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Chapter 06 - Workmen's Compensation-Procedures and Claims

Chapter 06 - Workmen's Compensation-Procedures and Claims

32.0601 Record of injuries required.


Every employer shall keep a record in respect to any injury to an employee. Such record shall contain such information on disease, other disability, or death in relation to such injury as the Commission may by regulation require, and shall be available for inspection by the Commission or other governmental authority at such times and under such conditions as the Commission may by regulation prescribe.

32.0602 Reports of death, injury or disease-Use in evidence.


(a) Within 10 days from the date of any injury or death or from the date that the employer has knowledge of a disease or infection in respect to an injury, the employer shall send to the commission a report setting forth:

(1) the name, address and business of the employer;

(2) the name, address and occupation of the employee;

(3) the cause and nature of the injury or death;

(4) the year, month, day, and hour when, and the particular locality where, the injury or death occurred;

(5) such other information as the Commission may require.

(b) Additional reports in respect to an injury and the condition of the employee shall be sent by the employer to the Commission at such times and in such manner as the Commission may prescribe.

(c) No report provided for in subsection (a) or (b) may be evidence of any fact stated in such report in any proceeding in respect to an injury or death for which the report is made.

(d) The mailing of a required report in a stamped envelope, within the time prescribed in subsection (a) or under subsection (b) to the commission, shall constitute compliance with this section.

32.0603 Failure to report injury or death-Time for filing claim suspended.


When an employer or carrier has been given notice, or the employer or his agent in charge of the business in the place where it occurred or the carrier has knowledge, of injury to or death of an employee and fails, neglects or refuses to file a report thereof as required by subsection (a) of 32.0602, the limitation in subsections (a) and (b) of 32.0627 does not begin to run against the claim of the injured employee or has dependents entitled to compensation, or in favor of either the employer or the carrier, until such report has been furnished as required.

32.0604 Start of compensation for disability.


No compensation may be allowed for the first three days of disability, except medical benefits. In case the injury results in disability of 14 calendar days or more, the compensation shall be allowed from the date of disability. If, at the time the disability begins, the employee is employed under a contract for hire, when full wages are continued, the time specified in this section does not begin to run until full wages are discontinued.

32.0605 Permanent total disability compensation.


(a) In case of total disability adjudged to be permanent, 66 2/3 percent of the employee's average weekly wages shall be paid during the continuance of such total disability.

(b) Loss, or loss of use, of both hands, or both arms, or both feet, or both legs, or both eyes, or any two thereof shall, in the absence of conclusive proof to the contrary, constitute permanent total disability.

(c) In all other cases, permanent total disability shall be determined in accordance with the facts.

32.0607 Temporary total disability compensation.


In case of disability total in character but temporary in duration. 66 2/3 percent of the employee’s average weekly wages shall be paid during the continuance thereof.

32.0609 Permanent partial disability compensation.


(a) In case of disability partial in character but permanent in duration, the compensation shall be 66 2/3 percent of the employee’s average weekly wages, which shall be in addition to any compensation for temporary total disability or temporary partial disability paid in accordance with 32.0607 or 32.0611 and shall be paid to the employee as follows:

(1) arm lost, 312 weeks’ compensation;

(2) leg lost, 288 weeks’ compensation;

(3) hand lost, 244 weeks’ compensation;

(4) foot lost, 205 weeks’ compensation,

(5) eye lost, 160 weeks’ compensation;

(6) thumb lost, 75 weeks’ compensation;

(7) first finger lost, 46 weeks’ compensation;

(8) great toe lost, 30 weeks’ compensation;

(9) second finger lost, 30 weeks’ compensation;

(10) third finger lost, 25 weeks’ compensation;

(11) Toe other than great toe lost, 16 week’ compensation;

(12) fourth finger lost, 15 weeks’ compensation;

(13) loss of hearing: compensation for loss of hearing of one ear, 52 weeks; compensation for loss of hearing of both ears, 200 weeks;

(14) phalanges: compensation for loss of more than one phalange of a digit shall be the same as for loss of the entire digit, compensation for loss of the first phalange of a digit shall be one-half of the compensation for loss of the entire digit;

(15) amputation of arm or leg: compensation for an arm or a leg, if amputated at or above the elbow or the knee, shall be the same as for a loss of the arm or leg; if amputated between the elbow and wrist or the knee and the ankle, compensation shall be the same as for loss of a hand or foot;

(16) binocular vision or percentage of vision compensation for loss of binocular vision or for 80% or more of the vision of an eye shall be the same as for the loss of the eye;

(17) two or more digits: compensation for loss of 2 or more digits, or one or more phalanges of 2 or more digits, of a hand or foot may be proportioned to the loss of use of the hand or foot;

(18) total loss of use: compensation for permanent total loss of use of a member shall be the same as for loss of the member;

(19) partial loss or partial loss of use: compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member;

(20) disfigurement: the commission shall award proper and equitable compensation for serious facial, bodily, or head disfigurement, not to exceed 200 weeks’ compensation.

(b) In all other cases of permanent partial disability, the compensation shall be two-thirds of the difference between the employee’s average weekly wages and his wage earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability; provided, that compensation payments shall be subject to reconsideration as to the degree of such impairment by the commissioner on his own motion or upon application of any party in interest.

