City of Atlanta v. Padgett

22 S.E.2d 197 | Ga. Ct. App. | 1942

1. Under the workmen's compensation act (Code, § 114-501), where the Industrial Board requires a claimant to submit to an operation based upon competent medical testimony, where the claimant in compliance with the requirements of the order of the board submits himself for the operation, and where two or three doctors are authorized to make tests and perform the operation, and where after due observation and tests the doctors conclude that the operation ordered would be both dangerous and useless, the board, in compliance with the Code section, is clothed with discretion to revoke its former judgment ordering an operation, and to hold that the claimant has complied with the order for an operation and was justified in refusing to submit himself further to an operation proffered him by the employer, which operation the third doctor was to do alone, and to order the employer to continue the compensation for total disability.

2. The evidence sustained the finding of the Industrial Board.

DECIDED OCTOBER 3, 1942. On June 24, 1940, the single director awarded the employee compensation at the rate of $12 per week from January 2, 1940, for 350 weeks, or until there might be a change in condition. This award was appealed to and affirmed by the full board. There was no appeal to the superior court. On June 21, 1941, after the employer had tendered to the employee facilities for an operation which, in the opinion of the physician and surgeon of the employer, would greatly reduce if not entirely remove the disability, and after much controversy between the employer and the employee as to the advisability of such operation and as to the hospital where it would be performed and the physician and the surgeon who were to perform it, the Industrial Board, after a hearing, both parties appearing and submitting evidence, made an award to the following effect: "It is the award of the full Industrial Board that the City of Atlanta, employer, offer the claimant remunerative hospitalization in one of the many private hospitals located in Atlanta, and that Dr. Ed Fincher together with Dr. Frank Eskridge or Dr. Exum Walker, together with Dr. Frank Eskridge, perform this operation for the herniated intervertebral disc, the claimant to offer himself in accordance with this award immediately upon receipt of same." The board found, as a matter of fact, at the hearing on which the above award was based, that the claimant was justified in refusing the hospitalization offered to him by the employer prior to the date of this award. The judgment of the Industrial Board provided further that unless the claimant submitted himself to such operation his compensation would cease.

Pursuant to the order of the Industrial Board and under the direction of Drs. Frank Eskridge and Ed Fincher, the claimant went to St. Joseph's Hospital for the operation. There he remained for eight days, under the observation and numerous examinations of Drs. Eskridge and Fincher. Numerous x-rays were made and air injections were imposed into the claimant's spine. After a thorough examination the expert physician and the surgeon declined to perform the operation on the ground that, in their opinion, such operation would not remove the disability but likely would be dangerous and result in more harm than good. The claimant, on advice of the doctors, left the hospital without the operation and returned home. Thereafter the city directed the claimant to report to Dr. Walker for further examination. This the claimant did. After examination Dr. Walker advised the claimant that such operation as the board had ordered on June 21 in his opinion would likely remove the disability, and that he, Dr. Walker, would perform it. The employer demanded that the claimant submit to the operation by Dr. Walker, or else the compensation would be discontinued. The claimant refused to submit to such operation by Dr. Walker. The city discontinued the compensation, whereupon the claimant filed a petition with the Industrial Board which substantially set forth his conduct in submitting himself to the proposed operation of Dr. Eskridge and Dr. Fincher, their treatment of him at the hospital, their dismissal of him from the hospital, their refusal to operate, and the demand of the city that he submit himself to an operation by Dr. Walker and his refusal to do so. He asked the board: "In view of the change in the status of medical opinion concerning the condition of this claimant since the award of the Industrial Board [June 21, 1941] directing this claimant to submit to the operation, this claimant requests a hearing before this honorable board in order to determine the advisability and necessity of certain operations." The city filed a response to the petition of the claimant, the material paragraphs of which are as follows: "Responding to the allegations contained in paragraphs 4, 5, 6, 7, 8, and 9, respondent, in conformity with the order of the board, did direct petitioner to report to Dr. Frank Eskridge and Dr. Fincher for the operation as required by the order of the board. The respondent is advised and believes that the doctors did make a thorough and comprehensive investigation of the condition of the petitioner, and reached the conclusion that he was suffering from arthritis and not from an herniated intervertebral disc. This was the opinion of Dr. Eskridge on the original trial. This opinion is no different from what it was at that time. The opinion of Dr. Fincher, of course, merely confirmed that of Dr. Eskridge that the disability resulted from disease rather than from injury. The allegations with respect to Dr. Walker are substantially correct. Further answering the allegations of the petitioner, respondent respectfully shows: (a) Attached hereto and marked `Exhibit A' is a copy of a letter transmitting the report of Dr. Exum Walker on the proposal to operate on the petitioner as directed by the board. This report shows that Dr. Walker is still of the opinion that the disability suffered by the petitioner results from herniation of an intervertebral disc; that an operation is highly desirable and will in all probability complete rehabilitation of the petitioner and enable him to go back to work. (b) Based upon the failure of the petitioner to accept the operation, respondent has treated his failure to report for the operation on the 17th as declining the operation tendered by the respondent, and therefore has discontinued compensation payments. (c) No facts are submitted by the claimant to show a change of condition, or any reason why the judgment heretofore entered in this cause should be vacated and set aside."

