Baker v. Wycoff (Industrial Commission, Intervener)

• Decision Date: 19 May 1938
• Docket Number: 5920
• Citation: 79 P.2d 77,95 Utah 199
• Court: Utah Supreme Court
• Parties: BAKER v. WYCOFF (INDUSTRIAL COMMISSION, Intervener)

79 P.2d 77

95 Utah 199

BAKER v. WYCOFF (INDUSTRIAL COMMISSION, Intervener)

No. 5920

Supreme Court of Utah

May 19, 1938

Appeal from District Court, Third District, Salt Lake County; P. C Evans, Judge.

Action by Dennis A. Baker against M. S. Wycoff, administrator of the estate of Dr. William T. Elliott, deceased, for the alleged negligence of Dr. William T. Elliott in treating plaintiff for injuries, wherein the Industrial Commission of Utah intervened. From a judgment for the Industrial Commission the administrator appeals.

AFFIRMED.

Gardner & Latimer, of Salt Lake City, for appellant.

Shirley P. Jones, of Salt Lake City, for respondent Baker.

Shirley P. Jones and H. A. Rich, both of Salt Lake City, for respondent Industrial Commission.

FOLLAND Chief Justice. HANSON, WOLFE, and LARSON, JJ., MOFFAT Justice, concurring.

OPINION

FOLLAND, Chief Justice.

The important question on this appeal is whether an insurance carrier who has paid compensation to an injured workman under the Industrial Compensation Act may maintain an action, under the provisions of section 42-1-58, R. S. Utah 1933, against a physician for alleged negligence in treating the workman. Plaintiff, Dennis A. Baker, is a workman who sustained a compensable injury in industry. He commenced this action against Dr. William T. Elliott for damages alleging negligence in diagnosing and treating the injury. The Industrial Commission, administrator of the State Insurance Fund, the insurance carrier, intervened and alleged the cause of action of the workman had been by statute assigned to it and that it was subrogated to the rights of the workman by reason of having paid compensation, including hospital and medical expenses, covering both the original injury and additional injury or aggravation of the original injury by negligence of the doctor. The trial court sustained defendant's demurrer to plaintiff's complaint. We are not required to review the court's action in this respect by any cross-appeal or assignment of error, and may assume for the purpose of this case that the ruling was correct. The intervener, the Industrial Commission, recovered judgment against the physician in a sum larger than necessary to make it whole for money paid and to be paid on its liability to the workman. Pending the appeal, Dr. Elliott died, and the administrator of his estate was substituted as defendant and appellant.

The record discloses the facts to be that on December 9, 1933, Baker suffered an injury by accident in the coal mine of the Mutual Coal Company in Carbon county. A mass of coal, weighing about 500 pounds, fell from the roof, hitting him and knocking him to the floor, part of the coal pinning his left leg to the ground. He was given aid at the camp by Dr. Reese, an employee of Dr. Elliott, the company physician, and was taken as soon as possible to the Price Hospital where Dr. Elliott took charge of the case. The physician palpated the muscles of the hip, made measurements of the leg, and took X-ray pictures of the pelvic region. The diagnosis made was dislocation of the hip joint which had been reduced. The treatment given was on the assumption that the diagnosis was correct. The patient's legs were bandaged together at the knees and ankles, and the patient put to bed. Another X-ray picture was taken on December 15th. The patient complained of pain during the entire time he remained in the hospital and later. The pain should have abated within a few days had there been a dislocated hip which had been reduced. This condition was apparently the reason for taking the picture on December 15th. The doctor stated he could not find any evidence of fracture of the neck of the femur, but suspected a fracture of the glenoid. In February the patient was allowed to go on crutches, commencing at first for about ten minutes each day, which period was gradually extended. He left the hospital in May, walking on two crutches and bearing some weight on the left leg. At that time, with the defendant's permission, he purchased an automobile and practised manipulating the clutch with his foot. In May he went to California where he continued to use his leg and did some farm work such as hoeing and irrigating. In August he returned to Helper, Utah, walking with two canes. He there consulted Dr. Elliott who took another X-ray picture. The physician concluded the man had really suffered a fracture of the bone at the neck of the femur, but thought he could see evidence of callous and "thought probably he would get a fairly serviceable fibrous union." No change in treatment was prescribed. Baker wanted to go back to California and the doctor told him he could go, but to continue the use of the leg as he had been doing. Pain in the leg persisted, and there was some looseness at the left hip joint. The left leg was shorter than the other and had been for some time. Baker came back to Helper in November and in that month consulted the Industrial Commission at Salt Lake City. He was sent by the commission to Dr. Lawrence N. Ossman who made an examination and had X-ray pictures taken. Dr. Ossman found that there had been a fracture at the neck of the femur and that the bone had not reunited. An operation was performed. There was found an ununited fracture at the neck of the femur with almost complete absorption at the neck and a small devitalized shell representing the head of the femur. The operation was what is called a reconstruction operation. After five months in the hospital, Baker was released and has gradually been getting better, but is left in a partially disabled and crippled condition which will be permanent. He is not physically able to perform difficult manual labor and cannot continue his occupation as machine man in an underground coal mine. Had his injury been accurately diagnosed in the beginning and proper treatment given for the fracture, there would have been a fair chance for complete recovery within six to nine months' time.