(c) In any case in which there shall be a loss of, or loss of use of, more than one member or parts of more than one member set forth in paragraphs (a) (1) through (a) (19), not amounting to permanent total disability, the award of compensation shall be for the loss of, or loss of use of, each such member or part thereof, which awards shall run consecutively, except that where the injury affects only 2 or more digits of the same hand or foot, paragraph (a) (17) shall apply.

32.0611 Temporary partial disability compensation.


In case of temporary partial disability resulting in decrease of earning capacity, the compensation shall be two-thirds of the difference between the injured employee’s average weekly wages before the injury and his wage-earning capacity after the injury in the same or another employment, and shall be paid during the continuance of such disability, but not longer than 5 years.

32.0613 Injury increasing existing permanent physical impairment or resulting in death which would not have occurred except for existing impairment.


(a) If an employee who has a permanent physical impairment from any cause or origin incurs a subsequent disability by injury arising out of and in the course of his employment, resulting in compensation liability for disability that is substantially greater by reason of the combined effects of the preexisting impairment and subsequent injury or by reason of the aggravation of the preexisting impairment than that which would have resulted from the subsequent injury, alone, the employer or his insurance carrier shall in the first instance pay all awards of compensation provided by this chapter, but such employer or his insurance carrier shall be reimbursed from the special fund created by 32.0516 for all compensation payments subsequent to those payable for the first 104 weeks of disability.

(b) If the subsequent injury of such an employee results in the death of the employee and it is determined that the death would not have occurred except for such preexisting permanent physical impairment, the employer or his insurance carrier shall in the first instance pay the compensation prescribed by this chapter, but shall be reimbursed from the special fund created by 35.0516 for all compensation payable in excess of 104 weeks.

(c) As used in this section, “permanent physical impairment” means any permanent condition, whether congenital or due to injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become unemployed. No condition may be considered a permanent physical impairment unless it would support a rating of disability of 200 weeks or more if evaluated according to standards applied in compensation claims, or is one of the following conditions:

(1) epilepsy;

(2) diabetes;

(3) cardiac disease;

(4) arthritis;

(5) amputated foot, leg, arm or hand;

(6) loss of sight of one or both eyes or a partial loss of uncorrected vision of more than 75% bilaterally;

(7) residual disability from poilomyclitis;

(8) cerebral palsy;

(9) multiple sclerosis;

(10) Parkinson’s disease;

(11) cerebral vascular accident;

(12) tuberculosis;

(13) silicosis;

(14) psychoneurotic disability following treatment in a recognized medical or mental institution;

(15) haemophilia;

(16) chronic osteomyelitis;

(17) ankylosis of joints;

(18) hyperinsulinism;

(19) muscular dystrophy;

(20) arterioscelerosis;

(21) thrombophlebitis;

(22) varicose veins;

(23) heavy metal poisoning;

(24) ionizing radiation injury;

(25) compressed air sequelae;

(26) ruptured intervertebral disc.

(d) In order to qualify under this section for reimbursement from the special fund, the employer must establish by written records that the employer had knowledge of the permanent physical impairment at the time that the employee was hired, or at the time the employee was retained in employment after the employer acquired such knowledge.

(e) An employer or carrier shall notify the Commissioner of any possible claim against the special fund as soon as practicable, but in no event later than 100 weeks after the injury or death.

(f) The special fund may not be bound as to any question of law or fact by reason of an award or an adjudication to which it was not a party or in relation to which it was not notified, at least 3 weeks prior to the award or adjudication, that it might be subject to liability for the injury or death.

(g) In all cases in which, following a previous disability, an employee receives an injury which is not covered by subsections (a) through (c), the employer shall provide compensation only for the disability caused by the subsequent injury. In determining compensation for the subsequent injury or for death resulting therefrom, the average weekly wages shall be such sum as will reasonably represent the earning capacity of the employee at the time of the subsequent injury.

32.0614 Payment of benefits to survivors of disabled employee who dies.


(a) An award for disability may be made after the death of the injured employee.

(b) Any compensation to which any deceased claimant would be entitled under 32.0609 except subsection (b) thereof, shall, notwithstanding death arising from cause other than the injury, be payable to and for the benefit of the following persons:

(1) if there is a surviving wife or dependent husband and no child of the deceased under the age of 18 years, to such wife or dependent husband;

(2) if there is a surviving wife or dependent husband and surviving child or children of the deceased under the age of 18 years, one-half shall be payable to the surviving wife or dependent husband and the other half to the surviving child or children;

(3) if there is a surviving child or children ot the deceased under the age of 18 years, but no surviving wife or dependent husband, then to such child or children;

(4) if there is no surviving wife or dependent husband or child, then to the grandchildren or brothers and sisters if under the age of 18 years and dependent upon the deceased at the time of injury or then to each parent or grandparent of the deceased if dependent upon him at the time of injury.

(c) The Commissioner may, in his discretion, require the appointment of a guardian for the purpose of receiving the compensation of a minor child. In the absence of such a requirement, the appointment for such a purpose shall not be necessary.

