Gidley v. Indus. Comm'n

• Decision Date: 10 April 1934
• Docket Number: No. 22197.,22197.
• Citation: 355 Ill. 586,189 N.E. 881
• Parties: GIDLEY v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

355 Ill. 586

189 N.E. 881

GIDLEY

v.INDUSTRIAL COMMISSION et al.

No. 22197.

Supreme Court of Illinois.

Feb. 23, 1934.

Rehearing Denied April 10, 1934.

Error to Superior Court, Cook County; Walter T. Stanton, Judge.

Proceedings under the Workmen's Compensation Act by Raymond E. Gidley, employee, against the Chicago Short Line Railway Company, employer. The arbitrator made an award in favor of the employee, and the Industrial Commission reduced the award. On certiorari, the superior court set aside the order of the Industrial Commission and reinstated the award made by the arbitrator, and, upon leave granted, the employer brings error.

Judgment of the superior court affirmed.

Knapp, Beye, Allen, Cochran & Cushing, of Chicago (Joseph L. Earlywine and Paul R. Conagham, both of Chicago, of counsel), for plaintiff in error.

H. A. Barnhardt, of Chicago, for defendant in error.

SHAW, Justice.

On May 9, 1927, Raymond E. Gidley, the defendant in error, received personal injuries while working for the Chicago Short Line Railway Company, the plaintiff in error, through jumping off an engine which was about to collide with a coal chute. He started suit in the superior court of Cook county against the plaintiff in error for personal injuries under the Federal Employers' Liability Act (45 USCA §§ 51-59), upon the theory that both he and his employer were engaged in interstate commerce at the time of the injury, and in that suit he secured a verdict of a jury awarding him damages in the sum of $26,000. After requiring him to remit $12,000, the trial court entered a judgment in his favor in the sum of $14,000. This judgment was affirmed by the Appellate Court, but was afterwards reversed by this court on the ground that the parties were not engaged in interstate commerce (346 Ill. 122, 178 N. E. 399). The Supreme Court of the United States thereafter denied a writ of certiorari (285 U. S. 554, 52 S. Ct. 411, 76 L. Ed. 943), making the judgment of this court final. The opinion of this court in that case was filed October 23, 1931, and a rehearing denied December 2, 1931. During the progress of this litigation, defendant in error had protected his rights under the Workmen's Compensation Act of Illinois (Smith-Hurd Rev. St. 1925, c. 48, § 138 et seq.), and had, on May 9, 1928, just one year after the injury, filed with the Industrial Commission a petition for adjustment of claim; the railway company having failed to make any application for adjustment of compensation during the year. No evidence was heard in the proceeding before the Industrial Commission until May 9, 1932, just five years after the original injury. Upon the hearing before the arbitrator, all necessary facts were stipulated except as to the extent of the injury. The arbitrator made an award of 130 weeks' temporary total disability and in addition thereto a finding and award of 35 per cent. total permanent loss of use of the right leg. Upon review by the commission, without any additionl evidence being heard, the commission reduced the award for temporary total disability to 29 2/7 weeks and confirmed the finding that there was a 35 per cent. permanent loss of use of the leg. On certiorari the superior court of Cook county set aside the order of the commission and reinstated the award made by the arbitrator, and upon leave granted this writ of error was issued to review the judgment of the superior court.

It is conceded in the briefs of the plaintiff in error that the award of 35 per cent. total disability of the right leg is reasonable and should be sustained, it being the only contention in this court that the award for temporary total disability should be reduced in accordance with the order of the commission, upon a theory that all of the defendant in error's disability in excess of 29 2/7 weeks is due to his refusal to submit to a surgical operation on his knee, reliance being placed upon paragraph (d) of section 19 of the Workmen's Compensation Act (Smith-Hurd Rev. St. 1925, c. 48, § 156(d)), which is as follows: ‘If any employee shall persist in insanitary or injurious practices which tend to either imperil or retard his recovery or shall refuse to submit to such medical, surgical, or hospital treatment as is reasonably essential to promote his recovery, the commission may, in its discretion, reduce or suspend the compensation of any such injured employee.’

