November 4, 1940.
Before LIDE, J., Florence, December, 1939. Affirmed.
Proceeding under the Workmen's Compensation Act by Thomas T. Hill, claimant, opposed by H.K. Skinner, employer, and the United States Fidelity Guaranty Company, insurance carrier. From an order modifying an award of the South Carolina Industrial Commission granting compensation and affirming the award as modified, the claimant appeals.
Order of Judge Lide follows:
Mr. Thomas T. Hill, the claimant above named, sustained an accidental injury on or about the 26th day of May, 1938, while working as a carpenter in the employment of Mr. H. K. Skinner, the employer above named; and claim for compensation under the Workmen's Compensation Act, of July 17, 1935, 39 St. at Large, page 1231, was filed with the South Carolina Industrial Commission nearly a year later, to wit, on the 23rd day of May, 1939. Thereafter, to wit, on July 7, 1939, the matter was heard before Coleman C. Martin, Esq., one of the commissioners, who filed an order on August 9, 1939, awarding the claimant compensation. Thereafter the matter came before the full commission for a review of the findings of the hearing commissioner, and on November 4, 1939, the full commission delivered their opinion and award affirming Commissioner Martin. An appeal was taken to this Court from the order and award of the full commission, and the same came on to be heard before me at chambers on the 24th day of December, 1939, and after argument of counsel, was taken under advisement.
It is, of course, a well-settled principle of law that findings of fact by the commission are conclusive and that the Court may not review such findings except to determine whether there is any evidence to support the award. But while the findings of fact will be upheld, if there is any supporting evidence, such findings must be, of course, founded on the evidence and cannot rest on surmise, conjecture, or speculation. Rudd v. Fairforest Finishing Company, 189 S.C. 188, 200 S.E., 727. However, the grounds of appeal here do not involve any disputed or contradicted question of fact. While there are three grounds stated, there is only one question involved, and that is, whether or not the commission erred in allowing the claimant compensation for the period which elapsed between the time of his alleged refusal to submit to an examination by a physician or surgeon and the time when such alleged refusal ceased.
As above indicated, a review of the record will show that the testimony on this subject is undisputed and uncontradicted, and therefore the question becomes one of law rather than of fact.
On October 3, 1938, R.H. Purnell, Jr., one of the agents of United States Fidelity Guaranty Company, the insurance carrier herein, wrote a letter to P.H. McEachin, Esq., attorney for the claimant, stating that the writer had called to see Mr. Hill who had informed him that the matter had been placed in the hands of counsel. And this letter among other things contains the following request: "We would also appreciate your having the employee submit to an examination by Dr. E.M. Allen, Jr., as soon as possible." Thereafter, to wit, on October 17, 1938, Frank I. Thrift, an adjuster for the insurance carrier, wrote Mr. McEachin a letter, referring to the previous letter of Mr. Purnell, and saying among other things the following (referring to claimant): "If he is going to accept compensation, then I want him to immediately report to Dr. E.M. Allen, Jr., of Florence for an examination."
Notwithstanding the requests aforesaid the evidence is undisputed that Dr. Allen was not permitted to make the examination. And at the hearing before Commissioner Martin, Mr. Thrift testified that some time between the 17th day of October, 1938, and the 21st day of October, 1938, he called upon Mr. McEachin and asked him about the examination, but that "he said `No,' he could not have the claimant examined because he was suing the other people." It will thus be seen that the request for an examination was refused because at that time counsel was contemplating bringing a suit for the claimant against a third party or parties to recover damages for his injuries.
I also quote the following from the testimony of Mr. Thrift on page 57 of the examination before Mr. Martin: "Q. Then, Mr. Thrift, your company has not had any benefit of a physical examination of this claimant until Dr. Ravenel examined him last week? A. Yes, that is right."
Section 27 of the Workmen's Compensation Act provided as follows: "After an injury, and so long as he claims compensation, the employee, if so requested by his employer or ordered by the Industrial Commission, shall submit himself to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer or the Industrial Commission."
It is also provided in that section as follows: "If the employee refuses to submit himself to or in any way obstructs such examination requested by and provided for by the employer, his right to compensation and his right to take or prosecute any proceedings under this Act shall be suspended until such refusal or objection ceases, and no compensation shall at any time be payable for the period of compensation, unless in the opinion of the Industrial Commission the circumstances justify the refusal, or obstruction."
