the employee's compensation for their services, the employee brought suit against the employer in the Municipal Court of the City of New York, and recovered an amount equal to their bills. Upon appeal the Appellate Term of the Supreme Court in the First Department affirmed the judgment but the Appellate Division reversed it. The opinion of the Appellate Division is as follows:

JUNK V. TERRY & TENCH Co., 176 App. Div. 855, March 9, 1917.

SHEARN, J.: Plaintiff, a laborer employed by defendant, was injured in his employment about four-thirty P. M. on February 15, 1915. His injuries necessitated his removal in an ambulance to the Harlem Hospital, and disabled him so that under the provisions of the Workmen's Compensation Law (Consol. Laws, chap. 67 [Laws of 1914, chap 41], as amd.) he drew compensation at the rate of nine dollars and sixty-one cents per week up to the date of the trial. He was entitled to medical, surgical and other necessary treatment for sixty days after his accident at the expense of his employer (Workmen's Compensation Law, § 13), but it is conceded that the employer had the right to select the attending physician and the hospital. Plaintiff, in this case, selected his own physician and his own hospital, their bills for services being respectively one hundred and ninety dollars and eighty-one dollars, to recover which amount this action is brought. Plaintiff claims to have been justified in selecting his own physician because of lack of proper treatment provided in the Harlem Hospital, notice to defendant of such ill-treatment and failure on the part of the defendant to provide adequate treatment.

Plaintiff was put in the general ward of the hospital. There was conflicting testimony as to the way he was treated there and while the evidence is not very convincing, the jury was warranted in finding that he was not properly treated there. On the fourth day, that is, on February nineteenth, he insisted on leaving the hospital and going home. Although the hospital authorities considered it dangerous for him to do so, he went to his home, and on the next day a Dr. Hoy called to see him and had him taken away in an ambulance to the Misericordia Hospital, where he remained eight weeks under treatment of Dr. Hoy. The Misericordia Hospital and Dr. Hoy impressed liens on his award for the respective amounts of their bills.

Plaintiff's wife testified that on February seventeenth, after having visited her husband in the Hospital on the two preceding days, she went to One Hundred and Fifty-fifth street to get his pay and there saw a Mr. Wheeler, who was employed by defendant in some kind of office work; that Wheeler asked her how her husband was getting along and she told him that he was not satisfied with the Harlem Hospital, and that Wheeler said that he would report it and see that he got better care. She also testified that while her husband was in the Harlem Hospital she had a conversation with some one with regard to having him removed from the Harlem Hospital to the Post Graduate Hospital and that she was informed that defendant would take care of him in the Post Graduate Hospital, but that she never gave her consent to the transfer. Afterwards she testified that this conversation was on March twenty-fourth while her husband was in the Misericordia Hospital.

It appears that the defendant has a department to handle accident cases involving compensation; that Dr. Moorhead is the head of the department and that it retains forty-three physicians and surgeons in different sections of the city; that in hospitals of a private nature they pay fifteen dollars a week in the ward and pay the doctor who treats the employee, and in public hospitals they pay for ward treatment and remove the patient to the Post Graduate Hospital as soon as his condition warrants; that at the Post Graduate Hospital they maintain a ward of eight beds which is paid for whether filled or empty. It also appears that defendant heard of the accident on the day of its occurrence and that thereupon the chief clerk of the medical department telephoned to the Harlem Hospital, having been apprised that plaintiff had been removed there in an ambulance, inquired as to his condition and suggested his removal to the Post Graduate Hospital, but was informed that his condition was such that it would be impossible to remove him without danger; that he called up the hospital on each day that plaintiff was there and received the same information; that on the day following his removal he called up and was informed that he had been transferred to his home on release; that is, he had signed a release and left the hospital. A day or two after this he had a telephone conversation with Dr. Hoy, who told him that plaintiff was in his care, and he told Dr. Hoy that the company was not responsible for his bill; that the company wanted to take care of him in the Post Graduate Hospital, and he offered to take plaintiff to the Post Graduate Hospital, but “Doctor Hoy said there was nothing doing; that he had the case." Defendant paid the Harlem Hospital seven dollars and fifty cents for the time plaintiff was there.

