something in an insane asylum, to which he has been sent because of insanity, although the insanity was not in consequence of the accident.32 Where a collier, after receiving an agreed weekly compensation for six weeks for an injury to his eye, returned to his work at his former wages, and was dismissed two weeks later, when part of the mine was closed down, it was held that his compensation had been terminated by mutual consent when he returned to work. 33

Where the disability is partial, but the loss of earning capacity total, by reason of inability to compete in the open labor market, the employer may secure a reduction of the compensation to a basis of partial disability by offering the employé light and accessible employment which he is able to perform in his disabled condition. Upon the tender of such employment the compensation is thereby reduced to 65 per cent. of the difference between the former wages and the wages offered him for such light work.34 Where the employer, before his injured employé is entirely recovered and able to resume the work he was doing at the time of the accident, offers easier work at the same wages as were paid before the injury, the employé, if able to perform such easier tasks at that time, must either accept the offer or forfeit all further disability compensation. But where the employé shows apparent total disability,

35

32 Slater v. Blyth Shipbuilding & Dry Docks Co., Ltd. (1914) 7 B. W. C. C. 193, C. A.

33 Bradbury v. Belworth Coal & Iron Co. (1900) 2 W. C. C. 138, C. A.

34 Lindh v. Toyland Co., Inc., 2 Cal. I. A. C. Dec. 646. If the employer furnishes the employé such work as he can perform, thereafter until the termination of the temporary disability the employer is chargeable only with 65 per cent. of the difference between the wages paid for the light work proured and the wages the employé was receiving at the time of his injury. Acrey v. City of Holtville, 2 Cal. I. A. C. Dec. 587.

85 Denehy v. Panama-Pacific International Exposition Co., 1 Cal. I. A. C. Dec. 109.

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the burden is on the employer to show a definite earning capacity in the employé.36 If there is serious insubordination and drunkenness, persisted in by an injured employé during his treatment, suspension of compensation in so far as the disability is continued or aggravated by the intoxication, or unreasonable refusal to abide by the medical treatment, will be authorized. Where, after findings and award on the basis of partial disability, it appears that such disability has become total, the indemnity will be increased to that for total disability.38 Where it appears, after a temporary total disability indemnity has been awarded, that the injuries sustained are permanent in nature, and not temporary, the findings and award will be amended, after proper notice to all parties and opportunity to be heard, to change the compensation from that based on temporary disability to that for permanent disability. The defend

36 Larnhart v. Rice-Landswick Co., 1 Cal. I. A. C. Dec. 557. In view of the provision of the Act that due regard shall be had to the ability of the injured employé to compete in an open labor market, in order to justify the reduction of the compensation from that for total disability to partial disability it is necessary to show that the disability of the injured person does not wholly prevent his competing in the open labor market. Raily v. Island Transportation Co., 2 Cal. I. A. C. Dec. 608.

37 Hill v. Guardian Casualty & Guaranty Co., 1 Cal. I. A. C. Dec. 415. Where a workman with a fractured jaw, after being discharged from the hospital with instructions to return to have it dressed, at once indulged to great excess in alcoholic liquors, contrary to the instructions of his physician, which resulted in increase of disfigurement and impairment of the function of the jaw, the Commission held that in all such cases there will be a forfeiture in whole or in part of compensation, in this case diminution of the award one-third, reducing the compensation from 74 weeks to 48 weeks. Kelliher v. Great Western Power Co., 2 Cal. I. A. C. Dec. 378. Where, on four occasions between the date of injury and the date of operation performed on his foot, the applicant had been confined in a hospital for intoxication, and upon two occasions had been confined in a padded cell, while this did not relieve the employer of liability, in such cases the employé will suffer a reduction in the allowance of compensation, although it cannot be determined to just what extent the disability was prolonged. Mitchell v. Occidental Forwarding Co., 2 Cal. I. A. C. Dec. 336.

38 (Roseberry Act) Manfredi v. Union Sugar Co., 2 Cal. I. A. C. Dec. 920.

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ant will be credited on his account of the permanent disability with all payments he may have made upon the basis of temporary disability. Where, after an award of continuing total disability compensation for injury resulting from a fracture of the skull of the workman, it is discovered that the continuing disability was proximately due to a syphilitic condition of the workman, of origin prior to the accident, and not due to the accident, an order will be made terminating such disability indemnity.*°

In this state, "whenever in case of injury the right to compensation would exist in favor of any employé, he shall upon the written request of his employer, submit from time to time to examination by a practicing physician. * * * So long as the employé, after such written request of the employer, shall fail or refuse to submit to such examination, or shall in any way obstruct the same, his right to begin or maintain any proceeding for the collection of compensation shall be suspended, and if he shall fail or refuse to submit to such examination after direction by the Commission, or any member or referee thereof, or shall in any way obstruct the same, his right to the weekly indemnity which shall accrue and become payable during the period of such failure, refusal or obstruction, shall be barred." 41 Where an employé does not abide

39 Hey v. Pacific Coast Casualty Co., 1 Cal. I. A. C. Dec. 38.

Where an injured employé is awarded by the California Commission for a short temporary total disability caused by an injury to the ends of two fingers, and some months later it is shown by competent medical advice that a slight permanent partial disability has resulted from the accident, the Commission will, after notice and an opportunity to be heard is given to all the parties in interest, order that the findings and award be amended to allow compensation for the permanent partial disability, deducting therefrom the benefits previously paid to the applicant upon the basis of the temporary disability. Karas v. Northwestern Pacific Ry. Co., 2 Cal. I. A. C. Dec. 84.

