Opinion
Docket No. 44, Calendar No. 40,059.
Submitted June 8, 1938.
Decided November 10, 1938. Rehearing denied December 22, 1938.
Appeal from Department of Labor and Industry. Submitted June 8, 1938. (Docket No. 44, Calendar No. 40,059.) Decided November 10, 1938. Rehearing denied December 22, 1938.
Alex McLean presented his claim against Eaton Manufacturing Company, employer, for compensation for injuries sustained while in defendant's employ. Award to plaintiff. Defendant appeals. Modified and affirmed.
John J. Gallagher and Owen Dudley, for plaintiff.
Haskell L. Nichols, for defendant.
Plaintiff's notice and application for adjustment of claim filed with the department of labor and industry states that, on March 31, 1937, while employed by defendant as an edge bend operator, an accident happened as follows:
"While 'straw boss' was adjusting one of machines the fire in the furnace was turned down, which caused the bumper arms at the bottom of furnace to stick. I pushed hard on rake. The arms were stuck tightly to bottom of furnace and rake handle slipped thru my hands, consequently striking me in right lower chest; resulting in traumatic pneumonia and empyema."
Defendant denied that plaintiff suffered an accidental injury and said that the pneumonia and empyema were not the results of a blow upon the chest but were the natural sequelæ of influenza and coryza suffered by the plaintiff prior to his illness.
In the proceedings before the deputy commissioner, plaintiff testified that, after the accident, his side bothered him a good deal and, at noon, on the day following the accident, he went to Van Etten, defendant's first aid man, and told him he had cracked his rib. Van Etten examined plaintiff with a stethoscope and put adhesive tape around his chest. On Friday, because the factory was closed, he remained at home, and, on Saturday, Dr. Foust was called. He pronounced the ailment pneumonia and McLean was taken to the W. A. Foote Memorial Hospital, where he remained for four months and five days. On Tuesday following plaintiff's hospitalization, defendant's foreman received a report from one of his men that plaintiff was in the hospital.
Although Dr. Foust had never seen another case of traumatic pneumonia, he attributed McLean's illness to the injury and, upon cross-examination, he quoted from various medical books in support of this diagnosis. Dr. Corley, who assisted in the treatment of plaintiff, confirmed the diagnosis of Dr. Foust, although he also never previously attended a case of traumatic pneumonia. Defendant's medical experts claimed the pneumonia did not result from any injury as there were no visible evidences of contusions or abrasions on the patient's chest. One of them, Dr. Kugler, said that he had never had an examination of a traumatic pneumonia that he recognized as such, "because there would be no difference in the appearance between a traumatic pneumonia, so-called, and ordinary pneumonia." There is evidence to support the department's finding of a causal connection between the injury and subsequent pneumonia, and we may not disturb such finding. Melancon v. Chrysler Corp., 284 Mich. 360.
At the hearing before the deputy, plaintiff failed to produce an itemized statement of the medical services rendered by Dr. Foust. The deputy instructed the doctor to prepare an itemized statement for the first 90 days and mail it to him at Lansing. His charges were included in the deputy's award, which was affirmed by the department on review. Defendant says that no testimony was ever introduced at the hearing before the deputy commissioner as to the amount of Dr. Foust's charges. The only objection ever made by defendant to the allowance of this bill was a general objection in its application for review of the deputy's award, in which appellant stated:
"That the department [sic] erred in allowing to Doctor W.L. Foust a fee of $662, and allowing to W. A. Foote Memorial Hospital the sum of $537.65 for hospital bill."
In defendant's answer to plaintiff's petition requesting the department to take additional testimony appears the statement that:
"Defendant, in its appeal taken in this case, has objected to the allowance of any medical expense."
