Flock v. J. C. Palumbo Fruit Company, 6804

Decision Date31 October 1941
Docket Number6804
Citation63 Idaho 220,118 P.2d 707
PartiesELDON FLOCK, Respondent, v. J. C. PALUMBO FRUIT COMPANY, Employer, and STATE INSURANCE FUND, Surety, Cross-Appellants, and I. R. WOODWARD, Appellant
CourtIdaho Supreme Court

WORKMEN'S COMPENSATION-HOSPITAL CONTRACT-EFFECT OF-DUTIES OF PHYSICIAN.

1. After a hospital contract has been approved by Industrial Accident Board, employer and his surety are relieved from further liability for medical care and attention to employee. (I. C. A. secs. 43-1005, 43-1108, 43-1109.)

2. Under hospital contract, the measure of contract doctor's responsibility for care, treatment, and hospitalization was at least equal to that resting on a physician and surgeon in exercise, generally, of his profession, which is the exercise of the care and skill ordinarily exercised by competent physicians and surgeons in same or like locality, in the light of present day learning and scientific knowledge of and professional advancement in the subject. (I. C. A. secs 43-1107, 43-1108.)

3. If contract doctor does not give employee the reasonable care and treatment required by hospital contract, employee may seek treatment elsewhere without forfeiting his rights under hospital contract. (I. C. A. secs. 43-1107 to 43-1109.)

4. A hospital contract, by providing that contract physician would furnish specialist in diseases of the eye, ear, nose and throat, at certain city, did not exclude other moderate scientific treatment. (I. C. A. secs. 43-1107 to 43-1109.)

5. Though X-ray treatment could not, perhaps, entirely cure employee of growth in abdomen resulting from compensable injury and he had only a 10 per cent. chance to live, such treatment was the correct and therefore incumbent treatment where, as result thereof, the growth was greatly reduced, and evidence showed that employee's life was thereby probably prolonged and his pain considerably alleviated. (I. C. A. secs. 43-1107 to 43-1109.)

6. A general offer by contract physician to furnish employee "all necessary services" did not relieve physician from reimbursing employee for exploratory operation subsequently performed by another doctor, where the operation was necessary to definitely diagnose employee's condition and to determine the treatment which would be effective, in view of fact that contract physician did not inform employee of necessity for operation. (I. C. A., secs. 43-1107 to 43-1109.)

7. Where contract physician, though offering to furnish employee with all necessary services, did not inform employee as to nature of his condition or what was even necessary in a preliminary way, employee was not required to accept care under hospital contract, in view of fact that another doctor told him that exploratory operation was necessary. (I. C. A secs. 43-1107 to 43-1109.)

8. Physicians are required to keep abreast of, and use best modern methods of treatment, and in so doing they may not unduly and narrowly restrict their responsibility to immediate place where they are practicing.

9. Court may take judicial notice that the distance between Payette and Boise is about 65 miles, and that medical and hospital facilities at Boise are readily accessible at moderate cost.

10. Where contract doctor, though making general offer to give all necessary services, made no specific offer to furnish X-ray treatment for growth in employee's abdomen resulting from compensable injury, the doctor and his surety were liable to employee for expense of such treatment by another doctor, in a city about 65 miles away where operation would have been fatal and X-ray treatments were the only feasible and proper ones. (I. C. A. secs. 43-1107 to 43-1109.)

11. Workmen's Compensation Act should be liberally construed, requiring, if possible, the rehabilitation of injured employees and correct treatment.

APPEAL from the Industrial Accident Board.

APPEAL from award made in favor of claimant. Modified and affirmed.

Order of the Board affirmed. Each party to pay his, their, or its own costs.

George Donart and E. B. Smith, for Appellant.

Under I. C. A. sec. 43-1108 and a hospital contract executed pursuant thereto, one who has elected to accept the benefits of the hospital contract is entitled to receive all necessary and reasonable medical, surgical and hospital attendance, medicines, nursing, crutches and apparatus by and from the employer's contract physicians. (I. C. A. sec. 43-1108; Arneson v. Robinson, 59 Idaho 223; Murray Hospital v. Angrove (Mont.) 10 P.2d 577.)

An employer, who makes provision by hospital contract, for reasonable medical, surgical and hospital treatment for sick and injured employees, is not liable for expenses incurred by employees in procuring treatment from physicians other than the one employed and provided by the employer. (I. C. A. Sec. 43-1407; Totton v. Long Lake Lumber Company (Idaho) 97 P.2d 596; Myers v. Ind. Acc. Comm. (Cal.) 218 P. 11; Arneson v. Robinson, 59 Idaho 223; Horn v. Elm Branch Coal Co. (Kan.) 41 P.2d 751.)

