Smith v. Battjes Fuel & Building Material Co.

BROOKE, J. (after stating the facts). It is conceded by counsel for appellants that: “Dr. Wedgewood’s liability grew out of conditions which section 15, part 3, does not cover. It is our contention, however, that the doctrine of election as followed generally is applicable to this case and that section 15, of part 3, may be useful as showing the general policy of the law as intended to be applied to workmen’s compensation cases.” In this connection it is urged that in the suit against Dr. Wedgewood claimant took the position that his present condition of total disability is due solely to the alleged malpractice of Dr. Wedgewood; that.he fraudulently abstained from communicating the fact that he received upwards of $2,000 from Dr. Wedgewood to the officers of the State accident fund, and continued to receive from that fund his weekly payment of $6.49; that the position assumed by claimant at this time is of necessity inconsistent with the one taken by him in his suit against Dr. Wedgewood and that having elected to look to Dr. Wedgewood he should therefore now be held to have abandoned any other source of compensation. In this connection it is said: “When claimant received $2,125 in payment for his injuries, did he not by that act receive full and complete compensation for the then condition of his arm \ If he did he most surely could not expect compensation from the State accident fund, as he had been fully compensated by: “(a) The State accident fund for the original injury and by “(b) Dr. Wedgewood for the injury caused by the malpractice. “If this view is correct, then there should be no further compensation paid. In fact, the State acci [13] dent fund should have an action back against Smith for that portion of the compensation which they have paid him since the institution of the suit for malpractice.” In support of the position taken, counsel cite the case of Ruth v. Witherspoon-Englar Co., 98 Kan. 179 (L. R. A. 1916E, 1201, 157 Pac. 403), the headnote of which follows: “In an action under the workmen’s compensation act a recovery can be had only upon the basis of disability to labor resulting from the injury received in the course of employment, without the intervention of an independent cause, the separate consequences of which admit of definite ascertainment. It cannot be augmented by the fact that the disabling effects of the injury are increased or prolonged by incompetent or negligent surgical treatment, even where the employer is responsible therefor.” See, also, Della Rocca v. Stanley Jones & Co., Ct. of Appeal, England, Jan. 21, 1914, W. C. & Ins. Rep. 34; annotated in 6 Neg. & C. C. A. 624, and Humber Towing Co. v. Barclay, 5 B. W. C. C. 142 (1911). The difficulty in applying the principle announced in the cases cited to the case at bar lies in the fact that here upon the hearing on the petition there was testimony of physicians to the effect that claimant’s present condition of total disability: “was entirely due to the original injury in 1915 and that such injury was the proximate cause of his. present condition.” Another physician testified: “I would consider Mr. Smith totally disabled, and that this condition of total disability is due in large part to the original injury in April, 1917 (1915?). Approximately the original injury was the cause of his resulting present physical condition. I would state that even if this doctor who treated this arm in the summer of 1915 had done the best that could ordi [14] narily be done by a careful, skilled, prudent, physician this arm would still, or might reasonably still, at the present time, be in a condition resulting in total disability.” There was other medical testimony before the board from which, if believed by the board, it would appear that by submitting to an operation or operations the condition of-plaintiffs arm would be greatly improved and that thereby he might regain from 25 to 50 per cent, of its normal use. This court, however, does not concern itself with the determination of questions of fact when there is any competent testimony sup-d porting the conclusions reached by the board. In the light of the statements of the physicians quoted above it can hardly be said that there was no testimony in the case warranting the board in concluding that the claimant’s present condition of total disability is due to the original accident. Not complicated, therefore, with claimant’s action against Dr. Wedgewood, the order of the board denying the petition should be affirmed. Does the fact that claimant started suit against Dr. Wedgewood by declaration in which he averred that his condition of total disability was the result of malpractice and not of the original accident, estop him from now asserting that such condition is due to the original injury? We are of opinion that the board was correct in holding that the averments of the declaration were not conclusive as admissions against the claimant, but might be considered by the board as evidence in connection with all the other evidence in the case. Ruth v. Witherspoon-Englar Co., supra. The only question remaining is whether defendant State accident fund should have credit for the $2,125 received by the claimant from Dr. Wedgewood in reduction of the amount due from it to claimant under the terms of the statute. Our law makes no provision [15] for- the application of sums received by a claimant from a third party not connected with the original accident in reduction of the master’s liability under the act. If such an application should be made it is a matter for legislative action rather than judicial interpretation. The order of the board stands affirmed. Ostrander, C. J., and Bird, Moore, Sthere, Fellows, Stone, and Kuhn, JJ., concurred.