or is about to become a nonresident of the United States, or it is for the best Interests of the beneficiary. In estimating such FEDERAL EMPLOYEES' COMPENSATION. 47 lump sum the probability of tbe beneficiary's death shall be determined accord- ing to mortality tables, but the probability of the happening of any other contingency shall be disregarded. NOTICE OF INJURY. No liability for compensation unless written notice within 48 hours after the injury or death unless the administrative officials find reasonable cause for notice given later. CLAIM FOB COMPENSATION. No compensation allowed to any person unless he malies a claim within 60 days after the beginning of disability or within one year after the death, but administrative officials may for reasonable cause allow claim to be filed later. Claim must be made on forms furnished by administrative officials, must contain all information required by them, and must be sworn to. MEDICAL EXAMINATION. Injured employee required to submit to medical examination at request of administrative officials, and no compensation payable so long as refusal to submit to examination continues. If employee, about to enter service, discloses on examination symptoms of occupational disease or physical condition rendering him likely to contract such disease, or to sustain an Injury, he shall not be appointed to any position for which he is adjudged unfitted. Any employee performing any work which subjects him to risk of contracting an occupational disease shall be examined from time to time, and If he is found to have an occupational disease he may, although not disabled, be suspended from work or given other work and paid compensation as for total or partial disability. THIKD PERSON'S HABILITY. If the injury or death for which compensation is payable is caused by the negligence of some person other than the United States, and if a beneficiary entitled to compensation pursues his right of action against such other person, he is required to credit upon compensation due from the United States the amount received from such other person. ALMINISTEATIVE FEATURES OF BILL. The bill provides for a commission, composed of three commissioners appointed by the President with the advice and consent of the Senate, at a salary of $5,000 each, and with such assistants as Congress may from time to time provide to be appointed by the commission subject to civil-service requirements. The commission is authorized to make necessary rules and regulations for the enforcement of the act and to decide all questions arising under the act. The commission Is to submit a report annually to Congress and is to submit annually to the Secretary of the Treasury estimates of the appropriations needed. FUNDS FOR PAYMENT OF COMPENSATION. The bill establishes a separate fund in the Treasury, to be known as the "Employees' compensation fund." The bill appropriates $500,000 to establish this fund and provides that there shall be added to It such sums as Congress may from time to time appropriate. The commission is to submit annually to the Secretary of the Treasury estimates of appropriations needed for the main- tenance of the fund. PREVENTION OF ACCIDENTS AND OCCUPATIONAL DISEASES. The commission is required to study the causes of accidents and occupational diseases among civilian meployees of the Government, to report annually to Congress the results of its Investigations, and to make such recommendations as it may deem proper to the various departments as to the best means of prevent- ing accidents and occupational diseases. 48 FEDEBAL EMPLOYEES COMPENSATION. Mr. Taggart. What is this worth as a commercial proposition, the insurance of employees generally employed by the Government, including those who ride on trains? I will say from my little experi; ence and from conversations with men who are in the business that they insure traveling men as cheaply as they do professional men; men who travel on the trains, it is strange to say, pajr about the same rate as professional men. My understanding is that insurance cover- ing cases of accidental death or disability arising from external violence is a comparatively very cheap form of insurance. When it comes to sickness, sick benefits, a higher rate must be paid. But this . bill seems to be limited to diseases originating in the service and caused by the service. Mr. Beaman. And it relates to accidents. Mr. Taggaet. Incurred in the service; incurred in the performance of duty? Mr. Beaman. Yes, sir. Mr. Taggaet. That would be, of course, a difficult question, I imagine, to answer, because insurance companies would not have any specified rate fixed for occupational diseases, but would have a rate for injuries or death caused by external violence. Mr. Beaman. But not confined to those incurred in the course of employment ? Mr. Taggaet. No; that insurance would extend to accidents and disabilities occuring from external violence anywhere, except those self-inflicted, I suppose. Mr. Beaman. We have here — which will appear in the minutes (p. 24) of the hearing the other day — an estimate made by one of the men in the Bureau of Labor Statistics, which now has charge of the present law, as to the probable cost to the Government under this proposed bill. Mr. Taggaet. Is his statement founded on information derived from actuaries and those familiar with the proposition? Mr. Beaman. It is founded on statistics of accidents under the present law, and is an estimate of the probable number of accidents under the bill- here recommended. None of the insurance companies, so far as I know, have any statistics which will enable them to make a rate which is actuarially sound ; they can only guess at it. They are now engaged in insuring compensation liability under the acts of some 22 States which now have compensation laws, and it seems to be generally admitted that just exactly what the rate should be is a matter that it will take some years to determine. They are doing the best they can to get a fair rate. Mr. Taggaet. Their rates, as well as profits, are modified some- what by lapses ? Mr. Beaman. Yes, sir. Of course, you have a difference here from the ordinary accident policy which provides for a lump-sum payment that can be accurately estimated. This bill provides for periodical payments to the disabled men or to the dependents of a killed man extending over a period of years, and it is impossible to estimate with the same ease, as in the case of a lump sum, just what these payments will amount to. That is one of the difficulties of fixing insurance rates. FEDERAL EMPLOYEES' COMPENSATION. 