Chap. 77.—An ACT to amend Chapter 400 of the Acts of Assembly of 1918, which
became a law without the approval of the Governor March 21, 1918, known as
“The Virginia Workmen’s Compensation Act’, as it has been amended from
time to time, in order to extend the scope of the law to include certain coverage
of occupational diseases; and to such end, to amend and re-enact, as previously
amended, Section 2, by re-enacting the matter of Section 2, with certain amend-
ments, as follows: Section 2, and five new sections numbered 2-a, 2-b, 2-c, 2-d
and 2-e; and to add to the law eleven other new sections numbered 2-f, 2-g, 2-h,
2-1, 2-j, 2-k, 2-1, 2-m, 2-n, 2-0 and 2-p. . (HH 174]

Approved February 28, 1944

Be it enacted by the General Assembly of Virginia:

1. That section two of chapter four hundred of Acts of Assembly of
nineteen hundred eighteen, which became a law without the approval of
the Governor March twenty-one, nineteen hundred eighteen, known as
“The Virginia Workmen’s Compensation Act”, as from time to time
amended, be further amended and re-enacted as section two and as five
new sections numbered two-a, two-b, two-c, two-d and two-e, and that
there be added eleven new sections numbered two-f, two-g, two-h, two-1,
two-j, two-k, two-l, two-m, two-n, two-o and two-p, as follows:

Section 2. The meanings to be attached to certain terminology and
the scope and coverage of this law are as set forth specifically in the
several following sections. |

Section 2-a. Employers Defined.—Unless the context otherwise re-
quires: “Employers” includes the State and any municipal corporation
therein or any political division thereof, and any individual, firm, as-
sociation or corporation, or the receiver 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 includes his insurer so far as ap-
plicable.

Section 2-b. Employee Defined—Unless the context otherwise re-
quires: ‘‘Employee” includes every person, including a minor, in the
service of another under any contract of hire or apprenticeship, written
or implied, except one whose employment is not in the usual course of the
trade, business, occupation or profession of the employer; and as relat-
ing to those so employed by the State the term “employee” includes the
officers and members of the National Guard, the Virginia State Guard
and the Virginia Reserve Militia, and all officers and employees of the
State, except only such as are elected by the people, or by the General
Assembly, or appointed by the Governor, either with or without the con-
firmation of the Senate; as relating to municipal corporations and political
divisions of the State, the term “employee” includes all officers and em-
plovees thereof, except such as one elected by the people or by the gov-
erning body of the municipal corporation 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 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 refer-
ence to an employee who has been injured shall, when the employee is
dead, include also his legal representative, dependents and other persons
to whom compensation may be payable. For the purpose of this act the
average weekly wage of the non-commissioned officers and members of
the National Guard, the Virginia State Guard and the Virginia Reserve
Militia shall be deemed to be such amount as will entitle them to the
maximum compensation payable under this act.

Section 2-c. Average Weekly Wages Defined.—Unless the context
otherwise requires: “Average weekly wages’ means the earnings of the
injured employee in the employment in which he was working at the
time of the injury during the period of fifty-two weeks immediately pre-
ceding the date of the injury, divided by fifty-two; but if the injured em-
ployee lost more than seven consecutive calendar days during such period,
although not in the same week, then the earnings for the remainder of the
fifty-two weeks shall be divided by the number of weeks remaining after
the time so lost has been deducted. When the employment 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.
When by reason of a shortness of time during which the employee has
been in the employment of his employer or the casual nature or terms
of his employment, it is impracticable to compute 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 be-
ing earned by a person of the same grade and character employed in the
same class of employment in the same locality, or community.

But when 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 approxi-
mate the amount which the injured employee would be earning were it
not for the injury.

Whenever 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.

Section 2-d. Injury Defined—Unless the context otherwise re-
quires: “Injury”? and “personal injury” mean only injury by accident,
or occupational disease as hereinafter defined, arising out of and in the
course of the employment and do not include a disease in any form, ex-
cept when it results naturally and unavoidably from either of the fore-
going causes.

Section 2-e. Compensation for Hernia; When Allowed.—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 satisfaction 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, femoral 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 re-
sults from such operation, the death shall be considered as a result of the
injury, and compensation paid in accordance with the provisions of sec-
tion thirty-nine. In non-fatal cases, time lost 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 disability resulting
after the operation. If so, compensation shall be paid in accordance
with the provisions of section thirty-one with reference to partial dis-
ability.

