Sun Coal Co. v. Wilson

• Decision Date: 13 December 1922
• Citation: 245 S.W. 547,147 Tenn. 118
• Parties: SUN COAL CO. v. WILSON.
• Court: Tennessee Supreme Court

245 S.W. 547

147 Tenn. 118

SUN COAL CO. v. WILSON.

Supreme Court of Tennessee.

December 13, 1922

Error to Circuit Court, Campbell County; Xen Hicks, Judge.

Proceeding by Andy Wilson under the Workmen's Compensation Act, to obtain compensation for personal injuries, opposed by the Sun Coal Company, the employer. There was an award of compensation, and the employer brings error. Award reduced.

McKINNEY J.

This is a suit under the Workmen's Compensation Act (Acts 1919 c. 123).

The claimant, Andy Wilson, while in the employ of the Sun Coal Company, to wit, on October 28, 1920, received an injury which produced hernia.

The coal company proposed to pay all the necessary expenses of an operation, and requested claimant to go to the hospital and have said operation, which he refused to do, and his failure to submit to said operation was set up as a defense to his right to recover.

The trial court was of the opinion that he did not have to submit to an operation, and rendered a judgment in favor of the claimant for $4.73 per week for 300 weeks, and from said judgment the coal company has appealed to this court, and has assigned errors.

1. Did claimant's refusal to submit to an operation bar a recovery?

The pertinent parts of the Compensation Act (chapter 123, Acts of 1919) are as follows:

"Sec 25. Be it further enacted, that during the thirty days after the notice required by section 23 of this act to be given the employer or his agent, the employer shall furnish free of charge to the injured employé such medical and surgical treatment, medicine, medical and surgical supplies, crutches and apparatus as may be reasonably required, and the injured employé shall accept the same and at the option of the employer he may furnish the same free of charge to the injured employé for such length of time after the expiration of the thirty days as the employer may elect, and the employé shall accept the same. Provided, however, that the total liability of the employer under this section shall not exceed one hundred dollars, and, provided further, that the pecuniary liability of the employer for such services rendered the employé shall be limited to such charges as prevail for similar treatment in the community where the injured employé resides. All cases of dispute as to the value of such services shall be determined by the tribunal having jurisdiction of the claim of the injured employé for compensation. * * *

The injured employé must submit himself to the examination by the employer's physician at all reasonable times if requested to do so by the employer, but the employé shall have the right to have his own physician present at such examination, in which case the employé shall be liable to such physician for his services. The employer shall pay for the services of the physician making the examination at the instance of the employer. And in case of dispute as to the injury, the court may, at the instance of either party or on its own motion, appoint a neutral physician of good standing and ability to make an examination of the injured person and report his findings to the court, the expense of which examination shall be borne equally by the parties. If the injured employé refuses to comply with any reasonable request for examination, or refuses to accept the medical service which the employer is required to furnish under the provisions of this act, his right to compensation shall be suspended and no compensation shall be due and payable while he continues such refusal."

The evidence shows that a party so injured can never do efficient work, and that the injury will likely become greater as time passes; that as a result of the injury the earning capacity of the claimant at present has been reduced one-third; that the only cure for hernia is a surgical operation; that it is not a serious operation attended with unusual danger or pain, and can be successfully performed under a local anæsthetic; that such an operation usually restores a man to his former earning capacity; that when handled by a skilled surgeon practically all such operations are successful; that the claimant is physically able to undergo the operation, and an operation was recommended by the several physicians who examined him.

Under these facts, we are of the opinion that the employer was within its right in demanding that claimant submit to the operation.

Under the undisputed evidence, we are impressed with the idea that any reasonable man, under such circumstances, would have submitted to an operation.

Our Compensation Act is broad, and provides that the employer shall furnish medical and surgical treatment for 30 days following the service of notice, and that he may furnish same thereafter, which the employé must receive. This question has been before a number of courts, and the decided weight of authority supports the conclusions which we have reached.

In O'Brien v. Albert A. Albrecht Co., 206 Mich. 101, 172 N.W. 601, 6 A. L. R. 1257, which was a hernia case, the court said:

"The physician of the company and the one of plaintiff's selection both advised an operation for the hernia. Such operation is not attended with danger to life or health, and it appears to be undisputed that it affords the only reasonable prospect of restoration of plaintiff's capacity to labor at his trade, that of a carpenter. Without it he may be able to labor at such light occupation as the condition of his feet and ankles will permit, but he cannot do heavy lifting as his trade of carpenter requires. During all the time he has refused and still persists in his refusal to submit to the operation advised by his own physician as well as the one in the employ of defendant. Plaintiff is an intelligent man, and whether such refusal is due to a defect of moral courage or not we are unable to say. The board did not find that his refusal was due to any ignorance or misunderstanding on his part, and no such finding would be justified on this record. Under such circumstances, the case is clearly distinguishable from Jendrus v. Detroit Steel Products Co., 178 Mich. 265, L. R. A. 1916A, 381, 144 N.W. 563, Ann. Cas. 1915D, 476, 4 N. C. C. A. 864; Poniatowski v. Stickley Bros. Co., 194 Mich. 294, 160 N.W. 569, and Riley v. Mason Motor Co., 199 Mich. 233, 165 N.W. 745.

We appreciate the timidity with which the average person contemplates an operation, minor as well as major. But we also appreciate that in thousands of cases, operations, many of them of but minor degree, have restored incapacitated men to the army of wage-earners, and put them in position to discharge their duty to their dependents, themselves and to society. We are impressed that under the undisputed evidence in the case it was the plaintiff's duty to accept the tendered operation. His unequivocal refusal to follow the advice and judgment of both physicians with reference to the operation relieved defendants from further activities in that direction, and, for the time being at least, absolved them from liability. As was said by this court, speaking through Mr. Justice Kuhn in Kricinovich v. American Car & Foundry Co., 192 Mich. 687, 159 N.W. 362: 'Before the defendant is to be charged, in law or morals, with the duty to compensate him, the claimant should first discharge the primary duty owing to himself and society to make use of every available and reasonable means to make himself whole.'

In both this case and that of Jendrus v. Detroit Steel Products Co., supra, this court quoted with approval the following language of Lord McLaren in Donnelly v. William Baird & Co., 1 B. W. C. C. 95: 'That if the operation is not attended with danger to life or health, or extraordinary suffering, and if according to the best medical or surgical opinion the operation offers a reasonable prospect of restoration or relief from the incapacity from which the workman is suffering, then he must either submit to the operation or release his employers from the obligation to maintain him.'

In the Jendrus Case Mr. Justice Stone fully considers this question. That was a case of a...