Opinion
6 Div. 495.
January 14, 1926.
Appeal from the Circuit Court, Jefferson County; Romaine Boyd, Judge.
B. F. Smith, of Birmingham, for petitioner.
The trial court should have granted appellant's motion requiring appellee to submit himself to an operation for the removal of the cataract. Code 1923, § 7551 (F).
James H. Bradford, of Birmingham, opposed.
It was within the discretion of the court to require, or not, submission by appellee to an operation, and under the evidence there was error in failure to grant appellant's motion.
This is a workmen's compensation case. The court below found the employee due compensation for permanent total disability in the loss of sight of one eye, resulting from a cataract produced by a blow from a flying fragment of ore in mining operations.
The evidence, presented by bill of exceptions, clearly supports the court's finding. It need not be here set out. All other conditions entitling plaintiff to compensation were admitted.
A motion made upon the trial to suspend compensation until the employee submits to surgical treatment, which had not been tendered theretofore, may well be overruled, unless the tender of treatment is so made as to give the employee reasonable opportunity to be properly advised in that regard.
Where the expert witnesses are, as here, equally divided as to the nature and cause of the cataract and whether an operation would be successful, the court properly declined to suspend compensation, under section 7567, Code of 1923, for refusal to submit to an operation.
Statutes of this kind are not construed as requiring the employee to submit to an operation as a condition to compensation, unless there is reasonable assurance of success and the operation is free from serious danger. 2 Schneider Work. Comp. L. pp. 1260, 1262; Ex parte Sloss-Sheffield Steel Iron Co., 207 Ala. 219, 92 So. 458.
Writ denied; judgment affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.