In case the injured employee refuses to undergo the radical opera-
tion for the cure of the hernia, no compensation will be allowed during
the time the refusal continues. If, however, it is shown that the employee
has some chronic disease, or is otherwise in such physical condition that
the Commission considers it unsafe for the employee to undergo the op-
eration, the employee shall be paid as provided in section thirty-one.

Section 2-f. Occupational Disease Defined.—As used in this law,
unless the context clearly indicates otherwise, the term “occupational
disease” means a disease arising out of and in the course of the employ-
ment. No ordinary disease of life to which the general public is ex-
posed outside of the employment shall be compensable, except when it
follows as an incident of occupational disease as defined in this law. A
disease shall be deemed to arise out of the employment only if there 1s
apparent to the rational mind, upon consideration of all the circumstances
(1) a direct causal connection between the conditions under which work
is performed and the occupational disease, (2) it can be seen to have fol-
lowed as a natural incident of the work as a result of the exposure oc-
casioned by the nature of the employment, (3) it can be fairly traced to
the employment as the proximate cause, (4) it does not come from a
hazard to which workmen would have been equally exposed outside of
the employment, (5) it is incidental to the character of the business and
not independent of the relation of employer and employee, and (6) it
must appear to have had its origin in a risk connected with the employ-
ment and to have flowed from that source as a natural consequence,
though it need not have been foreseen or expected before its contraction.

Section 2-g. Schedule of Occupational Diseases.—The following dis-
eases and conditions shall be deemed to be “occupational diseases”, and
even they shal] not be so considered unless they are in fact occupational
within the meaning of the definition “occupational disease” as defined in
this law: (1) Anthrax; (2) Asbestosis; (3) Cataract of the eyes due
to exposure to the heat and glare of molten glass or to radiant rays such
as infra-red; (4) Compressed air illness; (5) Conjunctivitis or retinitis
due to exposure to radiant rays; (6) Cellulitis; (7) Dermatitis; (8)
FEpitheliamatous cancer or ulceration of the skin or of the corneal sur-
face of the eye due to pitch, tar, soot, bitumen, anthracene, paraffin, min-
eral oil, or their compounds, products, or residues; (9) Glanders; (10)
Infection or inflammation of the skin or eyes, or other external contact
surfaces or oral or nasal cavities due to irritating oil, cutting compounds,
chemical dust, liquid fumes, gases or vapors; (11) Infections or con-
tagious diseases contracted in the course of employment in or in imme-
diate connection with a hospital or sanitarium in which persons suffering
from such diseases are cared for and treated; (12) Poisoning by; (i)
Ammonia; (11) Arsenic; (ii) Benzol or derivatives of benzene; (iv)
Brass; (v) Cadmium; (vi) Carbon bisulphide or any sulphide; (vii)
Carbon dioxide; (viii) Carbon monoxide; (ix) Carbon tetrachloride or
other toxic chlorinated hydrocarbons or toxic halogenated hydrocarbons ;
(x) Chlorine; (xi) Cyanide; (xii) Dinitrophenol ; (xiii) Formaldehyde
and its preparations; (xiv) Hydochloric acid; (xv) Hydrofluoric acid;
(xvi) Hydrogen sulphide; (xvii) Lead; (xviii) Manganese; (xix) Mer-
cury ; (xx) Menthonol (wood alcoholic) ; (xx1) Methyl chloride; (xx)
Nickel carbonyl; (xxiii) Nitrous fumes; (xxiv) Nitric acid; (xxv)
Petroleum or petroleum products; (xxvi) Phosphorus; (xxvii) Sulphur
dioxide; (xxvii) Sulphuric acid; (xxix) Tetrachlor-methane or any
substances used as or in conjunction with a solvent for acetate of cellu-
lose or nitro cellulose; (xxx) Turpentine; (xxx1) Zinc; (13) Radium
disability or disability due to exposure to radio-active substances and
X-Ray; (14) Silicosis; (15) Ulceration due to chrome compound or
to caustic chemical, acids or alkalies, and undulant fever caused by the
industrial slaughtering and processing of livestock and the handling of
hides.

