interpreting a statute similar to SDCL 62-4-43 to mean that “a tender of medical or surgical treatment by the employer [] is an essential prerequisite to any possible forfeiture.... ”
How later courts described this case
- interpreting a statute similar to SDCL 62-4-43 to mean that “a tender of medical or surgical treatment by the employer [] is an essential prerequisite to any possible forfeiture.... ”
Written by the judges who cited it.
The opinion
*398 BROWN (G. A.), P. J., Concurring and Dissenting.
There is no suggestion in this case that the workmen’s compensation carrier did not have legitimate litigable defenses to petitioner’s claim for compensation based on a lack of connection between the industrial injury to petitioner’s left knee and a subsequently claimed bilateral inguinal hernia, as well as other matters. The compensation carrier asserted these defenses in good faith. The conflicting testimony of eight doctors and petitioner’s own confused and contradictory stories attest to that fact.
Had the carrier prevailed, it would not have been responsible for the cost of a hernia operation or the three-year period of disability between September 15, 1969, and November 27, 1972. Nevertheless, the majority reaches the anomalous conclusion that the insurance carrier, in order to protect itself from further liability, must, prior to the outcome of the litigation, offer to pay the cost of treatment for the injury which is the very subject of the dispute.
In my opinion, Labor Code section 4056 and the doctrine of avoidable consequences placed a duty upon petitioner to accept treatment offered from third party sources, the risk of which would have been inconsiderable and which treatment would have promptly cured his condition and eliminated the source of the disability. I do not agree that the doctrine of avoidable consequences (mitigation of damages) limits the duty of one injured to those situations where the injured party “is bound, at least to the extent of his financial ability, to exercise reasonable diligence in procuring medical or surgical treatment to effect a speedy and complete recovery.”
The rule of avoidable consequences imposes a duty on a person injured to use reasonable efforts under all the circumstances to procure and submit to reasonable medical attention if the nature of the injury requires it and. such medical attention is available to him. (25 C.J.S. §§ 32, 36.) Personal financial ability is merely one factor. I am not prepared to. hold, as does the majority, that under all circumstances it is, as a matter of law, unreasonable to require an injured workman to undergo curative treatment because it is made available to him by a county hospital.
Labor Code section 4056 speaks in terms of an unreasonable refusal to submit to medical treatment; it does not refer only to medical treatment offered by the employer. To interpret the language of that section to require an offer of medical treatment by the employer is to obscure the obvious purpose of the Legislature: to prevent an employee from benefiting *399 by his own refusal of treatment. In my opinion, the Legislature did not intend to render traditional notions of avoidable consequences inapplicable to workmen’s compensation. If it did so intend, it would have been much more explicit.
Support for this conclusion is found in sections complementary to section 4056. Section 4050 provides that an injured employee must submit to a medical examination when requested to do so by the employer. Section 4053 declares that when such an examination is requested by the employer, the employee must submit thereto, and if he refuses to do so or otherwise obstructs the examination his right to benefits is suspended. Section 4054 makes a similar provision when a medical examination is requested by the appeals board or its referee. Section 4056, however, refers to a refusal to submit to any medical treatment and does not confine itself solely to medical treatment offered by the employer. Accordingly, in view of the Legislature’s specific mention of “employer” in complementary sections, it cannot be said that the omission of such language from section 4056 was merely inadvertent. Rather, it is readily inferable that by this omission, the Legislature manifested its intention to cover situations analogous to the case at bench. For it is contrary to the state’s public policy to allow a person to idly sit by and draw benefits which' are not essential to his well being. (See 2 Hanna, Cal. Law of Employee Injuries and Workmen’s Compensation (2d ed. 1966) § 16.05[3][a]; see also Welf. & Inst. Code, § 17200.) A contrary conclusion would allow the employee to take advantage of his own misconduct. (See South. Cal. Edison Co. v. Indus. Acc. Com. (1925) 75 Cal.App. 709, 713 [ 243 P. 455 ].)
The decision herein permits a workmen’s compensation claimant to do nothing by way of self-help; it authorizes an injured employée to take the arbitrary position that he will voluntarily remain disabled and unemployed unless and until the workmen’s compensation carrier arranges for a medical cure. (Lab. Code, § 4600; Marshall v. Ransome Concrete Co. (1917) 33 Cal.App. 782, 786 [ 166 P. 846 ]; Danziger v. Industrial Acc. Com. (1930) 109 Cal.App. 71, 74-75 [ 292 P. 525 ].) If a workmen’s compensation carrier is required to make such an advancement of the costs of hospital and surgical treatment and the cause ultimately should be resolved in its favor, the amount thereof would be a nonreimbursable gift to the claimant. The workmen’s compensation law does not require the carrier to so act at its peril or direct that it be penalized for exercising its legal right to put a claimant to his proof.
