Johnston v. A.C. White Lumber Co.

• Decision Date: 04 August 1923
• Citation: 217 P. 979,37 Idaho 617
• Parties: HAROLD JOHNSTON, Respondent, v. A. C. WHITE LUMBER COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

217 P. 979

37 Idaho 617

HAROLD JOHNSTON, Respondent, v. A. C. WHITE LUMBER COMPANY, a Corporation, Appellant

Supreme Court of Idaho

August 4, 1923

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACTS-PHYSICIANS AND SURGEONS-MODERN MEDICAL AND SURGICAL METHODS-QUESTIONS OF LAW AND FACT-JURISDICTION OF THE DISTRICT COURT.

1. Reasonable medical and surgical treatment as contemplated by C. S., sec. 6229, require the exercise of ordinary care and skill in the light of present day learning and enlightenment on the subject.

2. If the medical and surgical treatment provided by the employer is not reasonable within the meaning of C. S., sec. 6229, the employee may, without further demand on the employer, procure reasonable treatment at the latter's expense.

3. The application of the law to undisputed facts raises a question of law, not of fact.

4. On an appeal from the award of the Industrial Accident Board to the district court, the latter has jurisdiction to enter judgment.

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. John M. Flynn, Judge.

Appeal from judgment reversing award of Industrial Accident Board. Affirmed.

Judgment affirmed, with costs to respondent.

E. W Wheelan, for Appellant.

The employer is only required to provide for an injured employee such reasonable medical, surgical and other attendance or treatment as may be required or be requested by the employee immediately after an injury and for a reasonable time thereafter. (C. S., sec. 6229.)

Demand is necessary before employee may employ physician at the expense of the employer. (Goldflam v. Kazemier & Uhl Inc., 181 A.D. 140, 168 N.Y.S. 87.)

The employer has the right, and it is his duty, to designate and employ the physician to treat the injured employee. (Keigher v. General Electric Co., 173 A.D. 207, 158 N.Y.S. 939; City of Milwaukee v. Miller, 154 Wis 652, Ann. Cas. 1915B, 847, 144 N.W. 188, L. R. A. 1916A, 1; Junk v. Terry & Tench Co., Inc., 163 N.Y.S. 836; Pecott v. American Mut. Liability Ins. Co., 223 Mass. 546, 112 N.E. 217; In re Davidson, 228 Mass. 257, 117 N.E. 310; Radil v. Morris & Co., 103 Neb. 84, 170 N.W. 363, 7 A. L. R. 539; Tennant v. Ives, 2 Cal. I. A. C. Dec. 862; Telford v. Healy Tibbits Cons. Co., 3 Cal. I. A. C. Dec. 41; Swift & Co. v. Industrial Commission, 288 Ill. 132, 123 N.E. 267.)

If medical services are offered by the employer within a reasonable time, and are refused by the employee, the employer is released from liability for medical and surgical treatment. (Kelley v. Pacific Electric Ry. Co., 1 Cal. I. A. C. Dec. 150; Mahoney v. Gamble Desmond Co., 90 Conn. 255, 96 A. 1025.)

The findings of fact made by the Industrial Accident Board are conclusive and binding on the district court on appeal if based on any evidence. That court on appeal is limited to review of questions of law. (C. S., secs. 6270, 6270A; McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; 28 R. C. L., sec. 116; Bidwell Coal Co. v. Davidson, 187 Iowa 809, 174 N.W. 592, 8 A. L. R. 1058.)

On appeal the district court can only review questions of law--either confirm or reverse the decision of the Industrial Accident Board--cannot make findings of fact or render judgment. (Baum v. Industrial Commission, 288 Ill. 516, 123 N.E. 625, 6 A. L. R. 1242; E. Baggott Co. v. Industrial Commission, 290 Ill. 530, 125 N.E. 254, 7 A. L. R. 1611.)

James F. Ailshie and James F. Ailshie, Jr., for Respondent.

A physician is bound to make a proper diagnosis and a failure on the part of the physician for the employer to do so is negligence and malpractice and does not constitute "reasonable medical care" within the meaning of the Workmen's Compensation Act. (21 R. C. L., sec. 33, p. 387; Burk v. Foster, 24 Ky. Law, 791, 114 Ky. 20, 69 S.W. 1096, 59 L. R. A. 277; Manser v. Collins, 69 Kan. 290, 76 P. 851; Polinos v. Rener, 190 Ill.App. 416; Hoffman v. Watkins, 89 Wash. 661, 155 P. 159; Just v. Littlefield, 87 Wash. 299, Ann. Cas. 1917D, 705, 151 P. 870.)