49 Mr. Taggart. If you have information that can be put at the dis- posal of the committee in presenting this bill, if it is favorably re- ported, and it is printed in the Record — — Dr. Andrews (interposing). That has been worked out. Mr. Danfoeth. Have you any data to serve as a guide on the question of occupational diseases? Dr. Andrews. We know that there will be comparatively few cases of occupational diseases in the Government service. The present law has not covered occupational diseases except in occasional cases by a very liberal interpretation of the present law. Mr. Danfoeth. They have interpreted the present law as gov6rii- ing those diseases ? Dr. Andbews. They have covered finally some few cases &f com- pressed-air illness, which we rejected earlier. Mr. Danfoeth. No lead poisoning, I suppose ? Dr. Andrews. They interpret the law in this way : That if a man is working with lead paint as a painter and is incapacitated they do not compensate him; if he is working on some other part of the job and is not himself using lead, but gets acute lead poisoning, then they compensate him. This law would do away with that kind pf discrimination. Mr. Taggart. On the theory that he assumes the risk of handling the materials he is engaged with ? Dr. Andrews. Well, on the theory that he could not have antici- pated the injury. Mr. Taggart. You do not assume to go as far as the House of Lords went in the case where they decided that becoming infected with disease by reason of bacteria was an accident for which a work- man could recover compensation? Dr. Andrews. That is the famous case of injury from anthrax- bacillus ? Mr. Taggabt. Yes. Dr. Andrews. No, sir. England got away from that later by specifically extending her compensation act to include occupational' diseases. You have in mind an interpretation that came earlier under conditions somewhat similar to those under our existing law. Mr. Taggart. Do I understand that if a man were handling mail bags and he could prove that he got smallpox, or some other com- municable disease, he could recover? Mr. Beaman. I should say as to that case, as you put it, no ; that that would not be considered an occupational disease. If, however, one could prove that because of the handling of mail bags — owing to some peculiar condition of mail bags not found elsewhere — ^he was peculiarly likely to contract smallpox^ then it might be said that that was an occupational disease, just as it might be said — and admitted by everybody now— that a painter is i^eculiarly subject to lead poison- ing. That is a well-known and definite occupational disease, but the case you put I do not think would be called an occupational disease. Mr. Taggart. This would not extend to the personnel of the Army and Navy? Mr. Beaman. No, sir. Mr. Taggart. They are specifically excepted? 50 FEDEBAL EMPLOYEES' COMPENSATION. Mr. Beaman. Yes; the provisions of the bill are specifically con- fined to civilian employees. Mr. MoGiuLiouDDT. That question came up the other day, and I think it is well enough for you to be careful about that. Mr. Beaman. If you will turn to section 44, page 21, I think you will find the matter is fully covered. That section reads as follows : ^he term " employees " Includes all civilian officers and employees of the United States and of the Panama Railroad, but includes no others. That seems to be entirely definite. Mr. McGiLLicuDDY. That answers that, I think. Mr. Taggart. If a Congressman became disabled in his strenuous exertions here on behalf of the country Mr. McGiuoicuDDY (interposing) . What could he be doing in the way of an occupation from which he would be likely to contract any disease? Mr. Taggart. Suppose he were hurt in an elevator ? Mr. McGiLLiouDDY. That is an accident ; that is not an occupational disease. Mr. McCoy. The answer is that he would continue to draw his salary until he resigned. Mr. Taggart. You would not set the day for him to resign? :■ Mr. McCoy. No; I certainly would not insist on his resigning. T will now read the bill. That the Tfnited States shall pay compensation as hereinafter specified for the disability or death of an employee resulting from a personal injury sus- ^iijed in the course of his employment. Mr. McGiLLicuDDY. In lines 5 and 6, page 1, why do you use the words " in the course of his employment " mstead of the words " in the line of duty ? " Have you considered that point ? Mr. Beaman. We have. , Mr. McGiLLicuDDY. Why do you use the words " in the course of his employment " instead of the words " in the line of duty ? " Mr. Beaman. For the reason that the words " in the course of his employment " are used in the English act and, I think, in every one of the 22 acts in this country and most probably 23. One act (Ken- tucky) has just been passed, but I have not yet seen it. However, I have no doubt that is in it, because one is copied from another. This phrase has been construed and universally has a construction which is well known, and it has become more or less of a technical term in the construction of compensation acts. We therefore thought it better to use the term which is well known than to adopt some other which might put the administrative officials to a great deal of work in construing it. Mr. McGiLLicuDDY. For instance, somebody, I think, asked a ques- tion of this kind : If a letter carrier met with an accident while going to or returning from his home, would that be considered in the course of his employment? Mr. Beaman. It has been universally construed not; whereas, if the letter carrier were going along the same street carrying the mail and were injured in exactly the same sort of way it would be consid- ered in the course of his employment. Mr. McGiLLicuDDY. That is my idea of it. Mr. Danfobth. You mean construed by the courts? PEDEKAL employees' COMPENSATION. 51 Mr. Beaman. Yes; and by the commissions in charge of the oper- ation of the acts. Mr. McCoy. In that connection I remind the members that Prof. Seager stated that he would compile a list of references to the de- cisions in which this phrase " in the course of his employment " had been interpreted. Mr. Beaman. That has been done and will be incorporated in his remarks. (Hearings, Mar. 31, 1914, p. 23.) • Mr. McCoy (reading). "And for the disability, death, or suspen- sion from work of an employee resulting from an occupational dis- ease contracted in the course of his employment ; but no compensa- tion shall be paid if the injury, death, or occupational disease is caused by the employee's intention to bring about the injury or death of himself or of another." Mr. Taggaet. I will ask whether the term " occupational disease " is defined further on in the bill ? Mr. Beaman. No. Mr. Taggakt. Have occupational diseases been sufficiently defined to have an exact meaning in the law at this time ? Mr. Beaman. So far as this act is concerned there is no definition at all of occupational diseases. In other words, the intention of the bill is that the definition of that term should be left to the commis- sion having charge of the administration of the act, believing that such a comniission will interpret it in a reasonable way and construe it to extend to such diseases as reasonably could be said to be pe- culiarly due to the occupation, and exclude such diseases as the ordi- nary run of mankind is subject to. Mr. Taggaet. Such diseases as presumably a person would not contract if he had not performed that particular duty in that occu- pation ? Mr. Beaman. Yes. The most common illustrations with regard to these diseases (which we now know exist in the Government serv- ice) are such things as lead poisoning, compressed air illness, and — I forget the medical term — what happens over here in the Govern- ment Printing Office to those who fold heavy paper, some affection of the wrist from constantly folding heavy paper. Mr, Taggaet. A man spoke to me the other day with a peculiar accent; he told me not to be astonished, and then showed me his tongue. He had been licking envelopes and, had sustained a dreadful disease that caused his tongue to swell, and left a lesion and scar in his tongue that afterwards interfered with his speech. Now, the question would be, of course, whether his occupation required him to lick those envelopes with his tongue. Mr. McCoy. I should think that ought not to be called an occupa- tional disease, and that any Government official who allowed a man to do that sort of thihg ought to be impeached. Mr. Taggaet. Well, he got it from his occupation ; there is no ques- tion about that. Mr. McCoy. It was not inherent in the occupation, however, be- cause sponges are cheap. Mr. Taggaet. Well, we get atound, then, to the standard controver- sies of the courts in these things as to whether or not a person is guilty of contributory negligence? 