32.0615 Maintenance for injured employees undergoing vocational rehabilitation.


An employee who, as a result of injury, is or may be expected to be totally or partially incapacitated for a remunerative occupation, and who under the direction of the Commission, as provided by 32.0507, is being rendered fit to engage in a remunerative occupation, shall receive additional compensation necessary for his maintenance, not exceeding $10 a week, which shall be paid out of the special fund established by 32.0516.

32.0617 Death benefits.


(a) If an injury causes death, the compensation shall be known as a death benefit and shall be payable in the amounts, and to or for the benefit of the individuals following:

(1) Reasonable funeral expenses not exceeding $1,000;

(2) if there is a surviving wife or dependent husband and no child of the deceased, to such surviving wife or dependent husband, 35 percent of the average wages of the deceased, during widowhood, or dependent widowhood, with 2 years compensation in one sum upon remarriage; and if there is a surviving child or children of the deceased, the additional amount of 15 percent of such wages for each child;

(3) In the case of the death or remarriage of such surviving wife or dependent husband, if there is one surviving child of the deceased employee, such child shall have his compensation increased to 35 percent of such wages; and if there is more than one surviving child of the deceased employee, to such children, in equal parts, 35 percent of such wages increased by 15 percent of such wages for each child in excess of one; provided, that the total amount payable shall in no case exceed two-thirds of such wages;

(4) If there is one surviving child of the deceased, but no surviving wife or dependent husband, then for the support of such child, 35 percent of the wages of the deceased; if there is more than one surviving child of the deceased, but no widow or dependent husband, then for the support of such children, in equal parts, 35 percent of such wages increased by 15 percent of such wages for each child in excess of one; the total amount payable under this paragraph shall in no case exceed two-thirds of such wages:

(5) If there is no surviving wife or dependent husband or child, or if the amount payable to a surviving wife or dependent husband and to children shall be less in the aggregate than 66 2/3 percent of the average wages of the deceased, then for the support of grandchildren or brothers and sisters, if dependent upon the deceased at the time of injury, 15 percent of such wages for the support of each such individual, and for the support of each parent or grandparent of the deceased dependent upon him at the time of the injury, 25 percent of such wages during such dependency. In no case shall the aggregate amount payable under this paragraph exceed the difference between 66 2/3 percent of such wages and the amount payable as hereinbefore provided to a surviving wife or dependent husband and for the support of a surviving child or children.

(b) In computing death benefits, the average weekly wages of the deceased may not be considered to be more than $205 nor less than $40, but the total weekly compensation may not exceed the weekly wages of the deceased.

(c) All questions of dependency shall be determined as of the time of the injury.

(d) Compensation paid under this section to aliens not residents or about to become nonresidents of the United States, the Territory of American Samoa, Western Samoa or Canada shall be the same in amount as provided for residents. Dependents in any foreign country shall be limited to a surviving wife and child or children, or if there is no surviving wife or child or children, to a surviving father or mother whom the employee has supported, either wholly or in part, for the period of one year prior to the date of the injury. The Commission may, at its option or upon the application of any party in interest, commute all future installments of compensation to be paid to such aliens by paying or causing to be paid to them a percentage or not less than one-half of the commuted amount of such future installments of compensation as determined by the Commission.

(e) The Commissioner may, in his discretion, require the appointment of a guardian for the purpose of receiving the compensation of a minor child. In the absence of such a requirement the appointment of a guardian for such purposes shall not be necessary.

32.0619 Liability for medical and hospital services, treatment and supplies.


(a) The employer shall furnish where no other provision is made, such medical, surgical, and other attendance or treatment, nurse, hospital service, medicine, crutches, and apparatus for such period as the nature of the injury or the process of recovery may require.

(b) If the employer fails to provide the same after request by the injured employee, such injured employee may do so at the expense of the employer.

(c) The employee is not entitled to recover any amount expended by him for such treatment or services unless his employer has refused or neglected to do so, or unless the nature of the injury required such treatment or services and the employer or his superintendent or foreman, having knowledge of such injury has neglected to provide the same; nor may any claim for medical or surgical treatment be valid pad enforceable, as against an employer, unless, within 20 days following the first treatment, the physician giving such treatment furnishes to the employer and the Commissioner a report of the injury and treatment on a form prescribed by the Commission. The Commissioner may excuse the failure to furnish such report within 20 days if he finds it to be in the interest of justice to do so, and he may, upon application by a party in interest, make an award for the reasonable value of such medical or surgical treatment so obtained by the employee.

(d) If at any time the employee unreasonably refuses to submit to medical or surgical treatment, the Commissioner may, by order, suspend the payment of further compensation during such time as such refusal continues, and no compensation may be paid at any time during the period of such suspension unless the circumstances justified the refusal.

(e) Whenever in the opinion of the Commissioner a physician has not impartially estimated the degree of permanent disability or the extent of temporary disability of any injured employee, the Commissioner has the power to cause such employee to be examined by a physician selected by the Commissioner and to obtain a report containing his estimate of such disabilities. If the report of such physician shows that the estimate of the physician has not been impartial from the standpoint of such employee, the Commissioner has the power, in his discretion, to charge the cost of such examination to the carrier.