Assuming that the plaintiff was not properly cared for in the Harlem Hospital, did the plaintiff make any demand upon the defendant for medical assistance as required by section 13 of the Workmen's Compensation Law? The wife's conversation with Wheeler was not such a demand, for there is nothing to show who Wheeler was or what his relations to the defendant were. But in such a case the court should not be astute to find that there was no demand, and here the company is not in a position to claim that there was no demand for medical assistance, because it knew that he was in the Harlem Hospital and paid the bill there, and thus showed that it understood that it was expected to render medical assistance.

The only question is, therefore, whether under all the circumstances defendant neglected to furnish proper medical care. If the defendant had originally selected the Harlem Hospital the case would, of course, be totally different. The exigencies of the case required plaintiff to go to the Harlem Hospital and defendant was informed that it was dangerous to remove the plaintiff therefrom. Even assuming, which is not the case, that defendant had notice of his complaint of the treatment at the Harlem Hospital, plaintiff left of his own accord and did not comply with the reasonable request of the defendant that he be transferred to the Post Graduate Hospital, where he would have been well taken care of without any expense to himself whatever. That he was able to be transferred to the Post Graduate Hospital is evident from the fact that he was transferred from the Harlem Hospital to his home and from his home to the Misericordia Hospital without any serious consequences. Under these circumstances it cannot be fairly held that the defendant neglected to furnish proper medical care on demand. Of course

the plaintiff would not have to wait day after day before proper attention was provided for him, but he was in the hospital where defendant had a right to assume that he would receive proper attention, and, if he did not, then it was his duty to bring knowledge of the fact clearly home to the defendant and also his duty under the circumstances disclosed to comply with the reasonable request of the defendant to be transferred to the Post Graduate Hospital.

The judgment should be reversed, with costs, and the complaint dismissed, with costs. CLARKE, P. J., LAUGHLIN, DOWLING, and SMITH, JJ., concurred. Judgment reversed, with costs, and complaint dismissed, with costs.

These claims for physician and hospital services in the Junk case, having failed as above in a court action, later came before the Commission, under authority of Goldflam v. Kazemier & Uhl, and were dismissed by it upon their merits and upon grounds similar to those that the court had given: S.D.R., vol. 16, p. 495, Bul., vol. 3, pp. 201, 227, 230, May 10, 1918.

The injured employee's prospect of having to pay the expenses of the first sixty days in case he declines the physician or hospital proffered by the employer appears to be about the only effective means whereby the employer can control and direct the medical care and treatment. He can ask the Commission to order the employee to submit to an operation or other treatment under its threat of stopping compensation payments, which he sometimes does; or he can plead inadequate treatment or recalcitrance of the employce upon appeal from the Commission's awards; but these have not availed him much. The Commission has held that an employee who did not fully accept the treatment offered by his employer had the right to exercise his own judgment: O'Esau v. Bliss Co., S. D. R., vol. 14, p. 696, Bul,, vol. 3, p. 79, Nov. 15, 1917; and has declined to order an employee to submit to an operation asked for by the insurance carrier on the ground that his chances of surviving the operation were as one to fifteen: Fawcett v. Lagenbacker Bros., Claim No. 40370, June 25, 1917; 181 App. Div. 911, Nov. 14, 1917; 223 N. Y. 162, May 14, 1918. The first of these two cases is still pending in the courts upon other points, June, 1919; the second has been affirmed by the Appellate Division and the Court of Appeals unanimously and without opinion. The insurance carriers pled recalcitrance of the injured employees relative to care and treatment in Beckwith v. Bastian Bros. Co., S. D. R., vol. 13, p. 538, Mar. 14, 1917; 181 App. Div. 909, Nov. 14, 1917; Mack v. N. Y. Dock Co., Death Case, No. 24142, July 16, 1917; 181 App. Div. 963, Dec. 28,

1917; 223 N. Y. 683, May 14, 1918; and Miller v. U. S. Radiator Corp., File No. 12862, June 12, 1917; 183 App. Div. 914, Mar. 15, 1918, but the Appellate Division, unanimously and without opinion, affirmed the awards in all of these cases and the Court of Appeals affirmed the Mack case without dissent and without opinion.

