This is an action for malpractice against two physicians for the aggravation of an injury received by plaintiff while in the employ of a logging operator, both plaintiff and his employer being subject to the provisions of the Workmen's Compensation Act. The State Industrial Accident Commission assumed jurisdiction of the matter, and after the alleged negligent treatment by the physicians plaintiff was awarded compensation for permanent partial disability.
The complaint alleges, in effect, that on September 4, 1929, plaintiff was employed by Snellstrom Brothers and on that date plaintiff's right leg from the knee to bottom of the foot was injured; that the defendants, as physicians and surgeons, treated plaintiff, and in so doing negligently failed to discover that the bones were broken in plaintiff's ankle and foot, and failed to treat the injury in a proper manner, but were negligent and because thereof the ankle bones of plaintiff's foot were left permanently stiff and the plaintiff's ability to move his foot to the right or left was entirely destroyed, and because of such negligent treatment he was permanently injured, to his damage in the sum of $12,500.
Defendants' answer alleges, among other things, that on account of the injury plaintiff became entitled, under the Workmen's Compensation Law, in addition to the awards above referred to, to medical and surgical treatment and hospitalization, and that the State Industrial Accident Commission, having acquired jurisdiction of the case, was required to furnish medical and surgical treatment and hospitalization; that the defendants were employed by the commission, pursuant to the provisions of the act, and under the direction of the chief of its medical and surgical staff, then Dr. F.H. Thompson, of Salem, Oregon; that all of the treatments rendered plaintiff by defendants were rendered pursuant to the provisions of said Workmen's Compensation Act, under the directions of said commission and its medical expert, Dr. Thompson; that all of said treatment was received and accepted by plaintiff as a part of the benefits to which he was entitled under the act; that plaintiff elected a remedy against the State Industrial Accident Commission and the final award of the commission was based upon all of the
injuries which plaintiff may have received on September 4, 1929, and subsequent thereto, prior to the date of said final award, and that the same constituted full compensation as prescribed by law for all such injuries.
Plaintiff, in his reply, sets forth in detail that he made application to the State Industrial Accident Commission for compensation on account of the injuries received on September 4, 1929; admits that the State Industrial Accident Commission made an award to the plaintiff based on temporary total disability for a period of thirteen months and seven days, entitling him to $68.90 per month, totaling $914.25, on account of said injuries, all of which award was paid and accepted by plaintiff prior to October 20, 1930; that on the latter date the State Industrial Accident Commission made a final award based upon plaintiff's said application for permanent partial disability on account of the injuries received on September 4, 1929, and allowed plaintiff the sum of $720 on account of said injuries, payable at the rate of $25 per month, and that said sum was accepted by the plaintiff.
In an effort to avoid the force of the allegations of defendants' answer and the admissions of plaintiff's reply, plaintiff further avers that none of the injuries which he received from the defendants, as averred by him in his complaint on file herein, was reported to the State Industrial Accident Commission of Oregon. Plaintiff further alleges that there was a contract made between Snellstrom Brothers and defendants to furnish medical care and hospital services to sick and injured employees of Snellstrom Brothers; that $1 per month was deducted from plaintiff's wages for paying defendants therefor; that defendants accepted plaintiff as a patient on September 4, 1929, and retained him as a patient for about three months, under the contract mentioned.
Defendants moved for judgment on the pleadings, which motion was allowed by the court. Plaintiff appeals.
Plaintiff by his reply admits the award made by the Industrial Accident Commission. We deem it immaterial whether the alleged improper treatment and its result were reported to the commission or not.
The principal question for determination in this case is whether plaintiff is barred from maintaining an action against defendants for the aggravation of an injury received while in the employ of a logging contractor, both plaintiff and his employer being subject to the provisions of the Workmen's Compensation Act, and having received compensation for temporary total disability, as well as a final award, made over a year following his accident and based upon the actual condition of his leg at the time of making the award.
