Millwood v. Firestone Cotton Mills

"WiNBORNE, J. On this record, is there sufficient competent evidence to support the finding that “additional hospitalization and treatment will tend to lessen the period of disability of the claimant”? If not, when the North Carolina Industrial Commission finds that the claimant is permanently totally disabled as result of injury by accident arising out of and in the course of her employment may it in its discretion award medical, surgical, hospital or other treatment for an additional period of time? *523 Consideration of pertinent sections of the North Carolina Workmen’s Compensation Act under proper construction points to negative answers to these determinative questions. Section 25 of the act as amended provides: “Medical, surgical, hospital, or other treatment, including medical and surgical supplies as may reasonably be required, for a period not exceeding ten weeks from date of injury to effect a cure or give relief, and for such additional time as in the judgment of the Commission will tend to lessen the period of disability, . . . shall be provided by the employer. In case of a controversy arising between employer and employee relative to the continuance of medical, surgical, hospital or other treatment, the Industrial Commission may order such further treatments as may in the discretion of the Commission be necessary . . .” Public Laws 1929, ch. 120, sec. 25, as amended by Public Laws 1931, ch. 274, sec. 4. As we read and construe the wording of the act it is plain that in order to effect a cure or give relief, medical, surgical, hospital or other treatment shall be provided by the employer for a period of ten weeks. But such treatment may not be required for additional time unless it “will tend to lessen the period of disability.” Disability, as used in the act, means “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” Public Laws 1929, ch. 120, sec. 2, subsec. (i). Whether additional hospital treatment will tend to lessen the period of disability is a question of fact to be ascertained by the Industrial Commission upon competent evidence. Until and unless such finding be made, the Commission is without jurisdiction to make an award for treatment for an additional period. 1. Reverting to the first question, it is appropriate to refer to the evidence before the Commission. Drs. Crispell, Leinbach and Vernon each, after reviewing the history of the case, and treatment administered, expresses his opinion of the present condition of claimant and a prognosis as to her future condition. Dr. Crispell said in part: “For all intents and purposes, I think that the course and prognosis are those of schizophrenia or dementia praecox. . . . While there may be a little tendency towards remission at times, I do not think the patient will ever be mentally normal or able to live outside of an institution, and the likelihood is that the condition will be progressive. Furthermore, there is no specific treatment and there remains nothing but custodial care. ... In spite of the fact that everything possible has been done, she has a malignant psychotic condition which will incapacitate her, probably permanently, and this is beyond any treatment, and in which she will need permanent institutional and psychiatric care.” *524 In bis report, Dr. Leinbacb stated in part: “It is implied only that tbe course of her psychosis is, in my opinion, beyond human control and can be influenced only in minor features by treatment of any kind. It appears to me also that her treatment in the future will be largely custodial. . . .” On examination before the hearing Commissioner, Dr. Leinbaeh testified: “I have an opinion satisfactory to myself that further medical treatment will not tend to lessen the period of her disability. ... I saw this patient January 30th. Her condition at that time was just as bad as it could be. She became worse, progressively worse, during her treatment in the Charlotte Sanatorium, and at the time I saw her eighteen months later, January 30, her condition was just as bad as it was the day she was dismissed from the Sanatorium. . . . I don’t think hospitalization would tend to give relief. I don’t think her trend is to recover or improve by being in the hospital at all.” Dr. Vernon reported in part: “A mental disorder and disability of three years standing following an accident is probably permanent and not likely to be influenced by any treatment. . . . The mental reactions of Mrs. Millwood present a picture with close marks of the mental disease known as dementia praecox. It is my opinion that we can so call it at this time. What has caused it I do not know. . . . As to treatment, no specific treatment that has been tried and tested is known to materially influence the course of dementia praecox. Custodial care may improve habits and prolong life; and in the course of time the patient may come to a more or less comfortable adjustment with surroundings ; but the disease known as dementia praecox is beyond control and gradual deterioration is the usual course. Such a case as Mrs. Mill-wood will probably spend her life in a mental hospital.” On examination before the hearing Commissioner, Dr. Vernon testified, in part: “I think custodial care of the patient is necessary . . .” Then in response to a direct question as to whether anything medically, surgically, or of any nature while in his institution would effect a cure or give relief or tend to lessen the period of disability, the doctor said in part: “My reply would have to be that the best efforts of hospitalization and care would certainly tend to give her the best chance. By that I wouldn’t mean that I had full assurance or any reason to think that she would necessarily recover. . . . Right along she might regress, deteriorate while doing all these things. Nothing that is any assurance or certainly medically that I know of could be given Mrs. Millwood which could cure her present mental condition. I am inclined to think I can treat her, which treatment would tend to lessen her disability . . .” And, finally, in response to the question: “Most of us subscribe to the theory that as long as there is life there is hope?” he replied: “Yes, sir, and it is obvious that the person needs training or *525 skillful nursing or care. It is not in tbe sense of medical or surgical care. Everything has to be done for her, every sanitary thing.” From this evidence taken in the most favorable light to plaintiff as “everything has to be done for her, every sanitary thing,” treatment would tend to lessen her disability. But there is no evidence that treatment will tend to lessen the period of her disability which the Commission finds. To the contrary, on 30 March, 1938, the Commission awarded continuance of hospitalization upon finding that plaintiff “sustained an injury by accident arising out of and in the course of her employment, resulting in permanent total disability.” Upon that finding, the treatment terminates and the act provides the compensation. 2. That part of section 29 of the act providing that “in case of a controversy arising between the employer and employee relative to continuance of medical, surgical, hospital or other treatment, the Commission may order further treatment as may in the discretion of the Commission be necessary” must be read in connection with the sentence just preceding, providing for such treatment. When so considered, the exercise of discretion for treatment beyond the ten weeks period comes into play only upon proper finding by the Commission that such additional treatment “will tend to lessen the period of disability.” The record in the present ease reveals that “in spite of the fact that everything possible has been done” for claimant since her injury on 21 February, 1936, she is now suffering from an incurable mental disease, a permanent total disability. What care and treatment is now required to be provided for her under the provisions of the Workmen’s Compensation Act is not a matter of public policy except as therein declared. In that act the Legislature has prescribed and limited the benefits to and the burdens upon those subject to its provisions. It is the duty of the courts to declare the law as written, and not to make it. S. v. Whitehurst, 212 N. C., 300, 193 S. E., 657; Borders v. Cline, 212 N. C., 472; 193 S. E., 826, and cases there cited. Attention is called to Rule 19 of the Rules of Practice in the Supreme Court, 213 N. C., 816, with respect to the arrangement of the contents of the record and of the index. The index to record on this appeal is made up almost entirely of alphabetical designation of exhibits. This is not in compliance with the requirements of the rule, and is virtually no index. Hence, it has been necessary in the main to search through the ninety pages to find any particular document. See Kearnes v. Gray, 173 N. C., 717, 92 S. E., 149. Likewise, attention is called to the fact that in brief of appellant reference is made to exhibits in the record without page designation. . The judgment below is Reversed.