52 FEDERAL EMPLOYEES' COMPENSATION. Mr. McCoy. No. Mr. McGiLLicuDDY. Negligence would not enter into this at all. Mr. McCoy. I would not say that was a case of contributory negli- gence ; I should say that he had adopted a method which clearly was a wrong method, which nobody asked him to adopt, and which he did not have to adopt, just as though a man should be ordered to go from the War Department to the Post Office Department and would assume that he could fly and jumped out of the window, stretched out his arms', and tried to fly. I can not see why that would not be the same thing to a .certain extent. Mr. Taggart. I know of a case where a postal clerk got up on a table or some fixture in a car to light the lamps, and the train hap- pened to be going around a curve on a pretty rough track, and he was thrown. Mr. McCoy. This bill will take care of liim, I should think. Mr. Taggakt. I should think so, although when it came to the question of carelessness on the part of the railroad company, then the question of what he was doing at the time was a serious thing. While he did not sue the railroad company, he probably could not have succeeded on two points ; first, his contributory negligence, and second, the fact that the railroad company was in the exercise of ordinary care. Mr. Mc(jiLLicuDDY. The principle of negligence does not enter into this ; that is another principle altogether. Mr. Taggart. I understand; but the principle of the departure from ordinary methods of conducting public business does enter into this. Mr. McCoy (reading) : Sec. 2. That during the first three days of disability the employee shall not be entitled to compensation except as provided in section 10. Xo compensation shall at any time be paid for such period. Sec. 3. That if the disability is total the United States shall pay to the dis- abled employee during such disability a monthly compensation equal to sixty-six and two-thirds per centum of his monthly pay. Mr. Beaman. Referring to section 3, I would like to state that some Members of Congress may feel that granting a man compensa- tion during his entire life in case of total disability, which lasts dur- ing his entire life, is going to subject the Government to great expense. Now, I used to_ think so myself. As a matter of fact the statistics show that the cases of permanent total disability form less than two-tenths of 1 per cent of all accidents. Mr. McCoy. Even in the hazardous employments now covered ? Mr. Beaman. Yes, sir; the cases are very i-are where a man is per- manently totally disabled. Mr. McCoy. Then I would call attention to the provision, which comes later on, which gives the commission the right to revise its decision in any case, so that none of the cases of alleged permanent disability can stand finally adjudicated; they are always subject to review. That is found in what section ? Mr. Beaman. Section 41. Mr. McCoy. Mr. Taggart raises a point as to the employment of the language regarding compensation for total disability to perforin the kind of service which an employee had been previously perform- ing, although he might be able to secure employment which would FEDERAL EMPLOYEES' COMPENSATION. 53 result in his getting as much pay as he had previously been getting, and I will call his attention to the fact that sections 4 and 5 of the bill would prevent his receiving any compensation under those cir- cumstances. In other words, notwithstanding the accident, the employee is bound to do what work he can ; and if his compensation equals what is provided for, then he gets no compensation ; if it is less, then there is a scale provided for in another section of the bill. Mr. Taggart. Would not that work an injustice? Let me cite the case of a stenographer back at my home. He was a wagon driver and had an accident which deprived him of both of his legs. Then he studied stenography; he started in at $50 a month, and now he is getting $1,000 a year. I do not know what he got driving a wagon, but I miagine he got $12 a week. He is getting at least twice that now. He suffered a frightful accident; and if it were a case where he could sue, he would probably have recovered as much as $10,000, and judgments for that amount have been upheld by the courts for such a disability as that. Mr. McGiLLicuDDY. But that is on another principle; that is for pain and suffering. This bill simply compensates him for financial loss and not for pain and suffering. This bill does not intend to do' that, if I understand it correctly. It is not to compensate a person for pain and suffering. Mr. Taggart. Let us assume that this man was an employee of the Government, in which case he would sit down and stand on his rights and get two-thirds of his pay. He would insist on Mr. McGiLLicuDDY (interposing). Under section 5 he would have to go to work. Mr. Taggart. They would have to furnish him something to do. Mr. Bkaman. Section 5 will take care of your objection. Mr. Taggart. This boy wanted to get into the civil service, but they would not take him. If he had been a one-legged boy, they would have taken him, but having two legs off they would not take him. Mr. McCoy (reading) : Sec. 4. That if the disability is partial the United States shall pay to the dis- abled employee during such disability a monthly compensation equal to sixty-six and two-thirds per centum of the diflference between his monthly pay and his. monthly wage-earning capacity after the beginning of such partial disability. Mr. Danforth. Is that provision taken from any act? Mr. Beaman. Yes, sir. Mr. Danforth. Do you remember what one? Mr. Beaman. I do not recall just now, but I can furnish it to you if you want it. I will say this, however, that in the majority of the acts the language is the same, although some say the difference be- tween his pay at the time of his injury and his pay afterwards, and some say his pay and his probable earnings thereafter. Mr Danforth. I think that anything of that sort probable earn- ings or probable earning capacity, is absolutely indefinite and im- ^MfLlirN'-'ClSf would you fix it? The principle that you obiect to tr found in all the acts. I will say that. I thought you Sre referring to this exact language, but the principle of takmg his nav before and after is adhered to m all the acts. Mr McCoy. And that is for the protection of the Government? 