Scruggs Bros. & Bill Garage v. State Industrial Com.

Opinion by SHACKELFORD. O. It appears from the record- in this case-that the claimant, Leslie IS. Sweeney, was accidentally injured on the 14th day of Miay, 1922, by getting a piece of steel in .his eye while rendering service for the Scruggs Brothers A Bill Garage in the town of Hollis, Okla. It seems that while hammering on a piece ■of steel, in (he course of his employment, a small piece thereof was broken off and struck claimant, piercing one of his eyes, from which accident he lost the eye. The claimant, it seems, first consulted I>r. Roy Pendergraft. who fold him to go to I>r. Abernathy at Alius. It appears, however, that neither Dr. Pendergraft nor 1 >r. Abernathy were able to romove the steel particle. The claimant, after consult ing Drs. Pendergraft and Abernathy, went to Wichita Falls, and there Dr. Hartsook removed the steel particle from the eye. After this was done it appears that' the claimant returned to Altus and Dr. Abernathy treated him for two or three days, and then he went to Hollis and again saw Dr. Pendergraft. It seems, further, that claimant, being dissatisfied with the treatment he was getting, and on or about the 19th or 20th day of May. 1922, went to Dallas, Tex., and there consulted with Drs. Arnold, Taber & Harrington, and they advised him to go to 'St. Paul’s Sanitarium. Following ;their advice he went to the sanitarium on May 20, 1922, and was there for about three weeks, and afterwards went l>a>-k and was there for three days, when (hey removed his eyeball. This operation was performed about the 1st of July, 1922. It seems that during all of the time from May 20, 1922, until September 25, 1922, he was under treatment by Drs. Arnold. Taber & Harrington, the doctors who operated in the removal of the eyeball. ■The evidence tends to show that the claimant contracted a bill of $50 at Wichita Falls for the removal of the steel particle from his eye, which bill the claimant himself paid. At the St. Paul Sanitarium claimant’^ hospital .expenses, as appears from the testimony. were as follows: Hospital bill, $148.75; nurse hire, $74; drugs, $3; railroad fare, in going to Dallas and to the sanitarium, $7.70. These items were paid by. the claimant. The doctor bill of Drs. Arnold. Taber & Harrington . amounted . to $250, which has not been paid, .but for' wbiclj claimant has become liable, and. all growing out of the injury. - In Decemjber, 1922, a showing was made before the Industrial Commission that-.the claimant had paid, out for medical expenses; including doctor 'bills, nurse hire, drugs, and railroad fare, the sium of $288.45 and that he had contracted a doctor bill with Drs. Arnold, Taber & Harrington while at the St. Paul ’Sanitarium in the sum of $250 which had not been paid. Upon a hearing before the Industrial Commission an award was made in favor of (he claimant for the amount of the bills paid and unpaid, amounting to $532.85,. against the employers and against the insurance carrier. The order of the commission was made on the 24th day of March, 1923. On the 21st day of April, 1923, the employer and insurance carrier began this proceeding in- the Supreme Court, attacking the jurisdiction of the commission to make the award. On the 23rd day of April, 1923, and after the petition of the employer and insurance carrier had been filed in this court, ihe Industrial Commission made a supplemental order awarding the claimant the sum of $282.85, the actual amount they found he had expended, and awarding the sum of $250 to Drs. Arnold, Taber &- Harrington. The supplemental order is brought before this court in a supplemental petition attacking the validity thereof for the same reasons set up in the original petition; and for the further reason that the Industrial Commission had lost jurisdiction of this particular claim by reason of the proceedings first begun on the 21st day of April, -1923, in the Supreme Court. The petition of the employer and insurance carrier attacks the awa”d for the following reasons: - . (1) That there was no request, made up-' on the emp’oyer .for medical treatment. ■■ : (2) That there, was no showing made by the claimant that the bills for service-were reasonable. (3). That the award to claimant in the sum of $532.85 was not supported by the claim nor by the evidence. (4) That there is no legal authority for allowing railroad fare. (5) The. remaining reasons assigned attack the validity of the supplemental order making the award to Drs. Arnold, Taber & Harrington. These matters we will undertake to try and determine in the light of the statutes known as the -.Workmen’s . Compensation *190 Law, and (lie record made upon the claim before the Industrial ^Commission. - 'The .Workmen’s Compensation 'Law was adopted by the Legislature of the 