Morrell v. City of Austin , 208 Minn. 132 ( 1940 )

As matter of ethics, this decision is plainly right. But, feeling that it is governed by statute, under which decision should arbitrarily go the other way, I must state my reasons for that conclusion.

Our recent decision in Carmody v. City of St. Paul, 207 Minn. 419,291 N.W. 895, did not settle the issue. That was a case where the employe, immediately upon injury and disability, insisted upon treatment by a physician of his own selection. We held that to be his right under the statute. 3 Mason Minn. St. 1940 Supp. § 4279.

The history of the statute and its evolution through amendment into its present form was reviewed. The decision was only that an injured employe had the right under the compensation law to make the initial selection of physician or surgeon. We had no occasion to consider whether, the treatment having been commenced and for some time continued by a physician selected by either employe or employer, there could be a change with resulting right to charge the employer or his insurer with the additional expense. That is the question presented now. I think it is answered by the following language of the statute (§ 4279):

"The commission may at any time upon the request of an employe or employer order a change of physicians and designate a physician suggested by the injured employe or by the commission itself, and in such case the expense thereof shall be borne by the employer * * * ."

That declaration should settle this case against relator. The purpose was, while giving the employe the right to make the initial selection, to keep charges thereafter incurred within the control of the commission, with some right of veto over a selection made by either employe or employer. Equally it is the intention to give each of them the right to urge "a change of physicians" and secure it if the commission approves. So the statutory prerequisite to the present demand of relator, that "in such case the expense thereof shall be borne by the employer," is absent.

There is good reason for the legislative purpose to give the commission much control over the selection and payment of physicians and surgeons chosen to treat injured employes. The decision of the commission in the Carmody case was accompanied by a memorandum by Commissioner Williams in which he tabulated the medical expenses in 1,144 "closed cases." He says that medical costs have exceeded the figures given below for each group:

950 cases ..................$ 1,000 114 " .................. 2,000 44 " .................. 3,000 15 " .................. 4,000 3 " .................. 5,000 5 " .................. 6,000 2 " .................. 7,000 1 case .................. 9,000 1 " .................. 11,000 2 cases .................. 12,000 1 case .................. 14,000 1 " .................. 15,000

1 " .................. 16,000 1 " .................. 19,000 1 " .................. 23,000 1 " .................. 34,000 1 " .................. 35,000

Mr. Williams mentions an additional "open case" wherein the medical expense to October 1, 1939, exceeded $73,000. Under the compensation law, employers as well as employes have rights, and both are afforded protection. The figures gathered by Commissioner Williams show how much and how constant is the need for supervision by the commission of medical expenses incurred by injured employes, and serve both to emphasize and justify the express legislative purpose to make a change of physicians subject to the approval of the commission.

Our review of decisions of the industrial commission does not include the right of trial anew. We have no visitorial power, and it is not our function to correct errors in the making or failure to make administrative orders. Whether the statute is right or wrong, our duty is one of obedience. Our duty of interpreting and applying statutes should not be so used as to trespass upon the legislative field. It seems to me that this decision amounts to such invasion of a domain which is not ours. Whether we like the statute or not, it should be obeyed. If it does not work properly, it is for the legislature to make the necessary changes.