54 FEDERAL EMPLOYEES' COMPENSATION. Mr. Danpoeth. I know, but does it protect? Mr. Beaman. Yes; because the commission estimates what that is from time to time. Mr. McCoy (reading) : The commission may, from time to time, require a partially disabled employee to make an affidavit as to the wages which he is then receiving. In such affi- davit the employee shall Include a statement of the value of housing, board, lodging, and other advantages which are received from the employer as a part of his remuneration and which can be estimated in money. If the employee, when required, fails to make such affidavit he shall not be entitled to any compensation while such failure continues, and the period of such failure shall be deducted from the period during which compensation is payable to him. Sec. 5. That if a partially disabled employee refuses to work after suitable work is furnished to or secured for him by the United States he shall not be entitled to any compensation while such refusal continues, and the period of such refusal shall be deducted from the period during which compensation is payable to him. Mr. Beaman. Section 5 is purely cumulative. I understand sec- tions 4 and 5 of the bill in this way: In the first place a man is under the burden of establishing that he is disabled. The act grants compensation only in case a man is disabled; he has got to prove that to the satisfaction of the commission. Now, we will assume that a man has strained his leg, and he is unable to work, as he claims. The commission examines him, and the medical officer certifies that the man is perfectly able to work. It may cause him some little pain to work, but the medical officer determines that he can go ahead and work, and that he will be all right. Under those circumstances the commission would find that the man had failed in proving he is disabled, and, therefore, would refuse him compensation. Now, section 5 would take care of some of the persistent claims — that is, where a man would still say, " Oh, I am still disabled and can not work." Such a man might go around trying to bring political in- fluence to bear upon the commission in order to have it approve the claim, but the commission could say, " Here, John, we are tired fool- ing with you; here is a job, you go to work." That would cover all disabled men when it was found by the commission that they could be put at work. However, it is really unnecessary, because under sections 1 and 4 no compensation is payable unless a man can prove to the satisfaction of the commission that he is disabled. If he is disabled he ought to get compensation, and if he is not disabled he ought not to get compensation. That is the way it seems to me it would work out. Mr. McGiizJOUDDY. Under the terms of this bill no more than $66.67 can ever be paid monthly. Mr. Beaman. That is right ; no matter how large the wages may be. Mr. McCoy (reading) : Sec. 6. That if, as a result of any examination authorized by section twenty- three, any employee is found to have contracted any occupational disease, he may, in the discretion of the commission, although not disabled, be suspended from work, or, if practicable, given other work which he may be physically able to do until such time as, in the opinion of the commission, it is safe for him to return to his regular work. During such suspension or substitute employment the United States, if he has contracted the disease in the course of his employ- ment, shall pay to him a monthly compensation as for total or partial disability, as the case may be. Seo. 7. That the monthly compensation for total disability or for suspension from work shall not be more than $66.67 nor less than $33.33, unless the em- FEDERAL EMPLOYEES COiyiPBlirSATIOlir. 55 ployee's monthly pay is less than $33.33, in which case his monthly compensa- tion shall be the full amount of his monthly pay. The monthly compensation for partial disability shall not be more than $66.67. In the case of persons who at aie time of the injury or of the beginning of disability or suspension from work resulting from an occupational disease were minors or employed in a learner's capacity, and who were not physically or mentally defective the com- mission shall, on any review after the time when the monthly wage-earning capacity of such persons would probably, but for the injury or disease have in- creased, award compensation based on such probable monthly wage-earning ca- pacity. The commission may, on any review after the time when the monthly wage-earning capacity of the disabled employee would probably irrespective of the injury or disease have.decreased on account of old age, award compensation based on such probable monthly wage-earning capacity." Mr. DANroETH. That brings up a question I asked, and you have given me a statement in regard to the different States. Dr. Andrews states that thait provision is in effect in six States— California, Illi- nois, Iowa, New York, Ohio, and Wisconsin. I have hastily looked through the New York act of 1913, but I can not find it there. Mr. Beaman. I will show it to you, sir [handing book]. Mr. Danfoeth. I do not think that is anything like this. A minor might be a journeyman and earning full wages. Mr. Beaman. The language is different, but the purpose is the same. If he were such a person as you suggest, and earning full wages, then his monthly wage-earning capacity would not " probably have increased," so this clause in the McGillicudy bill would not be applied, you see. Mr. M;cCoT. If a minor, who is earning a boy's wages, is injured, he gets compensation based on his rate of wages. When he reaches, say, 25 years of age, the commission is authorized under this bill to say that, had it not been for the injury, at 25 years of age' he would probably be earning so much, whereas on account of the injury he is earning so much less, and they could take what he probably would have earned, had he not received the injury, as the basis for his com- pensation. Now, as a man increases in age and gets up to the age where his earning capacity would, in the natural cburse of events, be less than the compensation which he had previously been receiv- ing, his compensation can be diminished, because the whole thing is based upon the probable earning capacity. Mr. Beaman. That is it exactly. Mr. Danfoeth. It seems to me that is absolutely unworkable. I do not see how any commission, with any great number of em- ployees, can successfully and intelligently review the cases of in- juries to learners, or apprentices — I suppose it really means a young man who has just started to learn a trade — and say whether he could ever have become an expert in that line of business so as to be entitled to the top wages. Mr. McGiLiiicuDDY. Not absolutely or infallibly, but get at it the best way you can. It is fair to take into consideration the fact that a boy, had he not been injured, would have earned greater wages as he became a man, especially if he were without physical or mental disabilities, and then when old age comes on he would naturally earn less. It seems to me that while you can not be infallible about it, there is a large area in which you could work. Mr. Danfoeth. It would be a large area in which to work with great uncertainty. 