It is evident that the real concern of the majority is that the medical facilities and services offered petitioner were by the Madera County *400 Department of Public Welfare and that it would be demeaning to require him to suffer the indignity of receiving medical care from that source. 1 The language of the opinion clearly restricts its operation to the facts presented and does not purport to extend its holding to situations wherein the claimant does have the private resources or insurance to pay for medical services and hospitals of his choice or under current Medi-Cal programs may be able to make a choice of private treatment; and if the court were confronted with the latter situations, surely it would not be so solicitous as to not require that the claimant cure his condition by self-procured medical treatment. If this conclusion be correct, it demonstrates that the majority in fact believes the doctrine of avoidable consequences is applicable to workmen’s compensation cases, and that the reason for the decision herein is not the inapplicability of that doctrine but that the curative services were from a welfare department. An immutable legal principle should not thus be emasculated by such a minor factual distinction. 2
The majority states that “under the workmen’s compensation law an employee who incurs an industrial injury has the statutory right to receive medical or surgical treatment at the expense of his employer; ...” The statement is inaccurate. The right to benefits is inchoate and does not ripen into a duty upon the employer to pay them until the litigation to determine compensability has been concluded. The opinion then infers that these supposed rights somehow modify well-established principles of mitigation placing a duty upon the one injured to take reasonable action to ameliorate or cure the disabling condition. No authority is cited for this principle, and I believe its pronouncement in this case in order to justify the conclusion that this indigent claimant did not have to mitigate damages by accepting *401 free medical and hospital care is an unwarranted and unsupportable inroad into the well-established principles relating to mitigation of damages.
I do not share the trepidations of the majority about the quality of county hospital facilities and services; nor would requiring that such services be accepted by a claimant result in a shift of the ultimate financial responsibility therefor from the workmen’s compensation carrier to the welfare department of the county.
The latter conclusion necessarily flows from the fact that the person or institution, whether public or private, rendering such services would have a right of reimbursement from the carrier in the event the claimant should ultimately prevail. (See fn. 2, supra.)
As to the adequacy of the hospital and medical services, the claimant is fully protected by requiring that the surgical or hospital treatment offered be at least equal to that which the claimant is entitled to receive from his employer should he ultimately prevail.
In' the case at bench, the workmen’s compensation carrier presented no evidence whatsoever on the issue of equivalency and adequacy of services and facilities. The burden is on the carrier to show by evidence that such equality existed. In the absence of such evidence, the board’s conclusion that the petitioner’s refusal to accept such services was unreasonable is not supported by the evidence. For this reason I concur that the decision must be annulled but would remand the case to the Workmen’s Compensation Appeals Board for the purpose of receiving evidence and making a finding on the issue of whether the surgical or hospital treatment offered by the Madera County Department of Public Welfare was at least equal to that which the petitioner would have been entitled to receive from his employer and for further proceedings consistent with the views expressed herein.
A petition for a rehearing was denied January 24, 1974, and the opinion was modified to read as printed above. Brown (G. A.), P. J., was of the opinion that the petition should be granted. The petition of respondent State Compensation Insurance Fund for a hearing by the Supreme Court was denied March 13, 1974.
However, the record indicates that petitioner had been on public welfare since the fall of 1969, which obviously would not have been necessary had he accepted the operation. In a sense refusing the operation caused a continuation of the alleged demeaning effect of accepting welfare when if he had accepted the medical services, he'would have been able to go back to work. It is difficult to understand how'accepting an operation from welfare by one already on welfare could add to whatever humiliation one may already be suffering, which reflects on the reasonableness of his refusal to have the operation.
In this connection, it should also be pointed out that county hospital services are not necessarily “charity.” Health and Safety Code sections 1473 and 1474 declare that the recipient of county hospital benefits is liable for the costs thereof. County officials have a duty to collect these costs (Reichle v. Hazie (1937) 22 Cal.App.2d 543, 547 [ 71 P.2d 849 ]), and in pursuit of that duty the county may obtain a lien against the patient’s property. (See Welf. & Inst. Code, §§ 17109, 17400-17409.) Further, Labor Code section 4600 provides that the employer is liable for such expenses when the injury is work related, and the appeals board may declare a lien against the award for the costs of treatment. (Lab. Code, § 4903, subd. (b).)