52 STAT.] 75TH CONG. , 3D SESS.-CH. 685-JUNE 25, 1938 SEC. 2. That subdivision (a) of section 7 of said Act, as amended, 344 tat. 1I047(a). be, and it is hereby, amended to read as follows: "(a) The employer shall furnish such medical, surgical, and other .M edc et., Sb- attendance or treatment, nurse and hospital service, medicine, crutches, employer. and apparatus for such period as the nature of the injury or the process of recovery may require. If the employer fails to provide the Refusal by employ- same, after request by the injured employee, such injured employee by employee. may do so at the expense of the employer. The employee shall not be Conditions. entitled to recover any amount expended by him for such treatment or services unless he shall have requested the employer to furnish the same and the employer shall have refused or neglected to do so, or unless the nature of the injury required such treatment and services and the employer or his superintendent or foreman having knowledge of such injury shall have neglected to provide the same; nor shall any claim for medical or surgical treatment be valid and enforceable, as against such employer, unless within twenty days following the first treatment the physician giving such treatment furnish to the employer and the deputy commissioner a report of such injury and treatment, on a form prescribed by the Commission. The deputy commissioner may, how- ever, excuse the failure to furnish such report within twenty days when 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 reason- able value of such medical or surgical treatment so obtained by the employee. If at any time during such period the employee unreason- Unreasonable ably refuses to submit to medical or surgical treatment, the deputy ubmit toetreatent. commissioner may, by order, suspend the payment of further com- pensation during such time as such refusal continues, and no compen- sation shall be paid at any time during the period of such suspension, unless the circumstances justified the refusal." SEC. 3 . That section 7 of said Act, as amended, be, and it is hereby, 33 U.. C. 07. further amended by adding thereto the following new subdivision: "(d) The liability of an employer for medical treatment as herein erthough ault provided shall not be affected by the fact that his employee was third party. injured through the fault or negligence of a third party, not in the same employ, unless and until notice of election to sue has been given as required by section 33 (a) or suit has been brought against such 44 Stat. 1440 . third party without the giving of such notice. The empoyer shall, U.. 3. 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 section 33 (b) of this Act." SEC. 4 . That paragraph (22) of subdivision (c) of section 8 of said 44 stat. 1428; 4 stat. 806. Act, as amended, be, and it is hereby, amended to read as follows: 33 U.S.C.§ 9O. "(22) In any case in which there shall be a loss of, or loss of use slIe(i<i linjurlesnot ) lt"nrounting to Iperli- of, more than one member or parts of more than one mellber set nn.l total diability. forth in paragraphs (1) to (19) of this subdivision, 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 two or more digits of the same hand or foot, paragraph (17) of this subdivision shall apply." SEC. 5 . That section 8 of said Act, as amended, be, and it is hereby, 44 Stat. 1427 . further amended by adding thereto the following new subdivisions: 33 U. C . 908 . "(h) The wage-earning capacity of an injured employee in cases Determination of wage-earningcapaecity. of partial disability under subdivision (c) (21) of this section or wageearingcapaty under subdivision (e) of this section shall be determined by his actual earnings if such actual earnings fairly and reasonably repre- sent his wage-earning capacity: Provided, however, That if the rmioyee without employee has no actual earnings or his actual earnings do not fairly actual earnings, etc. and reasonably represent his wage-earning capacity, the deputy com- 1165
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