The city filed the following motion: "Comes now the respondent, City of Atlanta, and moves to dismiss the petition of J. E. Padgett to determine the advisability and necessity of an operation on the following grounds and for the following reasons: The question of whether or not an operation is advisable and necessary has already been entered in this case and has become the law of the case, no appeal having been filed therefrom. Wherefore the respondent moves that the petition be dismissed."

After the issue thus drawn by the pleadings between the parties referred to above relatively to the question whether the claimant should submit to an operation as contended by the city and denied by the claimant, the full board, after considering the case from the viewpoint of the issue thus raised, passed the following order bearing date of November 1, 1941, which order was directed to both parties and their attorneys: "This claim came on to be heard before the full Industrial Board upon application of the claimant upon the grounds of change of the status of medical opinion concerning the condition of the claimant since the award of the Industrial Board directing the claimant to submit to an operation, requesting a hearing to determine the advisability and necessity of an operation due to such change. After a careful review of the record in this claim all of the directors are of the opinion that this claim should be remanded to a single director of the Industrial Board for the purpose of determining if there is a change in condition of the claimant. It is therefore ordered that this claim be and is hereby remanded to a single director of the Industrial Board for the purpose of determining if there is a change in the claimant's condition. All parties will be notified of the time, date, and place of the hearing when the same is set." Based on the foregoing order the board after due notice to all parties set the date for the hearing last above referred to for December 5, 1941. On the last-mentioned date both parties appeared and submitted evidence before a single director. The director turned the evidence over to the full board on December 22. After notice the full board heard argument and reached the conclusion and judgment as follows:

"The evidence adduced at this hearing developed the following pertinent facts: The claimant, in accordance with the award of the Industrial Board, submitted himself to the St. Joseph's Hospital some time the latter part of June for the operation for the repair of the intervertebral disc, remaining in the hospital from Monday until Tuesday of the following week, or eight (8) days. Dr. Frank Eskridge, one of the defendant's physicians, attended him on several occasions. Dr. Ed Fincher, another of the defendant's physicians, made two or three visits, making a thorough examination including the taking of x-ray pictures, and on Sunday afternoon after the claimant had been in the hospital for a week he was advised by Dr. Frank Eskridge that he could go home, stating that Dr. Fincher was not going to operate, and he did return home on the following Tuesday, whereupon he called Dr. Ed Fincher on the telephone and had a conversation with the doctor in which the doctor said he was not going to operate. Some time in September, on or about the 12th of September, the claimant received a letter from his employer instructing him to go to Dr. Exum Walker. He immediately complied with the request of the employer and submitted himself for an examination by Dr. Walker. The doctor advised the claimant that he could operate. The claimant refused this operation by Dr. Walker and the employer stopped the payments of compensation.

