Lincoln Park Coal & Brick Co. v. Indus. Comm'n

• Decision Date: 10 June 1925
• Docket Number: No. 16541.,16541.
• Citation: 148 N.E. 79,317 Ill. 302
• Court: Illinois Supreme Court
• Parties: LINCOLN PARK COAL & BRICK CO. v. INDUSTRIAL COMMISSION et al.

317 Ill. 302

148 N.E. 79

LINCOLN PARK COAL & BRICK CO.

v.INDUSTRIAL COMMISSION et al.

No. 16541.

Supreme Court of Illinois.

April 24, 1925.

Rehearing Denied June 10, 1925.

Error to Circuit Court, Sangamon County; E. S. Smith, Judge.

Proceeding under the Workmen's Compensation Act by Otto Drengwitz, employee, opposed by the Lincoln Park Coal & Brick Company, employer. From a judgment of the Circuit Court, reversing and setting aside award made by the Industrial Commission to the employee, said employee brings error.

Judgment reversed, and award modified and affirmed.

A. W. Kerr, of Chicago, and Joseph A. Londrigan, of Springfield, for plaintiff in error.

Andrus, Trutter & Crow, of Springfield, for defendant in error.

FARMER, J.

This writ of error was issued to bring into review before this court the judgment of the circuit court of Sangamon county reversing and setting aside an award made to Otto Drengwitz, an employee of the Lincoln Park Coal & Brick Company.

Drengwitz (hereafter called plaintiff in error) was accidentally injured in the course of and in the line of his employment with the Lincoln Park Coal & Brick Company (hereafter referred to as defendant in error) February 24, [317 Ill. 303]1921. He was voluntarily paid by defendant in error compensation to the amount of $533.07. He returned to work but claimed he had only partly recovered, and that he was entitled to further compensation. This was not agreed to by defendant in error, and plaintiff in error filed an application for adjustment of his claim. It was set for hearing before an arbitrator March 12, 1922. Before the hearing, defendant in error demanded that plaintiff in error be examined by a doctor selected by defendant in error. Plaintiff in error submitted to the examination on March 10, in the course of which X-ray pictures were made by the doctor. March 12, the day the application was set for hearing, and after the parties had received the report of the doctor who made the examination, an agreement was made between the parties for a settlement of the claim upon the payment of $200, which was approved by the Industrial Commission. About three days later plaintiff in error discovered he had been burned on the abdonmen by the X-ray machine, and went to Dr. Metcalf, who was not the doctor who made the examination, and Dr. Metcalf began treating him for the burn. The evidence discloses the burn caused a rather serious condition for plaintiff in error, and he has been in a hospital a considerable time under treatment of Dr. Metcalf and Dr. Milligan. April 24, 1922, and while plaintiff in error was under treatment for the burn, he filed a petition for review under paragraph (h) of section 19 of the Compensation Act (Smith-Hurd, Rev. St. 1923, c. 48, § 156), alleging his disability had increased and recurred. In June, 1922, the doctor who caused the burn in making the examination told plaintiff in error (so plaintiff in error testified) that Dr. Metcalf said he would be all right in 10 days. The doctor told him he would be well by the 15th, and paid him $224 compensation up to that time, and also paid a bill to Dr. Metcalf of $150. The doctor testified the payment was a settlement of the damage resulting from the burn. Plaintiff in error testified he signed some kind of paper when the doctor paid him the money; that he could not read English, did not read the paper, and it was not read to him. The doctor testified he read the paper to him, but the paper itself was not offered in evidence.

The petition filed under paragraph (h) of section 19 was heard by the Industrial Commission in January, 1923. Plaintiff in error was then in a hospital under treatment for the burn and unable to appear at the hearing, but his deposition was read. An award was made, which not being acceptable to plaintiff in error, he secured a review of it by the circuit court, where the award was set aside and the case remanded to the Industrial Commission for further hearing. It was again heard by the commission. An award was made finding that the disability had recurred and increased and that plaintiff in error was wholly and permanently incapable of work, and defendant in error was ordered to pay him $12 per week for 230.57 weeks, commencing April 24, 1922, and thereafter a pension for life of $23,33 per month, and the further sum of $382.75 on account of medical and hospital services. Defendant in error secured a review of the award by the circuit court, and that court set aside and reversed the finding and award of the Industrial Commission. This court granted a writ of error to review the judgment of the circuit court.

