Hoffman v. Brooks Const. Co.
| Decision Date | 11 May 1942 |
| Docket Number | 27700. |
| Citation | 41 N.E.2d 613,220 Ind. 150 |
| Parties | HOFFMAN v. BROOKS CONST. CO. |
| Court | Indiana Supreme Court |
Appeal from Allen Superior Court, No. 2; John F Decker, Special judge.
Hartzell & Todd, of Ft. Wayne, Claude Cline, of Huntington, and Guy Nichols, of Ft. Wayne, for appellant.
Cooper Royse, Gambill & Crawford, of Terre Haute, and Arthur W Parry, of Ft. Wayne, for appellee.
The appellant, a physician, brought an action, on account, in the Allen Superior Court, No. 2, against the appellee for medical services rendered, between September 23, 1936, and May 16, 1938, to an employee of the appellee at the special instance and request of the appellee. An amended plea in abatement filed by the appellee alleged that the medical services rendered by the appellant were made necessary by reason of a blood stream infection which resulted from an accidental injury suffered by said employee, September 27, 1935, which injury arose out of and in the course of his employment by the appellee; that pursuant to the provisions of the Workmen's Compensation Act of 1929, Ch. 172, Acts of 1929, p. 536, the insurance carrier for the appellee had paid the appellant the sum of $288 for medical services rendered to said employee during the first thirty days after said accident; that by an award of the Industrial Board, made August 20, 1936, said employee was awarded compensation for a period of seventy-five weeks commencing September 27, 1935, and ending March 26, 1937; that on November 9, 1937, said employee filed a petition for a modification of said award on account of change in condition, alleging a recurrence of the blood stream infection and that the permanent partial impairment resulting from such injury had increased since the date of said award of August 20, 1936; that at the time of said accident and during all of the times mentioned in said complaint and in said plea in abatement, the appellee and said employee were operating under and pursuant to the terms and provisions of said Indiana Workmen's Compensation Act of 1929 and were bound by the provisions thereof; and that by reason of these facts the Allen Superior Court had no jurisdiction over the subject matter of the appellant's cause of action.
Appellant's demurrer to this amended plea in abatement was overruled and the appellant, thereafter, filed an amended second paragraph of reply to the amended plea in abatement, in which the appellant alleged that on September 23, 1936, on which date the blood stream infection resulting from the accidental injury recurred in the body of the employee, said appellee employed the appellant to furnish medical and surgical services to said employee; that pursuant to the verbal contract between the appellant and the appellee, medical services were rendered to said employee extending from that time up until May 16, 1938, all of which services were rendered at the special instance and request of the appellee; and that a bill of particulars of said medical and surgical services so rendered by the appellant was filed with and made a part of said second paragraph of reply.
The appellee demurred to this paragraph of reply on the theory that 'a specific contract for services rendered to an employee * * * is invalid and of no effect, where the parties are operating under the provisions of the Workmen's Compensation Act of Indiana for 1929, and can not divest the exclusive jurisdiction of the Industrial Board * * *'. The demurrer was sustained by the trial court.
This appeal is predicated on the alleged errors of the trial court in overruling the appellant's demurrer to the amended plea in abatement and in sustaining the demurrer of the appellee to the amended second paragraph of reply to said plea in abatement. Both of these alleged errors present the same question, namely, whether the Allen Superior Court did, or did not, have jurisdiction to try and determine the appellant's action to recover for his services which were rendered under a specific contract with the appellee employer.
No question is raised as to the reasonableness of the amount charged by the appellant for such services, nor is the fact that he furnished such services questioned.
The appellant contends that the Workmen's Compensation Act, fairly interpreted, does not prevent his maintaining an action at law for medical services rendered by him under a contract with the employer; and that as to medical services rendered after the period during which the employer is compelled to furnish medical services the Industrial Board does not have the 'power or authority to require such physician to submit such claims to the Industrial Board.'
The appellee insists that the language of said act is broad enough to give the Industrial Board the exclusive jurisdiction to fix fees for all medical services rendered to an employee pursuant to the provisions of the act, no matter whether the fees are for services rendered within the time when the employer is required to furnish such services or whether such services were rendered during the subsequent period when the furnishing of such services is optional with the employer.
Sec. 25 of the 1929 Workmen's Compensation Act, Acts of 1929, ch. 172, p. 536, Burns' 1933, (Original Vol. VIII) § 40-1225, Baldwin's 1934, § 16401, provides that during the first thirty days after an injury the employer shall furnish free of charge to the injured employee, the services of a physician and such surgical, hospital and nurses services and supplies as the attending physician or the Industrial Board may deem necessary; that during the remainder of the period of disability the employer may continue to furnish such physicians' services and supplies and that if treatment is necessary for a longer period than thirty days the Industrial Board may require the employer to furnish such treatment for an additional period not exceeding thirty days. The right of the employee to compensation is barred during the period of his refusal to accept such services and supplies when so provided by the employer. The last paragraph of said § 25 is as follows: 'If in an emergency or because of the employer's failure to provide such attending physician or such surgical, hospital or nurse's services and supplies as herein specified, or for other good reason, a physician other than that provided by the employer treats the injured employee within the first thirty (30) days, or necessary and proper surgical, hospital, or nurse's services and supplies are procured within said period, the reasonable cost of such service and supplies shall, subject to approval of the industrial board, be paid by the employer.'
Sec. 65 of said Act, Burns' 1933, § 40-1516, Baldwin's 1934, § 16441, provides that, 'The fees of attorneys and physicians and charges of nurses and hospitals for services under this act shall be subject to the approval of the industrial board.' This section also provides the manner of fixing the amount of the claimant's attorneys' fees and making such determination of fees a part of the award of the compensation to the appellee and also provides for the payment of such amount by the employer to the attorney from the compensation awarded to the employee.
The appellee, in addition to the above two sections of the Act, also relies on § 55 thereof, Burns' 1933, § 40-1506, Baldwin's 1934, § 16431, which gives the board power to 'make rules not inconsistent with this act for carrying out the provisions hereof', and rule number 30 adopted by said board, on May 22, 1929, which is as follows:
This rule refers only to 'claims' and would naturally be interpreted as applying only to claims properly filed with the board. The board, of course, could not by a rule enlarge the jurisdiction granted by the legislature.
Neither of the above sections of the act expressly takes away from the physician the right to enforce his claim in a court of law. Nor does any other section of the act expressly abrogate such right. If the appellee's contention is to be maintained we must by interpretation read such provision into the above sections, either from a consideration of the act as a whole, or from the necessity of accomplishing the purpose for which the act was passed.
A consideration of the other provisions of the act, however, does not tend to prove the contention of the appellee. Sec. 4 of the Act, Burns' 1933, § 40-1204, Baldwin's 1934, § 16380, provides that every contract of service between the employer and employee shall be presumed to have been made subject to the provisions of the act. We find no such provision regarding contracts between the employer and a physician to furnish medical services to the employee. Sec. 6 of the Act, Burns' 1933, § 40-1206, Baldwin's 1934, § 16382, provides that the rights and remedies granted to an employee under the act shall exclude all other rights and remedies of the employee by common law or otherwise. No provision of the act purports to expressly take away from the physician his right to recover, in an action at law, for services rendered under and pursuant to a contract with the employer.
Sec 57 of the Act, Burns' 1933, § 40-1508, Baldwin's 1934, § 16433, provides that an agreement between the employer and employee, in regard to compensation to the employee, shall be voidable by the employee unless such agreement shall be filed with and approved by the Industrial Board. There is no provision of the act requiring an agreement between a...
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