American Smelting & Refining Co. v. Industrial Commission

290 P. 770, 76 Utah 503, 1930 Utah LEXIS 76

• Court: Utah Supreme Court
• Decided: August 28, 1930
• Docket: No. 4977.
• Status: Published

Opinions

ELIAS HANSEN, J.

In this proceeding the plaintiff seeks a review and an annulment of an award of compensation granted to Adolph Ofgren by the Industrial Commission of Utah. The commission, after hearing the evidence, found the following facts:

“1. The applicant, Adolph Ofgren, on February 7, 1929', was employed by the American Smelting & Refining Company as a laborer; on said date said company had in its employ three or more workmen and was known and designated as a self-insurer; Mr. Ofgren on said date was paid a wage amounting to the sum of $3.40 per day working seven days per week.

“2. On February 7, 1929, the said Adolph Ofgren, while engaged in dumping railroad car, caught his left hand between dumping lever and end of car sustaining abrasion to his thumb, badly lacerated index finger, laceration of middle finger with fracture of the proximal phalanx. Following the accident the applicant’s injuries were dressed by Dr. F. E. Boucher of Murray, Utah; he was instructed to report to Dr. W. N. Pugh at Salt Lake City to have the fracture reduced. The injured employee would not permit Dr. Pugh to reduce the fracture either with or without anaesthetic; therefore the doctor simply applied a dressing.

“3. The evidence shows that Mr. Ofgren has refused in this case proper medical aid tendered to him as a result of which he contracted a very severe infection resulting in the entire loss of the great finger of the left hand and at this time a considerable loss of function of the left hand at the wrist.

“4. The applicant was very timid and probably over-sensitive to any pain that would follow surgical treatment, and for that reason he refused the treatment suggested by the attending physician rather than from wilfulness on his part to thwart the purposes of the surgeons or extend the period and extent of his disability period.

“5. It is questionable as to whether or not the condition of the applicant’s left hand at this time is fixed. The Commission therefore makes a tentative rating of approximately 33% loss of function to his left hand at the wrist. The applicant should use his hand actively in his employment and return for re-examination and final rating on or about May 1, 1930.

“6. That at this time applicant has suffered a permanent partial loss of the use of his left hand at the wrist equal to 33%; time only can reveal whether or not this present disability is permanent.”

The plaintiff was ordered to pay the applicant $13.02 per week for a period of twenty-five weeks to apply on account of the loss of function to applicant’s left hand at the wrist.

The plaintiff contends that the facts found by the commission do not support the-award because the partial loss of function of Mr. Ofgren’s left hand at the wrist was caused by the refusal of Mr. Ofgren to submit to proper medical treatment. In support of such contention the following authorities and cases are cited: Utah Copper Co. v. Industrial Comm., 69 Utah 452, 256 P. 397; Annotations L. R. A. Strong v. Soken-Galambia, Iron & Metal Co., 1916A, 387, 6 A. L. R. 1260, 18 A. L. R. 431: 109 Kan. 117. 198 P. 182, 18 A. L. R. 415; Lesh v. Illinois Steel Co., 163 Wis. 124, 157 N. W. 539, L. R. A. 1916E, 105; Moran v. Oklahoma Eng. & Mach. Co., 89 Okl. 185, 214 P. 913; O’Brien v. Albrecht Co., 206 Mich. 101, 172 N. W. 601, 6 A. L. R. 1257; Kricinovich v. Car & Foundry Co., 192 Mich. 687, 159 N. W. 362; Myers v. Wadsworth Mfg. Co., 214 Mich. 636, 183 N. W. 913; Schiller v. Baltimore & O. R. Co., 137 Md. 235, 112 A. 272; Swift & Co. v. Industrial Comm., 302 Ill. 38, 134 N. E. 9 ; Mt. Olive Coal Co. v. Industrial Comm., 295 Ill. 429, 129 N. E. 103; Joliet Motor Co. v. Industrial Bd., 280 Ill. 148, 117 N. E. 423; Snook's Case, 264 Mass. 92, 161 N. E. 892.

The general rule deducible from the adjudicated cases is this: If an injured employee unreasonably refuses to submit to proper medical treatment, and as a result his disability or injury is rendered greater or permitted to continue, then such disability or injury as is caused by the unreasonable refusal to submit to treatment is said to be attributed to the voluntary act of the employee and not to the accident. In determining what constitutes a reasonable and what an unreasonable refusal to submit to medical treatment, the facts and circumstances of the particular case must be inquired into. It is quite generally held that when a disability can be prevented or removed by a minor and safe operation, or by safe medical treatment, then it is the duty of the injured employee to submit to such operation or treatment, and a refusal to do so will defeat his claim for compensation for the disability caused by the refusal to submit to treatment. The evidence in this case and the commission’s findings of fact show that the proposed treatment of Mr. Ofgren’s injured hand by Dr. W. N. Pugh was proper and safe. No claim is made to the contrary. It is argued in support of the award that the only treatment Mr. Ofgren refused to permit was the reduction of the fracture of the finger, and that even if the fracture of the finger had been reduced, still the infection would have developed. If the facts are as contended for by Mr. Ofgren, he is not precluded from recovering compensation because he refused to have the fracture reduced. The commission, however, found to the contrary.

