Opinion
No. 70-176
Decided October 27, 1970.
Shortly after filing petition to reopen his workmen's compensation claim, claimant underwent a spinal fusion operation without any authorization by, or notice to, the Industrial Commission, the employer, or the State Compensation Insurance Fund. From subsequent disability award, the employer and Insurance Fund appealed.
Order Affirmed
1. WORKERS' COMPENSATION — Employee — Medical Expense — Without Notice — Employer — Not Necessarily — Forfeiture. Where an employee secures his own physician and contracts surgical and hospital expense without notice to his employer, and without the approval of the Industrial Commission, such conduct does not necessarily result in a forfeiture of all rights to compensation.
2. Spinal Fusion Operation — Without Notice — Medical Examination Cancelled — No Evidence — Prejudice — Employer — Not Relieved — Payment of Benefits. Where spinal fusion operation was performed on Workers' Compensation claimant without notice to employer or Insurance Fund and where employer subsequently cancelled scheduled medical examination of claimant on assumption that it would be useless, but no evidence was offered that failure to give notice was prejudicial to employer, employer was not relieved of all responsibility for payment of benefits since any prejudice to employer resulting from such lack of notice must be actual and must be shown to be so.
Appeal from an Award of the Industrial Commission of Colorado
Alious Rockett, Francis L. Bury, Feay Burton Smith, Jr., for petitioners.
Michael F. Morrissey, for respondent Andre Corley.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Peter L. Dye, Assistant, for respondent The Industrial Commission of Colorado.
This is an appeal from a final order by the Industrial Commission in a proceeding arising under the Workers' Compensation Act.
The claimant, Corley, sustained a back injury in the course of his employment. At the original hearing his permanent partial disability was found to be four percent as a working unit and compensation was paid. Approximately a year and one-half later claimant petitioned the Industrial Commission to reopen his case on the grounds that his condition had worsened. The petition was filed on February 19, 1969. On February 24, the claimant underwent a spinal fusion operation without any authorization by, or notice to, the Industrial Commission; the employer, Mennonite Hospital; or the insurance carrier, the State Compensation Insurance Fund.
After a hearing at which all parties were represented the referee found that the claimant's condition had worsened and that he was temporarily totally disabled as a result of the surgery. It was also found that the employer and its insurer were not liable for the claimant's medical treatment or hospitalization because it had not been authorized. Compensation was ordered for the temporary total disability and the matter was continued for determination of claimant's additional permanent partial disability, if any.
Petitioners, the Hospital and the Fund, assert that the findings of the Referee, adopted and affirmed by the Commission, are not supported by the evidence. We do not agree. The only testimony presented before the Referee was that of the claimant and the doctor who performed the operation. This evidence (at the hearing under review) established that prior to the operation, claimant's disability was thirty percent and that after the operation he was temporarily totally disabled. His permanent partial disability was twenty percent. There was adequate evidence to support the findings and they will not be disturbed.
Petitioners further assert that the provisions of C.R.S. 1963, 81-12-11(3) preclude any right to recover compensation by the claimant. That section of the statute reads, in pertinent part:
"(3) So long as the employee, after written request by the employer or insurer, shall refuse to submit himself to medical examination, or shall in any way obstruct the same, his right to collect or to begin or to maintain any proceeding for the collection of compensation shall be suspended. If he shall refuse to submit to such examination, after the direction by the commission, . . . or in any way shall obstruct the same, his right to weekly indemnity which shall accrue and become payable during the period of such refusal or obstruction, shall be barred. . . ."
The record discloses that the petition to reopen was filed February 19, 1969, and the operation was performed on February 24. On March 5, the Hospital and the Fund arranged for an examination of claimant by the doctor of their choice to be held on March 11. The Hospital and the Fund then learned on March 6 of the fact that the operation had been performed. They immediately cancelled the appointment for the examination by their doctor and asserted that they were deprived of their right to have the claimant examined by a doctor of their choice prior to surgery, and that the claimant was therefore not entitled to reopen the matter and not entitled to compensation.
Petitioners do not assert that claimant refused an examination but claim that his having the operation without notice and without giving them the right to select the physician to attend and treat him obstructed their right to examine.
Petitioners claim that under the case of Baeza v. Remington Arms Co., 122 Colo. 510, 224 P.2d 223, claimant's conduct precluded him from recovery, as a matter of law. Subsequent Supreme Court decisions have established that this assertion is not correct.
In the case of Colorado Fuel and Iron Corp. v. Industrial Commission, 129 Colo. 353, 269 P.2d 1070, where a similar factual situation was present, the court held that where the employee secures his own physician and contracts surgical and hospital expense without notice to his employer, and without the approval of the Industrial Commission, that such conduct does not necessarily result in a forfeiture of all rights to compensation. The court said,
"It does not follow that the act of the employee, in engaging his own surgeon, relieves the employer from all responsibility for the payment of benefits provided by law for disability incurred by the employee in an industrial accident."
The same result was reached in Vanadium Corp. v. Sargent, 134 Colo. 555, 307 P.2d 454.
In Armour and Co. v. Industrial Commission, 149 Colo. 251, 368 P.2d 798, it was stated the prejudice to the employer, "must be actual and must be shown to be so." In the instant case the employer simply assumed that a subsequent examination would be useless and offered no evidence to establish any prejudice.
The Commission did not act in excess of its powers and the final order of the Commission is affirmed.
JUDGE COYTE and JUDGE DUFFORD concur.