"The claimant testified in his own behalf stating that after he had submitted himself to the two doctors of the employer's choice and they had refused to operate upon him, knowing Dr. Ed Fincher to be a very able surgeon, that he was afraid to undergo an operation. There were three physicians testified at this hearing as follows: Dr. Frank Eskridge, and Dr. Exum Walker on behalf of the defendants, and Dr. F. C. Mims, called as a disinterested physician by the Industrial Board. Dr. Exum Walker stated that he had examined the claimant on September 17, 1941, and upon examination found there was evidence of considerable nerve destruction as demonstrated by the changes and complete loss of the right ankle jerk and that the claimant had a real lesion. It was his opinion that if the claimant really wanted to get well and go back to work, a 90 per cent. chance of complete rehabilitation could be expected by the operative correction of the lesion; stating further that the claimant undoubtedly had a herniation of either the 4th or 5th lumbar intervertebral disc. The doctor demonstrated from X-ray pictures, stating that the real arthritis is the so-called osteoarthritic spur found at the level of the fourth lumbar intervertebral disc, right side, but that this condition would not interfere with the operation nor would it increase the hazard of the operation. The doctor stated that the percentage of successes he had had in similar operations that he had an expectancy of 90 per cent. for satisfactory results. Elaborating on this statement the doctor stated that he meant that if he operated on ten people, nine of them would be completely recovered, never having a patient after one of these operations to be worse but have had some who have been partially relieved. The doctor testified further that he was acquainted with Dr. Ed Fincher professionally and that he thought he was well qualified to pass judgment or spend an opinion on the claimant's condition, stating further that he did not think that Dr. Fincher's refusal to operate was justifiable, simply basing that as his opinion against Dr. Fincher. The doctor stated that the x-ray pictures, that latter x-ray pictures, would show that the arthritic spur was greater. The doctor testified further that if the claimant had submitted himself to the hospital for this operation by Dr. Ed Fincher and if the doctor had refused to operate on the claimant that he thought this in itself would be enough to justify the claimant's hesitation in going to another doctor. The doctor stated further that he had not advised the claimant to take this operation, but had only stated that the operation would give him a 90 per cent. chance of being physically capable of working; that he had not advised the operation nor would be now advise the operation, and that in the event he operated upon the claimant he could not promise that the claimant would not be the one out of the ten instead of the tenth one. The doctor stated further that he thought in this particular case that the longer they wait until the time of the operation the probabilities are less of going back to work and he thought that this man had waited until he was relatively comfortable sitting around and he has nothing to do but think about this and he does not know who is right or wrong and he is not going to do anything as a result of this situation. It was the doctor's opinion that he thought the operation on the man would make him physically capable of going back to work, being his opinion that there was no more danger in the operation now than there was six months or a year ago, nor was there any lessening of the likelihood of complete rehabilitation, stating further that the hazard of the operation had not increased except to take into consideration that the man was now older and naturally the risk would be slightly more, but six months could hardly be accountable. He stated further that in the event the claimant did not have this operation that there was a likelihood that he would recover but that he could not be positive about that, stating further that he did not imagine that the arthritis had any effect on the herniated disc and that the removal of the herniated disc would not have any effect on the arthritis. Dr. Frank Eskridge testified in behalf of the defendants stating that he had seen the claimant in July, 1941, and that at that time he had the claimant in the hospital where they made x-rays and put him through an air injection. He and Dr. Fincher had decided in the face of the extensive amount of arthritic involvement that the operation would not be a success, certainly not a 100 per cent. success. He stated further that their conclusions were that the x-rays were by no means conclusive of an intervertebral disc issue, and the arthritis was probably causing the change in the shadows that they had viewed in the x-rays and that the removal of the disc, if there had been one, would be a removal of the disability provided the operative procedure itself did not flare up a secondary type of arthritis in its path. The possibility was very strong that this would be the case because any trauma or manipulation is likely to flare up a pre-existing arthritic condition into a much more sensitive involvement sometimes called a traumatic arthritis. He stated that it was his opinion at the present time that the claimant was totally disabled for manual labor because of his disability being extensive arthritis, stating that it was possible for part of his disability to be due to herniated disc. Dr. F. C. Mims testified that he had examined the claimant first in May, 1941, and again November 28, 1941, or just prior to the hearings making a thorough examination including x-ray pictures of the spine. In accordance with this examination he found the claimant to be totally and permanently disabled and that it was his opinion that it would be extremely doubtful that an operation would be of any benefit, stating that the claimant when he had examined him in May, 1940, had a mild osteoarthritis as shown by the x-ray and that the osteoarthritis condition had increased, and it was a fact that if you operated upon an area where an osteoarthritis exists, the opportunity of getting good results is greatly diminished because there is a low-grade inflammatory present. The doctor exhibited x-ray pictures made in 1940 and x-ray pictures made in November, 1941, showing that the osteoarthritis had increased; that the spur is more than twice as long and twice as thick, stating that in 1940 the claimant had no more arthritis than would be expected in a man of his age, most men of his age having some osteoarthritis. He further stated that basing his opinion on the fact that it had been more than two years since the injury, the claimant having had pressure on the nerve roots during that period, and certainly pressure over that length of time, even if it is relieved now, there is a permanent damage and he did not believe this permanent damage would be eliminated by the operation, the claimant would still be 100 per cent. disabled for practical purposes. The doctor stated further that the cause of the present disability was a herniated disc, being the major cause, and that osteoarthritis was the contributing cause.