'state of Oklahoma primarily for the benefit of employes. It had long been a well-recognizect fact that many industrial pursuits, were in operation where men were being hurt in the course of their employment, by reason of dangerous agencies and .conditions over which the employe had little or no control, and lost time and endured physical suffering many times, in fact, the majority of times, when there was no means known to the law by which they e'ould be recompensed. Comparatively few of the' injuries arising would be actionable. Unless it could be shown that there was actual negligence upon the part of the employer, no recovery cfould be had, and' the delays and expense arising under the law and in the courts in many cases rendered it futile to sue. The Legislature undertook to remedy such ' condition on a basis that would be’ fair to both the employer and the employe. In adopting this law, the right to sue in a law court was: abrogated, except upon deaith claims arid in cases whore the employer failed to provide protection to his employes by carrying insurance. To ■ compensate that, the employer and his insurance carrier were iiiad’e liable to the injured employes without regard to the cause of the injury, with only two or three exceptions not necessary to be noticed here. A scheme was worked out as nearly as practicable dividing the loss .of time and earning capacity between the employer and the employe; It appears that physical suffering was not taken into consideration and seeriis to have no part in the consideration in fixing the eompensa--ton. That falls peculiarly to the lot of the injured employe. A board of arbitration was created to sit as triers- of- the facts as between the employer and the employe, and tp., adjust the loss of time and earning capacity between the-. twq. If the matter of human suffering is ip- any. way taken into the question.it is upon- the basis-of the employe enduring the pain and the employer and his insurance carrier paying, the expenses of the treatment.', .... It has been repeatedly held by ■ this court that .no finding of fact made by .the commission upon competent. testimony is to be disturbed by tbe appellate tribunal. It is in the .very .terms .of the. act,’itself that the board> of commissioners .are the sole, triers of the facts, and there is no pow-ejLp.’in the-appellate court to disturb the findings of fact, .made . by thq .commission upon competent’testimony.. ,T.h,ere,,is. another .thing in connection with the operation of tbe Industrial Commission that must be borne in mind, and that is, that the board of commissioners constitute a board of arbitration rather than a court. Their office is appointive and not elective, and no legal learning is. required to hold the position. The Chief Executive appoints the commissioners, and any layman is qualified to sit upon the commission if he holds the Governor’s commission giving him authority. The Legislature intended the commission as a hoard of arbitration between the employer and his insurance carrier on the one side, and the injured employe on the other. This must be So since it required no legal learning on the part of the members of the board, and the means of testing tbe validity of their awards is by original petition in the Supreme Court and not by appeal upon the record made before the commission as provided for appeals from trial courts. Hence, of necessity, the proceedings before tbe Industrial .Commission must be informal in many respects as compared to tbe procedure in a court presided over by a judge required to be learned in the law. And, in addition to the foregoing facts, this court iS| committed to a liberal construction of the Workmen’s Compensation Law for the purpose of carrying, out and giving effect to its provisions. With the idea in mind dial: the commission is not held to strict legal formality, and that the findings and awards are not to be disturbed if there is any testimony reasonably tending to support them, and that the law is to be construed liberally, we shall now examine what the commission had before it upon which to make its finding and award in behalf of this injured employe. The claims for medical treatment and expenses were filed before the commission in' December, 1922, showing upon the part of the employe that ho had made an outlay of $283.85 in. cash actually paid, and also a claim by him on 'behalf of Drs. Arnold, Taber & Harrington for the sum of $250.00 for treatment of the employe from May 20, 1922, to September 25, 1922, including an operation in removing the injured eyeball, and which sum had not yet been paid although file parties had been furnished with a bill. The employer and insurance carrier appeared by their attorneys and denied all liability for the reasons, here assigned by them why the award should be