40 Cianetti v. Fremont Consolidated Mining Co., 2 Cal. I. A. C. Dec. 947. 41 (Wk. Comp. Ins. & Safety Act Cal. § 21) This provision of the Act will be strictly enforced. Bianchini v. Selby Smelting & Lead Co., 2 Cal. I. A. C. Dec. 195.

Where an employé, after receiving written notice to submit to a medical

42

by the instructions of his physician, and thereby greatly increases his disability, the employer is not required to pay compensation for a longer period than the employé would have been disabled, had his injury taken the normal course. Compensation is not payable for such portion of the illness as is due to the injured employé's own actions aggravating his disability. But, in justice to the patient, the Commission will require the fact of insubordination, lack of co-operation with the physician, or reprehensible conduct to be clearly established before it will sanction the cutting off of the treatment and the compensation payments allowed by law.** The employé must co-operate with the physician in effecting a cure." Where an employé is disabled, but it appears that he might be cured by an operation or hospital treatment, the California Commission has ruled that, if the employer offers such operation and treatment at his own expense, as well as disability indemnity during the disability caused by the treatment, the employé must accept it, or forfeit his right to compensation. A temporary partial dis

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examination at a reasonable time and place fixed by the employer, fails or refuses to submit to such examination, his right to commence and maintain proceedings for the collection of compensation is by section 21 suspended during the period of his refusal, and an application filed for compensation during the period must be dismissed. Id.; Parini v. Selby Smelting & Lead Co., 2 Cal. I. A. C. Dec. 192.

But the notice must be in writing. Where an injured employé is directed by his employer to go to a certain physician for examination, and either misunderstands the direction or refuses to abide by it, and does not report for examination, if the direction is given orally, the failure to submit to examination is not a bar to the proceedings for compensation. Brain v. Eisfelder, 2 Cal. I. A. C. Dec. 30.

42 Smrakar v. Pacific Lumber Co., 2 Cal. I. A. C. Dec. 87.

43 Hill v. Guardian Casualty & Guaranty Co., 1 Cal. I. A. C. Dec. 415.

44 The employer may select the physician to treat the injured person, and it is incumbent upon the employé, if he accepts the services tendered, to cooperate with such physician in effecting a cure. Rainey v. McClain, 1 Cal. I. A. C. Dec. 57.

45 The reasonable cost of an operation to relieve an injured workman from the consequences of an industrial accident, with compensation for the period

ability award for hernia will be terminated upon offer by the employer or his insurance carrier, at its own expense, of an operation for the cure of the hernia, and its rejection or acceptance by the employé, and its satisfactory outcome."

Ayl

of disability caused by the operation, was awarded him, and the employer required to tender at its own cost suitable surgical and hospital facilities for the operation, and if the applicant then declined the operation, the defendant was to be freed from all liability. Haley v. Hardenburg, 1 Cal. I. A. C. Dec. 127. Where medical experts determine that an operation will probably greatly aid applicant's recovery from injury, the Commission will make the payment of compensation conditional upon the injured man's acceptance of an operation when it is tendered by the employer or insurance carrier. ward v. Oceanic Steamship Co., 2 Cal. I. A. C. Dec. 95. It being shown that traumatic neurosis may be cured by proper scientific treatment, the Commission will make its award upon the basis of a temporary partial disability, with a provision that if the employer shall tender proper hospital and medical treatment for at least thirty days to cure the injured employé, with full compensation during the period of his treatment, and, being undergone, it is successful, compensation may be discontinued. It also provided that, if the injured employé refuses to accept such hospital treatment, compensation may thereupon cease. Finley v. San Francisco Stevedoring Co., 2 Cal. I. A. C. Dec. 174. Where it seems probable at the time of the award that the applicant will require a surgical operation thereafter to remove the disability, the award may provide that, upon operation being recommended by competent surgical authority and being undergone, the employer shall pay the reasonable cost of the operation and a full disability benefit during the resultant incapacity, but if the applicant refuses to submit to an operation after its being so recommended, all disability payments shall cease during the continuance of his refusal. Gordon v. Evans, 1 Cal. I. A. C. Dec. 94. Where, owing to mistaken diagnosis and inadequate treatment, the employé continues to be totally disabled after the ninety-day limit has expired, but it appears that with proper treatment he could be entirely cured, the Commission will make an award for temporary total disability payments to continue during the disability, but conditioned that if the employer or his insurance carrier tender proper treatment to cure and relieve the applicant from the effects of the injury, the applicant must accept the treatment, or forfeit further compensation. Johnson v. Pacific Surety Co., 1 Cal. I. A. C. Dec. 560.

46 An employé having a serious hernia is handicapped practically 50 per cent. in his industrial activities. Since his employer cannot be required to furnish medical treatment after the expiration of the ninety days from the date of the accident, a temporary partial disability award should be made in favor of such employé so injured, in the sum of 50 per cent. of 65 per cent. of