"Finding of fact: After a careful study of the evidence adduced at this hearing, the Industrial Board finds as a matter of fact and rules as a matter of law from the preponderance of the medical testimony adduced at the hearing on December 5, 1941, that the operation for the repair of the herniated intervertebral disc would not be advisable at this time, it being the opinion of the Industrial Board that too much time having elapsed since the date of the injury and certain arthritic changes in the claimant's back, the operation would not lessen the claimant's disability. The Industrial Board also finds that the claimant did comply with the terms of the award of the Industrial Board when he submitted himself to the hospital of the employer's choice and the doctors of the employer's choice for an operation some time in July, 1941, and when the physicians selected for the operation by the employer refused to operate the claimant had discharged his obligation in accordance with the award of the Industrial Board, and his refusal later to submit to the same operation by another doctor of the employer's choice was just, it being reasonable to assume by the Industrial Board that any person would hesitate to accept a major operation after eminent physicians had refused to operate for him. The refusal of the claimant to submit to this operation being amply borne out by one of the physicians selected by the employer as well as the physician selected by the Industrial Board, the Industrial Board finds as a matter of fact that the claimant's refusal was justified. As to the cause of the claimant's disability, that question is res adjudicata because of the findings of fact of Deputy Director Hartley in the original opinion in this case of June 24, 1940, to the effect that the claimant suffered an injury which resulted in a ruptured intervertebral disc, which produced his disability, and from which, under the evidence now before this board, he is still suffering and will continue to suffer permanently. Therefore, in accordance with the above and foregoing findings and conclusions of law, it is the award of the Industrial Board that the employer resume the payments of compensation as of the date of the last payment of compensation and continue for a period of 350 weeks, the employer being allowed to take credit for the weeks already having been paid. All accrued compensation is due and payable immediately."

On appeal to the superior court this award was affirmed. On this judgment the City of Atlanta assigns error as follows: "1. The directors acted without or in excess of their powers. 2. The facts found by the directors do not support the order or decree. 3. There is not sufficient competent evidence in the record to warrant the directors to make the order or decree complained of. 4. The order or decree entered by the Industrial Board is contrary to law." The alleged errors of which complaint is made may be grouped into two divisions: first, the board acted in excess of authority and contrary to law; second, the evidence did not warrant the finding. We have set out in unusual detail the record in this case. We have made diligent search and have been unable to find where this court or any other court has passed upon a similar case.

