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9 1934

WORKMEN'S COMPENSATION ACT, 1934

PART X.

Application of Act to Certain Industrial Diseases.

Application of Act to industrial diseases.

76. —(1) Where—

(a) the certifying surgeon appointed under the Factory and Workshop Act, 1901, for the district in which a workman is employed certifies that such workman is suffering from a disease (in this Act referred to as a scheduled disease) mentioned in the first column of the Sixth Schedule to this Act and is thereby disabled from earning full wages at the work at which he was employed; or

(b) a workman is, in pursuance of any special rules or regulations made under the Factory and Workshop Act, 1901, suspended from his usual employment on account of having contracted any scheduled disease; or

(c) the death of a workman is caused by any scheduled disease;

and such disease is due to the nature of any employment in which such workman was employed at any time within the twelve months previous to the date of such disablement or suspension, whether under one or more employers, such workman or, in case of his death, his dependants shall be entitled to compensation under this Act as if such disease or such suspension as aforesaid were a personal injury by accident arising out of and in the course of such employment, subject, however, to the following modifications, that is to say:—

(i) such disablement or suspension shall be treated as the happening of the accident;

(ii) if it is proved that such workman has at the time of entering such employment wilfully and falsely represented himself in writing as not having previously suffered from such disease, compensation shall not be payable;

(iii) the compensation shall be recoverable from the employer who last employed such workman during the said twelve months in the employment to the nature of which the disease was due, subject, however, as follows:—

I. Such workman or his dependants, if so required, shall furnish that employer with such information as to the names and addresses of all the other employers who employed him during the said twelve months as he or they may possess, and if such information is not furnished, or is not sufficient to enable that employer to take proceedings under the next following sub-paragraph, that employer upon proving that such disease was not contracted whilst such workman was in his employment shall not be liable to pay compensation;

II. if that employer alleges that such disease was in fact contracted whilst such workman was in the employment of some other employer and not whilst in his employment, he may join such other employer as a party to the proceedings, and if such allegation is proved that other employer shall be the employer from whom the compensation is to be recoverable;

and

III. if such disease is of such a nature as to be contracted by a gradual process, any other employers who during the said 12 months employed such workman in the employment to the nature of which such disease was due shall be liable to make to the employer from whom compensation is recoverable, such contributions, as in default of agreement, may be determined by the Court in the proceedings before the Court for settling the amount of the compensation, or if the amount of such compensation is determined by agreement, as may be determined by the Court;

(iv) the amount of such compensation shall be calculated with reference to the earnings of such workman under the employer from whom the compensation is recoverable;

(v) the employer to whom notice of the death, disablement or suspension of such workman is to be given shall be the employer who last employed such workman during the said 12 months in the employment to the nature of which such disease was due, and such notice may be given notwithstanding that such workman has voluntarily left his employment;

(vi) if an employer or workman is aggrieved by the action of a certifying or other surgeon in giving or refusing to give a certificate of disablement or in suspending or refusing to suspend a workman for the purpose of this section, the matter shall in accordance with regulations made by the Minister be referred to a medical referee whose decision shall be final and the medical referee when deciding the matter shall certify as to the condition of the workman at the time when he is examined by him, and such certificate of such medical referee shall be final and conclusive.

(2) For the purposes of this section the date of the disablement shall be such date as the certifying surgeon certifies as the date on which such disablement commenced or, if he is unable to certify such date, the date on which the certificate is given, subject however as follows:—

(a) where the medical referee allows an appeal against a refusal by a certifying surgeon to give a certificate of disablement, the date of disablement shall be such date as the medical referee may determine;

(b) where a workman dies without having obtained a certificate of disablement, or is at the time of his death not in receipt of a weekly payment on account of disablement, the date of disablement shall be the date of the death of such workman.

(3) The Minister may from time to time by order under this section extend the provisions of this section to other diseases and other processes and to injuries due to the nature of any employment specified in such order not being injuries by accident, either without modifications or subject to such modifications as he may think fit.

(4) Nothing in this section shall be construed to affect the rights of a workman to recover compensation in respect of a disease to which this section does not for the time being apply, if such disease is a personal injury by accident within the meaning of this Act.

Supplemental provisions as to industrial diseases.

77. —(1) If the workman at or immediately before the date of such disablement or suspension as is mentioned in the foregoing section was employed in any process mentioned in the second column of the Sixth Schedule to this Act, and the disease contracted is the disease in the first column of that Schedule set opposite the description of the process, the disease, except where the certifying surgeon certifies that in his opinion the disease was not due to the nature of the employment, shall be deemed to have been due to the nature of that employment unless the employer proves the contrary.