This case is practically on all fours with the case ofMcDonough v. National Hospital Association, 134 Or. 451, (294 P. 351). The learned counsel for plaintiff suggests that there is a distinction between this case and the McDonough case, in view of the fact that in the McDonough case it was admitted and affirmatively stated that there was received compensation for all injuries naturally resulting from the original injury and that that is denied in this case. As we view the question it is not a material denial. The Workmen's Compensation Law prescribes what the effect of such an award is, and what the effect of the receipt of the compensation award under the statute is. It is one of the main objects of the Workmen's Compensation Law that suitable, speedy relief may be rendered to an employee who, together with his employer, comes within
its provisions, and although the compensation may not, in all cases, be as great as would be recovered in cases of negligence, nevertheless the amounts provided for, when awarded, take the place of and are in full settlement for such injuries. In order that the relief may be timely in such cases and to clothe the commission with statutory authority to make provisions therefor, section 49-1814, Oregon Code 1930, provides as follows:
"Every workman subject to this act while employed by an employer subject to this act who while so employed sustains personal injury by accident arising out of and in the course of his employment and resulting in his disability * * * shall be entitled to receive from the industrial accident fund thereby created the sum or sums hereinafter specified and the right to receive such sum or sums shall be in lieu of all claims against his employer on account of such injury or death, except as hereinafter specifically provided; provided, however, that if the injury to a workman occurring away from the plant of his employer is due to the negligence or wrong of another not in the same employ, the injured workman * * * shall elect whether to take under this act or seek a remedy against such other, such election to be in advance of any suit, and if he elects to take under this act the cause of action against such third person shall be assigned to the state industrial accident commission for the benefit of the accident fund. If the other choice is made, the accident fund shall contribute only the deficiency, if any, between the amount of recovery against such third person actually collected and the compensation provided or estimated by this act for such case. * * *"
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This is an action for malpractice against two physicians for the aggravation of an injury received by plaintiff while in the employ of a logging operator, both plaintiff and his employer being subject to the provisions of the Workmen's Compensation Act. The State Industrial Accident Commission assumed jurisdiction of the matter, and after the alleged negligent treatment by the physicians plaintiff was awarded compensation for permanent partial disability.
The complaint alleges, in effect, that on September 4, 1929, plaintiff was employed by Snellstrom Brothers and on that date plaintiff's right leg from the knee to bottom of the foot was injured; that the defendants, as physicians and surgeons, treated plaintiff, and in so doing negligently failed to discover that the bones were broken in plaintiff's ankle and foot, and failed to treat the injury in a proper manner, but were negligent and because thereof the ankle bones of plaintiff's foot were left permanently stiff and the plaintiff's ability to move his foot to the right or left was entirely destroyed, and because of such negligent treatment he was permanently injured, to his damage in the sum of $12,500.
Defendants' answer alleges, among other things, that on account of the injury plaintiff became entitled, under the Workmen's Compensation Law, in addition to the awards above referred to, to medical and surgical treatment and hospitalization, and that the State Industrial Accident Commission, having acquired jurisdiction of the case, was required to furnish medical and surgical treatment and hospitalization; that the defendants were employed by the commission, pursuant to the provisions of the act, and under the direction of the chief of its medical and surgical staff, then Dr. F.H. Thompson, of Salem, Oregon; that all of the treatments rendered plaintiff by defendants were rendered pursuant to the provisions of said Workmen's Compensation Act, under the directions of said commission and its medical expert, Dr. Thompson; that all of said treatment was received and accepted by plaintiff as a part of the benefits to which he was entitled under the act; that plaintiff elected a remedy against the State Industrial Accident Commission and the final award of the commission was based upon all of the
injuries which plaintiff may have received on September 4, 1929, and subsequent thereto, prior to the date of said final award, and that the same constituted full compensation as prescribed by law for all such injuries.
Plaintiff, in his reply, sets forth in detail that he made application to the State Industrial Accident Commission for compensation on account of the injuries received on September 4, 1929; admits that the State Industrial Accident Commission made an award to the plaintiff based on temporary total disability for a period of thirteen months and seven days, entitling him to $68.90 per month, totaling $914.25, on account of said injuries, all of which award was paid and accepted by plaintiff prior to October 20, 1930; that on the latter date the State Industrial Accident Commission made a final award based upon plaintiff's said application for permanent partial disability on account of the injuries received on September 4, 1929, and allowed plaintiff the sum of $720 on account of said injuries, payable at the rate of $25 per month, and that said sum was accepted by the plaintiff.
