Strong v. The Sonken-Galamba Iron & Metal Company

• Decision Date: 07 May 1921
• Docket Number: 23,151
• Court: Kansas Supreme Court
• Parties: WILLIAM J. STRONG, Appellant, v. THE SONKEN-GALAMBA IRON & METAL COMPANY, Appellee

198 P. 182

109 Kan. 117

WILLIAM J. STRONG, Appellant, v. THE SONKEN-GALAMBA IRON & METAL COMPANY, Appellee

No. 23,151

Supreme Court of Kansas

May 7, 1921

Decided January, 1921.

Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COMPENSATION ACT--Hernia--Refusal of Operation--Release of Employer from Further Liability. The unreasonable refusal of an injured employee to permit a surgical operation where the danger to life from the operation would be very small, and the probabilities of a permanent cure very large, justifies a court in refusing compensation under the workmen's compensation law from and after the trial.

2. SAME--Unreasonableness of Refusal of Operation a Question of Fact. The unreasonableness of the refusal of an injured employee who is seeking to recover compensation under the workmen's compensation act, to permit an operation to be performed, is a question of fact to be determined from the evidence.

3. SAME--Total Incapacity of Workman Not Shown. There was testimony to support the finding that the injured employee was not totally incapacitated.

4. SAME--Employer Not Estopped to Question Correctness of Award. An employer is not estopped to question the correctness of an award made under section 16 of chapter 226 of the Laws of 1917 by paying the amount found due at the time the award is made where the award provides for weekly payments thereafter.

5. SAME--A review of an award of an arbitrator appointed under the workmen's compensation act may be had where there is only partial disability after a short period of total disability, and the award gives compensation for total disability for the full period of eight years.

James L. Hogin, and Roy R. Hubbard, both of Kansas City, for the appellant.

E. S. McAnany, M. L. Alden, and T. M. Van Cleave, all of Kansas City, for the appellee.

Marshall J. West, J. dissenting.

OPINION

MARSHALL, J.:

The plaintiff is seeking to recover compensation under the workmen's compensation law. Compensation for future incapacity was denied him in the district court. An arbitrator had been appointed who awarded the plaintiff compensation in the sum of $ 10.65 per week from November 20, 1918, to October 25, 1919, aggregating $ 515.26, less $ 15, making due $ 500.26 at the time of the arbitration and awarded as compensation thereafter $ 10.65 a week in weekly payments for the full period of eight years.

The arbitrator found that William J. Strong sustained an injury which produced a hernia that totally incapacitated him from work; that the hernia could probably be cured by a surgical operation; that at the time of the hearing before the arbitrator, the defendant tendered to the plaintiff an operation, and offered to pay all necessary expenses, including hospital bills and surgeon's fees, with the privilege of the plaintiff's selecting his own surgeon to perform the operation; that the offer was refused; that probably one operation out of a thousand for such hernias as the plaintiff was suffering from would result fatally; and that about twelve per cent of the operations for like hernias would not result in a cure. The arbitrator found as a matter of law that the plaintiff was not required to undergo a surgical operation, and that his refusal to be operated on at the expense of the defendant furnished no reason or justification for the termination of compensation.

On December 5, 1919, the defendant paid into the office of the clerk of the district court the sum of money awarded and found due at the time of the arbitration, and on that day filed a petition to review the award. The plaintiff afterward filed an application to enforce the award. These proceedings were consolidated and tried together, and by stipulation they were heard on the evidence that had been submitted to the arbitrator. The court made findings of fact and conclusions of law as follows:

"The plaintiff received an injury on the 13th day of November, 1918, which injury arose out of and in the course of his employment with defendant, and that said plaintiff is entitled to compensation to be paid by defendant.

"That the injury to plaintiff as proved to be a recurrence of a right inguinal hernia; that the cause of said hernia was, originally, congenital, but the disability from which plaintiff now suffers was produced by the accident which occurred while plaintiff was moving iron for defendant as alleged by plaintiff.

"That said hernia has incapacitated plaintiff for work. The evidence is not clear, but the court finds that the temporary total disability of plaintiff resulting from said accident and injury was not to exceed five (5) weeks from November 13, 1918, and that such temporary total disability has been followed by partial disability, which partial disability will be permanent unless removed by surgical operation.

