Karasavage v. Philadelphia & Reading Coal & Iron Co. , 76 Pa. Super. 83 ( 1921 )

Opinion by

Head, J.,

The-plaintiff appellee, during the course of his employment with the appellant company, received a serious injury to one of his eyes. He sought compensation therefor from the Workmen’s Compensation Board. The referee beard tbe case found tbe facts and made an award in bis favor. Upon a consideration of bis action by tbe boai’d itself, tbe award was confirmed. An appeal to the court of common pleas afforded tbe employer company no relief and tbe case bas finally reached us.

Section 306 of tbe Compensation Act provides, inter alia, “If tbe employee shall refuse reasonable surgical, medical and hospital services,.be shall forfeit all right to compensation for any injury or any increase in bis incapacity shown to have resulted from such refusal.” Who is to determine in a given case whether or not1 tbe conduct of an injured employee was or was not reasonable under all of tbe circumstances? Plainly enough tbe referee is tbe trier of such a question, because tbe legislature bas so declared. Now tbe situation was briefly this: Tbe claimant was injured in September of 1917, having been struck in one of bis eyes by a piece of coal from a blast in one of tbe defendant’s plants. He immediately consulted a physician of tbe defendant company at its Locust Spring Colliery, who after treating tbe eye several times sent him to tbe Pottsville hospital, where be remained from September 20th to September 25th, and then went, still following tbe advice of defendant’s surgeons, to tbe Jefferson hospital in Philadelphia, where be remained about ten days. He then returned home and again placed himself under tbe care of Dr. Zimmerman, who seems to have been one of tbe company’s chief surgeons, who gave him a certificate of bis fitness to return to work on tbe 12th of November, but directed him to return from time to time for observation during the following two weeks. Tbe trouble with tbe eye continued and after a time began to increase and in April of 1918, months after tbe injury, tbe defendant’s surgeons reached tbe conclusion that' tbe claimant should have a serious operation known as Iridectomy. This the claimant refused to do, and in bis own testimony furnished a rather forceful reason for bis conduct. That such an operation could not be said to insure tbe hoped for improvement appeared from tbe testimony of tbe defendant’s surgeons themselves. If it did not improve tbe eye, it seems to be agreed all around that tbe sight of that eye would be gone. Were that tbe worst possible result, there would be little reason in tbe claimant refusing to submit to such an operation, as it bad become apparent that tbe sight of one eye would be lost in any event. But the claimant declared that it was Avithin bis own knowledge that an operation which be believed to be similar to tbe one be was advised to undergo bad resulted in tbe loss of not only tbe injured eye, but ultimately of tbe remaining uninjured eye. In another instance an acquaintance bad suffered an eye injury and following an operation of some kind sickened and died. Under these circumstances did tbe defendant refuse reasonable surgical aid? Did be during tbe months following tbe accident, in good faith, seek in every way suggested to him by expert advice, to bring about bis own complete recovery from tbe injury, or to at least palliate if be could not remedy it? We believe this was a question to be decided by tbe referee under all of tbe evidence, and we are of opinion that it cannot now be successfully urged that tbe finding be made in tbe claimant’s favor is Avithout any support in tbe evidence. It is practically tbe only question of substance raised by tbe appeal, and we are not convinced that any error was made by tbe referee, by tbe board or by tbe learned court of common pleas.

Tbe appeal is dismissed at the costs of tbe appellant.