(No. 6-August 20, 1912.)

(Chapter 399, Laws 1911.)

ANTON MACK, Applicant, vs. PACIFIC TELEPHONE AND TELEGRAPH COMPANY (A CORPORATION), Defendant.

PHYSICAL EXAMINATION-REFUSAL TO SUBMIT.-The refusal of the injured employee to submit to a physical examination, after order by the Board, bars his right to compensation during the period of such refusal. This penalty should be strictly enforced. What constitutes a refusal is a question of fact to be determined by the Board.

DISABILITY CONTRIBUTING CAUSES-ACCIDENTAL INJURY AND ILLNESS.-Where the accidental injury causes "disability," the injured employee is entitled to compensation, even though the disability is made more serious by reason of illness or other contributing cause.

COMPENSATION-LIMITATION OF.-' -The compensation awarded is to be measured by the disability directly traceable to the accident, and when such disability ceases the compensation terminates, though the injured person may be still disabled by illness or some other cause wholly unrelated to the accident.

Application for compensation for personal injury. The facts are stated in the opinion of the Board. The applicant was awarded full compensation during period of total disability and partial compensation during period of partial disability, excluding, however, the period during which he failed to submit to medical examination after order by the Board.

Anton Mack, in propria persona, for Applicant.

Mott & Dillon, attorneys, for Defendant.

On the thirteenth day of February, 1912, the applicant, Anton Mack, a laborer employed by the defendant, Pacific Telephone and Telegraph Company, a corporation, at San Diego, was instructed by defendant to assist in loading pipes on a wagon and to ride on this wagon to the place where these pipes were to be delivered, there to help unload the These pipes each weighed about 80 pounds. While he was riding on this wagon the wheels ran into a ditch and applicant was thrown to the ground. Some of the pipes were also thrown from the wagon and, in falling, struck applicant on and about the head and shoulders, knocking out two of his teeth and injuring his right shoulder.

same.

Despite his injuries, applicant continued to do such light work as was assigned to him until the nineteenth day of the month, when he reported that he was unable to continue at work. He was then instructed to lay off work and was sent by defendant to its physician for treatment. From that time until the thirty-first day of March, 1912, applicant was totally disabled and unable to do any work.

Although he had not fully recovered from the effects of his injuries he was given light work by defendant in its storeroom on the first day of April, 1912, and during the time he was so employed defendant paid him his full wages, to wit, the sum of $2.00 per day. When defendant

completed the work in which it was then engaged, it closed this storeroom, so that applicant was thrown out of employment on the first day of May, 1912. When applicant found that he could not obtain suitable employment in San Diego he came to Los Angeles, where he now lives. Defendant admitted its liability for compensation for the period of two weeks and, while applicant was still in San Diego, unconditionally tendered to him the sum of $15.60 as compensation for this period. The applicant is a foreigner and does not understand English, and refused to accept this amount in the belief that if he did accept it he would be denied any further relief.

Defendant claimed that the disability resulting from the accident terminated at the end of three weeks after applicant laid off work and that any disability thereafter was caused by illness or disease in nowise induced or aggravated by the accident.

At the time of the hearing herein, to wit, the ninth day of July, 1912, it was apparent that applicant was in a serious condition. The Board was unable to determine upon the evidence before it whether or not such condition was due to the accident or to some cause unrelated to it. To assist the Board in determining this question, the Board duly made and entered its order appointing Elliott Alden, a duly licensed and practicing physician in said city of Los Angeles, as medical examiner, and ordered and instructed the said applicant to present himself at the office of said examiner for a physical examination on the tenth day of July, 1912. Applicant did not present himself for examination as ordered until the eight day of August, 1912. It appears that the applicant did not fully understand the nature of these proceedings or the jurisdiction of this Board, but it is equally clear that he did understand that he was instructed to present himself for an examination, and that he did not do so for the reason that he believed the examination was to be made by the physician of defendant and that he did not think it would avail him anything. We do not consider that the reason advanced excuses applicant's failure to report.

After making the examination on the 8th day of August, 1912, Dr. Alden reported that the condition of applicant's shoulder was one of partial fibrous anchylosis, such as might follow the injury sustained by applicant on the 12th day of February, 1912, and that this condition would alone prevent applicant from performing ordinary manual labor; that in addition thereto applicant was suffering from a serious abdominal disease in nowise to be connected with the accidental injury and not caused or aggravated thereby, and that this disease would alone prevent applicant from performing ordinary manual labor, even if applicant had entirely recovered from the effect of said injuries.

This case furnishes an excellent illustration of the necessity of the provisions in the act relative to the examination of the applicant for

compensation by a duly qualified physician. Without such examination it would be impossible to diagnose the cause of applicant's present condition.

The right to require such examination and the penalty fixed for a failure on the part of the injured person to submit to the examination upon request are clearly set forth in section 11 of the act, which reads as follows:

"Wherever in case of injury the right to compensation under this act would exist in favor of any employee, he shall, upon the written request of his employer, submit from time to time to examination by a regular practicing physician, who shall be provided and paid for by the employer, and shall likewise submit to examination from time to time by any regular physician selected by said Industrial Accident Board, or any member or examiner thereof. The employee shall be entitled to have a physician provided and paid for by himself present at any such examination. So long as the employee, after such written request of the employer, shall refuse to submit to such examination, or shall in any way obstruct the same, his right to begin or maintain any proceeding for the collection of compensation shall be suspended, and if he shall refuse to submit to such examination after direction by the Board, or any member or examiner thereof, or shall in any way obstruct the same, his right to the weekly indemnity which shall accrue and become payable during the period of such refusal or obstruction shall be barred. Any physician who shall make or be present at any such examination may be required to testify as to the results thereof."

