Opinion
34518.
DECIDED APRIL 22, 1953.
Workmen's compensation. Before Judge Hendrix. Fulton Superior Court. November 25, 1952.
T. Elton Drake, John M. Williams, for plaintiff in error.
T. M. Smith, Jr., MacDougald, Troutman, Sams Schroder, contra.
There being evidence authorizing the finding by the Board of Workmen's Compensation that there had been no change in the claimant's physical condition since a previous award of compensation, and there being facts and circumstances which authorized the board to determine that the claimant was justified in refusing to submit himself to another examination by a physician, as requested the second time by the employer, the superior court erred in setting aside the finding and award of the board and in remanding the case to the board with instructions that payments of compensation to the claimant be suspended until the claimant complied with the employer's request to submit to such examination.
DECIDED APRIL 22, 1953.
Giles D. Daniel sustained an accidental injury to his back, which arose out of and in the course of his employment with Ford Motor Company in April, 1951. On the next day after the injury, he reported to his employer the accident, and his employer's physician, Dr. Charles S. Jones, examined Daniel and prescribed treatment for him, which failed to relieve him, and in a few days he went back to Dr. Jones, who told Daniel that he would have to see his family doctor. After being examined by several doctors and having X-rays made, Daniel was sent to Dr. Robert F. Mabon, who operated on him, for a ruptured disk at the fifth lumbar vertebra, on July 3, 1951. Being refused compensation by his employer, Daniel filed a claim therefor with the Workmen's Compensation Board; and, after a hearing at which he and his employer both introduced medical and other testimony, an award in favor of the claimant was granted on October 11, 1951, which, on appeal by the employer, was affirmed by the full board on November 16, 1951. The employer then commenced paying Daniel compensation under the terms of the award.
On February 21, 1952, the claimant filed a motion for a rating of his disability on the ground of a change in his condition, and the hearing was set for April 8, 1952. The employer then requested that the claimant submit to a physical examination by Dr. Charles S. Jones, the employer's doctor, and the claimant complied with this request and was examined by Dr. Jones. On March 26, 1952, the employer filed a motion with the State Board of Workmen's Compensation, asking for an order requiring the claimant to submit to a physical examination by Dr. Robert F. Mabon, and that the compensation being paid to the claimant be suspended. A hearing was had on April 8, 1952, on the claimant's motion with respect to a change in his condition and also on the employer's motion to have the claimant's compensation suspended. At this hearing it appeared that, after the claimant on February 21, 1952, had asked for a rating of his disability on account of a change in his condition, counsel for the employer in March of 1952 had requested that the claimant go to Dr. Charles S. Jones, the employer's doctor, for a physical examination. This request was complied with, and the claimant was examined by Dr. Jones. The employer's motion to postpone the hearing until the claimant submitted to an examination by Dr. Mabon was overruled.
The claimant testified on the hearing that he was still suffering with his back from the injury he sustained while working for Ford Motor Company in April, 1951, and that he was not able to work. Dr. R. H. McClung testified that he first examined the claimant on August 3, 1951, and then examined him on February 12, 1952, and on April 5, 1952, and that his physical findings were practically the same on the last examination as they were on the other two, and that, in his opinion, the claimant was not able to work and for all practical purposes his disability was 100%.
The hearing was continued until May 16, 1952, at which time Dr. Charles S. Jones testified in behalf of the employer to the effect that he had examined the claimant some eight weeks before (which would have been in March, 1952), and that Daniel was complaining of considerable pain in his back and in other parts of his body from the injury which he claimed he had received to his back in April, 1951; that the witness thought Daniel was malingering and was not more than 20% disabled; that the witness thought Daniel was able to go back to work and to do light work, but the witness did not recommend this to the board; that he asked the claimant why he did not go back to Dr. Robert Mabon, who had operated on his back, as he felt that he would be the best man to evaluate the claimant's present condition; that, if Daniel could do what he said he could do, he could do light work, and should try, anyway; that the examination he made of the claimant was ordered by Ford Motor Company; that it was his understanding that the claimant would not go back to his doctor; and that the company asked Daniel to go to his (Dr. Jones') office for an examination and paid his bill for the professional services rendered to the claimant.
Dr. John O. Ellis testified in behalf of the claimant to the effect that he specialized in the practice of teleology, and that the claimant was sent to him by Dr. McClung for X-ray; that he made 3 X-rays of Daniel's spine, which show a condition that usually indicates that that there has been some irritation, as where there is an injury or arthritis or some back injury that caused the bone to build up and to react as a fence against disease or injury; that he found a narrowness in the space from rupture of the disk; and that he felt that anyone who had that condition would probably have some pain in the back.
The deputy director found that the record showed: that, before the hearing and preliminary thereto, the attorney for the employer had requested the attorneys of record for the claimant to have the claimant report to Dr. Charles S. Jones for the purpose of a physical examination, and that the claimant did report to Dr. Jones and submitted to a physical examination; that, subsequently to this examination, the employer's attorney requested counsel for the claimant to have the claimant report to Dr. Robert F. Mabon for further physical examination, but that counsel for the claimant refused to comply with this request, on the ground that they had fully complied with the law in such cases provided. The employer's motion that the hearing be deferred until the claimant reported to Dr. Mabon for a physical examination was overruled.
