40 Ga. App. 38 | Ga. Ct. App. | 1929
(After stating the foregoing facts.) The right of the employer and the insurance carrier to suspend the payments of compensation, after compensation lias been awarded by the industrial commission, or agreed upon with the approval of the commission as in this case, is found in section 26 of the workmen’s compensation act, approved August 17, 1920 (Ga. L. 1920, p. 167, 181). This section of the act, after providing for furnishing by the employer to the injured employee such necessary medical attention as the nature of the accident may require, provides further that, “during the whole or any part of the remainder of disability resulting from the injury, the employer may, at his own option, continue to furnish or cause to be furnished, free of charge to the employee, and the employee shall accept, an attending physician, unless otherwise ordered by the industrial commission, and in addition such surgical and hospital service and supplies as may be deemed necessary by said attending physician or the industrial commission,” and that “the refusal of the employee to accept any medical, hospital, or surgical service when provided by the employer, or on order by, the industrial commission, 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 commission the circumstances justified the refusal, in which case the industrial commission may order a change in the medical or hospital service.”
While section 26 of the workmen’s compensation act provides literally that “the refusal of the employee to accept any medical, hospital, or surgical service when provided by the employer” will bar the employee from “further compensation until such refusal ceases,” it further provides that “no compensation shall at any time be paid for the period of suspension unless in the opinion of the industrial commission the circumstances justified the refusal.” Section 28 of the act provides that “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 or reasonable surgical treatment.” It is therefore clearly within the contemplation of the act that the refusal of the injured employee to accept medical, hospital, or surgi
The power given by the act to the commission, to determine whether the injured employee’s refusal to accept the mediqal, hospital, or surgical services tendered by the employer is justified, is not, under a proper construction of the act, an arbitrary power, but is a power which can be exercised by the commission only after an inquiry into and a consideration of all “the circumstances,” in order to determine whether the injured employee’s refusal to accept the tendered services is justified. This power can be legally exercised only after a consideration of evidence, and is therefore in its nature judicial. It follows, therefore, that any judgment or order rendered pursuant to this power is erroneous and illegal, unless supported and sustained by competent legal evidence. Where such a judgment or order is in its nature final, as is an order denying compensation upon the ground that the refusal of the injured employee to accept the surgical services tendered him by the employer is unreasonable and unjustified, the judgment is, under the provisions of section 59 of the act, subject to review on appeal to the superior court, and should there be set aside if “there is not sufficient competent evidence in the record to warrant the industrial commission in making the order.”
In this ease the industrial commission held that the injured employee was not justified in refusing to accept the surgical treatment tendered him by the employer, and denied compensation. The undisputed evidence adduced upon the hearing, and upon which this order was predicated, as appears from the statement of facts recited, supra, was that the surgical treatment tendered to the injured employee by the employer was that the employee’s leg,
The evidence is therefore conclusive and without dispute that the surgical treatment tendered by the employer to the injured employee, namely, the rebreaking of the employee’s leg, was an operation which would endanger the employee’s life, and which from its nature must necessarily be accompanied with great physical and mental pain, that the chances of a benefit to the injured employee did not.exceed 50 per cent., and therefore there was no reasonable' expectancy that the operation would be a success and would thereby reduce the compensation, and none of the physicians who testified would recommend it.
The reduction of the effect of an injury, and the consequent reduction in the amount of compensation payable by the employer therefor, is the only interest which the employer has in- requiring
The only reasonable inference therefore that can be drawn from the undisputed testimony is that the refusal of the injured employee to accept from the employer the operation tendered was reasonable and justified, and that the judgment of the commission, that the refusal of the injured employee to accept this operation was not justified, is without evidence to support it and is contrary to law.
The right of the injured employee to refuse, without forfeiting his right to receive compensation, medical or surgical treatment tendered him by the employer, where the treatment tendered is dangerous to life or health and is accompanied with extraordinary pain and suffering, and where it does not appear that the treatment tendered could reasonably be expected to relieve the injury and thereby reduce the amount of compensation, seems to be sustained by all the authorities. In support of this proposition, see a collection of American and English authorities cited in an annotation to a reported case beginning on page 1261 of 6 A. L. R. We quote from this annotation as follows: “In Rothwell v. Davies (1903), 19 Times L. R. (Eng.) 423, compensation was held not to be barred because of the refusal of a workman to undergo an operation, which, although probably successful, would be attended with a certain amount of risk. And in Vonnegut Hardware Co. v. Rose (1918), [68 Ind. App. 385] 120 N E. 608, an award of compensation for the death of a workman was sustained, notwithstanding his refusal to submit to an operation, where some of the evidence tended to show that the operation contemplated was a dangerous one. . . In McNally v. Hudson & M. R. Co. (1915), 87 N. J. L. 455 (95 Atl. 122, 10 N. C. C. A. 185), the court stated that it could not be properly said that, where it appears that a risk of life is involved, the refusal of the prosecutor to submit to an operation is unreasonable. In speaking of the duty of an employee to submit to an operation, the court said: ‘Although the peril to life seems to be very slight, — 48 chances in 23,000 — nevertheless the idea is appalling to one’s conscience that a human being should be compelled to take a risk of death, however slight that may be, in order that the pecuniary obligation
In 2 Schneider’s Workmen’s Compensation Law, § 496, the author, in commenting upon various adjudications from various jurisdictions, says: “An employee is not compelled to undergo an operation, in order that he may not forfeit his right to com
The denial of compensation to an injured employee because of his refusal to submit to surgical treatment tendered by the em: ployer occurs usually where the operation is a minor one and it i.s reasonably certain that the operation.will afford some relief and thereby reduce the compensation. See Southern California Edison Co. v. Industrial Accident Commission, 75 Cal. 709 (243 Pac. 455); Joliet Motor Co. v. Industrial Board, 280 Ill. 148 (117 N. E.
It appears conclusively, as a matter of law, under the undisputed evidence, that the injured employee was justified in refusing the surgical treatment tendered him by the employer, namely the re-breaking of his leg. The industrial commission therefore erred in denying to the injured employee further compensation, upon the ground that his refusal to accept the surgical'treatment tendered him was unreasonable; and the judge of the superior court erred in affirming the judgment of the industrial commission.
Judgment reversed.