158 N.Y.S. 939 | N.Y. App. Div. | 1916
Lead Opinion
One Frank Pisarzky was an employee of the defendant and while in its service on January 19, 1915, sustained an injury for which he was entitled to compensation under the Workmen’s Compensation Law. The defendant provided a concededly competent physician and surgeon to care for Pisarzky until January 23, 1915, when the latter arbitrarily refused to accept such services and requested the defendant to provide for him the services of the plaintiff, who is a physician and surgeon, which the defendant declined to do. The plaintiff thereafter rendered medical services to Pisarzky and presented a bill therefor to the defendant amounting to fifty-four dollars, which the defendant refused to pay. The State Industrial Commission thereafter, without notice to the defendant, approved said bill at forty dollars, and the question for our consideration is whether the defendant is liable therefor to the plaintiff.
The Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41) in section 13 thereof provides as follows: “ The employer shall promptly provide for an injured employee such medical, surgical or other attendance or treatment, nurse and hospital service, medicines, crutches and apparatus as may be required or be requested by the employee, during sixty days after the injury. If the employer fail to provide the same, the injured employee may do so at the expense of the employer. The employee shall not be 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. All fees and other charges for such treatment and services shall be subject to regulation by the Commission as provided in section twenty-four of this chapter,
Stated concretely the practical question is whether the employer or an injured employee may designate the particular individual or individuals who are to furnish.the “medical, surgical or other attendance or treatment, nurse and hospital service ” which the statute contemplates shall be provided by the employer. The question is one of statutory construction, and such construction must be given as most accords with the phraseology employed in the statute and as may be most reasonable and conducive to public policy and the objects sought to be accomplished by the statute.
Similar provisions are contained in the Workmen’s Compensation Laws of many of the States of .the United States, but in none of them has any decision been brought to our attention where it has been held that the employee could select the individual to render the services which the employer was required to provide. The phraseology of the statutes in the various States differs and consequently no precedent exists for the interpretation which should be placed on the statute of this State, but the fact that it has nowhere been held that the employee can exercise this privilege is somewhat indicative of the general policy of the law on the subject. In City of Milwaukee v. Miller (154 Wis. 652, 665) the Supreme Court of that State said: “The burden for all reasonable medical aid and surgical treatment, medicine, etc., is cast on the employer, limited as to time, with the very wise and necessary safeguard against imposition that the choice of the medical or surgical attendant shall be left with him and that, if the injured person unnecessarily chooses hfs own physician, he will do so at the peril of having
It is urged in the present case, however, that the use of the word “ requested ” in section 13 of the act above quoted indicates that the employee may exercise his choice as to the person who shall render him service. I am unable to appreciate the force of this argument. Whatever distinction may exist between the words “required” and “requested” as used in the statute and. whatever additional force or meaning is given' to the statute by the use of. the word “ requested ” it seems to me quite clear that both words relate to the nature or character of the attendance, or treatment or services' and not to the personnel of the one who is to render such attendance or treat
Furthermore, I am unable to see why any request should be made of the employer if the latter has no choice in the selection. The law does not require the performance of useless acts. If an injured employee may select a particular physician at the expense of the employer why should he request the employer to provide him ? Why that circuity of action if the employer can do nothing but execute the wish of the employee ? It would be more direct for the employee himself to call the physician instead of asking the employer to do so. The purpose isnot to enable the employer to make a contract with the physician and thus protect himself against exorbitant charges, because the
The employer of course cannot make an unreasonable selection. There may be instances where the employee would have a right to be consulted and a reasonable and proper deference paid to his wishes. In Massachusetts the statute (Acts of 1911 chap. 151, pt. II, § 5)
Judgment is ordered for the defendant, without costs.
All concurred, Kellogg, P. J., in result in opinion, in which Lyon, J., concurred.
Since amd. by Acts of 1914, chap. 708, § 1.— [Rep.
Concurrence Opinion
The provisions of section 13 of the Worxmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap.'41) are not intended for the benefit of the employer but of the injured employee. The fact that the payments to be made by the employer may depend upon the duration of the disability has nothing to do with the choice of the doctor or nurse or hospital, because after sixty days the injured employee must obtain and pay for his own doctor, nurse or hospital. The provision, therefore, is an emergency one to tide over the first sixty days, it being considered that the claimant will then have his award and will be able to employ a doctor for himself. His wages are stopped, and the circumstances require immediate help. I think the section means, so far as we are interested in it, that the employer must furnish a doctor such as the . circumstances reasonably require and as the injured employee may reasonably request. A sick man must select his own doctor, nurse or hospital; otherwise the benefits intended will not be realized. There is no reason why the company should dictate as to the personnel of the doctor, the nurse or of a hospital for the first sixty days and have no voice in those matters after that time. It may cost the company less to select its own doctor, but the interest of the patient and not the economy of the employer was in the mind of the Legisla
Lyon, J., concurred.
Judgment ordered for the defendant, without costs.