Norris & Kenward, for Cross-Appellant, J. C. Palumbo Fruit Company.

In the absence of a hospital contract "the employer shall provide for an injured employee such reasonable medical, surgical or other attendance or treatment, nurse and hospital service, medicine, crutches and apparatus, as may be required or requested by the employee immediately after an injury, and for a reasonable time thereafter." It is only when the employer fails to provide the same that the injured employee may do so at the expense of the employer. The employee must pay the expense of treatment where he voluntarily obtains it elsewhere than as provided by the employer, or refuses the reasonable treatment provided. (I. C. A. Section 43-1107; Johnston v. A. C. White Lumber Co., 37 Idaho 617; Arneson v. Robinson, 59 Idaho 223; Gildersleeve v. Ind. Acc. Commission (Cal.) 295 P. 1033; rehearing 1 P.2d 1.)

Clarence L. Hillman, for Cross-Appellant, State Insurance Fund.

An employer, who makes provision by hospital contract, for reasonable medical, surgical and hospital treatment for sick and injured employees, is not liable for expenses incurred by employees in procuring treatment from physicians other than the one employed and provided by the employer. (I. C. A. sec. 43-1108; Totton v. Long Lake Lumber Company, et al., 61 Idaho 74, 97 P.2d 596; Myers v. Ind. Acc. Commission, et al., (Cal.) 218 P. 11; Arneson v. Robinson, et al., 59 Idaho 223, 82 P.2d 249.)

An exception in a statute excepts out a matter absolutely, while a proviso defeats the matter conditionally; and under I. C. A. sec. 43-1005 providing:

"No contract, rule, regulation or device whatsoever shall operate to relieve the employer in whole or in part from any liability created by this act, other than as provided in sections 43-1006 and 43-1108." (Italics supplied), the Company and the Fund were excepted from any liability for medical and hospital services herein, since a hospital contract was in full force as provided by I. C. A. sec. 43-1108. (This is particularly true as to the Fund.) (I. C. A. sec. 43-1005, 43-1006, 43-1108, and 43-1109; Hodkins v. Tucker 25 Idaho 563, 574-576, 138 P. 1139; U. S. v. Union Pacific R. Co. (D. C. Idaho) 20 F.Supp. 665.)

Freehafer & McClure, for Respondent.

There is no question as to the law seeing that the employer shall provide for an injured employee such reasonable medical surgical and other attendance or treatment and etc. and that where same are not provided the injured employee may do so at the expense of the employer. (I. C. A. Section 43-1107; Arneson v. Robinson, et al., 59 Idaho 223.)

Reasonable medical and surgical treatment requires exercise of ordinary care and skill in light of present day learning and enlightenment on the subject, and in determining whether said complainant was furnished reasonable medical and surgical and hospital service as contemplated by Section 43-1107, attention must be given to diagnosis made and treatment given. (Johnson v. White Lumber Co., 37 Idaho 617.)

The case just referred to holds that where claimant does not receive proper treatment by the physician provided, he is justified in seeking other treatment without demand for other treatment from original source.

GIVENS, J. Budge, C.J., Ailshie, J., and Buckner, D.J., concur. HOLDEN, J. concurring in part and Dissenting in part. Buckner, D.J., sat in place of Morgan, J.

OPINION

GIVENS, J.

Respondent Flock, while employed by J. C. Palumbo Fruit Company respondent and cross-appellant, engaged in processing, packing, and shipping fruit near New Plymouth, suffered, on June 2, 1939, a compensable industrial accident by falling from an apple tree, alighting astride a limb, injuring his left testicle. Dr. I. R. Woodward of Payette was the employer's contract physician, [1] with whom was associated his brother, Dr. J. C. Woodward. June 20, respondent, suffering with an inflammation or lesion of such left testicle, which was swollen and painful, consulted with Dr. J. C. Woodward, who, after administering intermediate palliative treatment, removed the testicle, November 27, 1939. Respondent left the Payette General Hospital, December 2, 1939, in apparently good condition. December 10, however, Dr. J. C. Woodward discovered a painless, smooth, and readily felt tumor in the lower left portion of respondent's abdomen. Medicine was given by Dr. J. C. Woodward and an X-ray examination made, resulting in no diagnostic result. The latter part of December respondent consulted Dr. Palmer in Ontario, Oregon, who ascertained from Dr. Woodward that the pathological report on the testicle showed there was a seminoma or highly malignant growth. Whereupon Dr. Palmer advised respondent that the enlargement in the groin was probably an extension from the original...

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