Opinion
Hearing Granted by Supreme Court May 16, 1929
Certiorari to review an order of the Industrial Accident Commission.
Proceedings under the Workmen’s Compensation Act by James W. Williamson, employee, opposed by the Southern California Edison Company, employer. To review an award of the Industrial Accident Commission allowing compensation, the employer brings certiorari. Award annulled.
COUNSEL
Roy V. Reppy and E.W. Cunningham, both of Los Angeles, for petitioner.
G.C. Faulkner, of San Francisco, for respondents.
OPINION
WORKS, P.J.
James W. Williamson, one of the respondents in this proceeding, suffered an injury arising out of and in the course of an employment under petitioner. He was sent to a Dr. Coffey for treatment by petitioner. After being attended by this physician for some time and after occurrences which will be set out in detail below, Williamson, without the knowledge of petitioner, went to a second physician, Dr. Rey, for further treatment. This latter physician rendered services to him, and he later petitioned respondent Industrial Accident Commission for an adjustment of compensation to cover the charges made in that behalf. An award was rendered in Williamson’s favor, and petitioner instituted this proceeding for the purpose of procuring its annulment.
The only point we think it necessary to consider in determining the proceeding depends upon the testimony of Williamson before respondent Industrial Accident Commission. Some time after his injury, when his sufferings became acute, Williamson went to a hospital "used" by petitioner for its employees. It was there that Dr. Coffey saw and treated him, visiting him daily for a period of about fifteen days. A few days before the expiration of this period, at a time when he was suffering badly, he was examined by three physicians, Dr. Coffey, a Dr. Homer, and another whose name Williamson did not remember. On the 11th day of December, 1927, which was a Sunday, Dr. Coffey told him that he might leave the hospital the next day and go home, which he accordingly did. He said he saw Dr. Coffey once after that, and then the record shows:
"Q. Did you have any further medical treatment? A. Well, I went back, came back to Dr. Coffey and he told me to come back in a day or two and I came back to him.
"Q. What did he say? A. Well, I don’t remember just what he said. He said, ‘We will have to give it a little more time,’ or mP. 959msomething; so I came back to him again that week about Friday, I think of that week.
"Q. That would be about two times after you had left the hospital? A. Yes, sir.
"Q. He just observed you, I suppose; he did not give you treatment? A. Yes, sir.
"Q. What did he say the last time he saw you? A. He said he thought I could go to work Monday; he said he thought I would be better off, rather urged me to go to work.
"Q. What did you think about it? A. I didn’t, I told him, I didn’t feel like that. ***
"Q. After seeing Dr. Coffey the second time and he advised you to try work, then you did not try work at that time? A. I tried work Monday.
"Q. You tried Monday? A. That was the 19th, yes, sir."
Williamson then testified that he worked from that day, at light labor until January 3, when he and others were laid off because of a reduction of force. He said, however, that he felt very badly during the entire period. He testified, a little later:
"Q. Did you go back again after you quit there, after they had laid you off, did you go back again or talk with any of the doctors or any of the representatives of the employer? A. I went to Dr. Homer, I think; well, I went to him the 5th of January.
"Q. Did he examine you again? A. Well, he talked to me, that was all. He said, ‘Well, I think you will get along all right; I am going to just report you as well.’ I told him that I was not able to do any hard work at all.
"Q. What symptoms did you give to Dr. Homer there on January 5th, if you remember; what did you tell him? A. Well, I don’t know as he asked for any symptoms.
"Q. And you didn’t tell him any? A. I told him— I don’t know as I told him anything. I just told him I was not able to do hard work.
"Q. What did you go to Dr. Homer for? A. Dr. Coffey.
"Q. I understood you went to Dr. Homer. A. That was an X-ray. It was Dr. Coffey.
"Q. What was your idea in going to Dr. Coffey? A. He was a company doctor.
"Q. Well, you say you did not tell him, give him any symptoms? Did you expect him to be a mind reader or what? A. I supposed if he wanted to know any further about my condition that he would ask about it. ***
"Q. *** After the 5th of January what did you do? *** A. I went to Dr. Rey on the 8th; that is Monday."
A few pages further on Williamson testified as follows:
"Q. Who referred you to Dr. Rey? A. I went to Dr. Rey of my own accord.
"Q. Did you tell Dr. Coffey that you had gone to Dr. Rey? A. No, sir.
"Q. Did you tell him of the treatment that you were receiving by another doctor? A. I was not receiving any treatment until after Dr. Coffey discharged me.
"Q. But you went back to Dr. Coffey after you had been discharged by Dr. Coffey, didn’t you? A. Not after I had been discharged.
"Q. When was it that you were discharged? A. He told me the 5th, the night of the 5th of January.
"Q. Isn’t it a fact that he discharged you for return to work on December 19th? A. He told me to come back to him.
"Q. But isn’t it a fact that he discharged you to go to work on December 19th? A. He told me I could go to work on December 19th, but he told me to come back to see him on the 19th."
Upon this testimony respondent commission found: "The employer refused and neglected to furnish further medical treatment reasonably required to cure and relieve from effects of said injury, and said employee is entitled to his reasonable medical expenses. ***" The finding was made pursuant to the provisions of subdivision (a) of section 9 of the Workmen’s Compensation Act, to the effect that compensation shall be furnished for "such medical, *** treatment, *** as may reasonably be required to cure and relieve from the effects of the injury, the same to be provided by the employer, and in case of his neglect or refusal seasonably to do so, the employer to be liable for the reasonable expense incurred by or on behalf of the employee in providing the same. ***" Stats.1919, p. 913, Deering, Gen.Laws, Ed.1923, Act 4749. It is contended that the finding is not supported by the evidence, and we think the contention must be upheld. Laying aside the question whether Dr. Coffey had authority to bind petitioner by a refusal or by neglect to furnish Williamson "further" medical service— a question which is argued at length in the briefs— we think there is nothing in the evidence which shows that the physician either refused or neglected to furnish it. When he told Williamson he was cured, the latter made no remonstrance, made no statement from which the doctor might have been induced to reconsider his opinion that a cure had been effected. He merely responded to the statement of the physician that he could do no hard work, a remark not inconsistent with the idea that a cure had resulted. We think the testimony of Williamson falls far short of showing that refusal or neglect contemplated by subdivision (a) of section 9 of the act.
Award annulled.
We concur: CRAIG, J.; THOMPSON, J.