Wisconsin reasonably and fairly be applied, such average annual earnings shall be taken at such sum as, having regard to the previous earnings of the injured employé, and of other employés of the same or most similar class, working in the same or most similar employment, in the same or a neighboring locality, shall reasonably represent the average annual earning capacity of the injured employé at the time of the accident in the employment in which he was working at such time. "If an employé is a minor and is permanently disabled, his weekly earnings shall be determined on the basis of the earnings that such minor, if not disabled, probably would earn after attaining the age of twenty-one years. "(d) The fact that an employé has suffered a previous disability, or received compensation therefor, shall not preclude compensation for a later injury, or for death, but in determining compensation for the later injury, or death, his average annual earnings shall be such sum as will reasonably represent his average annual earning capacity at the time of the later injury, in the employment in which he was working at such time, and shall be arrived at according to, and subject to the limitations of the previous provisions of this section. "2. The weekly loss in wages referred to in section 2394-9 shall consist of such percentage of the average weekly earnings of the injured employé, computed according to the provisions of this section, as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident, and other suitable employments, the same to be fixed as of the time of the accident, but to be determined in view of the nature and extent of the injury." ARTICLE B-SPECIFIC PROVISIONS OF Various StatutES........ 769 Many of the American compensation acts were founded on the British statute, as will be discovered by consulting § II of that statute in Chapter XXXVI. As a general rule the compensation acts are much less stringent as to notice than were the old employers' liability acts. Nevertheless it is important that there should be a reasonable enforcement of the provisions for notice, because laxity in this respect opens the door to fraudulent claims and malingering. Most of the acts contain provisions relieving employés from the effect of mistakes in giving notice, or Decisions under the British statute in failing to give any notice whatever, under certain circumstances. 2. Decisions under the British statute. A plea that a workman does not know of the Compensation Act is not such a mistake as will excuse the making of a claim for compensation within the statutory period. Judd v. Metropolitan Asylums Board (1912), 5 B. W. C. C. 420. Whether or not a particular state of facts constitutes reasonable cause for failure to give notice is a question of law. Moore v. Naval Colliery Co. (1911), 5 B, W. C. C. 87. Where the effect of an injury is latent and the employer has not been prejudiced the workman will be relieved from the failure to give notice even though the notice is given nine months after the accident. Fry v. Cheltenham Corporation (1911), 5 B. W. C. C. 162. Where the notice was given to a foreman, and he wrote the particulars thereof in a book supplied by the employers for the purpose, it was held that this was written notice within the meaning of the act. Stevens v. Insoles (1911), 5 B. W. C. C. 164. A waitress was injured by accident in June, 1910. She told her employer the same day. No effects of the accident were apparent until she became ill in August and she did not know until November that the illness was caused by the accident. Notice was given in November or December, 1910 and it was held that the employers were not prejudiced by the delay and compensation was awarded. Eaton v. Evans (1911), 5 B. W. C. C. 82. A saleswoman in a retail store received a shock from a fire which burned up the store. Thinking she was suffering from a temporary nervous derangement only, she did not give any notice of the accident until six months later, when she discovered that she had been suffering from a serious nervous disease. The court found that the delay was due to a reasonable cause and that the employers were not prejudiced by the delay. Compensation Decisions under the British statute was therefore awarded. Hoare v. Arding and Hobbs (1911), 5 B. W. C. C. 36. An insurance agent, employed to collect premiums from door to door, slipped on some stairs while on his rounds, and injured himself. He gave verbal notice of the accident to the employers' manager a day or two later and again a month later. He gave no formal notice, thinking that his injuries were only slight. Seven weeks after the accident he left his employers' service, and formal notice was only given eleven weeks after that. It was held that the accident arose out of the employment and that there was reasonable cause for the delay in giving the notice. Refuge Assurance Co. v. Millar (1911), 49 Sc. L. R. 67; 5 B. W. C. C. 522. An elderly cripple met with an accident. He gave no notice to his employers, not knowing that he had permanently overstrained his diseased heart, and fearing that if he obtained compensation the insurance company would prevent his being taken back to work on recovery, and intending not to claim compensation if he recovered quickly. Four months after the accident, he learned for the first time that he was incapacitated for life, and he thereupon gave notice and brought proceedings. It was held that the delay in giving notice was due to a reasonable cause and compensation was awarded. Breakwell v. Clee Hill Granite Co. (1911), 5 B. W. C. C. 133. A workman who was injured spoke to a sub-contractor about it and stated that he supposed the sub-contractor would inform the principal contractor. The principal, however, did not learn of the injury until nearly five months later, and on a claim being made for compensation, it was held that the principal had been prejudiced and there was no evidence of mistake or other reasonable cause for the delay in giving notice and compensation was refused. Griffiths v. Atkinson (1912), 5 B. W. C. C. 345. A workman was temporarily employed as a laborer when he slipped and fell, striking his left breast with the Arizona handle of his pick. He remained away from work for a few days and then went to work for another employer. He stated that the breast had given him pain on and off for twelve months after the accident. Six months after the accident he noticed a swelling in the breast, which he attributed to the injury; a month later a tubercular abscess formed, which burst after some weeks, and he was then admitted to a hospital. Two months later he made a claim for compensation. It was held that there was not any mistake or reasonable cause for the delay in giving notice and compensation was refused. Egerton v. Moore (1912), 5 B. W. C. C. 284. Please take notice that pursuant to § 74 of Chapter 7 of the Laws of Arizona of 1913, relating to Employers and Employés, commonly known as the Workmen's Compensation Act, that the undersigned was injured while in your service at the time and place and with the result hereinafter stated: 1. The injury occurred on the. 19. ., at..... .day of..... 2. The cause of said injury was as follows:... 1 The above notice must be served on the employer or his representative within two weeks after the injury, unless the injury is fatal or renders the workman incompetent to give the notice. A copy must also be sent by mail to the Attorney General. $74. See the same section for further particulars relating to the service of the notice. |