D. Proper care and treatment.-Workmen's Compensation Law, § 13, says nothing about character or standard of care and treatment to be provided by the employer. The opinion in Junk v. Terry & Tench Co., immediately above, implies that the treatment must be proper. The opinions in Keigher v. General Electric Co., Bulletin 81, pages 267-271, suggest limitations upon the employer's discretion. "The employer of course cannot make an unreasonable selection. There may be instances where the employee would have a right to be consulted and a reasonable and proper deference paid to his wishes," says Justice Cochrane in the ruling opinion. "The employer must furnish a doctor such as the circumstances reasonably require and as the injured employee may reasonably request. A sick man must select his own doctor, nurse or hospital; otherwise the benefits intended will not be realized. There is no reason why the company should dictate as to the personnel of the doctor, the nurse or of a hospital for the first sixty days and have no voice in those matters after that time. It may cost the company less to select its own doctor, but the interest of the patient and not the economy of the employer was in the mind of the Legislature. I think, therefore, that if the injured employee makes a reasonable and timely request for the employment of a particular doctor, reasonably available, the request should be observed," says Justice Kellogg, concurring in the result.

In McNeil v. N. Y. Central R. R. Co., Death Claim, No. 14239, July 11, 1916; 181 App. Div. 912, Nov. 14, 1917, the employee's head was crushed between heavy iron pipes that he was helping to move. The Commission found that the employer provided a physician immediately after the accident and that the physician refused requests of the employee within sixty days of the accident to be sent to a hospital. In view of this and other conduct of the employer's physician, the Commission held that the employer could not consistently claim to have been prejudiced by the employee's failure to give notice of the accident within thirty days.

The Appellate Division unanimously affirmed awards to McNeil's wife and eight children.

Findings of improper medical attention furnished by the employer's business manager for an employee's injured eye, with no notice to the insurance carrier, figure in Boice v. Patent Specialty Supply Co., S. D. R., vol. 17, p. 614, Bul., vol. 3, p. 265, July 24, 1918.

Inadequate or improper medical treatment on the part of an employer's physician justifies an employee in procuring the services of a physician of his own selection without making further request of his employer. The Commission has awarded the amount of the employee's physician's bill in such a case and the award has been affirmed by the Appellate Division unanimously and without opinion, Mar. 5, 1919. The Commission's decision is based upon the following opinion of Commissioner Lyon:

BRASTOWICZ V. DOEHLER DIE CASTING CO., S. D. R., vol. 17, p. 650, Bul., vol. 4, p. 24, Oct. 16, 1918.

LYON, Commissioner: Claimant states that at least twenty-four hours, and perhaps thirty-six hours, elapsed after his first treatment, before the physician furnished by the employer visited him, although claimant was suffering great pain. The doctor denies this, but admits that the time between visits was very considerable.

I think in the case of a man injured as badly and suffering as much as the claimant was in this case, a careful physician should consider the psychology of the case as well as its purely medical or surgical aspect. It would seem that the claimant, under the circumstances, had the right at first, at least, to have had frequent visits from the doctor, even though from a medical standpoint they were not necessary. The recovery of a badly injured man might be seriously impeded by his belief while in pain that he was being neglected. Under the circumstances I think he was justified in calling in his own physician. I have not overlooked the testimony of the second doctor that in his opinion the claimant had been neglected, and, in fact, brutally treated by the first physician. I take this testimony with a grain of salt, because the witness is greatly interested in having the award made. I prefer to base my opinion on the proposition that, though from a purely medical standpoint, the treatment may have been proper, still it was not adequate because the doctor's visits were not frequent enough. The case called for the stimulus to the patient's mind which frequent visits would supply.

But it is said that he cannot cast the payment of the bill upon the employer, because he did not request treatment before his own doctor was called in, and reference is made to the case of Goldflam vs Kazamier & Uhl. It is true that the court in that case said, "It is only where the employer fails to provide a physician after request by the employee that the latter may employ a physician at the expense of the employer."