64 Ind. App. 581 | Ind. Ct. App. | 1917
The appellant, Industrial Board, under §61 of the Indiana Workmen’s Compensation Act (Acts 1915 p. 392), has certified for our determination a question of law based upon the following statement of facts: “On the 16th day of October, 1916, A was in the employment of B at an average weekly wage of $14.75; that on said date the employe, while engaged in the discharge of the duties of his employment, received a personal injury by an accident arising out of and in the course of his employment, requiring and resulting in the amputation of the left foot through the metatarsal bones; that the employer had actual knowledge of the accident at the time that it occurred, called
The question of law which we are asked to determine is whether upon the foregoing facts the Industrial Board has authority under the act, supra, “to require said employer to continue surgical and hospital services and supplies after the expiration of the first thirty days from the date of the injury.”
The disposition of this question involves an interpretation and construction of §25 of said act, which provides as follows: “During the thirty days after
“The refusal of the employe to accept such service when provided by the employer shall bar said employe from further compensation until such refusal ceases, and no compensation shall at any time be payable 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.
“If in an emergency on account of the employer’s failure to provide the medical care for the first thirty days, as herein specified, or for other good reason, a physician other than that provided by the employer is called to treat the injured employe during the first thirty days, the reasonable cost of such service shall be paid by the employer subject to the approval of the Industrial Board.”
While the language of said section, however read, may be ambiguous and uncertain as to the discretionary authority and power intended by the legislature to be lodged in said board in the matter of requiring the employer to furnish an attending physician beyond the thirty-day period provided in said section, it seems to us that said language leaves no room for doubt that the legislature intended by said section to lodge in said board and the attending physician all the authority and power therein given and conferred in the matter of determining the necessity for “surgical and hospital service and supplies.” Such an interpretation of said section is at least consistent with its language, when read without the proviso, and is in perfect accord and harmony with the spirit and purpose of the act when read and considered in its entirety. This is so because it was certainly within the' clear purpose and intent of the legislature in the passage of said act, both in the interest of the injured employe and in the interest of the
It is also manifest from the act, when read in its entirety, that the legislature, having in mind the necessity for a fair and just administration of said act by a disinterested board, which would protect alike the interested parties and the State or the public, created the Industrial Board and clothed it with such discretionary supervising authority and control as was thought necessary for the purposes indicated.
That the legislature had in mind the interests of the employer — through whose agency the public is supposed to be protected — as well as those of the injured employe, is evidenced by the fact that said section gives to such employer the right to furnish an attending physician of his own choosing and requires the employe to accept such physician, subject to the condition that'if he refuses, without sufficient cause, the board may deny him the compensation provided by the act in question during the period of his refusal. The wisdom and fairness of such a provision as that just indicated is justified in other jurisdictions upon the ground that the employer is interested in a speedy and complete recovery of the injured party in order that it may be relieved from payment of compensation at the earliest moment possible. Milwaukee v. Miller, supra; Keigher v. Gen
The same reasoning authorizes the conclusion that a physician furnished by the employer would, in the interest of such employer, as well as of the employe, wisely use the discretion lodged in him, in the matter of determining the surgical and hospital service and supplies necessary in the particular case, to the end that the effects of the injury might be reduced to a minimum, and the disability removed at the earliest moment possible. However, to safeguard and protect the injured employe and guard against the possibility of any abuse that might result from a discretion lodged wholly in a physician selected by the employer, the Industrial Board, by said section, is likewise given discretion and authority in the matter of determining when, and what surgical and hospital service and supplies are deemed necessary. This brings" us to what seems to be the -most difficult phase of the question presented for our consideration. •
If during the first thirty days after the injury the employer furnishes such physician, or, without cause, fails to furnish such physician, in either event the attending physician or the Industrial Board may during such period require surgical and hospital services for which the employer may be properly charged. However, after the thirty-day period no obligation rests on the employer to furnish an attending physician, and in our judgment the board has no authority or discretionary power by which it may require such a service after the expiration of said period, and hence, unless the employer elects to furnish such attending physician, the power of such board to require surgical and hospital service and supplies ends with the expiration of said thirty-day period. If, however, the employer, believing that he may hasten the recovery of the injured employe, and shorten the period of the disability for which he will be required to pay compensation, or if for any other proper reason, such employer elects to furnish such physician, he may do so, in which case said section requires the acceptance of such service on the part of the injured employe. This provision was unnecessary in so far as it attempts to confer upon the employer the right to voluntarily furnish said service. The presence, however, of said provision in said section is to our mind an express recognition by the legislature that a situation might arise where the employer would be convinced that a more speedy recovery of the employe and a shortening of the period of compensation might result by continuing the service of the attending physician; and hence that in his own interests such employer might desire to voluntarily continue to furnish such service beyond the period in which he was required to furnish it; that while the employer might, without
Likewise, if the employe refuses to accept the service in either of the cases indicated, the board has authority, on proper application and showing, to determine whether such refusal is justified and if it deems proper may require his acceptance thereof, subject to the condition that during the continuance of his refusal to accept such service he will be deprived of the compensation provided in said act. We assume also that, even though the attending physician, in the cases indicated, had determined that such service was necessary, the board might, on proper application and showing by the
So, if in this case the Industrial Board is of the opinion that the evidence before it shows that the emergency for the amputation of the employe’s foot arose before the expiration of said thirty-day period, and that the amputation should have been and could have been performed before the expiration thereof, and that the employer was responsible for the delay that prevented the amputation before the expiration of such period, the board would be authorized, under the section of the act in question, in holding the employer liable 'for any surgical or hospital service and supplies that were in fact furnished or might have been furnished within said period, notwithstanding the employer’s said notice, and notwithstanding such service may not have been in fact furnished until after the expiration of said period. The board’s determination of the question of fact is, under said act,, conclusive and binding on this court. Except as indicated, the Industrial Board has no discretionary power or authority in the matter of holding the employer liable for the service involved.
Note.- — Reported in 116. N. E. 315. Workmen’s compensation: allowance to injured employe for medical and hospital services, L. R. A. 1917D 178.