English language. The insurer has readily accessible means of ascertaining the nationality of employés insured by it and their degree of intelligence. If among them are those who cannot read or speak the English language, this circumstance requires greater effort on its part in order to comply with the statute."

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§ 195. Failure or neglect of employer-Procurement of services and treatment by employé

The duty of employers to furnish their own surgeon is a correlative of their right to do so." The employer's failure to promptly provide proper medical or surgical treatment renders him liable for the reasonable value of such services procured by the employé,9

94 Id.

95 Vaughn v. American Coal Co., 1 Conn. Comp. Dec. 617.

96 Where the employer and insurer neglect to provide surgical treatment reasonably required, and the injured employé procures such treatment, his claim therefor should be allowed. (Wk. Comp. Act, §§ 15a, 34, subd. 2) Mass. Bonding & Insur. Co. v. Pillsbury, 170 Cal. 767, 151 Pac. 419. If an employé who has elected to come under part 2 is injured while working for an employer also under part 2, it is the duty of the employer to furnish such services (those specified in section 18 of the Act) as may be reasonably required at the time of the injury, and thereafter during the disability of the injured employé, but not exceeding 90 days. If the employer fails to furnish the injured employé with such services, the employé can procure the same and recover the value thereof from his employer, not exceeding, however, $100, or in special cases $200. Op. Atty. Gen. on Minn. Wk. Comp. Act, Bul. 9, p. 14. Where the employer has notice or reason to believe that medical and surgical treatment is necessary, and does not seasonably offer the same, he will be liable for the expenses of such treatment necessarily incurred by the injured employé within 90 days of the accident. Peres v. Wand, 1 Cal. I. A. C. Dec. 607. The law places the obligation upon the employer to provide necessary medical and surgical attendance, and knowledge of the accidental injury of an employé and the reasonable opportunity given to provide the requisite treatment are sufficient to charge the employer, neglecting to provide it, with the reasonable expense incurred by the employé in that behalf. Gardiner v. State of Cal. Printing Office, 1 Cal. I. A. C. Dec. 21. Where an employer, knowing of an injury to an employé at the time it was received, but believing it to be caused by disease, and not by accident, fails to provide medical treat

provided the employé's conduct in respect to reporting his injury and related matters has not been unreasonable, in view of his in

ment or to notify his insurance carrier, and it is found later that the injury was caused by accident, the employé is entitled to have paid by the insurance carrier the reasonable value of medical service and hospital treatment furnished to her by physicians of her own choice. Loustalet v. Metropolitan Laundry Co., 1 Cal. I. A. C. Dec. 318.

Where an employer did not furnish any medical service to the injured employé, who obtained it for himself, the workman was entitled to reimbursement to the amount of such services made necessary by the injury. Ducy v. American Mut. Liab. Insur. Co., 2 Mass. Wk. Comp. Cases, 513 (decision of Com. of Arb.). A foreigner, who was unable to read, write, or understand the English language, received a personal injury, and reported it to his foreman. No information was given him as to his rights with regard to medical attendance, nor was any effort or offer of medical attendance made by his employer, or any representative of the employer or insurer. It appeared in evidence that a certain typewritten notice in English was posted near the place where the employé performed his work. He afterwards called in a physician of his own selection, and the insurer declined to pay the bill, and also asked for a ruling that the Committee of Arbitration had no jurisdiction over a dispute concerning the nonpayment of a bill for medical services. It was held that the insurer was required to pay the physician's bill. Panasuk v. American Mut. Liab. Insur. Co., 2 Mass. Wk. Comp. Cases, 338 (decision of Com. of Arb., affirmed by Indus. Acc. Board, also by Sup. Jud. Ct., 217 Mass. 589, 105 N. E. 368). The employé received a serious injury, but no attempt was made by either the insurer or employer to furnish medical attendance of any kind, though the employé was sent home in a carriage supplied by the employer, and nothing was said to her about medical attendance. Upon her arrival home she sent for a physician, a specialist in injuries such as she had sustained. He gave her skillful and helpful treatment, and presented a reasonable bill for the services rendered. The Committee of Arbitration held that the insurer did not furnish medical attendance, and that he must pay the bill of the physician. Flanagan v. American Mut. Liability Insur. Co., 2 Mass. Wk. Comp. Cases, 441 (decision of Com. of Arb., affirmed by Indus. Acc. Bd.).