Section 2-h. Rejection by Employer of Schedule 2-g and Accept-
ance of Full Coverage-—Any employer may in lieu of the schedule of
occupational diseases herein enumerated under the provisions of Section
two-g, reject the same and elect by written declaration filed in the offices
of the Industrial Commission on a form provided by it, to be bound by
the provisions of this section relating to full coverage of all occupational
diseases. Thereupon, the employer shall be liable for all occupational dis-
eases arising out of and in the course of employment pursuant to all pro-
visions of the act applicable thereto.

The election above provided shall be made by the employer within
sixty (60) days from July one, nineteen hundred forty-four, and the
employer shall be liable under this provision from said date. Any elec-
tion made more than sixty (60) days after July one, nineteen hundred
forty-four, shall become effective the day it is received by the Industrial
Commission. An election once made shall be effective until withdrawn
in writing signed by the employer and filed in the offices of the Industrial
Commission. ‘Thereafter, the emplover shall be lable under the provi-
sions of Section two-g, relating to scheduled coverage. An election once
made shall not be withdrawn within a period of one year.

It is expressly enacted that this provision shall be construed as an
alternate plan covering all occupational diseases, including those enum-
erated in Section two-g.

Section 2-1. Pre-existing Occupational Disease——An occupational
disease which an employee has on the effective date of the amendments
of this law shall not be covered hereunder. An employee has an occupa-
tional disease within the meaning of this law if the disease or condition
has developed to such an extent that it can be diagnosed as an occupa-
tional disease. In every hearing before the Industrial Commission in this
regard under this law, the burden shall be on the employee to prove that
he did not have as of the effective date hereof the occupational disease for
which he is seeking compensation.

Section 2-j. Provisions as to Injury or Death by Accident Ap-
plicable to Same Resulting from Occupational Disease——When the em-
ployer and employee are subject to the provisions of the Workmen’s
Compensation Act, the incapacity for work or death of an employee re-
sulting from an occupational disease as herein listed and defined shall
be treated as the happening of an injury by accident or death by acci-
dent, and the employee or in case of his death his dependents shall be
entitled to compensation as provided by the Act. An employee who has
an occupational disease that is covered by this law shall be entitled to the
same hospital, medical and miscellaneous benefits as an employee who has
a compensable injury by accident, except that the period during which
the employer shall be required to furnish medical attention shall begin
as of the date of incapacity for work, and in the event of death the same
funeral benefits shall be paid as in the case of death from a compensable
accident. All provisions of the Act in respect to accidents shall be ap-
plicable to the coverage provided for by this amendment, except as other-
wise provided herein.

Section 2-k. What Employer and Carrier Liable—When an em-
ployee has an occupational disease that is covered by this law as amended,
the employer in whose employment he was last injuriously exposed to
the hazards of the disease, and the employer’s insurance carrier, if any,
at the time of the exposure, shall alone be liable therefor, without right
to contribution from any prior employer or insurance carrier.

Section 2-1. Notice to Be Given.—Within thirty days after the first
distinct manifestation of an occupational disease the employee, or someone
on his behalf, shall give written notice thereof to the employer in accord-
ance with sections twenty-three and twenty-four of this Act.

Section 2-m. Limitation upon Claim.—The right to compensation un-
der these amendments shall be forever barred unless a claim be filed with
the Industrial Commission within one year after the beginning of in-
capacity for work resulting from an occupational disease, and if death
results from the occupational disease unless a claim therefor be filed with
the Commission within one year thereafter.

Section 2-n. Waiver—When an employee or prospective employee,
though not incapacitated for work, is found to be affected by, or sus-
ceptible to, a specific occupational disease he may, subject to the ap-
proval of the Industrial Commission, be permitted to waive in writing
compensation for any aggravation of his condition that may result from
his working or continuing to work in the same or similar occupation for
the same employer or for another employer.

Section 2-0. Voluntary Subjection to Provisions of the Act.—Those
employers and employees not subject to this Act may, by complying with
the provisions of the Act and the applicable rules of the Industrial Com-
mission, voluntarily elect to be bound by it as to accidents or occupa-
tional diseases or both.

Section 2-p. Effective Date of Certain Provisions.—The provisions
of the amendments of The Workmen’s Compensation Act effected by the
General Assembly of nineteen hundred forty-four shall become effective
July one, nineteen hundred forty-four.