(f) All fees and other charges for treatment or service shall be limited to such charges as prevail in the same community for similar treatment of injured individuals of like standard of living, and shall be subject to regulation by the Commissioner.

(g) The liability of an employer for medical treatment may not be affected by the fact that his employee was injured through the fault or negligence of a third party not in the same employ. The employer shall, however, have a cause of action against such third party to recover any amounts paid by him for such medical treatment in like manner as provided in 32.0669.

32.0621 Basis of compensation-Computation.


Except as otherwise provided in this chapter, the average weekly wage of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined as follows:

(a) If at the time of the injury the wages are fixed by the week, the amount so fixed shall be the average weekly wage.

(b) If at the time of the injury the wares are fixed by the month, the average weekly wage shall be the monthly wage so fixed multiplied by 12 and divided by 52.

(c) If at the time of the injury the wages are fixed by the year, the average weekly wage shall be the yearly wage so fixed, divided by 52.

(d) (1) If at the time of the injury the wages are fixed by the day or hour, or by the output of the employee, the average weekly wage shall be the wage most favorable to the employee, computed by dividing by 13 the wages (not including overtime or premium pay) of the employee earned in the employ of the employer in the first, second, third or fourth period of 13 consecutive calendar weeks in the 52 weeks immediately preceding the injury.

(2) If the employee has been in the employ of the employer less than 13 calendar weeks immediately preceding the injury, his average weekly wage shall be computed under paragraph (d) (1), taking the wages (not including overtime or premium pay) for such purpose to be the amount he would have earned had he been employed by the employer the full 13 calendar weeks immediately preceding the injury and had worked when work was available to other employees in a similar occupation.

(3) If at the time of the injury an hourly wage had not been fixed or could not be ascer-tained, the wage for the purpose of calculating compensation shall be taken to be the usual wage for similar services where such services are rendered by paid employees.

(e) In occupations which are exclusively seasonal and therefore cannot be carried on throughout the year, the average weekly wage shall be taken to be one fifty-second of the total wages which the employee has earned from all occupations during the 12 calendar months immediately preceding the injury. In computing the earnings from other occupations, the reasonable value of the services of the employee may be taken into account.

(f) In case of volunteer firemen, police, and civil defense members or trainees, the income benefits shall be based on the average weekly wage in their regular employment.

(g) If the employee was a minor, apprentice or trainee when injured, and it is established that under normal conditions his wages should be expected to increase during the period of disability, that fact may be considered in computing his average weekly wage.

(h) When the employee is working under concurrent contracts with 2 or more employers and the defendant employer has knowledge of such employment prior to the injury, his wages from all such employers shall be considered as if earned from the employer liable for compensation.

32.0622 Wage-earning capacity of employees with temporary partial disability or permanent partial disability.


The wage-earning capacity of an injured employee in cases of partial disability under subsection (b) of 32.0609 and 32.0611 shall be determined by his actual earnings if such actual earnings fairly and reasonably represent his wage-earning capacity. If the employee has no actual earnings or if his actual earnings do not fairly and reasonably represent his wageearning capacity, the Commissioner may, in the interest of justice, fix such wage-earning capacity as shall be reasonable, having due regard to the nature of his injury, the degree of physical impairment, his usual employment and any other factors or circumstances in the case which may affect his capacity to earn wages in his disabled condition, including the effect of disability as it may naturally extend into the future.

32.0624 Guardian for minor or incompetent.


The Commissioner may require the appointment of a guardian or other representative by a court of competent jurisdiction for any individual who is mentally incompetent or a minor. Such guardian or representative shall receive any compensation payable to such individual under this chapter and Chapter 32.05 and exercise the power granted to, or perform the duties required of, such person under this chapter and Chapter 32.05.

32.0626 Notice of injury or death-Contents-Delivery-Failure to give.


(a) Notice of an injury or death for which compensation is claimed under this chapter and Chapter 32.05 must be given, within 30 days after the date of such injury or death, to the Commissioner and to the employer.

(b) Such notice must be in writing, contain the name and address of the employee and a statement of the time, place, nature and cause of the injury or death, and be signed by the employee or by some individual on his behalf, or in case of death, by any individual claiming to be entitled to compensation for such death or by an individual on his behalf.

(c) Notice to the Commissioner must be given by delivering it to him or sending it by mail addressed to his office, and to the employer by delivering it to him or by sending it by mail addressed to him at his last known place of business. If the employer is a partnership, such notice may be given to any partner, and if a corporation, such notice may be given to any agent or officer thereof upon whom legal process may be served or who is in charge of the business in the place where the injury occurred.

(d) Failure to give such notice does not bar any claim under this chapter and Chapter 32.05:

(1) if the employer, or his agent in charge of the business in the place where the injury occurred, or the carrier, had knowledge of the injury or death and the Commissioner determines that the employer or carrier has not been prejudiced by failure to give such notice; or

(2) if the Commissioner excuses such failure on the ground that for some satisfactory reason such notice could not be given; or

(3) if objection to such failure is not raised before the Commissioner at the first hearing of a claim for compensation in respect of such injury or death.

