Draney v. Industrial Acc. Commission of Cal.

• Decision Date: 12 December 1949
• Citation: 95 Cal.App.2d 64,212 P.2d 49
• Court: California Court of Appeals Court of Appeals
• Parties: DRANEY v. INDUSTRIAL ACCIDENT COMMISSION OF CALIFORNIA et al. Civ. 7727.

Page 49

212 P.2d 49

95 Cal.App.2d 64

DRANEY v. INDUSTRIAL ACCIDENT COMMISSION OF CALIFORNIA et al.

Civ. 7727.

District Court of Appeal, Third District, California.

Dec. 12, 1949.

John C. Bartlett, Reno, Nevada. Leonard, Hanna & Brophy, San Francisco, for petitioner.

T. Groezinger, Alfred C. Skaife, San Francisco, for Ind. Accident Comm.

ADAMS, Presiding Justice.

This is a petition for review of a portion of a decision by respondent Industrial Accident Commission in which petitioner was found to have suffered an industrial injury, and awarded compensation, but was denied any allowance for self-incurred medical expenses. He here contends that such expenses should have been allowed.

At the time of the injury Draney was employed by W. L. English, as a general laborer, and was, on the 30th day of August, 1948, engaged in loading rocks into a truck. About 11 A.M. he suffered pain in his back, but continued working that day; and he continued in English's employ, doing lighter work, until September 10th, though his pain grew steadily worse. On September 5th he went to the Tahoe Medical Center to which his employer's employees had been instructed to report in case of injury, and Dr. Weyand, English's insurance carrier's physician, taped his back, advised him to use bed boards, and to limit his activity. On September 6th Dr. Weyand made a report of Draney's injury to the Industrial Indemnity Company, in which he stated: 'This clinic is closing and patient has been instructed to report to another M. D. in one week.' He also reported that further treatment was needed for a period unknown. This report was received by the insurance carrier in Sacramento on September 8th. It then mailed to Draney a form of report to be made out by him, and it also wrote requesting him to contact it in Sacramento. Draney was not instructed by Dr. Weyand nor by the insurance carrier nor by English to report to another specified doctor; and as his pain increased he went to Dr. Walter L. White in Reno on September 28th, who treated him by manipulation, deep heat and analgesics. Draney visited Dr. White again on October 2nd, but as the treatments gave only temporary relief he went to Dr. Lynn B. Gerow, M.D., on October 4th. Dr. Gerow told him he had probably slipped an intervertebral disc, and that an operation might be necessary. Hoping to avoid such operation Draney then went to San Francisco and had two chiropractic treatments by a Dr. Hunt, which gave no relief. Dr. Hunt referred him to Dr. Mack, a specialist in Reno, and on October 13th he returned to Dr. Gerow who with Dr. Mack made a study of his back and advised an operation immediately. Such operation was performed the following morning and revealed severe herniation of the lumbosacral disc which was removed. The patient was hospitalized for fourteen days and incurred an expense of about $600. He then took a job as caretaker of a hotel, involving very light work.

The testimony shows that between August 30th and September 10th Draney told English about his injury, and that he had been to see Dr. Weyand; also that he told him about necessary surgery ten days or two weeks before the operation; but he did not communicate further with him until after the surgery. He did not make any particular demand upon English for medical treatment; it is admitted, however, that none was ever offered him, except that there was the general understanding that injured employees were to report to the Tahoe Medical Center. When that closed it is obvious that Draney was left without instruction as to where to go for medical care and treatment.

The question before us seems to be whether, under such circumstances, the injured employee was obligated to seek such instruction from his employer, or whether the burden was upon the employer to furnish medical assistance.

Section 4600 of the Labor Code provides: 'Medical, surgical, and hospital treatment, including nursing, medicines and surgical supplies, crutches, and apparatus, including artificial members, which is reasonably required to cure or relieve from the effects of the injury shall be provided by the employer. In the case of his neglect or refusal seasonably to do so, the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment.'

In Myers v. Industrial Accident Commission, 191 Cal. 673, 679-680, 218 P. 11, 13, the court said: 'It is plain from a reading of the Compensation Act that it is the first duty of an employer to furnish medical aid and hospital service to an injured employee, and not merely to reimburse the latter after the service has been procured elsewhere. * * * Consent of an employer, either affirmatively given, or inferred from his inaction, to the employee to procure his own treatment, renders the employer liable for the reasonable expenses thus incurred.' Bucyrus Co. v. Reisinger, 77 Ind.App. 361, 133 N.E. 516, was...