The deputy director found that the evidence adduced at the hearing, medical and all, showed that the claimant is totally disabled to do any work; that there is no change in his physical condition; and that the employer should continue to pay compensation to the client as directed in the award made on October 17, 1951. An award was entered on said findings directing Ford Motor Company as employer to continue to pay compensation of $24 per week, for a period not to exceed 350 weeks, or until there is a change in the claimant's condition. This award was affirmed by the full board. But the superior court (1, 2) reversed and set aside the award and remanded the case to the Board of Workmen's Compensation, with instructions that the board, in accordance with the defendant's motion, filed March 27, 1952, require the claimant to submit to further medical examination under authority of Code § 114-503, at a time to be agreed upon by the parties; and (3) the board was further instructed, in accordance with said Code section, to suspend any and all payments of compensation by the defendant from April 8, 1952, until the claimant had complied with the terms of said order by the superior court.
The claimant excepted to said order.
It had been determined by the findings and award of the Workmen's Compensation Board, made on October 11, 1951, that the claimant was entitled to compensation on account of an accidental injury received by him while working for his employer, Ford Motor Company. This had been adjudicated and the employer was paying the claimant compensation in accordance with said award. The questions for determination by the Workmen's Compensation Board, as raised at the hearing on April 8, 1952, and at the subsequent hearing on May 16, 1952, were: (1) whether or not there had been a change in the claimant's physical condition since the award of October 11, 1951; and (2) whether or not the claimant was justified in failing to go to Dr. Robert F. Mabon, upon request of the employer, for an examination, after he had submitted himself to a physical examination by Dr. Charles S. Jones, designated by the employer, and upon the employer's request.
The deputy director was authorized to find from the evidence that there had been no change in the claimant's physical condition since the award of October 11, 1951, which adjudicated that he was entitled to compensation. The testimony of the two doctors, Dr. R. H. McClung for the claimant, and Dr. Charles S. Jones for the employer, was before the board at the original hearing when the award in favor of the claimant was made on October 11, 1951, and these same two doctors testified before the board at the hearing on April 8, 1952, which was continued over until May 16, 1952, with respect to the physical condition of the claimant then. Dr. McClung testified to the effect that his disability was still 100%, and Dr. Jones testified that he could not give him more than 20% disability. The claimant testified that he was still not able to work as a result of the injury sustained while working for his employer.
Did the board err in denying the employer's motion that the claimant be required to go to Dr. Mabon and submit himself to an examination by said physician? We think not, under the facts disclosed by the record and the law applicable thereto. Code § 114-503 provides in part: "After an injury and as long as he claims compensation, the employee, if so requested by his employer, shall submit himself to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer or the Department of Industrial Relations [now the State Board of Workmen's Compensation]. The employee shall have the right to have present at such examination any duly qualified physician or surgeon provided and paid by him. No fact communicated to, or otherwise learned by, any physician or surgeon who may have attended or examined the employee, or who may have been present at any examination, shall be privileged, either in hearings provided for by this Title, or in any action at law brought to recover damages against any employer who may have accepted the compensation provisions of this Title. If the employee refuses to submit himself to or in any way obstructs such examination requested by and provided for by the employer, his right to compensation and his right to take or prosecute any proceedings under this Title shall be suspended until such refusal or objection ceases, and no compensation shall at any time be payable for the period of suspension unless in the opinion of the Department of Industrial Relations the circumstances justify the refusal or obstruction."
Under the provisions of this Code section, the employee, if so requested by his employer, shall submit himself to an examination, at reasonable times and places, by a qualified physician designated and paid by the employer, and, if he refuses to comply with such request, his compensation shall be suspended, unless in the opinion of the Workmen's Compensation Board the circumstances justify the refusal. Under the provisions of this section, the board had the power and authority to determine from the evidence and circumstances whether the employee was justified in refusing the employer's request, and the action of the board in such respect is judicial in its nature.
The record shows that, after the claimant made application to the board on February 21, 1952, for a hearing as to a change in his condition and the hearing was set for April 8, 1952, the employer requested that the claimant go and submit himself to a physical examination by Dr. Charles S. Jones, the employer's doctor, and the claimant complied with that request and was examined by Dr. Jones some time in March, 1952. After such examination by Dr. Jones, and before the hearing on April 8, the employer requested that the claimant go to Dr. Robert F. Mabon and submit himself to another physical examination, and the claimant failed to comply with such request, as he had shortly prior thereto been examined by Dr. Jones at the instance and request of said employer. The board was authorized to find, in the exercise of its legal discretion, that the circumstances were such as to justify the claimant's refusal to submit to examination by Dr. Mabon.
The Workmen's Compensation Board is a fact-finding body, and it is well-settled law that the findings of such board, when supported by any competent evidence, shall not be set aside by the courts, in the absence of fraud. We are of the opinion, and so hold, that the judge of the superior court erred in setting aside the finding and award of the Workmen's Compensation Board and in ordering that compensation be suspended until the claimant complied with the employer's request that the claimant submit to an examination by Dr. Mabon.
Judgment reversed. Felton and Worrill, JJ., concur.