U.S. Cas. Co. v. Steiger

• Decision Date: 16 March 1937
• Docket Number: Case Number: 26997
• Citation: 66 P.2d 55,1937 OK 185,179 Okla. 407
• Parties: UNITED STATES CASUALTY CO. et al. v. STEIGER et al.
• Court: Oklahoma Supreme Court

1937 OK 185

66 P.2d 55

179 Okla. 407

UNITED STATES CASUALTY CO. et al. v. STEIGER et al.

Case Number: 26997

Supreme Court of Oklahoma

Decided: March 16, 1937

Syllabus

¶0 1. MASTER AND SERVANT - Workmen's Compensation - Liability of Employer for Expense of Medical Attention Where He Fails to Provide Same.

Section 13354, O. S. 1931, provides that the employer shall promptly provide for an injured employee such medical attention as may be necessary and that if the employer fails or neglects to provide the same within a reasonable time after knowledge of the injury the injured employee, during the period of such neglect or failure, may do so at the expense of the employer.

2. SAME - Validity of Award for Expenses Though no Showing of Specific Demand Made of Employer for Medical Attention and Refusal to Give Same.

Where the State Industrial Commission finds from competent evidence that the expenses for medical attention are properly allowed under the provisions of section 13354, O. S. 1931, the award will not be vacated because there is not shown a specific demand for such medical attention and a refusal to give the same as formerly provided in section 7288, C. O. S. 1921.

3. SAME - Basis of Compensation - Disability to Work.

The purpose of the Compensation Act is not indemnity for any physical ailment, but for loss of earning power, disability to work. Rialto Lead & Zinc Co. v. State Industrial Commission, 112 Okla. 101, 240 P. 96, 44 A. L. R. 494; Cosmos Mining Co. v. State Industrial Commission, 101 Okla. 283, 225 P. 720; Skelton Lead & Zinc Co. v. State Industrial Commission, 100 Okla. 188, 229 P. 255.

Original proceeding in the Supreme Court by the United States Casualty Company et al. to vacate an award of the State Industrial Commission in favor of C.H. Steiger. Affirmed.

Pierce & Rucker and A.M. Covington, for petitioners.

R.V. Lewis and Mac Q. Williamson, Atty. Gen., for respondents.

PER CURIAM.

¶1 The petitioners seek to vacate an award made to the respondent because of an accidental injury which occurred on the night of October 31, 1935, when respondent, while carrying a hundred pound sack of flour, fell and injured himself, which occasioned an operation for hernia. The parties will be referred to as petitioners and respondent.

¶2 The hernia was of several years standing and was in an old appendicile scar.

¶3 Dr. McKenzie testified for respondent that about 10:30 the morning after the injury he visited respondent and found a bruise around the hip on the right side. No evidence of fracture but considerable soreness. An examination showed a large hernia and considerable tenderness around the hernia; that the respondent complained of nausea, and in the opinion of the doctor could not go to work, and that by reason of the fall and a resulting injury he found it necessary to call in Dr. Garrett, and that both of these physicians advised an immediate operation; that the operation was performed the next day at the hospital; that the operation was made necessary by the accident because there was danger of infection and danger to the intestines, and also danger of peritonitis; that the hernia was enlarged by the accident, and in the opinion of the witness the accident caused the condition resulting in nausea and aggravation of the hernia, and that by reason thereof it was necessary to perform the operation.

¶4 Respondent testified that he was 43 years old and had been a baker for 25 years and had been employed by petitioner for about 12 years. He described the nature of the accident, which differed in no respect as detailed by Dr. McKenzie. He further stated that about 10 o'clock the night of the accident Mr. Hoffman, one of the owners of the establishment, came in, and respondent told him of the accident. Mr. Hoffman told respondent not to let it get any worse but to get a doctor.

¶5 Mr. Kruse, the other partner in the firm, testified that the wife of the respondent came to him and told him of the accident, and that respondent had gone to Dr. McKenzie. Mr. Kruse stated on the witness stand he advised her he had rather respondent had gone to Dr. Cronk. He further stated that they, meaning the partners, had preferred Dr. Cronk, although witness admitted the partners had used Dr. McKenzie. Witness further stated that he had informed the employees that they preferred Dr. Cronk. On cross-examination he testified:

"Q. Mr. Kruse, you didn't ask or instruct Doctor Cronk to go ut and treat Mr. Steiger, did you? A. No, I did not because I didn't think that they were going to use a doctor. Q. But when Mrs. Steiger informed you at noon that he was worse, you didn't instruct Doctor Cronk then to go out and take the case, did you? A. No, sir, I did not. Q. As a matter of fact, Doctor MacKenzie was agreeable to you? A. Yes, sir. Q. It was perfectly agreeable to you to leave the case in his hands? A. Yes, sir. Q. And that was the reason you didn't call Doctor Cronk? A. I always understood that they had a right to choose the doctor. Q. You didn't have any objection to Doctor MacKenzie, did you? A. No, sir."

¶6 It is first urged that the commission erred in allowing the medical expenses. Section 13354, O. S. 1931, provides in part:

"The employer shall promptly provide for an injured employee such medical, surgical or other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus as may be necessary during sixty days after the injury, or for such time in excess thereof as in the judgment of the commission may be required. If the employer fails or neglects to provide the same within a reasonable time after knowledge of the injury, the injured employee, during the period of such neglect, or failure, may do so at the expense of the employer; provided, however, that the injured employee or another in his behalf, may obtain emergency treatment at the expense of the employer where such emergency treatment is not provided by the employer."

¶7 Under that section not only were the petitioners charged with knowledge thereof, but consented to the medical treatment according to the admission of Kruse, who was placed on the stand for the specific purpose of proving that the respondent made no request for medical attention.

¶8 There is no longer any provision in the Workmen's Compensation Law that an employee must make a specific request for medical attention. The section of the statute containing that specific provision was formerly 7788, C. O. S. 1921, and was amended by chapter 61 of...