vacated. The proof on the part of the claimant, Leslie E. Sweeney, tended to show about as follows: That claimant was injured on. the 14th day of May, 1922, hs; being struck *191 in an eye by a flying piece of steel. Hia'tí Dr. Roy Pendergraft of Hollis was called upon for first aid treatment, and be being unable to remove the offending steel, claimant was taken to Dr. Abernathy of Altus. Okla., and it appears that Dr. Abernathy was unable to remove the steel. This appears from the examination: “Q. When you went to Altus did either of them go with you? A. Mr. Scruggs drove me oyer — Q. To Dr. Abernathy? A. Yes, sir. Q. And he couldn’t get this steel out? A. No. Q. And he suggested Dr. "Hartsook of Wichita Falls and Scruggs Brothers told you to go down there? A. Yes, sir.” The claimant went to Dr. Hartsook and had the steel removed, for which operation he paid, the sum of $50 and then returned to Hollis. On his return to Hollis he talked with Dr. Roy Pendergraft in the presence of Mr. Scruggs. Claimant says: “Went to Hollis to talk to Dr. Roy Pen-dergraft and he advised me and Mr. Scruggs both that the best thing I could do was to go to Dallas to some good physicians and ■he referred me to Drs. Arnold, Taber & Harrington.” Then one of the commissioners asked him: “Q. I understand Scruggs told you to go? A. No, Dr. Roy Pendergraft in the presence of Mr. Scruggs. Q. Didn’t Scruggs tell you to go? A. Yes, sir, fee advised me to go. He said go ahead.” Following this conversation with Dr. Pen-dergraft and Mr.. ¡Scruggs he says he went to Dallas and there consulted with Drs. Arnold,;' Taber & Hanringlon. They examined his eye and told him lo go-to Sit Paul’s Sanitarium. He went there or. the 20th day. of May and was there a little! inore than three weeks under treatment by Drs. Arnold. Taber & Harrington trying to save his injured eyeball. Afterwards he went-back to the sanitarium and stayed three days when they finally removed the eyeball, which operation was about the 1st day of July, 1922. It was at this sanitarium where the claimant was required to pay the hospital, nurse, and drug hill amounting to $225.75. This part of the expense he was required to pay and did pay in advance. He testifies that he was out $7.70 railroad fare going to Dallas, making an actual outlay of $233.15. Drs. Arnold, Taber & Harrington began treating this claimant on the 20th day of May, 1922, and continued treatment until September 25, ,1922, seeing him every day and sometimes twice per day. The first several weeks treatment, was devoted to trying to save the injured eyeball, and finally, as we infer, finding that impossible, the doctors operated by removing the ball. It was for this service the doctors charged the sum of $250, which the claimant had not paid. These bills were presented to the insurance carrier anrj they refused payment. . It appears further from the testimony that Ihe claimant was not advised until somq time after he received the injury as to who the insurance carrier is. It seems that the employers had neglected to post up notice in their place of business that they were . nrrying insurance. Some time before the ! In’nmnt went to Dallas for treatment one of the Mr. Scruggs told the claimant that he would try to get the insurance carrier behind the matter and take care of him. In the cross-examination of the claimant in reference to going to a doctor for treatment he testified that Mr. Scruggs said, to him: “Sweeney, I think it is the best thing in the world you can do. Be sure to get the name of the doctors.” _ Some of this evidence was contradicted by the employers, and witnesses called by them, but we have nothing to do with that. We are forbidden to weigh the evidence. We will look into the evidence lo determine as a matter of law as to whether there is any evidence to support the findings of the commission. In addition to the testimony taken before the commission on ihe hearing had upon these bills, there was another very significant piece of information before the -commission. Upon . a form furnished by -the Industrial ¡Commission designated “Employer’s First Notice of Injury,” dated May,-26, 1922, signed by-Scruggs Brothers, employers, by J. G. Scruggs, is the following: “Impossible to state at this' time the ¡extent of the injury. . It is thought that ..the sight is totally destroyed and are now making an effort to save the hall. Was injured- employe placed in a hospital? Yes. Name of Hospital? St. Paul Sanitarium.” The claimant, Sweeney, was presenting his own claim for actual cash outlay and was presenting the hill of Drs. Arnold, Taber & Harrington which had not been paid. The commission allowed- the bills against the employer and the insurance carrier. It is contended that this should not 'have been done since there was no request made upon- the' employer for medical treatment. They cite as án authority upon that point Okmulgee Democrat Company v. State Industrial Commission, 86 Okla. 62, 206 Pac. 249. There is no question but that the construction placed upon the Workmen’s Compensation Law in Okmulgee Democrat Company v. State Industrial Commission, supra, requiring a request' to -be- made by- the--in.