"The court finds that defendant has offered and still offers plaintiff a surgical operation, by surgeon of his own choosing, and to defray all expenses thereof. That plaintiff refuses said operation and that his refusal is unreasonable; that the operation would not be attended with danger to plaintiff's life, but would, in all probability result in a complete removal of present disability, as well as the congenital weakness which induced hernia.

"That the chances for recovery are so fair and the danger so slight that an ordinary person would readily submit to the operation.

"That plaintiff's average weekly wage prior to the accident was $ 17.75; that he was and is entitled to 60 per cent thereof for four weeks.

"That plaintiff during his partial disability has been able to earn the sum of $ 5.25 per week (approximately thirty per cent of prior wages), and is therefore entitled to recover sixty per cent of $ 12.50 or $ 7.50 per week during partial disability.

"That six months would be a reasonable time in which plaintiff should submit to and recover from the effects of a surgical operation.

"That plaintiff was and is entitled to compensation for four (4) weeks, in the year 1918, to compensation for 53 weeks in the year 1919, and to 22 weeks in 1920, to May 26th, 1920, together with six per cent interest.

. . . .

"The court concludes, as to matters of law:

"That plaintiff is entitled to judgment against defendant for temporary total disability to date for $ 42.60; for partial disability to date, 75 weeks at $ 7.50 per week $ 552.50; in the aggregate lump sum of $ 595.10. Also interest on amounts from respective dates when due, in the sum of $ .

"That the plaintiff should endeavor to effect a cure of his condition by submitting to the operation as tendered by defendant and, in case of his failure so to do, his compensation shall cease at the end of 25 weeks, after May 26, 1920, and during said 25 weeks, beginning June 2, 1920, defendant shall pay plaintiff compensation in the sum of $ 7.50 per week, in weekly installments.

"Should plaintiff accept the tendered operation, defendant shall pay in addition to the operation expenses, compensation weekly in the sum of $ 10.60 per week during the time the operation renders plaintiff totally incapacitated, and $ 7.50 per week for the remainder of the said 25 weeks, after June 2, 1920.

"In case the operation proves successful, the compensation shall cease with said 25 weeks; but if plaintiff's disability is not thereby removed, compensation should then become due and payable at the rate of $ 7.50 per week for the remainder of the period of eight years as provided by law, either in a lump sum or in payments as the court may determine, and jurisdiction should be retained for the purpose of determining the length of time the operation results in total incapacity, whether or not the plaintiff is restored by the operation, and compensation ceases; if not, whether compensation shall thereafter be paid per week or in a lump sum and any other matters necessary for determination; such jurisdiction to be exercised upon motion of either party upon proper notice.

"That the defendant is not estopped from maintaining this proceeding."

Judgment was rendered accordingly, and from that judgment the plaintiff appeals.

The plaintiff gave the following as his reasons for refusing to have the operation performed:

"I think I am too old. I am 54 years of age. That is one reason, another is that I do not think I could stand it under my present age and condition. A man has to be perfectly healthy to undergo an operation and have it successful. I am not in condition because I was jammed through here (indicating). By jammed through here, I mean my ribs was pulled away from my breast bone and my spine is numb. That happened when I was thrown into the car. Another reason that I do not want to submit to an operation is that there is a chance of a man not living. I heard Dr. Stemen testify and say there was a chance of losing."

1. The principal question presented is, Did the court have power to reduce the amount of compensation that should be paid to the plaintiff if he refused to submit to an operation?

The principle which the defendant seeks to have applied has been recognized in actions to recover damages for personal injuries. (Note to Donovan v. New Orleans R. & L. Co., in 48 L.R.A. N.S. 110-113; Note, 12 N. C. C. A. 591; 6 Thompson's Commentaries on the Law of Negligence, § 7210.) This rule was applied in this state in Brewing Co. v. Duncan, 6 Kan.App. 178, 51 P. 310, where that court said:

"The next allegation of error is that the court withdrew from the jury all evidence as to the probable result of a surgical operation. This we think was error, as the probabilities of a cure of the disability would to some extent affect the amount...