John A. Shumaker Co. v. Kendrew

• Decision Date: 20 November 1918
• Docket Number: No. 10317.,10317.
• Citation: 120 N.E. 722,68 Ind.App. 466
• Parties: JOHN A. SHUMAKER CO. et al. v. KENDREW.
• Court: Indiana Appellate Court

68 Ind.App. 466

120 N.E. 722

JOHN A. SHUMAKER CO. et al.

v.KENDREW.

No. 10317.

Appellate Court of Indiana, Division No. 1.

Nov. 20, 1918.

Appeal from Industrial Board.

Proceedings under Workmen's Compensation Act by John Kendrew against the John A. Shumaker Company, employer, and others. From an independent order of the Industrial Board awarding employé a sum for hospital and surgical expenses in addition to the compensation agree on between parties, employer and others appeal. Reversed.J. W. Fesler, Harvey J. Elam, and Howard S. Young, all of Indianapolis, for appellants.

HOTTEL, J.

This is an appeal from an award of the Industrial Board of Indiana in which it approved a claim filed by appellee for medical and hospital expenses incurred and paid by him seven months after the accident which resulted in his injury. The undisputed facts pertinent to the question involved, as disclosed by the stipulations of the parties and the findings of the board, are as follows: On August 31, 1916, appellee was in the employ of appellant Shumaker Company and, on that day, received a personal injury by an accident “arising out of and in the course of his employment, which at the time consisted apparently of a surface bruise of the left leg below the knee.” As a result of said injury, appellee was disabled for work for a period of one week and was, at the time, provided with a physician furnished by appellants. This physician attended appellee on August 31, 1916, and on September 2, 1916, and on said occasions treated the surface bruise on appellee's left leg, which was then the only injury susceptible of diagnosis. This treatment was of a character such as the apparent injury required and was all that said injury appeared to require. The physician was paid in full by the employer. Afterwards, as a result of the injury sustained on August 31, 1916, a tumor or bursa developed in the deeper structures of appellee's left leg, which became “so pronounced that it was diagnosed as such on the 28th day of March, 1917.” Appellee then informed the foreman under whom he worked of the condition of his leg, but appellants did not furnish him with the necessary surgical or hospital supplies and services required for the treatment of his injury as then diagnosed. Appellee thereupon provided the proper treatment at an expense to himself of $35 for surgical services and $65 for hospital charges, no part of which has been repaid to him by appellants. The parties agreed to a compensation allowance of $12.90 a week, beginning on April 11, 1917, and continuing during total disability not to exceed 500 weeks, and it is from an independent order of the Industrial Board, allowing appellee the further sum of $90 for hospital and surgical expenses, that this appeal is prosecuted.

It is contended by appellants that on the expiration of 30 days from August 31, 1916, their liability to furnish an attending physician and to provide hospital service ceased; and that this is so notwithstanding the admittedfacts showing that, after the slight injury which was discovered and treated at the time of and immediately following the accident, there later developed as a direct result thereof a more serious condition which was not susceptible of diagnosis and treatment during the period of the first attendance of the physician. Appellants rely on and cite the following cases in support of their contention: In re Henderson, 116 N. E. 315;Born & Co. v. Durr, 116 N. E. 428;Epsten v. Hancock-Epsten Co., 101 Neb. 442, 163 N. W. 767;McMullen v. Gavette Const. Co., 200 Mich. 203, 166 N. W. 1019;In re Carroll, 225 Mass. 203, 114 N. E. 285.

We deem it unnecessary to enter into a lengthy discussion of the question here presented or of the cases cited by appellants in support of their contention, since we are of the opinion that their position is sustained by the language of the Workmen's Compensation Act. Section 25 of that act provides that-

“During the thirty days after an injury the employer shall furnish or cause to be furnished free of charge to the injured employé, *** an attending physician; *** and in addition such surgical and hospital service and supplies as may be deemed necessary by said attending physician, or the Industrial Board.”

It is further provided in the same section that-

“If in an emergency [or] on account of the employer's failure to provide the medical care for the first thirty days, as herein specified, or for other good reason, a physician other than that provided by the employer is called to treat the injured employé during the first thirty days, the reasonable cost of such service shall be paid by the employer subject to the approval of the Industrial Board.” Acts 1915, p. 398. (Our Italics.)

[1] It will be observed that this act does not provide for or require such emergency or other treatment by a physician, as the development of an injury may from time to time make necessary; nor does it require or contemplate full 30 days' treatment, intermittent in character and given at such times as the progressive development of an injury may require. On the contrary, the act specifically limits the liability for medical treatment to a period covered by the first 30 days after the injury. We find nothing in the act under consideration, or in the authorities construing that act or similar acts in other jurisdictions, which can be said to warrant a holding that, in order to cover the different phases of a progressive injury, the period of medical treatment at the expense of the employer may be divided into parts, some of...