The opinion of the department is silent on the question of the sufficiency of the evidence as to Dr. Foust's bill. We do not consider questions raised in a claim of appeal from a decision of the department of labor and industry unless it affirmatively appears that the point was specifically urged before the department. See Aske v. W. E. Wood Co., 248 Mich. 327, where the court said:
"The rules of the department of labor and industry require an employer, if denying liability, to set forth with reasonable detail and certainty the grounds of defense relied upon. Review here is limited to points made and presented there. We will consider such points only as the record affirmatively shows were presented to the commission for decision. This record does not show that the point of loaned employee was submitted to the commission. It is not enough that the point could have been presented under the notice of contest and the evidence."
See, also, Wheat v. Clark Hulse, 227 Mich. 556, where the court held that the question of applicability of the general statute of limitations was not stated with sufficient particularity in the application for review by the department, to be considered on appeal in the Supreme Court. The precise question raised here does not appear to have been specifically mentioned below and, therefore, it was not saved for review by this court.
The deputy allowed a bill of the Foote Hospital in the sum of $537.65, and this award was also affirmed by the department. Appellant says no competent evidence was introduced before the deputy concerning this bill and that the department was in error in affirming this award. It does not appear that the question of the competency of the evidence concerning the amount of this bill was ever raised before the department on review, nor did appellant make proper objection at the time the hospital bill was offered in evidence. Appellant had twice successfully objected to the admission of documents purporting to contain the charges of the hospital, on the grounds that the papers were either not properly itemized or not sufficiently identified. Thereafter, following the colloquy between the deputy and Dr. Foust regarding his bill, plaintiff offered in evidence the original hospital bill, together with an itemized statement, which had been brought into court by a messenger, and they were admitted without objection, despite the fact that no one was produced to substantiate the items. By failing to repeat its objections, previously sustained, defendant waived any objection to the admission of this new testimony. Marbury Lumber Co. v. Heinige, 204 Ala. 241 ( 85 So. 453); Bailey Company v. Ogden, 75 Ga. 874; Holtzendorf v. McNeil, 25 Ga. App. 792 ( 104 S.E. 919). Had defendant's previous objections been overruled, perhaps it would not have been necessary to renew them, since the harm would already have resulted from the admission of the testimony.
However, another question is raised on this appeal as to defendant's liability for any medical and hospital expenses. 2 Comp. Laws 1929, § 8420 (Stat. Ann. § 17.154) provides that:
"During the first ninety days after the injury the employer shall furnish or cause to be furnished, reasonable medical, surgical and hospital services and medicines when they are needed."
Defendant claims that no request was made that it furnish medical care and hospitalization and that it had insufficient notice of plaintiff's need for such care and, therefore, no liability arose under the statute. Defendant does not state in its brief how much notice it believes it was entitled to. Defendant had prompt notice of the fact that plaintiff claimed an accident had occurred and, several days later, it was informed that plaintiff was in the hospital, although it may be assumed that defendant did not suspect that there was any connection between the two events.
The department found that, on the Saturday prior to plaintiff's hospitalization, his condition was very serious and that immediate medical care was required. It said that the circumstances warranted the conclusion that an "emergency" existed, which dispensed with any requirement of notice to the employer. Gage v. Board of Control of Pontiac State Hospital, 206 Mich. 25 (7 A.L.R. 533). There is no evidence to support this finding of the department. The "emergency" rule of the Gage Case requires more than that the plaintiff's situation be an urgent one. To excuse notice, it must appear that the circumstances are such that there will be an additional delay, dangerous to the life or health of the employee, if efforts are made to contact the employer and afford him an opportunity to furnish the needed medical care. In the instant case, plaintiff was not admitted to the hospital until some time following Dr. Foust's diagnosis of pneumonia. There is no showing by plaintiff that his employer could not have been informed of his needs without causing any dangerous additional delay or that any such delay would have been involved in giving the employer the opportunity of selecting a hospital and removing plaintiff thereto.