- *192 jured employe Tor medical attention is correct. We have no fault to find with the construction there placed on the statute, and in that case the rule had application. There the injured employe never in any manner called upon the employer about bis necessity for medical treatment. In the case under consideration the injured employe talked with Mr. Scruggs, the employer, and his doctor, and the doctor thought the employe should go to Dallas for treatment, and Scruggs told him it was the thing to do. 'Scruggs told the commission in his report that the employe had been sent to the St. Paul Sanitarium for treatment. There was no need for a request when the employer told the employe to go and get the treatment and advised the Industrial Commission that the employe had been sent to the sanitarium for treatment. Mr. 'Scruggs denies telling the employe to go to Dallas, but the report made to the commission cannot be very well denied as it appears over his own signature. The rule contended for as to the request for medical treatment has no application here. We think that under the Workmen’s Compensation Law and construction placed thereon by tlio con i ts, the employer has a right lo employ the agency through • which treatment is secured, but when the employer delegated that light to the injured employe, as seems to have been done in this case, and as the commission had a right to conclude had been done under the proof here, it carries with it the right to do all legSjtiamute and necessary things, such as to pay railroad fare, drug bills', hospital fees, and nurse hire, just as was paid by this claimant. They were incidental and'necessary, and Mr. Scruggs knew that such expense would be incurred ■ We think under the evidence in this case the claimant had a right to infer that Mr. Scruggs and the insurance carrier would pay the expenses. Mr. Scruggs told him he. would try to get the insurance carrier behind the matter and take'care of him, and he told the Industrial Commission the employe had been sent to St. Paul's Sanitarium for treatment and that was where the most of this account was contracted. We think no request for medical treatment was necessary, nor was it necessary for the claimant to ask Mr. Scruggs if he and the insurance carrier were going to pay the bills. Under the facts in this case it became the duty of Mr. Scruggs to tell the employe that he and the insurance carrier were hot going to pay the hills, if they did not intend to pay them. If Mr. Scruggs had told the injured employe when he talked about going !o Dallas that he would not pay the bill, and had told the Industrial Commission in his report that he and the insurance carrier would not be responsible for the expensé, no doubt (here would be an entirely different record here. It was insisted in the oral argument in this case that the claimant “basked in the everlasting sunlight of supreme indifference'’ with regard to the matter of the expense. We think if there was any siueh seeming indifference, that it was justified by the conduct of Mr. Scruggs. Both the claimant and the Industrial Commission had a right to think that the employers and the insurance carrier would act in good faith with reference to the matter and with the injured employe. Again, it is insisted by the petitioners that the commission made no finding that the bills presented were reasonable and that there was no testimony that the bills were such as would hajve been charged in the community where the injury occurred and against a person in like station of life as claimant. When Mr. Scruggs consented or agreed, and directed or advised the claimant 1o go out of the community for treatment and when he told the commission in his report that the injured employe had been sent to the-St. Paul Sanitarium for treatment he thereby eliminated any necessity for such proof upon the part of the claimant or such finding upon the part of the Industrial Commission. Under the circumstances presented here we think the bills themteelves are some proof as (o their reasonableness or unreasonableness, and taking the entire matter into consideration as herein presented, we think the bills presented are not such as to shock the court’s sense of justice. The bills at the hospital were required to be paid- in advance and no d'oubt were their usual amd customary fees. The bill of ip50 for the operation in removing the steel from the eye does not seem to be. an unreasonable