In Pampuro v. Murray Bros., 1 Conn. Comp. Dec. 674, where the employer's physician, being called twice by the employé because the injured member he had been treating had become swollen, refused to attend, saying it was unnecessary, and the employé then procured his own physician, without any further notification to his employer, the employer was held liable for the expense of the employé's physician. In Vaughn v. American Coal Co., 1 Conn. Comp. Dec. 617, it was held that where the employer was tardy in providing a phy sician for a serious case, and then provided a physician for one occasion only,

The

telligence and other circumstances of the particular case." employer must, upon the happening of an accident, at once instruct the employé regarding the medical and surgical treatment to be fur

allowing the employé to remain in ignorance of his rights and duties, and on finding that another physician had been engaged, and being notified that he would drop the case if they so required, declined to disturb the situation, the employer was liable for the expense incurred. In Coller v. Donohue, 1 Conn. Comp. Dec. 654, where the employer knew that the employé had been hurt, but took no steps to provide a physician, he was held liable for medical expense incurred by him. Where the employers did not furnish the necessary medical, surgical, and hospital treatment, taking the position that the workman was not under the Act at the time of the accident, such action was neglect and refusal such as renders them liable for the expense incurred by the employé. Vojacek v. Schlaefer, Rep. Wis. Indus. Com. 1914-15, p. 8.

Competent physician. In Reed v. Orient Music Co., 1 Conn. Comp. Dec. 36, it was held that a chiropractor was not a competent physician for the employer to provide to care for his employés. Where he furnished a chiropractor, who after three treatments discharged the employé, telling him he was able to work, and the employé continued to receive treatment from his own physician, the employer is liable for the reasonable cost thereof. In this case Commissioner Chandler said: "The notion of competency, when embodied in a legislative act, connotes conformity to some prevailing standard. * There are numerous schools and cults enjoying limited patronage and making divers claims of ability to alleviate pain and cure disease, whose merits it is not necessary for me to consider. *** When *** the employer, operating under this statute undertakes to provide an exponent of any such school or cult as 'competent,' and the question of competency has to be passed upon by the Commissioner, the measure of competency then becomes the prevailing standards of society, not the judgment or convictions of the [employer] however sincerely or disinterestedly exercised. While it is not without the limits of possibility that some person or group of persons, either by reasoning on theoretical grounds, or by experimentation, or even accident, might discover a new and better method than that generally practiced and taught, such a contingency is highly improbable, and the employer under this Act who provides a practitioner of any such unusual method, contrary to the prevailing standards of society and the preference and consent of the injured employé, fails to conform to the provisions of section 7 of part B of the Act."

*

97 In Philp v. International Silver Co., 1 Conn. Comp. Dec. 448, where the employer put notices containing warning against danger of blood poisoning from a scratch and directing workmen to report at once, the notices being printed in English, in the pay envelopes, and a Greek workman, unable to read, speak, or understand English, did not go to a doctor until two or three

