Atlas Powder Company v. Grant , 200 Tenn. 617 ( 1956 )

Mr. Justice Prewitt

delivered the opinion of the Court.

The petitioner, Raymond H. Grant, Avas injured while an employee of the defendant, Atlas Powder Company, it appearing that while he was an employee of the company he suffered a fall down six or seven steps while carrying a load of about fifty pounds at which time he could not get up.

It seems that the petitioner Avas treated for his injuries for a period of three or four months. It appears that he Avas treated by about three doctors of the company during that period. The petitioner became dissatisfied with the company physician and he claims that he was suffering excruciating pain in his back. Doctor McCravey, the company physician, testified that he did not need an operation but that the petitioner had a sense of self-pity.

The petitioner claimed that he had a ruptured disc and being dissatisfied with the treatment of the company’s physicians then went to another doctor of his own choosing, Doctor Donaldson, who performed an operation upon him, and it is questionable whether this operation was good or bad for the petitioner.

The trial judge held with the petitioner and was of the opinion that the petitioner having for three or four months gone to the company’s physician, and finding further he was not a malingerer, and found from the proof that he was really suffering from some other injury, was of the opinion that the petitioner did not have to continue to go to the company’s physician, but on the other hand after he had been treated by them for three or four months, he had a right to go to a physician of his own selection. The company insists that under our compensation law it is the duty of the company to furnish medical aid, and that except in exceptional cases the injured employee has no right to select his physician, at least, without giving some sort of notice to the company or its physician or physicians. No notice was given in the present case. The present suit is for medical expenses incurred — two physicians, not working for the company.

The contention is made by the company that under the Workmen’s Compensation Law the employer has the right to select the physician or surgeon for the injured employee and, too, that should the injured employee see fit to employ another physician or surgeon that the company should have notice of this.

In Irwin v. Fulton Sylphon Co., 179 Tenn. 346, 166 S.W.2d 610, 611, this Court held that our statutes providing that employer shall furnish and provide medical care for injured employee manifest intent that employer is to . select the physicians. Code 1932, secs. 6851 " et séq., 687:5, and that the right to select the physician carries with it the dnty of the employee to accept his services and that the employee cannot recovér for medical services incurred by. him while declining the services of the company’s doctor without good reason.

.■ It was held in that case that the evidence showed that the, surgeon selected by the employer was of high professional rating and hence employee’s refusal to accept his services was unreasonable, and the employee was denied a recovery of his bill of surgeon ■selected by employee.

It was stated in the Irwin case as follows:

“ Thus it rather clearly appears to be the intent of the statute that the employer is to select a physician. He could not very well furnish a physician or provide a physician without first choosing that physician. Language similar to that contained in our statute appears in the statutes of most of the States and these •'statutes, are quite generally construed to mean that 'the employer in the first instance has the right to select the physician.

“ ‘Under the compensation acts the right to • -choose the medical or surgical attendant and the hos- • pital is usually in the first instance with the employer, or insurer, and the insured employee cannot recover for medical services incurred by him while declining ■without good reason the services so tendered, provided ■the offer is unequivocal and reasonable and is also adapted to the treatment of the injured employee, be-m cause he is not bound, in spite of inconvenience and greater expense, to accept any tender.’ 71 C.J. 778..

.■ “ ‘Acts of all but three States are construed to give ■ the-- employer or insurer the right in the first instance to choose the medical or surgical attendant. ’ Schneider on Workmen’s Compensation, 2d Ed., sec. 491.”

So, it has been recognized in this State that the employer has the right in the first instance to select the doctor or physician.

In Stone & Webster Engineering Corporation v. Davis, 191 Tenn. 42, 231 S.W. 2d 376, this Court held that the evidence sustained the findings of the Circuit Court that hernia or rupture was caused by an accident arising out of and in the course of employment, so as to entitle a claim to compensation, and that the Circuit Court did not err in awarding claimant, his surgeon and hospital and medical bills, though the employer had not failed or refused to provide surgical aid, and though employee engaged services of a surgeon without consulting the employer.

It was said in Union Iron Works v. Industrial Accident Commission, 190 Cal. 33, 210 P. 410, 413:

it* * * •£ treatment practiced and persisted in by physicians furnished by the employer, even though they be conceded to be skilled and competent in their profession, does not within a reasonable time effect a cure, and thereafter a course of treatment prescribed by other physicians procured by the injured employee does in fact seasonably effect a cure, then it cannot be said that the employer has furnished such medical and surgical treatment as was reasonably and seasonably required.”

See also 142 A.L.R. 1227, Sec. III; Texas Employer’s Insurance Association v. Bradshaw, Tex. Civ. App., 27 S.W.2d 314.

It should be observed that since the filing of the opinion in Irwin v. Fulton Sylphon Co., supra, the Workmen’s Compensation Law, Williams Code Section 6875 has been materially changed. T.C.A. sec. 50-1004. The first part of this Section is now different from what it was then. The Section insofar as here applicable, as now in force, provides that:

“the employer or his agent shall furnish free of charge to the employee such medical and surgical treatment, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus and hospitalization, including such dental work made reasonably necessary by accident as herein defined, as may be reasonably required. The injured employee shall accept the same; provided, that the employer shall designate a group of three (3) or more reputable physicians or surgeons if available in that community from which the injured employee shall have the privilege of selecting the operating surgeon or the attending physician; provided, however that total liability of the employer under this section shall not exceed the sum of one thousand and five hundred dollars ($1,500).”

In the present case the trial judge found from the proof that the petitioner went to the company’s doctor for three or four months, and that some differences arose between the petitioner and the company’s physician.

The trial judge also found that the petitioner had good grounds to believe that he was not cured, and that he was suffering great pain in his back, and thereupon sought the services of another physician, who in turn operated upon him for this ruptured disc. Now, it appears that the operation was not altogether successful, yet the trial judge found that the petitioner was acting in good faith in these matters.

From the facts of this case we do not think we should disturb the judgment of the lower court. It seems to us that the petitioner cooperated with the company and its physicians, and that when he found out that he was not cured it was then only he sought out the services of an independent physician. So then we have a different case from Irwin v. Fulton Sylphon Co., supra, and is to be distinguished from it.

It results the judgment of the lower court must ho affirmed.

Burnett and Swepston, Justices, concur.