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statements of such services be rendered, to insure that such charges are made in accordance with its schedule. Where an injured employé is treated by a physician of his own selection, and has contracted to pay, or has paid, for the services of such physician a sum in excess of that prescribed by this schedule, he is entitled to be reimbursed only to the extent of the amount allowed by the schedule. As to the balance the Commission cannot give any relief as between the physician and injured employé. The question is one of private contract, to be determined elsewhere. A further sum for medical aid will be allowed under the Illinois Act where it is shown that it was necessary to procure the service of a physician other than that furnished.48

§ 199. Recovery by physician

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Where a physician is entitled to an allowance for the reasonable value of medical services rendered to an employé, he may apply for the determination of his claim; but he cannot recover where the expense for treatment was not incurred by or on behalf of the injured employé.50 Nor can he recover for services to which the employé is otherwise entitled, or which are free to him. His right

51

the basis of the fee schedule adopted by it, which schedule has been prepared to represent the reasonable cost of treatment rendered an injured man of an earning capacity of approximately $1,000 per year if there were no insurance carrier or employer to pay his expenses. Devlin v. Smith, 1 Cal. I. A. C. Dec. 418.

46 Conner v. Acme Cement & Plaster Co., 1 Cal. I. A. C. Dec. 143.

47 Devlin v. Smith, 1 Cal. I. A. C. Dec. 418.

48 Cegrelski v. Lehon Co., Bulletin No. 1, Ill., p. 35.

49 Fly v. San Diego Transfer Co., 2 Cal. I. A. C. Dec. 714.

As to reasonableness of charges, see § 198, ante.

50 Mahan v. Frankfort General Insurance Co., 2 Cal. I. A. C. Dec. 530. 51 Where a member of a fraternal order, having sustained an injury, called upon his lodge physician for such medical services as he was entitled to receive free of charge by reason of his membership, and received such

to a lien, and to recover, where he is engaged by the employé, is dependent upon the right of the employé.52

services, since no expense had been incurred by the employé, the physician rendering the services had no right of recovery against the insurance carrier for the reasonable value thereof. Mahan v. Frankfort General Insur. Co., 2 Cal. I. A. C. Dec. 530. Where the injured employé, having paid a regular monthly assessment of 75 cents to a physician stationed at a work camp, entitling him to treatment when injured, receives such treatment from such physician, and without any expense incurred other than the prior assessments, the employer is not liable to the employé for the value of such treatment, there being no medical expenses incurred within the meaning of the Act. Dahl v. Jensen, 2 Cal. I. A. C. Dec. 749.

52 The right of a physician hired by an employé to secure from the employor or the latter's insurance carrier the reasonable value of services rendered the injured employé is derived through the right of the employé to compensation, and where the employé is not entitled to compensation for disability or medical treatment, his physician cannot recover in an action against the employer directly. Newkirk v. Union Ice Co., 1 Cal. I. A. C. Dec. 166. Where the employer is not liable for medical services rendered an injured employé because of the failure of the employé to give sufficient opportunity by notice or demand, no lien can be declared in favor of the physician upon the compensation due the employé. Green v. Burke, 1 Cal. I. A. C. Dec. 591. The Act does not authorize a lien where the medical services for which a lien is sought were rendered after the expiration of ninety days after the injury. (Wk. Comp., etc., Act Cal. § 29, subd. [b] [2]). Id.

In Coughlin v. R. Wallace & Sons, 1 Conn. Comp. Dec. 652, where the employé engaged his own physician, and the employer, on being notified two days later, made proper arrangements with its own physician to treat the injury, the employé's physician could not recover against the employer for services rendered. In Shapiro v. New Haven Carriage Co., 1 Conn. Comp. Dec. 508, it was held that where a workman' requiring treatment for stomach trouble had his injured finger treated at the same time, without reporting his injury to his employer in any such way as to indicate that medical treatment was necessary, the physician could not recover against the employer. In this case the employé made no claim for such compensation. In Ross v. Aberthaw Construction Co., 1 Conn. Comp. Dec. 533, where it was shown that the employé was intoxicated on the morning of the injury, and quarrelsome, and had in the course of an altercation with the fellow workman who struck him called such workman a vile name, it was held that, since the injury did not arise out of and in the course of his employment, there could be no recovery against the employer by the physician for his services. In Racujja

In California, in order to make a claim for services in treating an injury a lien against the award, it is essential that notice in writing. be given to the employer of the claim.53 An award directing that a physician's fee be paid directly is invalid, where it does not fix the amount of the fee, or name the person entitled thereto, or show that the required written notice of claim was given.5*

Where an injured workman was taken by the employer's foreman to a physician, who informed the insurance carrier that he was treating the workman, and made his charge against the carrier for the services, and not against the employé, the California Commission had no jurisdiction to award a lien to the physician upon compensation due the applicant; the physician's compensation being a question of contract between the physician and the em-. ployer.55

v. National Folding Box & Paper Co., 1 Conn. Comp. Dec. 522, where, without neglect or wrongdoing on the part of his employers in providing medical and surgical treatment, the employé incurred a debt of $30 for the services of another physician, such physician cannot recover against the employer, where that employer had neither expressly nor impliedly consented to his employment. On application to the superior court for execution of an award against the employer for medical services made in Vaughn v. American Coal Co., 1 Conn. Comp. Dec. 617, Judge Case declined to authorize an execution in favor of the physician, except in favor of the actual claimant, the employé.