In an effort to avoid the force of the allegations of defendants' answer and the admissions of plaintiff's reply, plaintiff further avers that none of the injuries which he received from the defendants, as averred by him in his complaint on file herein, was reported to the State Industrial Accident Commission of Oregon. Plaintiff further alleges that there was a contract made between Snellstrom Brothers and defendants to furnish medical care and hospital services to sick and injured employees of Snellstrom Brothers; that $1 per month was deducted from plaintiff's wages for paying defendants therefor; that defendants accepted plaintiff as a patient on September 4, 1929, and retained him as a patient for about three months, under the contract mentioned.
Defendants moved for judgment on the pleadings, which motion was allowed by the court. Plaintiff appeals.
Plaintiff by his reply admits the award made by the Industrial Accident Commission. We deem it immaterial whether the alleged improper treatment and its result were reported to the commission or not.
The principal question for determination in this case is whether plaintiff is barred from maintaining an action against defendants for the aggravation of an injury received while in the employ of a logging contractor, both plaintiff and his employer being subject to the provisions of the Workmen's Compensation Act, and having received compensation for temporary total disability, as well as a final award, made over a year following his accident and based upon the actual condition of his leg at the time of making the award.
This case is practically on all fours with the case ofMcDonough v. National Hospital Association, 134 Or. 451, (294 P. 351). The learned counsel for plaintiff suggests that there is a distinction between this case and the McDonough case, in view of the fact that in the McDonough case it was admitted and affirmatively stated that there was received compensation for all injuries naturally resulting from the original injury and that that is denied in this case. As we view the question it is not a material denial. The Workmen's Compensation Law prescribes what the effect of such an award is, and what the effect of the receipt of the compensation award under the statute is. It is one of the main objects of the Workmen's Compensation Law that suitable, speedy relief may be rendered to an employee who, together with his employer, comes within
its provisions, and although the compensation may not, in all cases, be as great as would be recovered in cases of negligence, nevertheless the amounts provided for, when awarded, take the place of and are in full settlement for such injuries. In order that the relief may be timely in such cases and to clothe the commission with statutory authority to make provisions therefor, section 49-1814, Oregon Code 1930, provides as follows:
"Every workman subject to this act while employed by an employer subject to this act who while so employed sustains personal injury by accident arising out of and in the course of his employment and resulting in his disability * * * shall be entitled to receive from the industrial accident fund thereby created the sum or sums hereinafter specified and the right to receive such sum or sums shall be in lieu of all claims against his employer on account of such injury or death, except as hereinafter specifically provided; provided, however, that if the injury to a workman occurring away from the plant of his employer is due to the negligence or wrong of another not in the same employ, the injured workman * * * shall elect whether to take under this act or seek a remedy against such other, such election to be in advance of any suit, and if he elects to take under this act the cause of action against such third person shall be assigned to the state industrial accident commission for the benefit of the accident fund. If the other choice is made, the accident fund shall contribute only the deficiency, if any, between the amount of recovery against such third person actually collected and the compensation provided or estimated by this act for such case. * * *"
It is plain from the provisions of the Workmen's Compensation Act that any workman, while he is subject to the act and in the service of an employer who is bound to contribute to the industrial accident fund, who shall sustain a personal injury by accident arising out of and in the course of his employment, shall receive
compensation according to the schedule provided in section 49-1827. And it is plain from the provisions of section 49-1829 that in addition to the award that may be made under the act, such an injured workman is entitled to first aid, together with transportation, medical and surgical attendance and hospital accommodations, the expenses of which are not to be deducted from the compensation allowed by the award. Therefore the treatment by the defendants, as alleged in plaintiff's complaint, which was authorized and sanctioned by the Industrial Accident Commission, under authority of the Workmen's Compensation Law, was an integral part of the award made by the commission to plaintiff on account of his injuries, and the amount paid pursuant to such award is full compensation for such injuries, including the aggravation complained of in the treatment by the physicians. The arrangement for medical treatment and hospitalization of such an employee is a mutual one made by the Industrial Accident Commission, who authorizes the contract under the statute, the employee, who contributes a small amount of his wages, the employer and the physicians, to which compact the employee consents when he comes within the provisions of the act. In such cases where a contract is made for the care and medical attention of the injured workmen the statute provides that if, under such contract, the injured workmen are not properly treated, the Industrial Accident Commission may abrogate the contract: Section 49-1504, Oregon Code 1930.