No question is raised about plaintiff in error having received an injury in February, 1921, in the course of and arising out of his employment; that the parties were under and subject to the Workmen's Compensation Act; and that defendant in error admitted its liability by paying compensation to the amount of $533.07.

After defendant in error failed and refused to pay further compensation claimed, plaintiff in error filed his petition under paragraph (h) of section 19, and the hearing on the petition was set for March 12. Section 12 of the Workmen's Compensation Act (Smith-Hurd Rev. St. 1923, c. 48, § 149) provides that an injured employee, when so required by the employer, shall submit himself, at the employer's expense, to examination by a physician or surgeon selected by the employer, ‘for the purpose of determining the nature, extent, and probable duration of the injury received by the employee, and for the purpose of ascertaining the amount of compensation which may be due the employee from time to time for disability according to the provisions of this act.’ Said section further provides that, if the employee refuses to submit to the examination, his right to compensation shall be suspended and no compensation paid him during the period he refuses to be examined. The examination of plaintiff in error made March 10 was required by defendant in error to be submitted to by plaintiff in error, and that it be made by a doctor of its selection, and was for its benefit and interest. During the examination an X-ray machine was used and the burn caused. The evidence shows the burn to be of a serious nature. The medical testimony is that such injuries rarely heal permanently and generally give trouble. They may apparently heal and then recur. The proof shows plaintiff in error was incapacitated from doing any kind of work, and had spent considerable time in a hospital under treatment of two physicians.

Plaintiff in error contends that, as he was required by defendant in error to undergo the examination by the doctor who was its agent in making the examination, the injury inflicted by the examination is the proximate result of the original injury. Defendant in error contends the proceeding authorized by paragraph (h) of section 19 is for compensation for a recurrence or increase of disability from the original injury, and does not authorize an award of compensation for injury from any intervening cause; that the burn, although resulting from the examination which the law authorized defendant in error to require plaintiff in error to submit to, was in no sense a recurrence or increase of the disability for which compensation was authorized and in no way was connected with or related to the injury for which compensation was claimed.

The question is a novel one, and counsel for defendant in error say diligent search has failed to disclose any case which has decided the exact question. They contend the weight of authority is that the employer is not liable, under the Workmen's Compensation Act, for injury resulting from malpractice of a physician. They admit that is a different question from the one here involved, but say there is some analogy between the two questions.

There is no dispute that plaintiff in error had, in fact, received an injury which entitled him to compensation, and he was voluntarily paid $533.07. Defendant in error claimed that was all plaintiff in error was entitled to receive. Plaintiff in error claimed he had not been paid all he was entitled to receive and filed the petition for compensation. For the purpose of determining wheth-he was entitled to any further compensation for the injury, defendant in error required him, as it was authorized by law to do, to undergo an examination by a doctor of its selection, in the course of which he received the burn. It is true, the burn was not literally a recurrence or increase of the original injury, but it is also true it never would have occurred if defendant in error had not required the examination for the purpose of determining the nature, extent, and probable duration of the injury for which it admitted liability. Defendant in error refused to pay further compensation until the nature, extent, and probable duration of the disability could be ascertained, and required plaintiff in error to submit to an examination by a physician of its selection to determine that question. If there had been no injury there would have been no examination, and if there had been no examination there would have been no burn. The burn resulted in the examination which the law authorized defendant in error to require to be made to ascertain whether plaintiff in error was entitled to further compensation for the injury of February, 1921. In undergoing the examination plaintiff in error received the injury for which he asks compensation.

[1] It is true, the injury did not aggravate the original injury or cause a recurrence or increase of the disability directly caused by that injury,...