O. W. Rosenthal & Co. v. Industrial Commission , 295 Ill. 182 ( 1920 )

Mr. Justice Carter

delivered the opinion of the court:

This was a petition filed by the defendant in error, Sylvester Bush, before the Industrial Commission of Illinois, praying for compensation on account of an injury resulting in hernia. The cause was before this court under the same title in 290 Ill. 323, and the principal facts concerning the injury are there stated. The judgment entered in the original trial of the case not being in accordance with the statute was reversed by this court, with directions to enter an order confirming the award in accordance with the provisions of the statute. Such an order was entered by the Industrial Commission, but upon certiorari proceedings subsequent to its entry the judgment in favor of the defendant in error was modified so that payments under the award were suspended, on the ground that the applicant refused to submit to an operation which the commission thought reasonable. The order of the Industrial Commission modifying the award was set aside by the circuit court of Cook county, and this writ of error was sued out from this court to review the proceedings.

The sole question now before this court in this case is whether the Industrial Commission properly suspended compensation upon the employee’s refusal to submit to a surgical operation such as was requested here for the cure of the hernia. The testimony offered to show a justification for such refusal is briefly as follows: The applicant himself testified that at the time he was examined by Dr. Nordholz, the physician of the guaranty company carrying the insurance risk of plaintiff in error, he was not physically able to stand the operation; also that he was requested to sign some paper and then go to the hospital without any definite arrangement as to compensation. Dr. Nordholz, on behalf of plaintiff in error, testified that he had operated on thirty-five or forty cases of hernia and had assisted in many more such operations; that when he examined the applicant he found him normal and a good surgical risk,— that is, that his life would not be jeopardized by the operation,—and that the condition caused by the hernia could be corrected and the applicant be able to resume his regular work as a carpenter; that statistics showed that only, about two-tenths of one per cent of such operations were! fatal; that in his judgment it was reasonably certain that such an operation would be successful. Dr. E. D. Levisohn, applicant’s physician at the time of the injury, testified that when he examined him at the time the operation was suggested Bush had bronchitis and was not in proper physical condition to be operated on. He stated, however> that the bronchitis was of short duration, and that at the time he testified he thought the operation could be performed. He and Dr. William Loeser, who also testified, stated that each had had experience in many operations for hernia and that the chances for recovery were from 85 to 90 per cent. Dr. James T. Sullivan, who had examined the applicant for plaintiff in error, also testified that after stich an operation the applicant would be able to resume light work within eight weeks and his regular .work within twelve weeks. The services of Dr. C. R. G. Forrester appear to have been tendered the applicant, with the written statement that if an operation were necessary it would be paid for by the insurance company. It appeared from the record that the operation proposed involved cutting through the skin, the subcutaneous tissue, the covering of the muscles and the muscles, making a slit about two and a half inches ■long, an opening to be made reaching to the peritoneum or tunica vaginalis, depending upon the type of hernia, and involving some further manipulation of parts and surgical work in correcting the condition caused by the hernia. The testimony of the physicians was tO' the effect that it was a comparatively superficial operation, though counsel for defendant in error argues that it is a jjiajor operation and one involving some danger to life, and should not be required as a prerequisite to obtain compensation for the injury.

This and similar questions have been before the courts quite frequently. Paragraph (d) of section 19 of the Workmen’s Compensation act vests the Industrial Commission with the right to suspend the compensation of an injured employee “if he shall refuse to submit to * * * such surgical treatment as is reasonably essential to promote his recovery.” Whether the operation is reasonably essential is for the Industrial Commission to determine, based upon the evidence submitted to it, and it would only be in a case where the commission had acted unreasonably or abused its discretion that the court could interfere with its finding. This court in Joliet Motor Co. v. Industrial Board, 280 Ill. 148, held that where the evidence as to a claim for total loss of sight of an eye showed that such loss was caused by a cataract of slow growth and that an operation could be performed which would cause little or no pain to the employee and which would not endanger his life and would probably restore his sight, the Industrial Commission should not award compensation for total loss of sight of the eye even though it could not compel the employee to undergo an operation. Of course', the question to be decided is not that of compelling a party to submit to an operation. “The question is whether a party who declines to undergo what would be described by experts as a reasonable and safe operation is to be considered as a sufferer from the effect of an injury received in the course of his employment, or whether his suffering and subsequent inability to work at his trade ought not to be attributed to his voluntary action in declining to avail himself of reasonable surgical treatment. * * * If in such a case the sufferer, either from defect of moral courage or because he is content with a disabled hand and is willing to live on the pittance which he is receiving under the Compensation act, refuses to be operated upon, I should have no difficulty in holding that his continued inability to work at his trade was the result of his refusal of remedial treatment and that he was not entitled to further compensation.” Donnelly v. Baird & Co. 1 B. W. C. C. 95. See, also, to the same effect, Walsh v. Locke & Co. 7 B. W. C. C. 117; Kricinovich v. American Car and Foundry Co. 192 Mich. 687; Lesh v. Illinois Steel Co. 163 Wis. 124; Enterprise Fence and Foundry Co. v. Majors, 121 N. E. (Ind.) 6. The same general rule is also stated in Bradbury on Workmen’s Compensation, , ( 3d ed.) 834.

In O’Brien v. Albrecht Co. 6 A. L. R. Ann. 1257, (206 Mich. 101,) where an injury resulted in hernia and the testimony established that an operation could be performed without endangering life and the plaintiff could not be cured without it, the court said (p. 1258) : “The physician of the company and the one of plaintiff’s selection both advised an operation for the hernia. Stich an operation is not attended with danger to life or health, and it appears to be undisputed that it affords the only reasonable prospect of restoration of plaintiff’s capacity to labor at his trade,—that of a carpenter. * * * We are impressed that plaintiff’s refusal was unreasonable. , * * * Until the plaintiff submits to an operation, which should be at the expense of defendants, he is not entitled to compensation from them.”

Naturally, each case must depend largely upon its special facts. The hernia here was caused by the accident, but it appears that an injury of this kind is not recovered from in the ordinary process of healing by allowing nature to take the ordinary course, as is the case with many wounds. On the facts as found in this record, we think the findings of the Industrial Commission suspending the award, as stated above, were justified, and the courts are bound by the commission’s finding.

We do not think the cases relied on by counsel for the applicant,- such as McNally v. Hudson and Manhattan Railroad Co. 87 N. J. L. 455, and Feldman v. Braunstein, 87 id. 20, both construing the Workmen’s Compensation act of New Jersey, are necessarily controlling here, as that statute is differently worded from the Illinois statute.

The circuit court erred in setting aside the award of the Industrial Commission, and its order in that regard will be reversed and the finding and award of the Industrial Commission will be confirmed.

, Judgment reversed.