The questions raised by the 30 assignments of error may be for convenience grouped under 4 heads: (1) Has the insurer, the intervener, the legal right to maintain this action? (2) Do the facts found by the court constitute actionable negligence on the part of the physician? (3) Is the judgment valid where it includes a sum greater than necessary to pay the insurer the amount paid and to be paid under its liability? And (4) was certain evidence erroneously admitted?

The answer to the first question must be found in an interpretation of section 42-1-58, R. S. 1933, which reads as follows:

"When any injury for which compensation is payable under this title shall have been caused by the wrongful act of a third person, the injured employee or in case of death his dependents, may at their option claim compensation under this title or have their action for damages against such third person; and, if compensation is claimed and awarded, the employer or insurance carrier having paid the compensation shall be subrogated to the rights of such employee or his dependents to recover against such third person; provided, if such recovery shall be in excess of the amount of the compensation awarded and paid, then such excess, less the reasonable expenses of the action, shall be paid to the employee or his dependents."

The first inquiry is whether the negligence of the physician is an injury for which compensation is payable under the statute. The answer must be in the affirmative, as it seems well settled that, where the chain of causation between an accidental injury and the ultimate disability remains unbroken, an injured employee is entitled to statutory compensation for the ultimate injury resulting from the accidental injury, though the injury has been aggravated by intervening malpractice. The treatment of the original injury by a physician is within the chain of causation. Gunnison Sugar Co. v. Industrial Comm., 73 Utah 535, 275 P. 777; Hughes v. Maryland Casualty Co., 229 Mo.App. 472, 76 S.W.2d 1101; Booth & Flinn, Ltd., v. Cook, 79 Okla. 280, 193 P. 36; Barnsdall Refining Co. v. Ramsdall, 149 Okla. 99, 299 P. 499; Oleszek v. Ford Motor Co., 217 Mich. 318, 186 N.W. 719; Williams v. Dale, 139 Ore. 105, 8 P.2d 578, 82 A.L.R. 922; Parchefsky v. Kroll Brothers, 267 N.Y. 410, 196 N.E. 308, 98 A.L.R. 1387; McDonough v. National Hospital Ass'n, 134 Ore. 451, 294 P. 351; Lakeside Bridge & Steel Co. v. Pugh, 206 Wis. 62, 238 N.W. 872; National Rolling Mill Co. v. Kish, 80 Ind.App. 331, 139 N.E. 454; Bidnick v. Armour & Co., 113 Kan. 277, 214 P. 808; Hornetz v. Philadelphia & R. Coal & I. Co., 277 Pa. 40, 120 A. 662; Vatalaro v. Thomas, 262 Mass. 383, 160 N.E. 269; Ross v. Erickson Const. Co., 89 Wash. 634, 155 P. 153, L.R.A. 1916F, 319; 71 C. J. 641. See, also, note in 39 A.L.R. 1276, and cases cited therein.

Baker was entitled to claim, and actually received from the insurance carrier, full compensation, including hospital and medical treatment, for his injury caused by the accident in the mine as aggravated by the claimed negligence of the physician. Baker accepted compensation both before and after he became aware of the negligence of the physician. He must, therefore, be held to have elected to take compensation under the act. Any right of action he had passed, under the statute, to the insurance carrier, who was by law subrogated to the rights of the workman. McDonough v. National Hospital Ass'n, supra; Parchefsky v. Kroll Brothers, supra; Jordan v. Orcutt, 279 Mass. 413, 181 N.E. 661; McDonald v. Employers' Liability Assur. Corporation, 288 Mass. 170, 192 N.E. 608; Polucha v. Landes, 60 N.D. 159, 233 N.W. 264; Overbeek v. Nex, 261 Mich. 156, 246 N.W. 196; Vayda v. De Witt, 261 Mich. 165, 246 N.W. 199; 71 C. J. 1547, 1615.

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