98

nished. He must specifically instruct what to do and to whom to report. If the employé is not so instructed, and secures treatment on his own behalf, the employer is liable for the reasonable value of such treatment, even though he was ready and desirous of furnishing medical aid according to his own plans.9 Wherever a large employer has provided no adequate hospital facilities for serious cases, the California Commission will sanction the taking of employés so injured out of the hands of the employer's physician and placing them in a proper hospital and under the care of a proper physician." A definite offer is required of the employer.1 If he

days after the injury, and, aside from showing his finger to the foreman, did not report the injury for some time, it was held, in view of his lack of intelligence, his conduct was not unreasonable, and that the employer was liable for medical expenses. In Forte v. Waterbury Mfg. Co., 1 Conn. Comp. Dec. 685, where, though the employer maintained an emergency hospital, it was not shown that any rules had been passed or brought to the attention of the workmen requiring report of injury to such hospital, and an illiterate foreigner reported his injury to his foreman the day after, and that he was receiving medical attention therefor, but no offer of medical services was made to the employé, nor did the foreman report the injury to the proper officers, it was held that the employé had given sufficient notice, and his medical expense was awarded. In Reese v. Yale & Towne Mfg. Co., 1 Conn. Comp. Dec. 154, it was held that where a workman told his foreman of an injury to his foot immediately, and on going to his employer's emergency room and seeing the shades drawn and the door closed, supposed the room was closed because it was a holiday and only a few of the men were working, and then went home, and summoned his own physician that night, he was justified in so doing, and the employer was held liable for his medical expense.

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

99 Campbell v. L. E. White Lumber Co., 4 Cal. I. A. C. Dec. 33.

1 Where an employer does not definitely or clearly notify an injured employé, at a time when the employé is mentally competent to make decisions, that he would furnish medical and hospital service free of expense to the employé, and it does not appear that the employé knowingly rejected any such offer, the employer is liable for the expense of medical and hospital treatment incurred by the employé. Trueblood v. County of Los Angeles, 2 Cal. I. A. C. Dec. 988. In Bradley v. Waterbury Clock Co., 1 Conn. Comp. Dec. 179, it was held that where the plaintiff gave no notice of the injury, a slight scratch,

does not offer or furnish the services in a seasonable time, the employé must not delay in procuring them himself." The fact that it cannot be known until some time after the injury which of two employers is responsible does not relieve the responsible employer from providing necessary medical treatment after he has notice or knowledge of the injury. The employer is liable for all reasonable consequences of his neglect to furnish the services, such as infection resulting from poor treatment applied by the employé himself, incompetency of the physician the employé selects," and infec

3

which became infected and necessitated the amputation of parts of the third and little fingers, until after he was taken to the hospital, but, on then giving notice, the employer took no action, nor made any offer of medical treatment, such employer is liable for the reasonable expense incurred, more than a passive willingness to furnish treatment being required of him.

2 In delaying surgical treatment for more than two months after the injury, applicant not only jeopardized her own interests, but the interests of her employer, and in fact slept upon her own rights to demand medical and surgical treatment at the expense of her employer, and so forfeited them. Ash v. Barker, 2 Cal. I. A. C. Dec. 577.

3 Foley v. A. T. Demarest & Co., 1 Conn. Comp. Dec. 661.

4 Where disability was aggravated by conscientious, but improper, treatment given the injury by the injured employé herself, and infection resulted, which would have been avoided had the employer promptly furnished medical services, the employer was liable for the medical expenses consequent upon the aggravation. Forgues v. Southern Pacific Co., 2 Cal. I. A. C. Dec. 1038.

5 Where a surgeon of applicant's own selection does not diagnose the case correctly upon first examination, the employer is not relieved of liability for the results of such mistake by not having furnished the treatment. Mitchell v. Occidental Forwarding Co., 2 Cal. I. A. C. Dec. 336. Where an injured employé is treated by an incompetent physician not licensed to practice in the state, and the treatment given the employé makes his injury worse, or causes permanent disability, and the employer has had sufficient opportunity to provide competent medical aid, and has failed to do so, the employer must compensate his injured employé for all disability caused by his injury, including the aggravation thereof by malpractice. Employers and insurance carriers must not sleep on their rights to designate the treatment that is to be had, and if they are negligent or careless in arranging for treatment, they cannot be absolved from the consequences of their neglect. Stockwell v. Waymire, 1 Cal. I. A. C. Dec. 225.