Evidence of the opinion of four doctors appears in the record, three of whom testified in person. The other one being dead at the time of the hearing, one of the attorneys was permitted to testify to the substance of what that doctor had advised, which evidence was received without objection. There is no dispute as to the diagnosis of the defendant in error's trouble in the knee; all of the medical witnesses having determined that his temporary total disability of two and a half years, or 130 weeks, was in part due to a fracture of the semilunar cartilage in the right kneejoint. They also all agreed that there is a feasible operation for a cure of that kind of a situation, but they disagreed rather radically as to the dangers involved in such surgical procedure and as to its advisability.

The defendant in error testified in his own behalf that he was on crutches for a year, and thereafter had to use a cane for nearly two years after discarding the crutches. He testified that he was unable to do any work at all for two and one-half years. Inasmuch as this evidence is not controverted in any way and is the only evidence in the case on the question of the period of his temporary total disability, it is necessarily accepted as a fact.

The first medical witness, Dr. A. C. Tenney, testified that he first saw the defendant in error on June 30, 1927, and that at that time, in his opinion, there was a floating internal semilunar cartilage in the right kneejoint. He testified that he recommended an operation; that he saw the case again in December of 1928, and that he had seen it several times in between these two dates; that he had examined the patient the Friday before the hearing, which would be approximately five years after the accident; and that upon the last examination there was a considerable improvement in the condition of the knee, although the trouble was still present. At the time of the hearing this doctor still recommended an operation. He admitted in this examination that in his opinion there were very few surfgeons competent to perform this operation on the knee, and that there is danger in it, the chief danger being the possibility of an infection, which would result in a permanent stiff knee, and that the knee is particularly incapable of resisting an infection.

Dr. George Davis testified that he had examined the defendant in error on the 30th day of November, 1927, at the request of the railway company, that he had offered him an operation at the expense of the railway company, and that he himself offered to do the operation at the county hospital if the railway company would not. He further testified that he had performed ‘twenty, forty or sixty’ operations for dislocated semilunar cartilages, and that he had had no complications, and that the temporary disability resulting from such an operation would be from one to two and a half months. On cross-examination he stated that in his opinion an operation cutting off a hand would be simpler and less dangerous than going into a kneejoint.

H. A. Barnhardt, the defendant in error's attorney, testified, without objection, that in the summer of 1928 he had gone with the defendant in error to see a Dr. Hesser, then practicing on Fullerton avenue, who died in December of 1928, and that doctor had in his presence advised the defendant in error not to have an operation and told him that it was dangerous to operate on a kneejoint.

Dr. A. W. La Forge testified that he examinedthe defendant in error on December 8, 1928, and that he diagnosed a fracture and dislocation of the semilunar cartilage of the right knee, with a probability that a piece of it was detached at the kneejoint. He further testified that at the time of this examination, which, it will be noted, was more than one and a half years after the injury, he advised the defendant in error not to have an operation on the knee, but to await further developments, that the operation could be performed at any time, and that the dangers of such an operation, even at the hands of the best qualified surgeons, were reat. He further testified that he had again examined the defendant in error on the Friday before the hearing, approximately 5 years after the injury, and that he could still not recommend a surgical operation.

Defendant in error testified that he would not consent to an operation because three doctors had told him it was not advisable.

This is the substance of all of the testimony bearing on the question. In it all, the only direct evidence of an authorized offer of an operation is that of the attorney for the Chicago Short Line Railway Company, Joseph L. Earlywine. He testified that he was the trial lawyer for the railway company in the superior court of Cook county, which case was tried in 1928, that he was familiar with the claim of the defendant in error before the lawsuit started, and that he was empowered to offer him an operation on behalf of J. Fred Sheehy,...