(2) Where a workman claims to be suffering from and disabled by a disease to which the foregoing provisions of this Part of this Act apply, the employer may agree with the workman that he is liable to pay compensation without requiring the workman to obtain the certificate of the certifying surgeon mentioned in those provisions, and thereupon the workman shall be entitled to compensation as for injury by accident from the date of the agreement or from such other date as may be agreed.

(3) In such cases, and subject to such conditions as the Minister may direct, a medical practitioner appointed by the Minister for the purpose shall have the powers and duties of a certifying surgeon under the foregoing provisions of this Part of this Act, and those provisions shallbe construed accordingly.

(4) The Minister may with the consent of the Minister for Finance make rules regulating the duties and fees of certifying and other surgeons (including, dentists) under the foregoing provisions of this Part of this Act.

Mutual insurance of employers engaged in industries.

78. —(1) Where, after inquiry held on the application of any employers or workmen engaged in any industry to which the foregoing provisions of this Part of this Act apply it appears that a mutual trade insurance company or society for insuring against the risks under those provisions has been established for the industry, and that a majority of the employers engaged in that industry are insured against such risks in the company or society and that the company or society consents, the Minister may, by Provisional Order, require all employers in that industry to insure in the company or society upon such terms and under such conditions and subject to such exceptions as may be set forth in the Order.

(2) Where such company or society has been established but is confined to employers in any particular locality or of any particular class, the Minister may for the purposes of this section treat the industry, as carried on by employers in that locality or of that class, as a separate industry.

(3) A Provisional Order made under this section shall be of no force whatever unless and until it is confirmed by Act of the Oireachtas and if, while the Bill confirming any such Order is pending in either House of the Oireachtas, a petition is presented against the Order, the Bill may be referred to a Select Committee, and the petitioner shall be allowed to appear and oppose as in the case of Private Bills, and any Act confirming any Provisional Order under this section may be repealed, altered, or amended by a Provisional Order made and confirmed in like manner.

Power by scheme to apply Act to workmen suffering from silicosis.

79. —(1) The Minister may by scheme provide for the payment of compensation by the employers of workmen in any specified industry or process or group of industries or processes involving exposure to silica dust—

(a) who are certified in such manner as may be appointed by the scheme to have suffered death or total disablement from the disease known as fibroid phthisis or silicosis of the lungs (in this section referred to as silicosis) or from that disease accompanied by tuberculosis; or

(b) who, though not totally disabled, are found on medical examination to be suffering from silicosis, or from silicosis accompanied by tuberculosis, to such a degree as to make it dangerous to continue work in the industry or process, and are for that reason suspended from employment.

(2) The scale of compensation fixed by the scheme in the case of death or total disablement due to silicosis or silicosis accompanied by tuberculosis shall be that fixed by this Act and in any other case shall be such as may be fixed by the scheme.

(3) Provision may be made by the scheme—

(a) for the establishment of a general compensation fund, to be administered either through a mutual trade insurance company or society of employers, or in such other manner as may be provided by the scheme;

(b) for requiring employers to subscribe to the fund, and for the recovery of such subscriptions, and for the payment and recovery out of the fund of all compensation under the scheme, and of any expenses arising under the scheme which are directed by the scheme to be so paid, subject to such exceptions in special cases as may be made by the scheme;

(c) for the settlement of claims and other matters arising under the scheme by committees representative of both employers and workmen, with an independent chairman, and for the procedure to be adopted before such committees;

(d) for the appointment and remuneration of medical officers, medical boards and advisory medical bodies, and for their duties and powers in connection with the scheme;

(e) for requiring workmen to whom the scheme applies:—

(i) to submit themselves to such periodical medical examination as may be specified in the scheme; and

(ii) to furnish such information with respect to their previous employment in any industry specified in the scheme, as involving exposure to silica dust as may be specified in the scheme;

and for making the right of the workmen to compensation conditional on compliance with such requirements, and for the suspension from employment of workmen who are found at any time to be suffering from silicosis or tuberculosis, or silicosis accompanied by tuberculosis, or who, when first medically examined in pursuance of the scheme, are found unsuitable for work in the industry or process by reason of their failure to satisfy such requirements with respect to physique as may be prescribed by the scheme; and

(f) for the application with the necessary modifications of any of the provisions of this Act, or of any enactment relating to compensation thereunder, and for defining the industries or processes to which the scheme applies; and generally for such further or supplemental matters, including provisions as to the determination of disputes arising between employers and the authority administering the fund, as appear necessary for giving full effect to the scheme.

(4) Any scheme made under this section may be extended or varied by any subsequent scheme made in the like manner, and shall have effect as if enacted in this Act.

(5) Every scheme made under this section shall be laid before each House of the Oireachtas forthwith, and if a resolution is passed by either House within the next subsequent 21 days on which that House sits next after any such scheme is laid before it that such scheme be annulled, such scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.