We do not, therefore, believe the resulting delay in her employability was her "fault." See Lee v. Koegel Meats, 502 N.W.2d 711, 715 (Mich.Ct.App. 1993) (although claimant is responsible for pregnancy, claimant does not control timing of pregnancy in relation to her physician's decision to restrict her work availability); Macklanburg-Duncan Co. v. Wimmer, 280 P.2d 1001, 1004 (Okla. 1955) (decision on advice of doctor to delay treatment because of claimant's pregnancy not grounds for termination of workers' compensation benefits because delay was not unreasonable or arbitrary). Although we have considered all of the arguments FAHC initially made to the Commissioner, FAHC made two additional arguments in its motion for reconsideration and in its brief to this Court: (1) claimant should be disqualified for the time before and after delivery in which she could not work; and (2) the Commissioner's decision created a special favored status for pregnant claimants in violation of the common benefits clause of Chapter I, Article 7 of the Vermont Constitution.
Thus the sole question remaining is whether the order vacating the default judgment, without notice to the employer, results in a failure of due process of law. Claimant invites our attention to Oklahoma Pipe Line Co. v. State Industrial Commission, supra, and Derr v. Weaver, supra, and other cases, which hold generally that the jurisdiction of the Industrial Court to review and vacate an award within 20 days is not defeated by failure to give notice filing petition for review. Employer herein invites our attention to Admiralty Lead Zinc Co. v. Robinson, 156 Okla. 4, 9 P.2d 708; City of Guthrie v. Standley, 151 Okla. 72, 1 P.2d 678; and Macklanburg-Duncan Co. v. Wimmer, Okla., 280 P.2d 1001, wherein it was held generally that an award made without notice and hearing would be vacated. We are of the view that a default judgment denying an award may be vacated without notice by the Industrial Court within twenty days after the order or judgment has been sent to the parties without doing violence to Constitutional due process.
Claimant contends that the award made by the individual judge of the Industrial Court became final since there was no appeal made to the Industrial Court within ten days as required by 85 O.S. 1951 § 77[85-77], and no appeal to the Supreme Court within twenty days under the provisions of 85 O.S.Supp. 1955 § 29[ 85-29]. Claimant invites attention to Mills v. W.E. Logan Sons, Okla., 281 P.2d 175; Sinclair Refining Company v. Duncan, Okla., 297 P.2d 563; Tucker v. King, 206 Okla. 463, 244 P.2d 840; Williams v. Central Dairy Products Co., 205 Okla. 266, 236 P.2d 984; Gibbins v. Indian Electric Co-Operative, 203 Okla. 187, 219 P.2d 634; Macklanburg-Duncan Co. v. Wimmer, Okla., 280 P.2d 1001, and Whittington v. Tidal Oil Company, Okla., 279 P.2d 926. It seems to be the position of the respondent, Arthur Kelley, that the mailing of notice of appeal to the Industrial Court on September 24, 1959, and within ten days from the order of the individual trial judge, is sufficient to perfect the appeal to the Industrial Court en banc even though such notice of appeal was not received by the Industrial Court. No authority is cited in support of this conclusion, and we have found none.
statutory duty to pay compensation to an injured workman imposes upon the latter an implied obligation to act reasonably and use ordinary care in minimizing the consequences of his injury. While an employee is required to undergo minor corrective treatment or surgery, which is simple, safe and reasonably certain to effect a cure, either in whole or some substantial part, it is equally true that this rule may not be invoked to compel his submission to an ill-advised, dangerous, unnecessary, experimental or questionable medical or operative procedure, however minor, in order that benefits created by law in his favor may possibly be reduced or minimized. Moran v. Oklahoma Engineering Machine Boiler Co. et al, 89 Okla. 185, 214 P. 913; Chicago Bridge Iron Works v. Sabin, 105 Okla. 62, 231 P. 851; Consolidated Lead Zinc Co. v. State Industrial Commission, 147 Okla. 83, 295 P. 210, 73 A.L.R. 1298; City of Tulsa Water Department et al. v. Barnes et al., 170 Okla. 601, 41 P.2d 809. See also Macklanburg-Duncan v. Wimmer, Okla., 280 P.2d 1001. An employer who complains of a workman's unreasonable refusal to undergo tendered treatment and who desires to compel his submission thereto, bears the burden of proving that the condition sought to be improved necessitates only a minor medical or surgical procedure which is simple, safe and reasonably certain to effect, either in whole or in some substantial part, a reduction in disability.
¶ 11 Although the Oklahoma Supreme Court has not directly addressed this issue, it has refused to terminate temporary total disability benefits when a claimant's pregnancy prevented her from having or continuing her medical treatment. In Macklanburg-Duncan Co. v. Wimmer, 1955 OK 24, 280 P.2d 1001, the trial court determined the claimant sustained a work-related injury and was in need of medical treatment, and awarded temporary total disability. The claimant subsequently became pregnant, and upon her physician's advice refused to accept medical treatment.
Id. (emphasis added). ¶ 11 The modern statement of this rule is found in the second syllabus of Macklanburg-Duncan v. Wimmer, 1955 OK 24, 280 P.2d 1001. The second syllabus states: An award of compensation to an employee who has sustained an accidental injury compensable under Workmen's Compensation Law may not be denied nor diminished on the ground of refusal to accept medical treatment tendered by the employer in the absence of a showing that such refusal was arbitrary or unreasonable.