1. This contention arose under Code § 114-501, which reads as follows: "In case of a controversy arising between the employer and the employee relative to the continuance of medical, surgical, hospital, or other treatment, the board may order such further treatments as may in the discretion of the board be necessary. The board may at any time upon request of an employee order a change of treatment and designate other treatment suggested by the injured employee subject to the approval of the board, and in such a case the expense thereof shall be borne by the employer upon the same terms and conditions as hereinbefore provided in this section for medical and surgical treatment and attendance. The refusal of the employee to accept any medical, hospital, surgical, or other treatment when ordered by the Industrial Board shall bar said employee from further compensation until such refusal ceases, and no compensation shall at any time be paid for the period of suspension unless in the opinion of the Industrial Board the circumstances justify the refusal, in which case the Board may order a change in the medical or hospital service."

Counsel for plaintiff in error cite a number of decisions, beginning with Teems v. American Mutual Liability InsuranceCo., 41 Ga. App. 100 (151 S.E. 826). The ruling in that case is of no assistance in deciding the point before us. The case simply holds that, where the Industrial Board has adjudged that the refusal of the claimant to accept medical services tendered by the employer was unreasonable on the part of the claimant, he was not entitled to receive compensation from the date of the injury to the date the medical services were refused, and that such adjudgment by the board operates as res judicata as to the right of the claimant to compensation for the period between the date of the injury and the date on which the tendered medical services were refused by the claimant. And, too, this judgment was based on the statement, "in the absence of any possible subsequent change in condition." The facts in the Teems case thus differentiate it from the case at bar.

Our attention is next called to New Amsterdam Casualty Co. v. McFarley, 191 Ga. 334 (12 S.E.2d 355). That case is not in point for the reason that there the proceeding was brought under and dealt with the principles of law prescribed in Code § 114-709. On page 338 the Supreme Court distinctly stated: "Hence the question of compensation in the form of medical aid under section 114-501 is not involved." So what is said in theMcFarley case does not bear on the case before us.

We are next cited to Williams v. United States CasualtyCo., 47 Ga. App. 508 (170 S.E. 894). That case arose and was determined under the Code, § 114-709, and not under § 114-501. With reference to that case, however, collaterally we might here with benefit quote a decision which Judge MacIntyre quoted in theWilliams case: "At page 329 of the Michigan Report here cited, the case of Mead v. Lockhart, 2 B. W. C. C. 398, is cited as authority on the point. In that British case the employers applied for a review of a former award and tendered evidence to show that the medical evidence given on the former award as to the claimant's condition at that time was wrong. The claimant objected to the tender of evidence on the ground that his condition at the former time was res adjudicata and it was open to the employers only to show some change in his condition since the former award, and the court held that the claimant's condition was not res adjudicata. In Sharman v. Holliday, 1 K. B. (1904) 235, 240, Mathew, L. J., said: `The condition of the workman's health at the time of the original award is in such a case as this a subject of medical opinion and speculation, and ought not in reason to be treated as conclusively determined for the purposes of the workmen's compensation act . . by the decision of the county-court judge on the original hearing, as if it were a disputed fact which, upon conflicting evidence, had been determined on the trial of an action.' In Thranmere c. Co.v. Brennan, 2 B. W. C. C. 403, two doctors gave evidence on the occasion of the first application and gave evidence again on the occasion of a second hearing. The trial judge, on the second hearing, held that it was virtually an appeal against an existing decision, and that in his opinion the facts were adjudicated at the first hearing; but this determination was reversed by the appellate tribunal, which sent the case back for adjudication in accordance with evidence which might be tendered anew. In Radcliffe v. Pacific c. Co., 1 K. B. (1910) 685, the question raised by the appeal was `whether there could be a review of the weekly payments with no change in the physical condition of the injured workman since the last award or review, that question being in effect res judicata.' It was said by Cozens-Hardy, M. R., page 688: `It must never be forgotten that a review under clause 16 is not an appeal, nor is it a rehearing. It implies the introduction of new elements, or, as has been often said, a change of circumstances. It is not at first obvious that the doctrine of res judicata can in any way apply to an award which is expressly made liable to review. But it has been held, and I think rightly held, that an award stating that a man's wages at the date of the accident were ten shillings can not be reviewed on such a point. Crossfield Sons Ld. v. Tanian. That is a positive fact, not admitting of a change of circumstances, and not a matter of opinion. The same consideration would prevent the reopening of an award finding that A. B. is or is not a dependent. On the other hand, it has been held that an award based upon medical opinion of a man's physical condition at one time in no way prevents a different award at a subsequent date when experience may have proved that the view of the doctors was wrong: Sharman v. Holliday Greenwood Ld. In the language of Lord Collins, "I think there is a change of circumstances where subsequent experiment has shewn that the previous opinion based on expert evidence was wrong." ' In the same case Fletcher Moulton, L. J., said: `I am of the opinion that the particular question raised in this appeal is fully covered by the decision of the Court of Appeal in Sharman v. Holliday Greenwood Ld. It was held in that case that a decision as to the condition of the workman and the nature of his injuries did not constitute res judicata, because it was merely the expression of opinion based on the evidence then procurable, and that it might be corrected at a future time when experience and future developments had increased the materials for arriving at a correct conclusion.'"