A doctor, who attends an employé of a farmer for injury sustained, cannot claim for medical services rendered, as a farmer is not operating under the provisions of the Act. Poling v. Brown, Bulletin No. 1, Ill., p. 21.

A physician has no direct cause of action against an employer for services rendered an injured employé, even though the value of such services has been fixed by the Commission and made a part of the award, and the employé has attempted to assign that portion of the award to his physician. He has only a lien upon the award. Bloom v. Jaffe, 94 Misc. Rep. 222, 157 N. Y. Supp. 926.

53 McCay v. Bruce, 2 Cal. I. A. C. Dec. 975.

54 (Wk. Comp. Law, St. 1913, p. 291, § 29) Pacific Coast Casualty Co. v. Pillsbury Indus. Acc. Com., 171 Cal. 319, 153 Pac. 24.

55 Paul v. Johnson Bros., 3 Cal. I. A. C. Dec. 32.

§ 200. Services of nurse or member of the family

The employer or his insurance carrier are only chargeable for the services of nurses where the physician in charge either authorizes, requires, or consents to the employment of a nurse.56 Expense

for services of a nurse, as such, after the limit of time fixed by statute, are not chargeable, nor at all thereafter, except by allowance of the maximum percentage of disability indemnity.57 A claim by a member of the family of the injured employé, not a professional nurse, for remuneration for nursing done for the employé, will not be made a charge against the employer or insurance carrier. To do this would open a door for unskillful treatment and charges that should not be made a burden upon industry. It is usually to be presumed that members of the family and relatives will, through their affection, render any aid possible to the injured employé, without cost.58 But, in case of injury requiring hospital

56 Hughes v. Degen Belting Co., 1 Cal. I. A. C. Dec. 203.

57 City of Milwaukee v. Miller, 154 Wis. 652, 144 N. W. 188, L. R. A. 1916A, 1, Ann. Cas. 1915B, 847.

58 Wayman v. Huff, 1 Cal. I. A. C. Dec. 358.

A claim for nursing by the injured employé's mother not allowed, where the attending physician did not order nursing. Forbes v. County of Humboldt, 2 Cal. I. A. C. Dec. 887. Where the injured employé is nursed by his sister at her house, where he boarded, it being a case which could be adequately treated at home without a trained nurse, the sister is not entitled to an allowance against the employer for such nursing, she not being a trained nurse. Jolley v. O'Shea, 2 Cal. I. A. C. Dec. 569.

Deputy Commissioner William C. Richards, of Syracuse, disallowed a claim presented by a wife for nursing her husband, where she was not a graduate nurse. (Wk. Comp. Act, §§ 13, 24) Dunham v. Phelan & Sullivan, The Bulletin, N. Y., vol. 1, No. 9, p. 30.

No allowance for nursing services will be made, where they were rendered by a member of the family, who rendered them in connection with her duties as housekeeper. In re David Burns, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 5.

The common rule in the law of negligence that the wrongdoer cannot mitigate his liability, by taking advantage of relief furnished by one's wife, family, friends, or otherwise, has no application to cases under the Workmen's

treatment, an award will be made for services rendered and appliances furnished to the injured employé by another member of his family in lieu of such treatment and in accordance with the consent and direction of the physician in charge, especially where the member rendering such services gives up his regular employment, in order to do so.59 Also where the attending physician advises, but does not insist, that the patient be sent to a hospital, and the family or dependents do not have him removed, and there is no specific demand that he be sent to a hospital, or a specific refusal to do so, the insurance carrier is not exempted from the requirement to pay for the reasonable value of services rendered to the patient at his home."0

DIVISION II.-FUNERAL EXPENSES

$201. Provisions allowing funeral expenses

A provision making the employer liable for funeral expenses does not take away the right to the custody and burial of the dead, or authorize the employer to contract for funerals with an undertaker in such a way as to arbitrarily fix the number of carriages or to decide in certain cases that no carriages shall be provided. These are matters for the family or next of kin to decide and arrange for, provided the expense is reasonable and does not exceed the limit fixed by

Compensation Act. That eliminates all penalizing features, and limits compensation to the injured person, aside from indemnity for disability, to expenses or liabilities actually incurred. City of Milwaukee v. Miller, 151 Wis. 652, 144 N. W. 188, L. R. A. 1916A, 1, Ann. Cas. 1915B, 847.

59 Kelley v. Manley, 2 Cal. I. A. C. Dec. 318.

Where an injured employé required a nurse's care, and was cared for by the woman keeping the boarding house where he lived, she not being a trained nurse, but giving up her work to attend him, the employer is chargeable for an allowance for three weeks' nursing at $12 per week. Dexter v. People's Cloak & Suit Co., 2 Cal. I. A. C. Dec. 567.

** Hughes v. Degen Belting Co., 1 Cal. I. A. C. Dec. 203.

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