32.0627 Time for filing.


(a) The right to compensation for disability shall be barred unless a claim therefor is filed within one year after the injury or last payment of compensation without an award.

(b) The right to compensation for death shall be barred unless a claim therefor is filed within one year after the death or within one year after the dependents know or by exercise of reasonable diligence should know the possible relationship of the death to the employment.

(c) If the nature of the injury or disease, or its relationship to the employment, is nor known to the claimant, the time for filing shall not begin to run until the claimant has, or by exercise of reasonable diligence should have, such knowledge.

(d) Failure to file a claim within the prescribed period shall not bar a claim unless objection to such failure is made at the first hearing of such claim in which all parties in interest are given reasonable notice and opportunity to be heard.

(e) If any individual entitled to compensation under this chapter is mentally incompetent or a minor, the time limits in subsections (a) and (b) shall not be applicable so long as such individual has no guardian or other authorized representative, and shall be applicable only from the date of appointment of such guardian or other representative, or in the case of a minor, if no guardian is appointed before he becomes of age, from the date he becomes of age.

(f) Where recovery is denied any individual in a suit brought at law or in admiralty to recover damages in respect to injury or death, on the ground that such individual was an employee and that the defendant was an employer within the meaning of this chapter and that such employer has secured compensation to such employee under this chapter, the limitation of time prescribed in subsection (a) or (b) begins to run only from the date of termination of such suit.

(g) Subject to the other provisions of this section, a claim for compensation may be filed with the Commissioner, in accordance with regulation prescribed by the Commission, at any time after the first 7 days of disability following any injury, or at any time after death.

32.0628 Notice.


(a) Within 10 days after a claim is filed, the Commissioner, in accordance with regulations prescribed by the Commission, shall notify the employer and any other individual other than the claimant whom the Commissioner considers an interested party, that a claim has been filed.

(b) Such notice may be served personally upon the employer or other individual, or sent to such employer or individual by registered mail.

32.0629 Action on filed claim.


(a) At any time after a claim has been filed with him, the Commissioner may transfer such case to any member of the Commission for the purpose of making investigation, taking testimony, conducting physical examinations or taking such other necessary action therein as may be directed, for the primary purpose of creating a record for disposition by the Administrative Law Judge in accordance with A.S.C.A. 32.0635 to 32.0646.

(b) The commissioner or his designee shall also investigate, take testimony, conduct physical examinations or take such other necessary action therein as may be directed for the additional purpose of achieving a settlement with the claimant. The commissioner may hold informal hearings for forty-five days after the claim has been filed. If after expiration of 45 days there is no settlement, the commissioner or his designee shall forward the claim to the Administrative Law Judge for a decision to be made in accordance with A.S.C.A., 32.0635. The commissioner shall continue to investigate, take testimony, conduct physical examinations or take such other necessary action therein as may be directed by the Administrative Law Judge in accordance with the purposes set forth in sections (a) and (b) above.

32.0635 No hearing ordered-Rejection or award of claim.


If no hearing is ordered within 20 days after notice is given, the Commissioner shall, by order, reject the claim or make an award regarding the claim.

32.0636 Hearing claim-Notice, investigation, time limits.


(a) The Commissioner, when exercising his authority pursuant to 32.0629(b), and the Administrative Law Judge have full power and authority to hear and determine all questions regarding claims for compensation.

(b) The Commissioner and the Administrative Law Judge shall make or cause to be made such investigations as they considers necessary regarding the claim, and, upon application of any interested party, shall order a hearing thereon.

(c) If a formal hearing on such claim is ordered, the Administrative Law Judge shall give the claimant and other interested parties at least 10 days notice of such hearing, served personally or sent to by registered mail, and shall within 20 days after such hearing is had, by order, reject the claim or make an award regarding the claim.

32.0637 Hearings to be public-Record required.


Hearings before the Administrative Law Judge shall be open to the public and shall be either stenographically or mechanically reported. The Administrative Law Judge shall by regulation provide for the preparation of a record of the hearings and other proceedings before the Administrative Law Judge.

32.0638 Physical examination required.


An injured employee claiming or entitled to compensation shall submit to such physical examination by a duly qualified physician designated or approved by the Commission as the Commissioner or Administrative Law Judge may require. The place or places of such examination shall be reasonably convenient for the employee. Such physician or physicians as the employee, employer or earner may select and pay for may participate in an examination if the employee, employer or carrier so requests. Proceedings shall be suspended and no compensation may be payable for any period during which the employee may refuse to submit to examination.

32.0639 Costs in proceedings brought or continued without reasonable cause.


If the court having jurisdiction of proceedings in respect to any claim or compensation order determines that the proceedings in respect to such claim or order have been instituted or continued without reasonable ground, the costs of such proceedings shall be assessed against the party who has so instituted or continued such proceedings.

32.0640 Conduct of investigation or hearing.


In making an investigation or inquiry or conducting a hearing, the Administrative Law Judge shall use Rules of Evidence and Procedure as applicable in the High Court of American Samoa as a guide, in accordance with A.S. C. A., 4.0607.

