Beaulieu's Case , 124 Me. 83 ( 1924 )

Philbrook, J.

This is an appeal from a decree of a sitting Justice affirming a decision of the Chairman of the Industrial Accident Commission, denying the petition of the insurance carrier to end compensation, and further ordering compensation continued according to the terms of the agreement between the parties which was duly approved by the Commissioner of Labor, and further ordering payments to commence from the date of the last payment of compensation, the same to continue according to the provisions of the Workmen’s Compensation Act.

The agreement above referred to, provided that compensation was to be paid during disability, beginning May 26, 1922. The date of expiration was not fixed, except, of course, as it would be so done by statutory limitation. The agreement is like that referred to in Milton’s Case, 122 Maine, 437, as one “where the period of compensation is not determined” or in Wallace’s Case, 123 Maine, 517, as “an open end agreement.” We deem-it proper, therefore, to again affirm, and with emphasis, that the provisions of Section 36 of the Compensation Act, prescribing a petition for review of decrees and agreements, do not apply to agreements in which the period of compensation is not definitely limited. Milton’s Case, supra; Wallace’s Case, supra.

Passing over the confusion which might arise merely from the title of the present proceeding, “petition for review of agreement or decree,” and like expression in the title used by the Chairman of the Industrial Accident Commsision in his finding, we learn that the gravamen of the insurance carrier’s petition is “that since said agreement was made the injury for which the employee was compensated ended, inasmuch as claimant has persistently refused, and still refuses, to submit to proper surgical attention offered him by said respondents.” ' (The insurance carrier).

As stated in its brief, the insurance carrier takes the position that compensation claimants, to preserve their rights thereto, must submit to any reasonable and proper treatment offered them, and surely so if said treatment does not entail undue danger to life or extraordinary suffering. There is no direct provision in our compensation act which sustains this position. The insurance carrier, however, depends upon decisions of courts of last resort in other jurisdictions to support its position. Without doubt, the overwhelming weight of authority holds that a man cannot continue to receive compensation and at the same time refuse to submit to proper medical or surgical treatment such as an ordinarily reasonable man would submit to in like circumstances. Schiller v. B. & O. R. Co., 112 Atl., 272, and cases there cited.

But in proceedings under the English Compensation Act it has been held that whether or not a workman is unreasonable in refusing to have an operation performed is a question of fact with which an appellate court will not interfere where the doctors are not wholly agreed as to the advisability of the operation. Ruabon Coal Co. v. Thomas, 3 B. W., Comp. Cas., 32.

In the case at bar the Chairman of the Commission found "as a matter of fact” that Beaulieu had not unreasonably refused to submit to proper surgical treatment. Careful examination of the record fully justifies the finding. The doctors and surgeons who testified are at variance as to the exact nature of the treatment which should be tried, and all practically admit that any operation would be followed by great pain and inconvenience and that the results of any treatment would be uncertain as to permanently successful results.

Appeal dismissed with costs for Beaulieu.

Decree affirmed.