CHAP. 22.—_An ACT to amend and re-enact section two of an act entitled
an act to prevent industrial accidents; to provide medical and surgical
care for injured employees; to establish rates of compensation for
personal injuries or deaths sustained by employees in the course of
employment; to provide methods for insuring the payment of such
compensation; to create an industrial commission for the administra-
tion of this act, and to prescribe the powers and duties of such com-

mission; to levy a tax, and appropriate funds for the administration
of this act, which became a law March 21, 1918, as amended by an
act approved March 24, 1922. [H B 10]

Approved March 20, 1923.

1. Be it enacted by the general assembly of Virginia, That
section two of an act entitled an act to prevent industrial ac-
cidents; to provide medical and surgical care for injured em-
ployees; to establish rates of compensation for personal injuries
or deaths sustained by employees in the course of employment;
to provide methods for insuring the payment of such compensa-
tion; to create an industrial commission for the administration
of this act, and to prescribe the powers and duties of such com-
mission; to levy a tax, and appropriate funds for the adminis-
tration of this act, which became a law March twenty-first,
nineteen hundred and eighteen, as amended by an act approved
March twenty-fourth, nineteen hundred and twenty-two, be
amended and re-enacted so as to read as follows:

Sec. 2. In this act unless the context otherwise requires:

(a) “Employers” shall include the State and any municipal
corporation within the State or any political division thereof,
and any individual, firm, association or corporation, or the re-
ceiver or trustee of the same, or the legal representative of a
deceased employer, using the service of another for pay. If the
employer is insured it shall include his insurer so far as
applicable.

(b) “Employee” shall include every person, including a
minor, in the service of another under any contract of hire or
apprenticeship, written or implied, except one whose employ-
ment is not in the usual course of the trade, business, occupa-
tion or profession of the employer; and as relating to those so
employed by the State the term “employee” shall include all
officers and employees thereof, except only such as are elected
by the people, or by the general assembly, or appointed by the
governor either with or without the confirmation of the senate;
as relating to municipal corporations and _ political divisions of
the State, the term “employee” shall include all officers and em-

/
ployees thereof, except such as are elected by the people or elected
by the council, or other governing body of said municipal cor-
poration or political division, who act in purely administrative
capacities and to serve for a definite term of office. Policemen
and firemen, except policemen and firemen in cities containing
more than one hundred and seventy thousand inhabitants, shall
be deemed to be employees of the respective cities, counties or
towns in which their services are employed and by whom their
salaries are paid. Any reference to an employee who has been
injured shall, when the employee is dead, include also his legal
representative, dependents and other persons to whom compen-
sation may be payable.

(c) “Average weekly wages” shall mean the earnings of
the injured employee in the employment in which he was work-
ing at the time of the injury during the period of fifty-two
weeks immediately preceding the date of the injury, divided by
fifty-two; but if the injured employee lost more than seven
consecutive calendar days during such period, although not in
the same week, then the earnings for the remainder of such
fifty-two weeks shall be divided by the number of weeks remain-
ing after the time so lost has been deducted. Where the em-
ployment prior to the injury extended over a period of less than
fifty-two weeks, the method of dividing the earnings during
that period by the number of weeks and parts thereof during
which the employee earned wages shall be followed, provided,
results fair and just to both parties will be thereby obtained.
Where by reason of a shortness of time during which the em-
ployee has been in the employment of his employer or the casual
nature or terms of his employment, it is impracticable to com-
pute the average weekly wages as above defined, regard shall
be had to the average weekly amount which during the fifty-two
weeks previous to the injury was being earned by a person of
the same grade and character employed in the same class of em-
ployment in the same locality, or community.

But where for exceptional reasons the foregoing would be
unfair either to the employer or employee, such other method
of computing average weekly wages may be resorted to as will
most nearly approximate the amount which the injured em-
ployee would be earning were it not for the injury.

Wherever allowances of any character made to an employee
in lieu of wages are specified part of the wage-contract, they
shall be deemed a part of his earnings.

(d) “Injury” and “personal injury” shall mean only injury
by accident arising out of and in the course of the employment
and shall not include a disease in any form, except where it re-
sults naturally and unavoidably from the accident.

(e) In all claims for compensation for hernia resulting
from injury by accident arising out of and in the course of the
employee’s employment, it must be definitely proved to the satis-
faction of the “industrial commission.”

First: That there was an injury resulting in hernia;

Second: That the hernia appeared suddenly ;

Third: That it was accompanied by pain;

Fourth: That the hernia immediately followed an accident;

Fifth: That the hernia did not exist prior to the accident for
which compensation is claimed.

All hernia, inguinal, femeral or otherwise, so proven to be
the result of an injury by accident arising out of and in course
of the employment shall be treated in a surgical manner by
radical operation. If death results from such operation, the
death shall be considered as a result of the injury, and compen-
gation paid in accordance with the provisions of section thirty-
nine. In non-fatal cases, time loss only shall be paid, unless it is
shown by special examination, as provided in section twenty-
eight, that the injured employee has a permanent partial dis-
ability resulting after the operation. If so, compensation shall
be paid in accordance with the provisions of section thirty-one
with reference to partial disability.

In case the injured employee refuses to undergo the radical
operation for the cure of said hernia, no compensation will be
allowed during the time such refusal continues. If, however, it
is shown that the employee has some chronic disease, or is other-
wise in such physical condition that the commission considers
it unsafe for the employee to undergo said operation, the em-
ployee shall be paid as provided in section thirty-one.

2. An emergency existing, this act shall be in force from its
passage.