56' FEDERAL EMPLOYEES' COMPENSATION. Mr. McGiLticuDDT. Do you not think that principle ought to be adopted? Suppose a minor was hurt when he was 15 years of age, at which time he was earning $30 a month; do you not think you ought to take into consideration the fact that at 25 he would earn perhaps $100 a month ? Mr. Danforth. I should think that in the case you suggest it could be worked out with pretty fair accuracy. Mr. McGellicuddy. This is limited to $100 a month, so that there could not be very much beyond that. Mr. Beaman. The moment, Mr. Danforth, that you admit that it is easy to estimate it as to that class of laborers — that is, people engaged in mechanical work — ^you practically remove all difficulty, because the other people are not very likely to receive injuries. In other words, if a man is engaged, in that class of work in which it is difficult to determine his future earning capacity his accidents are very few and those cases would not be very troublesome. Most of the accidents are in the mechanical trades. I think you will see the injustice of granting compensation for the rest of a boy's life based on the sm^l wages he was earning at the time of the injury. The injustice of that is apparent to all of us, and this is the best way we could think of to take care of such a case. Mr. Danforth. I thinl? a man's wages, when he grows to be old, are just as difficult of adjustment, but, of course, you answered that by saying that the lowering or increasing of the wages of the aged or young men growing to manhood is limited to the maximum you have fixed in the bill. Mr. Beaman. Yes. Mr. Danforth. Two- thirds of $1,200? Mr. Beaman. Two-thirds of $100 a month. Mr. Danforth. Yes; but a laborer would never get up to that height. A man engaged in the electrotyping business at the printing office here would get $1,200 a year, and that would not be an uncom- mon salary for him. Still, it would be only the very expert — ^those who showed great proficiency — who would get that amount. Mr. McCoy. They would have to reach a system of averages, prob- ably, and that is what they would do. Mr. Beaman. And in the case of a boy learning the trade you speak of, they would take into consideration the average wages ; they would not take the wages of the eXpert or stupid man ; they would take the average wage of the average man in that trade and say that a boy, unless there was something peculiar about him, would reason- ably be expected to reach the average wage in that trade and base his compensation on that. Mr. McCoy (reading) : Sec. 8. That as loug as the employee is in receipt of compensation under this act, or, if he has been paid a lump sum in commutation of Installment payments, until the expiration of the period during which such installment payments would have continued, he shall not receive from the United States any salary, pay, or remuneration whatsoever except in return for services actually performed, and except pensions. Sec. 9. That if at the time the disability or suspension from work begins the employee has annual or sick leave to his credit he may, subject to the approval of the head of the department, use such leave until It is exhausted, in which case his compensation shall, In the case of suspension from work, begin imme- diately after the annual or sick leave has ceased, and, in the case of disability, begin on the fourth day of disability after the annual or sick leave has ceased. FEDERAL EMPLOYEES' COMPENSATION. 57 His comipensation under the provisions of this act, I suppose that means? ' *^^ Mr. Beaman. Yes, sir. Mr. MoCoY. Should not those words be inserted ? Mr. Beaman. The word "compensation" is used all the way through ; it appears right straight through the act. Mr. McCoy. I guess that is clear enough [reading] : Sec. 10. That Immediately after an injury sustained by an employee in the course of his employment, whether or not disability has arisen, and for a reasonable time thereafter, and Immediately after the beginning of disability or of suspension from work due to an occupational disease contracted by an employee in the course of his employment, and for a reasonable time thereafter, the United States shall furnish to such employee reasonable medical, surgical, and hospital services and supplies unless he refuses to accept them. Such services and supplies shall be furnished by United States medical officers and hospitals, but vchere this Is not practicable, shall be furnished by private phy- sicians and hospitals designated or approved by the commission and paid for from the employees' compensation fund. If necessary for the securing of proper medlcaJ, surgical, and hospital treatment, the employee, in the discretion of the commission, may be furnished transportation at the expense of the employees' compensation fund. Sec. 11. That if death results from the injury or from the occupational dis- ease within six years after the injury or the beginning of disability or suspen- sion from work due to such disease the United States shall pay to the following persons for the following periods a monthly compensation equal to the follow- ing percentages of the deceased employee's monthly pay, subject to the modifi- cation that no compensation shall be paid where the death takes place more than one year after the cessation of disability resulting from such Injury, or of disability or suspension from work resulting from such disease, or. If there has been no disability preceding death, more than one year after the Injury : (A) To the widow, if there is not child, thirty-five per ceatiim. This com- pensation shall be paid until her death or marriage. In case of marriage, there shall be paid to her a lump sum equal to thirty-six months' compensation. That is the only feature of the bill to which I take exception: In case of marriage there shall be paid to her a lump sum equal to 36 months' compensation. Mr. Beaman. Similar provisions are found in some of the Euro- pean acts and in several of the acts here, including those of New York, Oregon, Nevada, and Washington. The real reason for it is to discourage secret marriages. You see- if a woman gets married her compensation stops immediately on the remarriage, and she might conceal her remarriage in order to draw the compensation. Mr. McCoy. Then, I would reach her by a penal provision in the act that any person receiving compensation after remarriage shall be guilty of a misdemeanor and subject to a penalty. That will keep her from a secret marriage. ,, ^ • i i. ^i.- Mr Beaman. We would not object to putting that m, but this seems an effective means of reaching that desirable result. Mr McCoy I think my way would be the most ettective way, and i would not give her a cent. If I understand provision A of section 11, page 6, lines 13 to 16, it is in substance this: That she gets compensation until her remarriage. Mr. Beaman. Yes. . , . , i j .. • i ^ ■ Mr McCoy. Upon her remarriage she is to be paid the equivalent of 36 months' compensation during her widowhood. Mr. Beaman. Yes. • i, u j. xu j. Mr McCoy Why, when she remarries, should not the payments to her of all kinds cease immediately? Your answer is that that 58 FEDERAL EMPLOYEES' COMPENSATION. would check secret marriages, and iriy reply is that a penal provi- sion will come nearer to bringing about that result, in my opinion, and will accomplish what I believe ought to be accomplished, namely, that her compensation shall cease upon her remarriage abso- lutely. Now, what is the objection to its ceasing except that there may be secret marriages ? Mr. Beaman. That is the only answer I see, and in answer to your suggestion that the matter should be covered by a penalty I can only say that in our opinion this was deemed to be a more effective means of stopping secret marriages than a penalty. A penalty would have to be enforced, and there is nobody particularly to enforce it. Mr. Danfoeth. There are the commissioners. Mr. Beaman. The commissioners would have considerable diffi- culty in enforcing it; it would be pretty difficult for the commission to follow up every widow under this act and watch every marriage license office in the United States, whereas we believe this will prevent secret marriages and accomplish the end desired. Mr. McCoy. Your real fear is not that there will be secret mar- riages, but that there will be cohabitation without marriager? Mr. Beaman. I