bill for the service rendered. The bill of Drs. Arnold, Taber & Harrington for treatment from May 20th to September 25th, including the operation in removing the eyeball, and where treatment was given 'every day and often twice a day, cannot be said lo be unreasonable. Again, it is insisted toy the petitioners that the bill of D>rs. Arnold. Taber & 'Harrington could not he allowed because the claimant had not asked for it in his claim, but It was in a separate claim. We think theke is nothing in this contention worthy of serious consideration. The claims were both *193 filed in this case 'before the Industrial Commission and they were separated only because one had been paid, and the other had not. One had been paid and the claimant was responsible for the other if it should turn out that the employer and the insurance carrier were not. Both were the proper subjects for consideration by the Industrial Commission ; the amount to be paid to the injured employe because he had made the actual outlay and the other was payable to him for the use and benefit of the doctors) who had treated him and had not yet been paid. It was not improper nor beyond the authority and jurisdiction of the Industrial Commission to award both claims to the injured employe; but the commission should have gone farther in the award and declared a lien upon the award to the extent of $250 in favor of Ill’s. Arnold, Taber & Harrington. Then the whole matter would have been covered. Lastly, it is contended that the commission went beyond its jurisdiction when in the first instance the award oí the full amount had been made in favor of the employe and it had been appealed from by an original petition being filed in the Supreme Court attacking the award as originally made, the commission after such appeal had been taken made supplemental order changing their original order to the extent of making the award of the unpaid amount of $250 direct to the doctors to whom the amount was owing. "We think the commission was in error in making this supplemental order for two reasons, the first being that claims arising under the Workmen’s Compensation Law' are matters strictly arising between the injured employe on the one side and the employer and his insurance carrier on the other. Differences between the employer and his insurance carrier and third persons are not cognizable before the Industrial Commission. If the doctor bill had been contracted for between the employer and his insurance carrier, and the doctors who rendered the service, then the claim should be presented in some court hawing jurisdiction to try out the matter therein involved. The second reason is that although the Industrial Commission has and retains general jurisdiction over cases arising under the Workmen’s Compensation Law’, yet, when once the commission has made a finding, or an award, and a petition has been filed in the Supreme Court to review such finding or award, the commission is thereby ousted of its jurisdiction over the particular matter involved in the appeal. The award from which the appeal is prose- ■ •uted must stand or fall upon the trial in the appellate court and is not subject to change pending the appeal. But the erroneous supplemental order changing the award1 pending the hearing' on appeal will not necessarily work a reversal of the entire award. It is not necessary to reverse because of such erroneous supplemental order. It is provided in section 7297, Comp. Stat. 1921, the section of the Workmen’s Compensation Law providing for appeals from the orders made by the commission, that “such action shall be subject to the law' and practice applicable to other civil actions cognizable in said court”, and it has been repeatedly held by this court that not all errors will work, reversals of judgments of the courts below. The supplemental order being erroneous but not of such a nature as will work a reversal of the entire award, the same will be vacated and set aside by this court. Under the provisions of the Workmen’s Compensation Law above quoted, this court has the power to reverse and dismiss, or reverse with directions, or to affirm, or to modify and affirm awards made by tire Industrial Commission on appeal in proper causes. In this case the award made by the Industrial Commission should be modified to the extent, of creating a lien upon the award in favor of Drs. Arnold, 'haber & Harrington for the sium of $250. There was a mistake in the addition of the items. The amount of the items awarded should Ibe $533.45. Wo recommend that tile award made by the Industrial Commission bo corrected to read for $533.45, and that lira Arnold, Taber & Harrington be given a lien upon the said sum to the extent of $250. and, with this modification, that the award be affirmed. (By the Court: It is so ordered.