Workmen's Compensation Act, 1934

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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.