E. Weiner Co. v. Freygang

171 Wis. 187 | Wis. | 1920

Owen, J.

Appellants contend that the testimony taken before the Industrial Commission conclusively áhows that the proximate cause of the death of Robert Freygang was his unreasonable refusal to submit to and follow the treatment of his physician, and that there is no evidence to support the finding of the Commission to the effect that the injury sustained by him on the 27th or 29th day of April was the proximate cause of his death.

The legal principles involved were recently treated in Banner C. Co. v. Billig, 170 Wis. 157, 174 N. W. 544, to which this case is quite similar, and need not here he restated. The only question that need be considered is whether there was any evidence to support the finding of the Commission that the accident was the proximate cause of the death. The evidence shows that on the 1st day of May Dr. Harder first called upon and treated Freygang. He found an infected abrasion of the leg. He prescribed antiseptic treatments and bandaged the wound. The doctor claims that Freygang kept the bandage on for only two days, and on the third day removed it and' told the doctor that he would not use his treatment any more. He examined Freygang’s leg then, and the infection had spread above the knee. He told Freygang he thought there was an abscess on the knee and that he ought to go to a hospital and have it opened up. Freygang refused to listen to his advice. Between May 1st and May 6th he called on him five times. On May 6th he made a last effort to induce him to follow his treatment, and because he would not do so he declined further to treat him. On May 7th Dr. Boerner was called and Freygang was removed to the hospital and was thereafter regularly attended by Dr. Boerner.

Appellants contend that because Freygang refused to follow the treatment prescribed by Dr. Harder the infection resulted in death, the proximate cause of which was such refusal of said Freygang and not the accident. In order to sustain this contention it must appear (1) that, the undisputed evidence discloses that Freygang did unreasonably refuse to follow the prescribed treatment, and (2) that had he followed it death would not have resulted. An examination of the record convinces us that there was evidence to support a finding either way upon these two questions. While Dr. Harder testifies that he refused to follow his instructions, one Edward W. Klotz, who lived upstairs in the same house with Freygang, testified positively that he did religiously follow the treatment prescribed by Dr. Harder. Upon the second question, three physicians testified that the treatment prescribed by Dr. Harder was proper treatment and that had it been followed death probably would not have resulted. That is the most than can be claimed for the medical testimony. We do not think that upon this testimony the Commission was compelled to find that had the treatment been followed death would not have resulted, which is but a corollary to a finding that the refusal of Freygang to follow the treatment prescribed by the doctor was the proximate cause of death. It is well settled that if there is any evidence to support the award of the Industrial Commission it cannot be set aside.

By the Court. — Judgment affirmed.