| Wis. | Dec 8, 1925
The statute involved is as follows:
“Section 102.09. Where liability for compensation . . . exists, the same shall be as provided in the following schedule: '
“ (1) Such medical, surgical and hospital treatment, medicines, medical and surgical supplies ... as may be reasonably required for ninety days immediately following the. accident, to cure and relieve from the effects of the injury, and for such additional period of time as in the judgment of the commission will tend to lessen the period of compensation disability, or in the case of permanent total disability for such period of time as the commission may deem advisable, and, in addition thereto, such artificial members as may be reasonably necessary at the end of the healing period, the same to be provided by the employer; and in case of his neglect or refusal reasonably to do so, the employer to be liable for the reasonable expense incurred by or on behalf of the employee in providing the same. . . .
“Failure of the employer to maintain a reasonable number of competent and impartial physicians ready to undertake the treatment of the employee, and to permit the employee to make choice of his attendant from among them, shall constitute neglect and refusal to furnish such attendance and treatment. . . . No compensation shall be payable for the death or disability of an employee, if his death be caused by or in so far as his disability may be aggravated, caused or continued by an unreasonable refusal or neglect to submit to or follow any competent and reasonable surgical treatment,” etc.
Appellant’s contentions are that the Commission was without authority to enter the award here complained of because appellant had maintained the panel of physicians, tendered reasonable treatment, and done all that the law requires; that the operation of June, 1923, was unnecessary; that the condition would have cleared itself in course of
No suggestion is here made but that appellant did furnish a panel of competent physicians; was ready and willing to furnish proper appliances for the injured knee; and was ready and willing to continue treatment such as its staff of physicians considered reasonable and proper.
There was a dispute, however, as so often occurs between doctors, as to the real cause of the constant pain which claimant underwent after the injury; one view being that if it was by a nerve filament being caught by scar tissue, that the point of such contact was at the injured knee rather than at the heel, and the pain in the lower leg was therefore a referred one, and that in any event it would disappear in the course of time; and further, that there could have been no such catching in scar tissue at the heel before October, 1922, because there was still an open wound there when then operated upon by appellant’s surgeon. On the other hand, it was contended that there was demonstrated by the result that the scar on the heel was the source of the pain and that -the operation in June, 1923, was a proper and beneficial one, even though it was, as stated by one of claimant’s physicians, “warranted in the forlorn hope that it might relieve.”
We believe that there was here presented a question of fact for the Industrial Commission to pass upon, and having determined that the operation of June, 1923, was necessary, and it being conceded that appellant refused to consent to or perform it, this amounted in substance to such refusal under the statute as authorized the conclusion and order of the Commission. Had the apparent result of the operation been different, the experiment might well have been decided to be at claimant’s own risk and expense.
As to whether or not the refusal of the claimant to continue to wear the brace was an unreasonable refusal or neglect on his part under the statute also presented a ques
Though under the facts here the result may be seemingly harsh in view of the evident care and attention that was given by appellant’s physicians to the claimant, whose recovery was much retarded by his unfortunate physical condition prior to the injury and his low vitality, yet in view of one of the evident purposes of the statute involved, viz. the restoring as speedily as possible the partially disabled to a condition in which they can work, we can see no grounds upon which the result reached in the court below can be now disturbed.
By the Court. — Judgment affirmed.