A failure on the part of the physician for the employer to use methods consistent with modern medicine and surgery is negligence and malpractice and does not constitute "reasonable medical attention" within the meaning of the Workmen's Compensation Act. (Sec. 6229, C. S.; 21 R. C. L., sec. 29, p. 384; McClellan on Malpractice, p. 43; Lawson v. Conoway, 37 W.Va. 159, 38 Am. St. 17, 16 S.E. 564, 18 L. R. A. 627; Harris v. Fall, 177 F. 79, 100 C. C. A. 497, 27 L. R. A., N. S., 1174.)

No request for additional treatment on the part of the employee is necessary, as it is the duty of the employer to bring to the employee the required humanitarian relief, and it does not mean a mere passive willingness to respond to a demand. (In re Ripley, 229 Mass. 302, 118 N.E. 638; Campbell v. White Lumber Co., 3 Cal. I. A. C. Dec. 33; Eikenbarry v. Northport Smelting & Refining Co., 120 Wash. 508, 208 P. 32.)

The test is: Was the attention accorded the injured employee such as would satisfy a reasonable man under like circumstances? (Radil v. Morris & Co., 103 Neb. 84, 170 N.W. 363, 5 A. L. R. 539.)

In the case at bar it was the duty of the district court, upon reversing the Industrial Accident Board, to enter a judgment in favor of the claimant. (Rakie v. Jefferson Clearfield Coal & Iron Co., 259 Pa. 534, 103 A. 302; Odrowski v. Swift & Co., 99 Kan. 163, 162 P. 268; secs. 6272, 6272a, C. S.)

MCCARTHY, J. Dunn, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

MCCARTHY, J.

This proceeding was instituted by respondent before the Industrial Accident Board to recover of appellant certain medical, hospital and nursing expenses as a result of an accident while in appellant's employ. After a hearing the board made its findings and rendered its decision dismissing respondent's petition, and denying his claim. Thereupon an appeal was taken by respondent to the district court of Bonner county, which reviewed the proceedings of the board and entered judgment in respondent's favor in the sum of $ 898, with interest. This appeal is from the judgment.

The facts appearing from the record are as follows: Respondent was a truck driver in the employ of his brother, Earl W. Johnston, a logging contractor employed by appellant, and, while loading logs on July 6, 1921, was seriously injured by a log striking and falling upon him. He was taken immediately to a hospital at Laclede, for medical attention. The hospital was operated by Dr. Didier, who was under contract with appellant to furnish medical and hospital services to appellant's employees, $ 1 per month being deducted from the wages of each to pay for such services. Upon respondent's arrival he was examined by Dr. Didier, who stated that his leg was broken. When respondent's three brothers, who accompanied him, suggested that an X-ray examination be made, Dr. Didier stated that the current was poor but he might be able to take some X-ray pictures that evening after dark. Thereupon the doctor put the injured leg in splints, held in place with adhesive straps, and stretched it by raising the bed and the use of a pulley and weights. The examination also disclosed a number of bruises and a laceration of the perineum, which the doctor sewed up. The following morning respondent's brothers came to the hospital and were informed by Dr. Didier that he had not taken any X-ray pictures because the electrical power was not strong enough. Thereupon respondent was taken by his brothers to St. Luke's Hospital at Spokane and placed under the care of Dr. Tennant and Dr. Langworthy. An X-ray examination was thereupon made, which disclosed a compound fracture of the left femur, fractures of the pelvis bone, and that the right pelvis bone was separated at the joint.

Appellant specifies nine assignments of error. The first four relate to the findings of the lower court that the claimant was not furnished reasonable medical, surgical and other attention by Dr. Didier, at Laclede, Idaho; that the A. C. White Lumber Company did not provide for the injured employee reasonable medical and surgical attention and hospital service immediately after the injury to respondent, and that the claimant was justified in abandoning the medical and surgical service furnished by the employer. These assignments will be considered together.

C. S., sec. 6229, provides:

"The employer shall provide for an injured employee such reasonable, medical, surgical or other attendance or treatment, nurse and hospital service, medicine, crutches and apparatus, as may be required or be requested by the employee immediately after an injury, and for a reasonable time thereafter. If the employer fails to provide the same, the injured employee may do so at the expense of the employer. . . ."

In determining whether respondent was furnished such reasonable medical, surgical and hospital service as contemplated by the statute, attention must be given to the diagnosis made and treatment given. Dr. Didier's diagnosis is found in the report furnished the Industrial Accident Board on July 7, 1921, as follows: "Give accurate description of the nature and extent of the injury. (Ans.) Fracture, transverse, simple, femur, left, at junction of middle and upper third, contused wound, perineum, parallel with median line, skin and subcutaneous tissues, and apparently no injury to perineal body, ecchymosis and bruising surrounding tissues and Rt. groin."

The diagnosis of Dr. Langworthy was: "These pictures showed a fracture of the left femur, with a marked displacement of the ends of the bone and with about an inch of overlapping of the ends of the femur. In addition there was a fracture of the left acetabulem, a fracture of the left side of the sacrum, a fracture of the ascending ramus...