Our attention is next called to South v. IndemnityInsurance Co., 39 Ga. App. 47 (146 S.E. 45). This case arose under a proceeding brought under a provision of Code § 114-709. However, as a sidelight on the issue now before us, we might take into consideration a pronouncement of the court as set out in the third headnote, as follows: "Upon an application for such review, the essentials leading up to the award are to be taken as res judicata, but the physical condition of the employee remains open to inquiry."

We have studied very carefully the decisions hereinbefore mentioned, these being all the authorities to which counsel for the plaintiff in error call our attention. As stated, they are differentiated from the case before us for the reasons hereinbefore stated. It must be kept in mind that we are dealing with the provisions of Code § 114-501. The provisions of this section deal with a subject-matter entirely different from that dealt with in Code § 114-709. A proceeding under the latter is to determine whether a change in the physical condition of the claimant has taken place, as a matter of fact, since a previous adjudication on the question; and, consequently, to determine whether the compensation then being paid shall be ended, diminished, or increased. The provisions of Code § 114-501 are not designed to determine a change in the physical condition of the claimant to the end that the compensation then being received by the claimant shall be altered directly by the proceedings provided under § 114-501. Such proceedings are for the purpose of determining, in so far as medical services offered by the employer are concerned, whether the board will require the claimant to accept the medical services offered by the employer with a view of lessening or removing a compensable physical injury which the Industrial Board has declared existed and for which the claimant is receiving compensation. Of course this is not the only provision regarding medical treatment of a claimant. We are only dealing with medical and surgical treatment presented under the facts of this case. It is one thing to require the claimant to submit to reasonable medical and surgical treatment under Code § 114-501 in an effort to bring about a change in condition, and an entirely different thing to determine whether or not a change in condition has already taken place. The Code, § 114-709, deals with the latter, and § 114-501 deals with the former.

The claimant in the instant case was ordered to submit to an operation with a view of lessening or removing his disability. If the operation had been performed and if his disability had been lessened or removed, then, still, the fact of the change would remain to be established in accordance with the provisions of § 114-709. This brings us to the question as to whether the Industrial Board, moving under the authority of Code § 114-501, after having on competent evidence determined that the claimant should be required to submit to an operation as set forth in its order of March 20, 1941, could, after the claimant had submitted himself, under the direction of the employer, to the hospital of their choosing, under the care of the physician and the surgeon designated, and after having remained in the hospital for eight days under the observation and tests of such doctors, who refused to operate on the ground that it would be dangerous and useless to do so, order another hearing to determine whether the claimant should submit to an operation by another surgeon notwithstanding two out of three doctors appointed by the board had refused to operate, and on such other hearing, on the testimony of the two doctors making the tests and a doctor called in by the board, determine that the claimant had complied with the order of the board to submit to an operation and that the claimant should not be required further to submit himself to one of the doctors for an operation at the instance of the employer. The doctor proposed by the employer to do the operation was one of the three doctors named by the board in its order of March 20, 1941. The Industrial Board held that the claimant would not be required to submit to a proffered operation by the single doctor, and held that the claimant had complied with the order of the board and that the employer should continue the payment of compensation.