32.0641 Right to be represented and to present evidence.


At a hearing, the claimant and employer may each present evidence in respect to such claim and may be represented by any individual authorized in writing for such purpose.

32.0642 Presumptions.


In any proceeding for the enforcement of a claim for compensation under this chapter and Chapter 32.05, it is presumed, in the absence of substantial evidence to the contrary, that:

(1) the claim comes within the provisions of this chapter or Chapter 32.05;

(2) sufficient notice of such claim has been given;

(3) the injury was not occasioned soley by the intoxication of the injured employee;

(4) the injury was not occasioned soley by the willful intention of the injured employee to injure or kill himself or another.

32.0643 Declarations of deceased employee.


Declarations of a deceased, employee concerning the injury in respect to which the investigation or inquiry is being made or the hearing conducted shall be received in evidence and shall, if corroborated by other evidence, be sufficient to establish the injury.

32.0644 Witnesses-Depositions.


No person may be required to attend as a witness in any proceeding before the commissioner or the Administrative Law Judge at a place outside the Territory, but the testimony of any witness may be taken by a deposition or interrogatories according to the rules of practice of the High Court of American Samoa.

32.0645 Witness fees.


Witnesses summoned in a proceeding before the Commissioner or the Administrative Law Judge or whose depositions are taken may receive the same fees and mileage as witnesses in the High Court of American Samoa.

32.0646 Awards after death of employee.


An award of compensation for disability may be made after the death of an injured employee.

32.0650 Filing of order-Delivery of copies.


The order rejecting the claim or making the award of compensation shall be filed in the Office of the Commissioner, and a copy thereof shall be. Transmitted, to the claimant and to the employer by delivery to them in person or by registered mail, to the last known address of each.

32.0651 Effective date of order.


A compensation order becomes effective when filed, in the Office of the Commissioner and, unless proceedings for the suspension or setting aside of such order are instituted, becomes final at the expiration of the thirtieth day thereafter.

32.0652 Judicial review of order-Stay of compensation payment.


(a) If not in accordance with law, a compensation order may be suspended or set aside, in whole or in part, through injunction proceedings, mandatory or otherwise, brought by any party in interest against the Commissioner, and instituted in the High Court of American Samoa.

(b) The orders, writs and processes of the court in such proceedings may run, be served and be returnable, anywhere in the Territory.

(c) The payment of the, amounts required by an award, shall not be stayed pending final decision in any such proceeding unless, upon application for an interlocutory injunction, the court, on hearing and after not less than 1 days notice to the parties in interest and the Commissioner, allows the stay of such payments, in, whole or in part, where irreparable damage would otherwise ensue to the employer. The order of the court allowing any such stay shall contain, specific findings based, upon evidence submitted, to the court and identified by reference thereto, that such irreparable, damage would result to the employer, and, specifying the nature of the damage.

32.0653 Enforcement proceeding.


(a) If any employer or his officers or agents fail to comply with a compensation order making an award that has become final, any beneficiary of such award, or the Commissioner, may apply to the High Court of American Samoa for the enforcement of the order.

(1) If the Court determines that the order was made and, served in accordance, with law and that such employer or his office is or agents have failed, to comply therewith, the court shall enforce obedience to, the order by writ of injunction or by other proper process, mandatory or otherwise.

(c) Proceedings for suspending, setting aside, or enforcing a compensation order, whether rejecting a claim or making an award, shall not be instituted otherwise than as provided in, this section and 32.0652 and 32.0674.

32.0654 Modification of order.


(a) Upon his own initiative or upon the application of any party in interest, and on the ground of a change in conditions or a mistake in a determination of fact by the Commissioner, the Commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case, in accordance with the procedure regarding claims, and issue a new compensation order which may terminate, continue, reinstate, increase or decrease such compensation, or award, compensation. Such new order may not effect any compensation previously paid, except that an, award increasing the compensation rate may be made effective front the date of the injury. If any part of the, compensation due or to become, due is unpaid, an award decreasing the compensation rate, may be made, effective from the date of the injury, and. any payment made prior to the, time of the award in excess of such decreased rare shall be, deducted, front any unpaid compensation, in such manner and by such method as may bet determined, by the, Commissioner with the approval of the Commission.

(b) The Commission may at any time, either of its own motion or upon the application of any party, reopen any case on, the ground that fraud has been practiced on any party, and render such decision as is proper under the circumstances.

32.0660 Installments.


(a) Compensation under this chapter and Chapter 32.05 must be paid periodically, promptly and directly to the individual entitled thereto, without an award, except where liability to pay compensation is controverted by the employer.

(b) The first installment of compensation becomes due on the fourteenth day after the employer has knowledge of the injury or death, on which date all compensation then due shall be paid. Thereafter, compensation must be paid in semimonthly installments except where the Commissioner determines that payment in installments should be made monthly or at some other interval

32.0661 Notice of beginning, suspension and end.


(a) Upon making the, first payment, and upon suspension of payment for any cause, the employer shall immediately notify the Commissioner, in accordance with a form prescribed by the Commission, that payment of compensation has begun or has been suspended, as the case may be.