Defendant had no knowledge of plaintiff's hospitalization until three days after his admittance and it cannot be held liable for expenses incurred prior to notification thereof, except that plaintiff was entitled to the reasonable cost of a consultation with Dr. Foust, his private physician, and may be allowed such charge. City of Milwaukee v. Miller, 154 Wis. 652 ( 144 N.W. 188, L.R.A. 1916A, 1, Ann. Cas. 1915B, 847); Leadbetter v. Industrial Accident Commission, 179 Cal. 468 ( 177 Pac. 449).
The notice received by the defendant was sufficient, even though no request for medical services was made by plaintiff, to hold defendant liable for the expenses incurred by McLean subsequent to such notification, there being no showing by defendant that a change in hospital facilities and doctors could not have been made had defendant offered such services. The employee who requires medical attention is, presumably, not in the best condition to protect his interests and he should not be required to take the initiative and request the employer to supply his medical needs. It is a sufficient burden upon the employee, and sufficient protection to the employer, to require that the latter receive notice of the accident and of the fact that the employee is receiving medical attention, in order to charge the employer with medical expenses under the statute, supra.
Subsequent to the decision of the deputy, and before the award was reviewed by the department, the parties filed a stipulation with the department to the effect that two physicians, Dr. Cecil Corley and Dr. R.J. Hanna, were called into consultation by Dr. Foust in relation to the illness of plaintiff, and that their charges totalled $160. This stipulation was made "without prejudice to the defendant's right to question the allowance of bills for medical services in this case." The charges of neither Dr. Corley nor Dr. Hanna were mentioned in any way in the award of the deputy. The original order of the department, on review, entered January 13, 1938, failed to mention their charges and, on January 26, 1938, an order was entered amending the original order and allowing the same. The second order stated that "the attention of the department has been called to a clerical error in the order of the department entered on January 13, 1938, as the order did not direct defendant, Eaton Manufacturing Company, to pay Dr. Cecil Corley $135 and Dr. R.J. Hanna $25 for medical services rendered within the statutory period."
Appellant contends that the department had no power to amend its original order, since this was, in effect, equivalent to the granting of a rehearing. Guss v. Ford Motor Co., 275 Mich. 30. The rule of the Guss Case, precluding the granting of rehearings, does not mean that the department may not correct a mistake in its original order. A rehearing involves a reopening of the case for a redetermination of basic facts. Tulk v. Murray Corporation, 276 Mich. 630. This the department may not permit. However, correction of the mistake in the original order in the instant case involves merely making the department's order conform to its previous actual finding of basic facts. This is permissible ( Wilcox v. Clarage Foundry Manfg. Co., 199 Mich. 79, Fawcett v. Department of Labor Industry, 282 Mich. 489), and may be required by mandamus. Fawcett v. Department of Labor Industry, supra. This rule must be distinguished from our holding in Roe v. Daily Record, 273 Mich. 5, and Tulk v. Murray Corporation, supra, overruling Kirchner v. Michigan Sugar Co., 206 Mich. 459 . In the Roe and Tulk Cases we said that the department cannot set aside an award based upon an approved agreement on the ground that the parties made a mistake in the facts upon which the agreement rested. This rule is founded upon the proposition that, when the department approves an agreement, it, in effect, finds the facts to be in accord with those set up in the agreement; therefore, to correct a mistake in the award would involve a redetermination of basic facts. No such agreement is involved in the instant case. The mistake was made by the department in failing to enter an order in accord with its own independent findings.
The department was not in error in entering the amended order of January 26, 1938, which included an allowance of the bills of Drs. Corley and Hanna. The order of January 13, 1938, affirming the award of the deputy, is correct insofar as it included compensation to plaintiff, the charges of Dr. Foust, and the Foote Hospital, subsequent to April 5, 1937. The amount of the award of January 13, 1938, however, is incorrect because of the inclusion of items prior to April 5, 1937, with the exception of one visit by Dr. Foust. The order of January 13th and the amended order of January 26th should be corrected in these respects, and the cause is remanded for the entry of a corrected order in accordance with this opinion. Costs to appellee.
WIEST, C.J., and SHARPE, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred. BUTZEL, J., took no part in this decision.