Summary
In Bloom v. Jaffe, 94 Misc. 222, the Appellate Term in the first department held that the physician who held an assignment from an employee of the portion of the award which was included as compensation for medical services could not maintain an action against the employer.
Summary of this case from Semmen v. Butterick Publishing Co.Opinion
March, 1916.
Markewich Horowitz (Samuel Markewich, of counsel), for appellant.
Louis N. Jaffe, for respondent.
The plaintiff is a physician who apparently furnished medical services to an injured workman. It was conceded at the trial that the workmen's compensation commission fixed the physician's compensation at twenty-one dollars. Apparently the parties meant by this concession that the commission approved a claim for services of this amount and included it in the award to the workman, as provided by section 24 of the Workmen's Compensation Law. It is not expressly conceded, but it is quite apparent, that the defendant was the employer of the injured workman. The employee has assigned the award, or this portion of the award, to the plaintiff. Upon these facts the plaintiff has been awarded judgment for the sum of twenty-one dollars.
It seems to me quite plain that the physician has no cause of action. At common law a physician who rendered services to an injured employee had no right of action against the employer, although the injured employee might in a proper case have recovered the reasonable value of such services as part of his own damages. The Workmen's Compensation Act has given an injured employee a new kind of remedy and seeks to compensate him for all injuries suffered in the course of his employment, regardless of whether these injuries were caused by the negligence of his employer. As part of this compensation it provides in section 13 for medical service at the expense of the employer, and where the employee has been compelled to procure such service himself the law makes provision for the inclusion of a claim for such service in a proper case in the award made to the employee.
The primary purpose of the statute is not, however, to provide compensation to the physician, but solely to provide compensation to the injured employee for such medical service as the law permits him to procure at the expense of the employer. It does not, therefore, provide for any award to the physician, but merely gives the physician a lien upon the compensation awarded to the workman which "shall be paid therefrom only in the manner fixed by the commission." § 24. In this case the plaintiff is not seeking to enforce his lien on the compensation awarded to the employee, but is seeking to recover the amount directly from the employer. Moreover, even if he were seeking to enforce his lien on the award in a direct proceeding before the commission, he would be bound to show that the commission had fixed the manner of its payment. The assignment from the injured employee can, of course, give him no right of action, because the statute expressly declares that claims for exemptions or benefits due shall not be assigned. § 33.
In basing this decision upon the ground that no award has been made to the plaintiff which he can enforce against the defendant, I certainly do not desire to imply that in any event payment of an award could be enforced against the employer except by action instituted by the commission as provided in section 26. Inasmuch as the plaintiff has, under no circumstances, any direct claim for compensation against the employer, we cannot upon this appeal consider in what manner the payment of compensation to an employee may be enforced.
Judgment reversed, with ten dollars costs, and complaint dismissed, with costs.
WEEKS and DELEHANTY, JJ., concur.
Judgment reversed, with costs.