Helfenberger v. Harriman Northeastern R. Co.

• Decision Date: 21 November 1927
• Citation: 299 S.W. 793
• Parties: HELFENBERGER v. HARRIMAN NORTHEASTERN R. CO.
• Court: Tennessee Supreme Court

299 S.W. 793

HELFENBERGER v. HARRIMAN NORTHEASTERN R. CO.

Supreme Court of Tennessee.

November 21, 1927.

Appeal from Chancery Court, Roane County; J. H. Wallace, Judge.

Action by Fred Helfenberger under the Workmen's Compensation Law against the Harriman Northeastern Railroad Company. From an order requiring plaintiff to submit to examination by plaintiff's physician in another county, plaintiff appeals. Reversed and remanded.

Haggard, Burn & Wright, of Rockwood, for complainant.

H. M. Carr, of Harriman, for defendant.

SWIGGART, J.

Helfenberger began this action in Roane county, where he resided, seeking an award of compensation under the provisions of the Workmen's Compensation Law (Acts 1919, c. 123).

In support of his action he took the depositions of two physicians, who had examined him, one of whom resided in Rockwood, Roane county, and the other resided in Knoxville, Knox county.

The Roane county physician testified that he had made an X-ray examination of Helfenberger, and, with the X-ray pictures before him, stated that Helfenberger was suffering from an injury to his spine of a permanent nature.

The Knox county physician testified that, from his examination of Helfenberger, it was his opinion that Helfenberger did not have a permanent injury, but stated that his opinion was not as reliable as one based upon an X-ray examination. He was not shown the X-ray picture, which had been filed as an exhibit to the deposition of the other physician, although he repeatedly suggested in his deposition that it be shown him.

There is no evidence that the physician who made the X-ray examination, a man of 23 years' practice, was not competent to make, and correctly interpret, such an examination.

After these two depositions had been filed, an order was entered by the chancellor reciting that the defendant had requested Helfenberger to appear before its physician at Chattanooga, Hamilton county, Tenn., and subject himself to a physical and X-ray examination; that Helfenberger had failed to comply with the request, but, at the time of the request, and also in open court, agreed to submit himself to such examination by the physicians of the defendant in Roane county; that, upon motion of the defendant, it was ordered that Helfenberger submit himself to said examination at Chattanooga; and that further proceedings in the cause be suspended until the examination be made.

The order further recited that Helfenberger would have the right to the presence of his own physician at such examination, and that the defendant "will pay all the cost of complainant making said trip to Chattanooga, Tenn."

The complainant excepted to this order, and, upon his prayer therefor, an appeal was granted him to this court.

The order appealed from was made by the chancellor upon the authority of section 25 of the workmen's compensation statute (Acts 1919, chapter 123), which provides as follows:

"The injured employee must submit himself to the examination by the employer's...