(b) Within 16 days after final, payment of compensation has been made, the employer shall send to the Commissioner a notice, in accordance with a form prescribed by the Commission, stating that such, final payment has been made, the total amount of compensation paid, the names of the employee and, of any other individuals to whom compensation has been paid, the date, of the injury or death and the date up to which compensation has been paid.

32.0662 Notice of controverted claim.


If the employer controverts the right to compensation, he shall file with the Commissioner, on or before the 14th day after he has knowledge of the alleged injury or death, a notice in accordance, with a form prescribed by the Commission stating that the right to compensation is controverted, the name of the claimant, the name of the employer, the date of the alleged injury or death and the grounds upon which the right to compensation is controverted.

32.0663 Failure to make.


(a) If any installment of compensation payable without an award is not paid within 14 days after it becomes due, there shall be added to such unpaid installment an amount equal, to 10% thereof, which shall be paid at the same time as such, installment, unless notice is filed under 32.0661, or unless such nonpayment is excused by the Commissioner after a showing by the employer that owing to conditions over which he had no control such installment could not be paid within the period prescribed for the payment.

(b) If compensation payable under the terms of an award is not paid within 10 days after it becomes due, there shall, be added to such unpaid compensation an amount equal, to 20% thereof which shall, be, paid, at the same time as, such compensation unless review of the, compensation order making such, award is had and an interlocutory injunction staying payment is allowed by the court.

32.0664 Actions to protect rights.


The Commissioner may, upon his own initiative at any time in a case in which payments are being made without an award, and shall, in any case where right to compensation is controverted or payment of compensation has been stopped or suspended, upon receipt of notice from any individual entitled to compensation or from the employer, that the right to compensation is controverted or that payment of compensation has been stopped or suspended, make such investigations, cause such medical examinations to be made, hold such, hearings and take such further action, as he considers will properly protect the rights of all parties.

32.0665 Deposit to secure.


Whenever the commission deems it advisable, he may require any employer to make a deposit with the Treasurer of American Samoa to secure the prompt and convenient payment of compensation. Payments from such deposits pursuant to award shall be made by the Treasurer upon order of the Commissioner.

32.0666 Lump sum-Reimbursements.


(a) Whenever the Commissioner determines that is it in the interest of justice, the liability of the employer, for compensation or any part thereof, as determined by the Commissioner, may, with the approval of the Commission, be discharged by the payment of a lump sum equal to the present value of future compensation payments commuted, computed at 3% true discount compounded annually. The probability of the death of the injured employee or individual, entitled to compensation before the expiration of the period during which, he is, entitled, to compensation shall be, determined in accordance with the United States Life Table and the probability of the remarriage of the surviving wife shall be determined in accordance with the American Remarriage Table. The probability of the happening of any other contingency affecting the amount or duration of the compensation shall be disregarded.

(b) If the employer has made advance payments of compensation, he shall be entitled

to be reimbursed out of any unpaid installments or installments of compensation due.

32.0667 Receipts.


An injured employee or, in the case of death, his dependents or personal representative, shall give receipts for payment, of compensation to the employer paying the same and such employer shall produce the same for inspection by the Commissioner, whenever required.

32.0668 Settlement of employer’s liability.


In cases under subsection (b) of 32.0609 and 32.0611, whenever the Commissioner determines that it is in the best interests of an injured employee entitled to compensation, he may, with the approval of the Commission, approve agreed settlements of the interested parties, discharging the liability of the employer for such compensation, notwithstanding 32.0672 and subsection (b) of 32.0554. The sum so agreed upon shall be payable in installments as provided in subsection (b) of 32.0660, which installments shall be subject to commutation under 32.0666. If the employee should die from causes other than the injury after the Commission has approved an agreed settlement, the sum so approved shall be payable, in the manner prescribed in this section, to and for the benefit of the persons enumerated in 32.0614.

32.0669 Recovery against third person.


(a) If an individual entitled to such compensation determines that some individual other than the employer or an individual or individuals in his employ are liable in damages, he need not elect whether to receive such compensation or to recover damages against such third person, but acceptance of compensation under an award in a compensation order operates as an assignment to the employer of all rights of the individual entitled to compensation to recover damage against such third person unless such individual commences an action against such third person within 6 months after such award.

(b) Payment under 32.0516 operates as an assignment to the employer of all rights of the legal representative of the deceased to recover damages against such third person. The employer may either institute proceedings for the recovery of such damages or may compromise with such third person either without or after instituting proceedings. Any amount recovered by such employer on account of such assignment, whether or not as the result of a compromise, must be distributed as follows:

(1) The employer retains an amount equal to:

(A) the expenses incurred by him in respect to such proceedings or compromise, including a reasonable attorney’s fee as determined by the commissioner;

(B) the cost of all benefits actually furnished by him to the employee under 32.0619;

(C) all amounts paid as compensation;

(D) the present value of all amounts thereafter payable as compensation, such present value to be computed, in accordance with a schedule prepared by the commissioner, and the present value of the cost of all benefits thereafter to be furnished under 32.0619, to be, estimated to be retained by the employer in a trust fund to pay such compensation and, the cost of such benefits as they become due, and to pay any such final remaining in excess thereof to the individual entitled to compensation or to the representative.