There is evidence to support the finding of the commission that Mr. Ofgren’s finger would have been saved if he had submitted to medical treatment. The facts as disclosed by the record are these: On February 7, 1929, Mr. Ofgren was injured while in the course of his employment with the American Smelting & Refining Company at Murray, Utah. Immediately after he received the injury, Dr. Boucher was called in. Mr. Ofgren’s index and middle fingers were lacerated and the middle finger had sustained a compound fracture at the proximal phalanx. Dr. Boucher treated the fingers. He attempted to reduce the fracture and he also applied antiseptic dressings to prevent infection. He told Mr. Ofgren to report the next day to Dr. Pugh’s office at Salt Lake City where Mr. Ofgren resided, for examination to see whether the fracture was properly set and for further treatment. On February 9th Mr. Ofgren called at the office of Dr. Pugh. An X-ray picture was taken of Mr. Ofgren’s finger and the picture was developed while Mr. Ofgren was in the office. The picture was shown to Mr. Ofgren, and Dr. Pugh explained to him what was necessary to properly reduce the fracture and treat the finger. Dr. Pugh then took off the dressing and examined the wound and attempted to explore it by probing so that it could be cleaned out. An attempt was then made to set the bone by pulling the finger so that the ends of the bone would come together. Mr. Ofgren then refused to submit to this treatment. Dr. Pugh then told Mr. Ofgren that if he desired he would give him an anaesthetic. Mr. Ofgren refused. Dr. Pugh then stated to Mr. Ofgren that if he so desired another doctor would be called in to treat him. Mr. Ofgren replied that he did not wish anything done. Dr. Pugh then informed Mr. Ofgren that he would not be responsible for anything that might occur to his hand in the future. Mr. Ofgren refused to submit to any treatment except to have his injured hand dressed, and he signed a written statement to that effect. Dr. Pugh informed one of the members of the Industrial Commission of Mr. Ofgren’s refusal to submit to treatment. It further appears that Mr. Ofgren had his injured fingers dressed from time to time until the infection set in. Dr. Pugh expressed it as his opinion that if Mr. Ofgren had submitted to treatment, infection would not have set in and it would not have been necessary to amputate the finger. Dr. Pugh further testified that the treatment that he proposed giving to Mr. Ofgren was the proper treatment, and that while the finger may have become infected under such treatment, it was very unusual that infection sets in as a result of an injury such as that sustained by Mr. Ofgren where the injury is properly cared for. There is no direct testimony that the infection in Mr. Ofgren’s finger would have developed if he had submitted to proper medical treatment.

Under our limited power of reviewing the awards of the Industrial Commission, we cannot make findings for or modify the findings of the commission. In other words, the award must be affirmed or annulled upon the facts found by the commission and not upon what we might believe the facts to be.

The commission excused the refusal of Mr. Ofgren to have the finger treated because he was timid and probably oversensitive to pain. Do such facts constitute an excuse for the refusal of Mr. Ofgren to submit to the proposed treatment? The question must be answered in the negative. Doubtless some people are very timid and exceptionally sensitive to pain. A workable rule of law, however, must be general in its application and may not be varied to meet individual idiosyncrasies. The injured workman should be held to the duty of submitting to proper treatment either medical or surgical when it involves no serious risk or suffering and when it is such as a man of ordinary manly character would undergo for his own good. Jendrus v. Detroit Steel Products Co., 178 Mich. 265, 144 N. W. 568, L. R. A. 1916A, 881, Ann. Cas. 1915D, 476. The facts found by the commission as a reason for Mr. Ofgren’s refusal to submit to medical treatment do not in law excuse him for his refusal.

It is further urged in support of the award that Mr. Of-gren was suffering severe pain and was only semiconscious when he refused the proffered treatment, and that he was not aware of the probability that serious results would follow his refusal to submit to the treatment. Mr. Ofgren did testify to that effect. From the findings of the commission it would appear that the commission did not believe that testimony. In any event, no finding was made to that effect. If the commission believed that Mr. Ofgren was only semiconscious at the time he refused the treatment, or if the commission believed that he did not know or have good reason to believe that serious consequences would probably follow his refusal to accept the proffered treatment, then such fact or facts were proper for the commission to consider in connection with all the other facts and circumstances surrounding the refusal in determining whether the applicant acted reasonably or unreasonably in his refusal to submit to the proposed treatment. The only facts found were that Mr. Ofgren refused the proffered treatment because he was timid and probably oversensitive to pain. Such facts alone do not constitute a legal excuse for the refusal of Mr. Ofgren to submit to the proper medical treatment.

The award is annulled.

EPHRAIM HANSON, J., concurs.