It will be noted that the employer has the right to have the injured workman examined by his own physician and that the examination is not confined to the physician appointed by the Board for that purpose. Therefore, the fact that the applicant herein did not understand that the examintion was to be before an examiner appointed by the Board is immaterial, and under this section he is not entitled to any compensation from the tenth day of July, 1912, to the eighth day of August, 1912. The Board feels that the provisions of this section should be strictly enforced regardless of the hardship that it might work in any particular case. It is to the interest of the employer to know at all times the condition of the injured workman and to see that he is furnished the very best obtainable medical and surgical care, thereby minimizing the effects of the injury and securing an early recovery. It is probable that if applicant's shoulder had been properly treated it would not now be in the condition in which it is.

What constitutes a refusal to submit to examination is a question of fact to be determined by the trial court. (Devitt et al. vs. The Owners, etc., II Butterworth's Workmen's Compensation Cases (England), 383; Warby vs. Plaistower & Company, IV ib. 67; Morgan vs. Dixon, IV ib. 363, affirmed by House of Lords, V ib. 184.)

In the Devitt case (supra) the refusal to submit to the examination except in the presence of the workman's own physician was held not to be a refusal. In the Morgan case (supra) the condition was held to be a refusal. So in the Warby case (supra) the refusal to be examined except in the presence of the applicant's solicitor was held to constitute a refusal.

Accepting the report of the medical examiner as a correct diagnosis. of applicant's present condition, and finding that his present condition is the result of two separate and distinct causes, namely, the injury to the shoulder and the abdominal disease, either of which would prevent him from performing ordinary manual labor, the question arises as to whether or not applicant is entitled to any compensation and if he is entitled to compensation, the amount thereof.

The compensation recoverable by an injured workman and the method. by which it is to be determined are fixed by the act as follows:

"Section 8. Where liability for compensation under this act exists the same shall be as provided in the following schedule: (1) Such medical and surgical treatment, etc.

(2) If the accident causes disability, an indemnity which shall be payable as wages on the eighth day after the injured employee leaves work as the result of the injury, and weekly thereafter, which weekly indemnity shall be as follows:

(a) If the accident causes total disability, sixty-five per cent of the average weekly earnings during the period of such total disability;

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(b) If the accident causes partial disability, sixty-five per cent of the weekly loss in wages during the period of such partial disability.

(c) If the disability caused by the accident is at times total and at times partial, the weekly indemnity during the periods of each such total or partial disability shall be in accordance with said subsections (a) and (b), respectively.

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Section 9. (1) The weekly earning referred to in section (8) shall be one fifty-second of the average earnings of the employee; average annual earnings shall not be taken at less than $333.33, nor more than $1,666.66, and between said limits shall be arrived at as follows:

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(d) The fact that an employee has suffered a previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, or for death resulting therefrom, but in determining compensation for the later injury, or death resulting therefrom, his average annual earnings shall be such sum as will reasonably represent his annual earning capacity at the time of the later injury, and shall be arrived at according to the previous provisions of this section.

(2) The weekly loss in wages referred to in section 8 shall consist of the difference between the average weekly earnings of the injured employee, computed according to the amount which the

injured employee, in the exercise of reasonable diligence, will probably be able to earn, the same to be fixed as of the time of the accident, but to be determined in view of the nature and extent of the injury."

Under this section, if the accidental injury causes "disability," either total or partial, the injured workman is entitled to the compensation fixed by the act, measured by the loss in earning capacity, "to be fixed as of the time of the accident, but to be determined in view of the nature and extent of the injury." When this right to compensation accrues, the injured workman can not be deprived of it, no matter what other conditions may be superimposed, and even though such conditions arise from an independent cause and would have produced complete disability irrespective of the accident. The determining factor in each case must be the "disability" actually arising out of and caused by the accident.

It must be recognized that in cases of this sort it will be extremely difficult to fix the relative extent of the two contributory causes of total disability, namely, illness and injury, but this difficulty does not in any way interfere with the underlying principle, and the amount of compensation awarded must be determined by the facts presented in each particular case. In this case the Board found that the "disability" actually arising out of and caused by the accident was the "partial fibrous anchylosis" of applicant's right shoulder, and further found that this disability, irrespective of any other disability not related to the accident, would decrease applicant's present earning capacity one half, and allowed him compensation accordingly.

The English Workmen's Compensation Act, 1906, contains provisions substantially the same as the provisions contained in section 8 of our act, except that where our act uses the word "disability" the English act uses the phrase "incapacity for work." The English courts have held that the arbitrator must exercise his discretion in each particular case and cannot lay down any general rule as to the limits within which compensation will be awarded. (Webster vs. Sharpe & Co., (1904) I. K. B. 218, affirmed in H. L., (1905) A. C. 284; 7 W. C. C. 118.) And that evidence of the amount that can be earned at light work does not seem necessary, but that the arbitrator must make the best estimate he can for the purpose of deciding the amount of compensation. (Cardiff Corporation vs. Hall, (1911) I. K. B. 1909; 4 B. W. C. C. 159; Carlin vs. A. Stephen & Sons, Ltd., (1911), 48 S. L. R. 862.)

Where there was partial permanent incapacity and the workman had to give up the work to which he had returned owing to disease of the heart, unconnected with the injury, it was held that the employers were not entitled to a termination of the compensation, unless they proved