Grant v. State Indus. Acc. Commission

• Decision Date: 28 October 1921
• Citation: 201 P. 438,102 Or. 26
• Parties: GRANT v. STATE INDUSTRIAL ACCIDENT COMMISSION.
• Court: Oregon Supreme Court

201 P. 438

102 Or. 26

GRANT
v.
STATE INDUSTRIAL ACCIDENT COMMISSION.

Supreme Court of Oregon

October 28, 1921

In Banc.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

The State Industrial Accident Commission refused to make an award to C. Grant for an alleged permanent partial disability, and he appealed to the circuit court. Not being satisfied with the result of the trial in the circuit court, the Commission appealed to this court. Affirmed, with directions. [201 P. 439]

[102 Or. 28] J. A. Benjamin, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), for appellant.

Walter T. McGuirk and W. H. Bard, both of Portland (C. G. Schneider, of Portland, on the brief), for respondent.

HARRIS, J.

The questions presented are: (1) Was the appeal to the circuit court taken within time? And (2) Is Grant entitled to compensation for permanent partial disability notwithstanding his refusal to submit to an operation?

It is necessary first to give a history of the case. Grant was employed by the Columbia Shipbuilding Corporation as a riveter and as such employé was subject to the Workmen's Compensation Law. While Grant was at work on September 23, 1919, a plank gave way causing his left knee to strike against a piece of steel, thus producing what was finally determined to be a floating semilunar cartilage of the kneejoint. On October 4, 1919, Grant returned to work. On October 23d Grant filed with the Industrial Accident [102 Or. 29] Commission a formal claim for compensation, and the Commission promptly and without delay allowed $18.17 as compensation for temporary total disability for the nine working days between September 23d and October 4th.

Ordinarily the Commission permits the injured workman to choose his own doctor, and such was the course pursued in this case. Grant was first treated by Dr. Besson. On October 29th L. J. Moore, an examiner for the Commission, reported to the Commission that Grant had called upon him and stated:

"That his kneecap was still giving him trouble and thought that he would have to lay off again. Dr. Besson some time ago told him he might have to operate if the knee caused any more trouble, but as the doctor had been out of town for the last week or more, * * * I advised Mr. Grant that he was free to go to some other doctor if he wished."

Acting upon the permission given by the examiner, Grant consulted Dr. S. H. Sheldon. Grant was obliged again to quit work on October 27th. Under date of October 29th Dr. Sheldon reported to the Commission that Grant had been sent to him for treatment and that--

In his opinion "the lateral capsule of left knee is torn and advised that the knee be put in plaster cast for at least two weeks, which has been done."

On December 9th the examiner reported to the Commission that--

Grant had returned to work December 5, 1919, "at a job where he is able to sit down, and wishes compensation from November 11th to December 5th be put through as promptly as possible."

And under date of December 13, 1919, the examiner wrote to the Commission stating that--

[102 Or. 30] "Dr. Sheldon called up yesterday and reported that Mr. Grant was able and did return to work December 5, but that he is still under his surveillance and care for the loose cartilage of his knee."

In the record made by the Commission is a copy of "findings and final action" by the Commission showing that on December 15, 1919, the Commission found that Grant was disabled one month and fifteen days, "is entitled to payment" of $82.79 for temporary disability, of which sum $42.40 has been paid, and "is now entitled to receive the further payment of $40.39 in full settlement for any and all claims arising out of the above injury." However, subsequently and under date of February 20, 1920, Dr. Besson wrote to the Commission stating that--

Grant "comes in to-day, giving a typical history of frequent 'throwing out' of the knee and subsequent pain for two weeks or so. Examination shows the tender point at the location of the internal cartilage, and probably a rupture of the capsule of the joint, with a herniation at the synovial sac behind the joint. I would like to have an X-ray and the man will probably need an operation. If you desire corroboration of these findings, kindly let me know at once and also advise the man."

The Commission's reply was as follows:

"Replying to your kind letter of February 20, beg to advise that it is agreeable with this Commission that you proceed with such treatment as your professional judgment would indicate necessary in an effort to obtain the best result possible in the above case."

On February 28th, Dr. Besson gave to the Commission a statement of the conditions found by him and also the conclusions drawn by him, and, among other things, he stated that in his opinion an operation was [102 Or. 31] necessary, but that since he would be "out of town for about two weeks" he "would prefer not to undertake the case until" his return. The Commission replied saying: It "is agreeable with this Commission" that "operative action be deferred until such time as you return from out of town."

On March 23, 1920, the Commission wrote to Dr. Besson requesting that he "furnish us with a report as to the condition and progress this workman is making under your treatment." Dr. Besson replied on March 25th saying that--

Grant "was scheduled for operation and failed to appear I * * * was informed that [201 P. 440] Grant wanted to wait awhile, and was resting up. Grant may improve somewhat under various forms of treatment, but I am certain that complete recovery will only come about through an operation. He seemed to approve my findings and I am at a loss to account for his delay."

Under date of December 18, 1920, the examiner wrote to the Commission stating that--

"Mr. Grant wishes an appointment at the Portland session on Friday, December 24, at 10:15 a. m. He is still having trouble with the loose cartilage in the knee."

Grant presented himself on December 24th at the Portland session, which was conducted by one member of the Commission and the Commission's chief medical examiner. There is in the record a copy of the entry which was made and signed by the commissioner and chief medical examiner who conducted the Portland session. The entry reads as follows:

"Left knee has definitely loose internal semilunar cartilage that has given trouble intermittently by slipping out with resultant effusion into knee, since date of injury Agreed to go to Dr. Dillehunt for removal of same. TTD to be reopened when operated."

[102 Or. 32] On December 27th the Commission wrote to Dr. Dillehunt as follows:

"From the Portland session memo of December 24, we learn that the above-named workman has been referred to you for operative care. In order that we may properly compensate this man we request that you advise us the date he reports to you for treatment and also be particular to state the length of time he will be disabled in your opinion."

Under date of December 29, 1920, the attorneys for Grant wrote to the Commission as follows:

"Mr. Grant states that on Friday last he was finally examined by Dr. Thompson (the chief medical examiner) to establish the amount of permanent partial disability which he had, and he was instructed at that time to report to Dr. Dillehunt at 3:30. Upon calling at Dr. Dillehunt's office he advised him that an operation was to be performed upon his knee that afternoon. Mr. Grant states that there must have been some misunderstanding in the matter as he has been informed by the physicians

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