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had set in at the time the advice to operate was first given. Vomiting followed, becoming fecal in its nature. Pneumonia next developed, caused, as claimed by all the surgeons who testified, by the entrance into the lungs of this fecal matter. The operation was apparently followed by a measure of favorable results, but death ensued in a few days, chiefly due to the pneumonia.

Under these circumstances the employer contended that the action of the injured man in delaying the operation was so unreasonable and persistent as to defeat the claim to compensation made by his widow. In affirming an award of the arbitration committee, approved by the industrial accident board, the court took into consideration the fact that the injured man was a foreigner, little able to understand what was being said, in great pain, and unacquainted with his surroundings, and decided that it could not be held, as a matter of law, either that the conduct of Jendrus was so unreasonable and persistent as to defeat the claim for compensation by his widow, or that in his delay in assenting to the operation he was guilty of intentional and willful misconduct. When, however, a simple operation, involving little danger or suffering, is reasonably likely to relieve or terminate the disability, refusal to submit thereto will warrant a suspension of compensation payments. (Kricinovich v. American Car & Foundry Co. (Mich.), 159 N. W. 302.)

The Supreme Court of Wisconsin makes a lucid statement of the principles involved, in its discussion of a case in which it was found by the State commission on the testimony of three physicians and surgeons that disability subsequent to a date fixed "resulted directly from the injured man's willful refusal to submit himself to safe and simple medical treatment," and rejected his application for permanent disability benefits. The court sustained this view, saying that "where the disability is so related to the accident that it is the natural consequence thereof, then compensation should be awarded"; but holding further when there is an unreasonable refusal to accept a safe and simple operation, fairly certain to remove the difficulty, subsequent disability "is not proximately caused by the accident, but is the direct result of such unreasonable refusal." The duty of society to carry the burden of a man in such a case was emphatically denied, the court saying that to prolong or probably even increase his disability by such refusal," and thereby cast the burden of his wrongful act upon society in general, is not only repugnant to all principles of law, but is abhorrent to that sense of justice common to all mankind." (Lesh v. Illinois Steel Co., 157 N. W. 539.) It was pointed out that no question of compelling the man to submit to an operation was involved, but only his status as a claimant under the law.

Some cases in hand involve the question of the status of the physician himself. Thus an employer in Connecticut disputed a fee on the

ground that the services were rendered by a "bonesetter," and not by a regularly qualified physician. A commissioner of the State disallowed the contention on the ground that the services had been rendered at the desire of both parties, with a knowledge of his status, so that any complaint on that point was of no avail. The industrial commission of Ohio, on the other hand, refused any payment to a "bonesetter," on the ground that the law of that State contemplated payments on this account only to persons who have been regularly admitted to practice medicine; similarly, the Iowa commission ruled that an osteopath does not furnish "medical or surgical service" within the meaning of the act of that State.

The Supreme Court of Wisconsin ruled that an employer was liable for the malpractice of a physician furnished by him during the period of service required by law (Pawlak v. Hayes, 156 N. W. 464); while that of Minnesota held that there was no other duty owed by an employer who collected hospital money than to select a competent physician. However, the release to him on settlement for compensation was declared not a bar to an action against the physician for malpractice. (Viita v. Dolan, 155 N. W. 1077.)

As the laws frequently limit medical attendance to a fixed period following the receipt of injury, the question of when the limitation begins to run is of importance. Attention has already been called to a case in which the California commission ruled that no medical expense could be claimed, as the wrong diagnosis had led to a delay beyond the period fixed by law. In a Connecticut case, however, a commissioner held that the period from which the limitation should be computed was the date when the injury became effective, and not necessarily the date of the accident giving rise to it; so also the Michigan board ruled that the "first three weeks after the injury" means the first three weeks from the time when the disability requires medical attention.

The Pennsylvania statute requires the employer to furnish medical and hospital services during the first 14 days of disability of the injured employee, and also that in case of death expenses of last sickness and of burial be met by the employer, the amount not to exceed $100, this sum to be in addition to any benefits payable to the dependents of the deceased. The compensation board of the State held that where payments had been made for medical services during the 14 days succeeding the injury, and death occurred after the expiration of this period, the employer is authorized to deduct the value of the amount so paid from the sum payable as expenses of last sickness and burial.

Nursing is, of course, a part of the provision to be made by the employer in cases requiring the same, and a Connecticut commis

sioner allowed a man's wife $10 per week for nursing him, estimating this sum to be the cost of nursing in a semiprivate ward in a hospital. The California commission, on the other hand, refused to make allowances for home nursing, on the presumption that the family would render such services without cost, qualifying the rule in another case by saying that allowance would not be made for nursing by members of the family not professional nurses. The Ohio commission also refused to make allowance for nursing by members of the family where no loss of time or wages is involved, as did the Supreme Court of Wisconsin, where a niece voluntarily nursed an injured man and a claim for nursing was afterwards made. (City of Milwaukee v. Miller.)

The matter of fees was involved in the Ohio case last noted, and the ruling was representative of others that have been made by other authorities, taking the ground that there will be a scrutiny of bills submitted, since there is a real discretion in the commission in this matter, and it is not obligated to honor all claims presented, and will only allow rates ordinarily charged for such services in the locality for persons of the station of the persons treated-not of the employer nor of those having the financial resources of the insurer. (See also the case of City of Milwaukee v. Miller, p. 274.)