am glad to have you put that in the record. Mr. McCoy. Then, that is another aspect of it. Mr. McGiLLicuDDY. Is not the principle of this thing that the widow is compensated because she has lost the assistance that she naturally would get from her husband ? Mr. Beaman. Yes. Mr. McGiLLicuDDY. And when she marries again is it not to be presumed that she has been reimbursed by the marriage? If that is so, why should she have any compensation after marriage at all? she has got a husband now the same as she lost, or presumably so, and the principle of the bill, it seems to me, should stop right there. Mr. Beaman. As I say, the only reason is to discourage these secret marriages and these, other relations about which Mr. McCoy speaks. Mr. Taggaet. Her widowhood will be very brief if she is to get $1,260 on marriage. Mr. Beaman. The $1,260 would of course be only the maximum. She might get only half that if the husband's wages were lower. It is just an inducement to have her married and get her off the Grov- ernment pay roll, and to that extent relieve the Government from the payment of further money. Mr. Taggaet. If this is eliminated from the bill — as I anticipate it will be — there ought to be provision made that she be notified, every time a voucher is sent to her, that the payments will cease and determine on her marriage. Mr. McGiiiLicuDDY. Why would not one year after she has mar- ried be sufficient instead of carrying it over three years? It seems to me that is a very long period of time to continue the compensation after her remarriage, and after she has a husband to care for her it seems to me that if the Government gave her compensation for one year it would be enough. (The reading of the bill was continued.) Mr. Beaman. -Keferring to page 7, lines 16 to 24, and page 8, lines 1 and 2, let me give you this concrete case. Suppose that at the death of an employee there is left a widow and a father. Now, under the FEDERAL EMPLOYEES' COMPENSATION. 59 terms of this section, clause A, the widow gets 35 per centum ; under the terms of clause E the parent wholly dependent gets 25 per centum. That will be 60, and in that case the widow and father would both get their compensation. Now, we will suppose that at the death of the employee there is surviving a widow, five children, and a parent. Under the terms of clause C the widow and five children would eat up the whole 66f per centum, and in that case the parent would get nothing, because the percentages payable to the widow and children amount to 66f per centum, and there would be nothing left over. This is to take care of cases where there are several classes of survivors, and it first provides for the widow and children, and if there is any margin between the total percenetages payable to them and the 66f per centum the parent would get it, up to the percentage specified for him. Mr. Danfoeth. The widow and three children would eat up 65 per cent, and there would be nothing left for the parent. Mr. Beaman. Yes. Under the preceding clauses, after the com- mission had paid 66f per centum there would be nothing left. Mr. Danfoeth. This would seem to discourage them from having children, in view of the possibility of accidents, because after they have been paid for three they could not get any compensation for the others. Mr. Beaman. Of course they would get compensation, but it would have to be divided up. Mr. Danfoeth*. This is looking after the interests of the widow, but not of the children. Mr. Beaman. Of course, as a matter of abstract justice, I take it 'the association would feel that the bill should provide 10 per centum for the children if they had 50 children, but of course in all these things there must be a limit, and the association felt that this was a reasonable limit. Mr. MgCoy. On page 9, line 2, the words "adopted children"— do you mean by that to include those legally adopted, or adopted m the ordinary parlance ? Mr. Beaman. I think that means " legalljr adopted." Mr. McCoy. Then would it not be well to insert the words " legally adopted children " ? Mr. Beaman. Yes ; I think so. Mr. McCoy. You would suggest putting the word "legally m there, making it applicable only to such children as were adopted before the happening of the injury which led to the death? Mr. Beaman. It is limited to those living at the time of death. Mr. McCoy. It should be limited to those adopted before the time of death, should it not? i. • i Mr. Beaman. You do not need that limit, because that is taken care of now. All you need is " legally adopted." Mr. Taggaet. In this section on definitions, could you not put in ^there the term " adopted?" ,' ■ Mr. Beaman. I think that suggestion is a good one. We wiil put that in under definitions, or just at the end of this section Mr. Taggaet. I think in your section on definitions would be a good place for that. 37842 — PT 2 — 14 2 60 FEDERAL EMPLOYEES' COMPENSATION. Mr. Beaman. The reason it should come in here, I think, is that the terms occur only in this section. Mr. TAoqART. In section 44 you say, " wherever used in this act." Mr. Beaman. Yes; but this applies only to this one section. Mr. McGiLLicuDDY. You had better put it right in this section, I think. Mr. McCoy. At the end of line 15, page 9, add the following defi- nitions of " adopted " and " adopted," so as to make them " legally adopted " and " legal adoption." (The reading of the bill was continued.) This term " National Fraternal Congress table," line 24, page 11 — who uses that ? Who relies on it ? Mr. Beaman. There are two or three generally accepted mortality tables in use, and this is one of them. It is on a par with the Ameri- can mortality tables. Dr. Andrews. We consulted expert actuaries and they agreed that this was the table that ought to be in any bill of this sort. Mr. Danforth. Who were the actuaries ? Mr. Beaman. We are perfectly willing to substitute the American mortality tables if the committee would prefer it. Mr. McCoy. The American table or the Northampton table are so well known that the use of either of them would not raise any question. Mr. Beaman. I should say then it would be much better to insert the American mortality table. I do not think the association has jiny objection to it. In fact, in another bill which I am drawing for another organization I have put in the American miortality table. Mr. McCoy. On page 11, line 24, strike out the words " National Fraternal Congress " and insert in place thereof the words "American Mortality," if that is the technical name for it. (The reading of the bill was continued.) Mr. Taggart. Keferring to section 18, page 12, there is where there is sometimes trouble in these compensation acts in the case of injuries sustained by railway employees. Is the commission, as a commission, to accept as reasonable cause the disability of the employee to go and serve this notice ? Mr. Beaman. I should say if that was not reasonable, I can not see what would be. Mr. Taggart. Suppose his injury was very slight, apparently, and he did not take any special notice of it, not believing that he was in- jured seriously, and he did not report it at the time. Mr. Beaman. I take it that is something which the commission will have to work out from its own experience. Mr. Taggart. In the case of the lead poisoning you spoke of, he might be poisoned to-day and it might not take effect for some time. Now, is this sufficient to cover that easel Mr. Beaman. Let me state" that in the case of the lead poisoning no notice is necessary, because the compensation is not granted until the disability arises, and when the disability arises of course everybody knows about it, because a claim for compensation is made. You can not give notice of the contracting of an occupational disease, because a man may never know that he has contracted it until the disability arises. FEDERAL EMPLOYEES ' COMPENSATION. 