The plaintiff in error contends that, since the court had once determined under competent medical testimony that an operation would lessen or remove the disability, this was res judicata, and the board was without authority to have another hearing and determine that an operation would not do so. We do not think it was the intention of the legislature that the law should have any such effect. It was held in Western Union Telegraph Co. v.Smith, 50 Ga. App. 585, 586 (178 S.E. 472): "The workmen's compensation act of this State and its amendments, `though in derogation of the common law, being highly remedial in character, should be liberally and broadly construed to effect their benevolent purpose.' New Amsterdam Casualty Co. v. Sumrell,30 Ga. App. 682 (118 S.E. 786); Van Treeck v. TravelersIns. Co., 157 Ga. 204 (121 S.E. 215); Atkinson v.Atkinson, 47 Ga. App. 345, 346 (170 S.E. 527)."

We think the provisions of Code § 114-501 as to what medical treatment should be required vest a broad discretion in the Industrial Board as to what medical treatment should be required of the claimant and a broad discretion regarding a change in medical or surgical treatment which the board might have ordered. The act provides: "In case of a controversy arising between the employer and the employee relative to the continuance of medical, surgical, hospital, or other treatment, the board may order such further treatments as may in the discretion of the board be necessary. The board may at any time upon request of an employee order a change of treatment and designate other treatment suggested by the injured employee subject to the approval of the board, and in such a case the expense thereof shall be borne by the employer upon the same terms and conditions as hereinbefore provided in this section for medical and surgical treatment and attendance. The refusal of the employee to accept any medical, hospital, surgical, or other treatment when ordered by the Industrial Board shall bar said employee from further compensation until such refusal ceases, and no compensation shall at any time be paid for the period of suspension unless in the opinion of the Industrial Board the circumstances justify the refusal, in which case the board may order a change in the medical or hospital service."

To place the construction on this section which the plaintiff in error seeks to invoke would, we think, be too harsh, and not in keeping with the legislative intent. To so hold would lay down the rule that if the best medical authorities (and the board had the best available in this case) were of the opinion that a major operation would lessen or remove the disability, and the board so ordered, but afterwards, upon further examination and days of observation, the eminent physicians should change their minds both as to the safety and as to the beneficial results of such operation, and they refused to operate, then the compensation must cease or the claimant must submit to an operation on a condition other than the board contemplated. To us this would be an unreasonable interpretation of the section. Counsel for plaintiff in error have much to say regarding the board's authority to change its judgment as to requiring the operation, on the ground that the notice contained the following words: "to determine if there was a change in the claimant's condition." This notice was given for the purpose of hearing argument before the full board. The question to be argued was that which arose out of the petition of the claimant and the answer of the employer dealing with the conduct of the claimant in submitting himself for the operation required and the refusal of the doctors to perform the operation. After these pleadings were filed with the Industrial Board the board passed the order hereinbefore set out in the statement of facts, dated November 1, 1941. By reference to such order it will be observed that the board fully adjudged what question would be determined. When the notice is read in connection with this order it will readily be seen that there is no variance between the question to be considered and the notice of argument upon it.

We have dealt with the question as though there had been no change in the physical condition of the claimant between the time the board ordered the operation and the time the doctors refused to operate. And we feel sure that if the change was one only of medical opinion and not a factual change in the condition of the claimant the board was authorized in its judgment complained of. However, upon a careful study of the record we are not prepared to say that the board was not justified in finding that, from the time the operation was ordered and the time of the refusal of the doctors to perform it, there was a factual change in the physical condition of the claimant sufficient for the board to hold that the operation would not be required under the Code, § 114-501. We confess that the evidence on this point is not altogether clear, but we are not in a position to hold as a matter of law that there is no evidence to sustain such conclusion. We find no reason to reverse the judgment on this ground.

2. In the light of what has been said hereinbefore, we find that there was sufficient evidence to amply sustain the finding of the Industrial Board.

The motion of the defendant in error to assess damages for delay is overruled.

Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.