Section 49-1827, Oregon Code 1930, provides in part:
"(i) If aggravation, diminution or termination of disability takes place or be discovered after the rate of compensation shall have been established or compensation
terminated in any case, the commission may, upon the application of the beneficiary, or upon its own motion, readjust for future application the rate of compensation in accordance with the rules in this section provided, or, in a proper case, terminate the payments."
The aggravated injury caused by the medical or surgical treatment of the injured workman, whether such treatment was skillful or otherwise, became a part of the original injury and was taken into consideration in the arbitration of the Industrial Accident Commission, according to the provisions of the statute, in making the final award, and when plaintiff accepted the amount of the award he accepted compensation for the whole injury, including the injury caused by the malpractice of defendants, alleged in the complaint. In other words, the Industrial Accident Commission awarded compensation for the injuries of plaintiff as they existed at the time of the final award: Section 49-1827, sub-sec. (i), Oregon Code 1930; 8 R.C.L. 449; Chebot v. StateIndustrial Acci. Comm., 106 Or. 660 (212 P. 792); Ross v.Erickson Construction Co., 89 Wn. 634 (155 P. 153, L.R.A. 1916F, 319).
In accordance with the general rule, when a plaintiff has accepted satisfaction in full for an injury done him from whatever source it may come, he is so far affected in equity and good conscience that the law will not permit him to recover again for the same damages, as the law regards an injury resulting from the mistakes of a physician in treating an injury as a part of the immediate and direct damages which naturally flow from the original injury: McDonough v. National Hospital Association, supra, page 455, and
cases there cited; Reed v. City of Detroit, 108 Mich. 224
(65 N.W. 967); Stover v. Inhabitants of Bluehill, 51 Me. 439.
The Oregon Workmen's Compensation Act was enacted not only for the benefit of the employer and employee but for the purpose of minimizing litigation and lessening the burden on the taxpayers resulting therefrom: Section 49-1801, Oregon Code 1930.
It is contended by plaintiff that the Workmen's Compensation Act prevents the plaintiff from availing himself of his common-law remedy. The statute is not in abrogation of the common-law, but follows in the wake thereof. It was almost the universal rule under the common law that an employer was not only liable for an original injury received during employment but also for any aggravation thereof by the act or conduct of a physician or surgeon: Hunt v. Boston Terminal Co., 212 Mass. 99
(98 N.E. 786, 48 L.R.A. (N.S.) 116, Note, p. 117). And a settlement with the employer or the original tort feasor released the attending physician for an aggravation of the original injury through malpractice: McDonough v. National Hospital Association, supra;Stires v. Sherwood, 75 Or. 108 (145 P. 645); Berkley v.Wilson, 87 Md. 219 (39 A. 502); Martin v. Cunningham,93 Wn. 517 (161 P. 355, L.R.A. 1918A, 225); Retelle v. Sullivan,191 Wis. 576 (211 N.W. 756, 50 A.L.R. 1106); Polucha v. Landes,60 N.D. 159 (233 N.W. 264).
The facts set forth in defendants' answer, which are admitted by the reply, constitute a complete defense to plaintiff's cause of action. Therefore the judgment on the pleadings, as for want of a reply to the answer, should be sustained: § 1-616, Oregon Code 1930; McDonough v. National Hospital Association, supra.
In view of the fact that the question involved herein is practically covered by the opinion of Mr. Justice RAND inMcDonough v. National Hosital Ass'n, supra, we deem an extended discussion unnecessary.
The judgment of the circuit court is affirmed.
BROWN and BELT, JJ., concur.
ROSSMAN, J., dissents.