61 Mr. DAKroRTH. What would that mean, in line 17, page 12, " im- mediate superior "? Would that mean the foreman, for instance, of a gang of laborers ? Mr. Beaman. I suppose so. It might be the foreman in one de- partment, and it might be somebody else in another department. T 1 J -^^"^^^^s- Some of these cases may arise in the Philippine Islands, some in the Reclamation Service out in Colorado, and others in the Grovernment Printing Office. Mr. Danfohth. In section 20, page 13, in view of the widely varied employment, is it quite fair to put in there that the claim must be made on forms furnished by the commission? It seems to me, tak- ing the case that Dr. Andrews has just mentioned, of a man working out in the Philippine Islands, he is not going to carry along a lot of these blanks all the time. He is not going to anticipate injury. Mr. McGiLLicuDDY. It is provided in the last sentence that that may be waived. Mr. Beaman. That is one answer. The other answer is, I take it, the commission would supply every Government office and workshop all over the country with an adequate supply of blanks for this pur- pose. Mr. DANroHTH. He could not supply the foreman digging a ditch out in the Philippine Islands, and the foreman would not carry them if they were supplied. (The reading of the bill was continued.) Mr. Tagqakt. In section 27, "his immediate superior shall make a report to the commission " — supposing the immediate superior does not do thftt; is there any provision in any way to punish him? Mr. MqCoy. His superior officer could discipline him. Mr. Taggaet. It is not provided here that he must do it. Mr. 3eaman. We thought it was not necessary to specifically pro- vide for that in this act, because it is like any other breach of duty. Mr. Danfoeth. The commission would relieve the sufferers from any Upse of duty in that regard. Mr. McCoT. In section 28, it occurs to me that it would be a little better to put in there specifically that any assignment of claim should be yoid. That would settle the matter. We did that in the Howland biU, if I am not mistaken — or it was suggested at any rate. You can think that over and let us know later. (The reading of the bill was continued.) Mr. Danfoeth. In section 29, against whom would a claim for legal services be enforced, if it were enforced? Mr. McCoy. Against the injured employee. Mr. Danfoeth. Would it be enforced against the fund of the com- mission, or would it be enforced against the claimant? Mr. Beaman. It would be enforced against the claimant. There is no provision in the act for paying lawyers' fees out of the fund. This is simply to protect the employee against the iniquitous lawyer who tries to get all of his money. ^. n -, Mr. Danfoeth. If that is plain, I am satisfied. Mr' Taggaet. As I understand it, the commission may approve or disapprove the contract for a fee by an attorney who takes a case In section 30 a " reasonable attorney's fee " is mentioned. In in- stances where employees are injured, and they have a claim against 62 FEDERAL EMPLOYEES ' COMPENSATION. any corporation or employer, they usually make contracts with attor- neys for a contingent fee. The attorney collects the money and per- haps retains his fee, which is in many instances half the amount recovered. Now, this section might leave a controversy open as to what was a reasonable attorney's fee, and the sufferer might claim that the attorney took half of his money and the United States might t^ke the other half. Mr. Danfokth. That is all the United States could get under this clause as it is drawn. Mr. McGiixiouDDT. There might be a collusion to make the fee a larger amount. Mr. Beaman. I take it the commission would determine what is a reasonable fee. Mr. McGiLLicuDDY. If it does not already indicate that the com- mission shall determine what is a reasonable fee, I think it should be in. It ought to read, " such fee as the commission may determine to be reasonable." Mr. Taggart. The point is that they can not reach the attorney. Now, suppose I was an employee and I was injured jointly by the United States and a railway corporation ; I sue the railway corpora- tion; my attorney collects the damages, the judgment, and retains half the money for his fee. The Government can not control that. Mr. McGiLLiouDDT. If you leave it to this commission, so far as the United States is concerned, they are protected. He can not determine what shall be a reasonable fee; the Government's com- mission determines that. Mr. McCoy. I thinlc we must protect the Goveriunent in that proposition and not butt into the relation between the employee "and his attorney, so as to try to regulate what the attorney shall charge. Did you have that in mind ? Mr. Taggaet. Yes; I can not see where anybody has any power to say what the attorney's fee shall be. Mr. McCoy. But the Government has the power to say, " If you pay an excessive fee that is something you ought not to have done," and I think that is perfectly reasonable, and it will make a check on the dealings between the injured man and his attorney. Mr. Beaman. In connection with section 30, may I point out an objection that possibly may be raised in the full committee or on the floor of the House, namely ; Why not subrogate the United States to the employee's right against a third party? The reason we did not do that was because, in our opinion, such a provision would be beyond the power of Congress. The United States has no right to interfere with a right given by State laAv. His remedy must be pursued by the man in his own right, and all that the United States can do is to place its limitations on the payment of compensation. • Mr. McCoy. They could control it to the extent of compelling an employee to make a contract with the United States in the nature of a subrogation contract, but I think that would be objectionable if they had the power. Mr. Taggart. I do not like section 30 because I do not think it is exactly just. Mr. McGillicuddy raised the same point in the early part of the discussion in reference to a man who had suffered greatly and who should have a right of recovery for his pain and suffering. FEDEEAL EMPLOYEES' OOMPEKTSATIOlir. 