(2) The employer pays any excess to the individual entitled to compensation or to the representative, less 1/5 of such excess, which shall belong to the employer.

(c) If the individual entitled to compensation, institutes proceedings within the period prescribed in subsection (a), the employer is required to pay as compensation under this chapter a sum equal to the excess of the amount which the Commissioner determines is payable on account of such injury or death over the amount recovered against such third person.

(d) If a compromise and settlement is made with such third person by the individual entitled, to compensation or by his representative, in an amount less than the compensation to which such individual or representative would be entitled under this chapter, the employer is liable for compensation as determined in subsection (c) only if such compromise is made with his written approval.

(e) Where the employer is insured and the carrier has assumed the payment of the compensation, the carrier shall be subrogated to all rights of the employer under this section.

(f) The right to compensation or benefits under this chapter shall be the exclusive remedy to an employee when he is injured, or to his eligible survivors or legal representative if he is killed, by the negligence or wrong of any other individual or individuals in the same employ; provided, that this provision shall not affect the liability of an individual other than an officer or employee of the employer.

32.0670 Employment rights of injured employees-Penalty.


(a) No employer may discharge or dismiss any employee or deny such employee the right to return to his employment solely because he suffers any work injury which is compensable under this chapter and Chapter 32.05 and which arises out of and in the course of employment with the employer unless it is shown to the satisfaction of the Commissioner that the employee will no longer be capable of performing his work as a result of the work injury and that the employer has no other available work which the employee is capable of performing and which becomes available after the dismissal or discharge and during the period thereafter until the employee secures new employment.

(b) The foregoing provisions do not apply to any minor employer under subsection (c) of 32.0521.

(c) Any employer who violates this section shall be fined in an amount not to exceed $200, or be imprisoned for a period not to exceed 90 days, or both.

32.0671 Claims for services.


No claim for legal or other services rendered in respect of a claim, or an award for compensation, to or on account of any person, is valid unless approved by the Commissioner, or, if proceedings for review of the order of the Commissioner in respect to such claim or award are had before any court, unless approved by such court. Any claim so approved shall, in the manner and to the extent fixed by the Commissioner or such court, be a lien upon such compensation.

32.0672 Validity of liability.


No assignment of, or release of liability for, compensation or benefits due or payable under this chapter and Chapter 32.05, except as otherwise provided by this and Chapter 32.05, is valid, and such compensation and benefits shall be exempt from all claims of creditors and from levy, execution, attachment or other remedy for recovery or collection of a debt, which exemption may not be waived.

32.0673 Compensation a lien against assets.


Any person entitled to compensation under the provisions of this chapter and Chapter 32.05 has a lien against the assets of the carrier or employer for such compensation without limit or amount, and. is, upon insolvency, bankruptcy, or reorganization in bankruptcy proceedings or the carrier or employer, or both, entitled to preference and priority in the distribution of the assets of such carrier or employer, or both.

32.0674 Collection of defaulted payments.


(a) In case of default by the employer in the payment of compensation due under any award of compensation, for a period of 30 days after the compensation is due and payable, the individual to whom such compensation is payable may, within one year after such default, make application to the Commissioner for a supplementary order declaring the amount of the default

(b) After investigation, notice, and hearing in the manner provided in 32.0629 and 32.0636, the Commissioner shall make a supplementary order, declaring the amount of the default, which shall be filed in the same manner as a compensation order.

(c) In case the payment in default is an installment of the award, the Commissioner may, in his discretion, declare the whole of the award as the amount in default

(d) The applicant may file a certified copy of such supplementary order with the clerk of the High Court of American Samoa. Such supplementary order of the Commissioner shall, be final, and the court shall, upon the filing of the copy, enter judgment for the amount declared in default by the supplementary order if such supplementary order is in accordance with law.

(e) Review of the judgment so entered may be had as in civil suits for damages at common law.

(f) Final proceedings to execute the judgment may be, had by writ of execution in the form used by the court in suits at common law in actions of assumpsit.

(g) No fee is required for filing the supplementary order or for entry of judgment thereon, and the applicant is not liable for costs in a proceeding for review of the judgment unless the court otherwise directs.

(h) The court shall modify such judgment to conform to any later compensation order upon presentation of a certified copy thereof to the court.

(i) Where judgment cannot be satisfied by reason of the employer’s insolvency or other circumstances precluding payment, the Commissioner may, in his discretion and to the extent he determines advisable after consideration of current commitments payable from the special fund established in 32.0516, make payment from such fund upon any award made under this chapter, and in addition, provided any necessary medical, surgical and other treatment required by 32.0619 in case of disability where there has been a default in furnishing medical treatment by reason of the insolvency of the employer. Such an employer shall be liable for payment into such fund of the amounts paid therefrom by the Commissioner under this subsection; and for the purpose of enforcing this liability, the Commissioner, for the benefit of the fund, shall be subrogated to all the rights of the individual receiving such payment or benefits, including the right of lien and priority provided for by 32.0673 as against the employer and may, by a proceeding under this section or under 32.0653, or both, seek to recover the amount of the default or so much thereof as in the judgment of the Commissioner is possible, or the Commissioner may settle and compromise any such claim.