The Texas board considered railroad fare in transporting an injured employee to a hospital for treatment as a proper charge on account of medical aid, etc., if expended during the statutory first week following the injury.

Bills for dental services are allowed under rulings of the accident board of Massachusetts and the labor commissioner of Minnesota. The attorney general of Iowa said no disability payments as such would be allowed for injury to the teeth, but that dental work might properly be allowed for under the head of surgical and medical attention. The public service commission of West Virginia refused to allow for gold crowns made necessary by the breaking of two teeth in an accident, holding that the act does not provide for the payment of dental bills.

A question involving fees in another field was passed upon by the commission of the State of New York when it declined to consider any agreement for fees for legal services in advance of the rendering of the services, saying that in all cases claims will be considered solely with reference to the actual service rendered, upon a statement submitted to the commission upon the conclusion of the service.

ELECTION.

As already noted, election, either passive or active, is required by the laws of a number of States to bring parties within the pro

visions of the acts. In a Connecticut case it appeared that an employer had mailed a notice, on the prescribed blank, electing not to accept the terms of the law of the State. This was sent by ordinary mail and not registered mail or served in person, as prescribed by the act. The claimant received the notice and read it, but did not preserve it. It was held by a commissioner of compensation that his claim to compensation was barred, as he was said to have sufficient notice of the employer's rejection; he was accordingly remitted to his rights, if any, in a suit at law. The supreme court of this State held, in a case in which the employer contested a claim on the ground that, though he had elected to accept the act he had not taken the required steps to prove his ability to make compensation payments, that such failure on the part of the employer to comply with the provisions of the act would not deprive the employee relying upon the law of his rights under it. (Bayon v. Buckley, 93 Atl. 139.)

The Supreme Court of Kansas held that the employer defending against a claim could not require the claimant to offer proof of the employer's acceptance or rejection of the act; but if he wished to make his alleged rejection a defense he himself should be required to prove it. (Gorrell v. Battelle, 144 Pac. 244.)

In a case arising under the Wisconsin statute it appeared that the employer had elected to accept the act, while the employee rejected it but subsequently made claim for compensation, which was denied. He then brought suit and recovered damages at law. But on appeal the supreme court reversed the decision of the trial court, since the employer having elected was entitled to all the common-law defenses, and the injury was not shown to have been due to the negligence of the employer, while the employee had assumed the risks. (Karny v. N. W. Malleable Iron Co., 151 N. W. 786.) Another provision of this act allows employees 30 days within which to make their decision following the employer's election to accept the act. It was held by the supreme court (Green v. Appleton Woolen Mills, 155 N. W. 958) that an injury to the employee before the expiration of his 30 days' option is not compensable, but must be passed upon in accordance with the provisions of the liability laws of the State, since, unless the employee has taken action, he may reject within the time fixed.

EXCLUSIVENESS OF REMEDY.

While most of the States provide for the voluntary acceptance of the laws before they are binding, after which it is generally held that suits can not be brought, the law of Washington is explicit in declaring the abrogation of all suits for injuries of employees. This provision was held to reach so far as to bar an action by a brewery employee who was injured by the negligence of a railway company

moving cars in the yard of the brewery, so that even the liability of the third person who caused the injury could not be made the basis of an action by the injured workman. (Northern Pacific Ry. Co. v. Meese, 36 Sup. Ct. 223.) The supreme court of the State also construed the statute to cover incidental suits, as well as those arising directly from the injury, as where an injured man who had received compensation under the act undertook to sue for the malpractice of the physician engaged by the employer but paid by deductions from the employee's wages, such suit not being allowed. (Ross v. Construction Co., 155 Pac. 153.)

In another case arising in the same State (Peet v. Mills, 136 Pac. 685) a railway employee sought to hold the president of a railway company personally liable for his injuries, claiming that, though actions against the employing company were abrogated, the president could be sued on an individual liability. This the court denied, emphasizing its ruling as to the constitutionality of the law given in the case, State v. Clausen (65 Wash. 156; 117 Pac. 1101), and declaring the new remedy to be exclusive. A provision of the same statute permitting employees to sue an employer who is delinquent in premium payments was held not to warrant such a suit where the delinquent employer makes good his shortage within the period allowed by the rules of the State insurance commission for such payments after notice of delinquency. (Barrett v. Grays Harbor Commercial Co., 209 Fed. 95.)

If the law of Washington is thus exclusive and other remedies are not available, it may be noted as a complementary fact that it is of broad application, the supreme court of the State calling it a provision for a kind of pension given the workman in exchange for absolute insurance on his master's premises (Stertz v. Industrial Insurance Commission, 158 Pac. 256), thus covering injuries not classed in other jurisdictions as within the scope of acts containing more restrictive terms.

The Supreme Court of New York in special term denied the right of a plaintiff to sue for damages for pain and disfigurement, after having received compensation under the act of the State providing therefor, holding the remedy offered by the statute to be complete and exclusive and enacted with a view to afford certain relief and obviate litigation. (Connors v. Semet-Solvay Co., 159 N. Y. Supp. 431.)

The constitution of Arizona requires the enactment of a compulsory compensation statute, retaining, however, to the employee the option of suing under the liability law or choosing his right under the compensation statute. The supreme court of the State held (Consol. Arizona Smelting Co. v. Ujack, 139 Pac. 465) that this election may be made after the injury has been received, and the remedy becomes

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