63 He referred to the stenographer who had suffered frightfully. Now, he has a right to pursue his remedy, and it seems to me I would leave him untrammeled. He works for the Government. Let the Govern- ment compensate him, and if he has any remedy against anybody else let him pursue it to the limit. Mr. McGiLLicuDDY. It does not stop him from pursuing his remedy, but it makes him receive so much less compensation from the Gov- ernment. Mr. Taggaet. It makes him pay to the Government what he should perhaps have received for pain and suffering. He must contribute to the Government what he has received from somebody else. Mr. McGiLLicuDDY. He does not contribute anything to the Gov- ernment, as I understand it. He only foregoes receiving a certain part of the compensation, because he has already received it from another party. Mr. Taggaet. In a case of total disability he would receive from the United States 66f per cent of his monthly pay. He might be jointly employed by a railway corporation and by the United States, and he might sue the corporation and get a verdict for several thou- sand dollars. Then he would have to reimburse the Government for the 66f per cent which he had received. Mr. McGiLLictTDDY. He would not pay it. He simply would not get it. Mr. McCoT. We might give him the privilege to elect whether he will come under this clause or waive his compensation and not have the benefit of it at all. Mr. Beaman. We felt, as in a great manjr other cases, that the compensation granted here was gomg to cost the Government a lot of money. The man is receiving far in excess of anything that he now can get. He is receiving compensation where the United States has been guilty of no fault at all. He is receiving compensation even where he himself may have been guilty of contributory negli- gence; and therefore in a case like this it would seem only fair to limit him, so far as the Government is concerned, to the amount of compensation granted by the act, and if he can get a large verdict from a railroad or some other corporation he can pocket the differ- ence. It seemed to us, as a matter of fair compromise, that we ought not to want to give him both. That would certainly be an injustice; and not only an injustice, but the fact that he had gotten this extra sum would induce him to lie down on his job and perhaps refuse to go back to work. Mr. McCoy. My suggestion was to meet Mr. Taggart's objection to the clause that the employee should elect either to do what is here provided or to go into court and take what he could get in court and forego what is given him by the Government. Mr. Beaman. The objection to that is that a man might be induced by some lawyer to go into a suit with the expectation of getting a large verdict and then lose the suit and get nothing. Mr. McGiLLicuDDY. That would be a case in which he has made a very unfortunate election. Mr. Taggaet. It takes a long time to get any substantial verdict and damages recovered, and in the meantime he would have to lay off, and he would need this money from the Government. 64 PBDEBAL employees' COMPENSATION. Mr. McCoy. Then, the advantage to him is so obvious that I think this section as drawn is all right. Mr. Beaman. We considered it veiy carefully, and our decision was that this was the best way to handle it. Such an election would be hard to enforce, because if a man claimed his compensation and took it, the Government could not in any way stop him from bringing an action also. Suppose he took the compensation and then went ahead with his action at law ; what could the Government do ? Mr. McCoy. They could make him elect when he gets his first pay- ment. I am not urging it now, because I think the section is better the way it is, but when he comes for his first payment he could be compelled to say, " I take this subject to the conditions of section 30." If he would not waive that, he would not get any compensation. Mr. Beaman. But suppose he got his compensation and then brought his suit. Mr. McCoy. Then you have his contract to abide by section 30. Mr. Beaman. But you could not enforce that in the State courts. Mr. McCoy. Well, I think the section as it stands is better, anyhow. (The reading of the bill was continued.) Dr. Andrews. With reference to section 36 we have considered that this provision is a very important one from the standpoint of the Government, and that great stress should be placed on the sub- ject of prevention of accidents and occupational diseases. That is one of the strong reasons why we should have such a commission to devote its whole time to this work. It is good economy. Mr. McCoy. Now, Dr. Andrews, you had some calculations yes- terday as to this expense of administration in section 38. Dr.' Andrews. On this question of the $50,000 carried in this sec- tion the point was raised as to whether that would be ample for the purpose. I consulted with those who have administered the present act, and they went over it with me in detail and assured me that it would be ample. Mr. Taggart. The chances are that it may not be passed by the Senate until June 30 is a great deal nearer than it is now, and that particular matter may be eliminated altogether, and let it begin on July 1. , Mr. Beaman. The intention is that if this act passed now Congress would at the next session appropriate in detail the means for each specified thing. This is simply to start them off and get them going. (The reading of the bill was continued.) Mr. McCoy. What is this language for in section 39, page 20, line 2, " is hereby permanent appropriated " ? Mr. Beaman. That is simply to prevent the fund from lapsing at the end of two years into the Treasury. Dr. Andrews. May I say, in regard to this section and the appro- priation therein contained, that Commissioner Meeker has incorpo- rated as part of his remarks in the hearing last Tuesday (p. 24) a statement showing the probable cost to the Government of this act. Mr. McCoy. We have had up the question of paying the widow — the question of handling the matter by some form of amendment, and if you will draw one and submit it we will go over it and put it in at the proper place. Mr. Danforth. That is section 11, clause A. FEDERAL employees' COMPENSATION. 65 (The reading of the bill was continued.) Mr. Beaman. In section 44, line 18, the employees of the Panama Kailroad were included because, as we understand it, the Panama Eailroad is a corporation and the employees tliereof are not tech- nically employees of the United States; in fact, the United States owns practically all of the stock, and therefore these employees are really employees of the United States and should be covered in the act. Mr. McCoy. Amend page 21, line 18, after the word " road " insert the word " company." Kef erring to page 22, line 1, I have received through a Member of Congress a letter from a Christian Scientist vigorously protesting against the limitation placed upon those who may treat these people who receive injuries or occupational diseases, saying that Christian Scientists would thereby be excluded, and I hereby bring it to the attention of the committee. (The reading of the bill was completed. ) Mr. Beaman. I have one amendment to suggest, to be inserted at the end of section 45, page 22. This is to take care of cases where an employee of the Panama Railroad is injured and would probably have a right of action against that railroad. I suggest that the fol- lowing provision be inserted : At the end of section 45 strike out the period and insert in place thereof the following: ; and Provided further, That if an injury or death for whlcli compensation is payable under this act is caused under circumstances creating a legal liability in the Panama Railroad Co. to pay damages therefor under the laws of any State, Territory, or possession of the United States, or of the District of Co- lumbia, or of any foreign country, no compensation shall be payable until the person entitled to compensation releases to the Panama Railroad Company any right of action which he may have to enforce such liability of the Panama Rail- road Co., or until he assigns to the United States any right which he may have to share in any money or other property received in satisfaction of such liability of the Panama Railroad Co. Mr. McCoy. That finishes the bill, and the committee will now adjourn. X Date Due 1 '^MjJ/MJH j f)