In the opinion delivered by Commissioner Martin, among other things, he makes the following findings of fact:
"It is further found that after repeated efforts were made on the part of the defendants to obtain his physical, medical examination by Dr. E.M. Allen, Jr., but same was never accomplished. This, however, shows that same was not attempted until along about October, 1938, and no medical report of this injury was filed as is required by law with the South Carolina Industrial Commission.
"It is further found that the rights of neither parties have been prejudiced with reference to the prosecution of this claimant under Section 11, but that both parties' interests and rights have been jeopardized in the failure to comply with the making out of necessary medical reports and the submission to proper medical examination and treatment and the providing of such required medical treatment." (Emphasis added.)
It is true, as stated by Mr. Martin, that no request for an examination was made until about October, 1938, but this is wholly immaterial because under the terms of Section 27 the request is not required to be made at any particular time, and as a matter of fact the request here was made several months before a claim was filed by the claimant.
The full commission, however, made the following finding, and this is the basis of the instant appeal: "The hearing Commissioner is affirmed in finding that claimant was partially disabled as the result of the injury, and that he is entitled to compensation for partial disability prior to the time he consented to a physical examination by a doctor of the insurance carrier because claimant had never been requested by his employer or the South Carolina Industrial Commission to be so examined, And as long as the carrier was of the opinion that the third party suit was being made they did not ask any one about the examination or offer any compensation to the claimant." (Emphasis added.)
Surely, however, it cannot be contended that the insurance carrier, which was the duly authorized agent and representative of the employer, both in law and in fact, was without authority to make requests for the examination pursuant to Section 27. An insurer certainly stands in the shoes of its insured employer, having his rights and being subject to his obligations. Furthermore, as has already been indicated, the request was made in due time and long before the claim was actually filed; and, as stated by Commissioner Martin, repeated efforts were made on the part of defendants to obtain the requested examination, but without success.
At the hearing before Commissioner Martin he suggested that Section 63 of the Act had not been invoked. This section provides that the commission or any member thereof may upon the application of either party or upon its own motion appoint a physician or surgeon to make any necessary medical examination of an employee. And it was also argued before me that no order for the examination of claimant was made by the commission. But by reference to the above-quoted terms of Section 27, the claimant is required to submit himself to examination, "if so requested by his employer or ordered by the Industrial Commission". (Emphasis added). In other words, a request for the examination is as effective under the terms of this section as an order from the commission.
Since the argument of this appeal before me was made, it has been suggested by counsel for claimant that the penalty provided in Section 27 is not applicable, because the hearing Commissioner found under all the circumstances that the claimant should be excused from failing to submit to an examination; which, it is contended, brings the case within the clause above quoted from Section 27, to wit, "unless in the opinion of the Industrial Commission the circumstances justify the refusal, or obstruction". On the other hand the findings by the full commission, as above set forth, are based upon the theory that the claimant had never been requested by his employer or the Industrial Commission to be examined; and not upon any theory that the refusal was justified under the circumstances. Furthermore, the record does not attempt to show any justification of the refusal other than the intention to institute an action against a third party or parties, which would not appear to afford any evidence whatever in support of justification.
Section 27 provides that in case of refusal to submit to the required examination, the claimant's right to compensation shall be suspended until such refusal ceases; and this appears to apply directly to the instant case. Immediately following these provisions, however, the sentence contains this language: "and no compensation shall at any time be payable for the period of compensation, unless in the opinion of the Industrial Commission the circumstances justify the refusal, or obstruction". (Emphasis added.) The words which I have italicized, to wit, period of compensation, are nowhere explained, and might possibly be construed as referring to the entire period of compensation rather than merely to the suspended portion, which would indicate that under some circumstances the refusal to submit to an examination on proper request would defeat the right to any compensation whatever. But I do not understand that any such contention is made in this case.
After a full consideration of the matter I am of opinion that in the light of a fair and reasonable construction of the provisions of Section 27, the same were fully complied with by the appellants, because the examination having been requested by the employer, through his duly authorized representative, and the same having been refused, the findings of the full Commission to the effect that such examination was not requested had no support in the evidence and that the mandatory provisions of the section become operative and are binding upon the court. Computing the period during which such refusal continued, most favorably to the claimant, it extended from the 22nd day of October, 1938, to the 23rd day of May, 1939, both dates inclusive, It is therefore,
Ordered, That the order of the South Carolina Industrial Commission herein be, and the same is hereby modified, so that the claimant shall not be entitled to any compensation for the period extending from the 22nd day of October, 1938, to the 23rd day of May, 1939, both dates inclusive; and that save as so modified such order shall be, and is hereby affirmed and made the judgment of this court.
Messrs. Ray W. Humphrey and McEachin Townsend, for appellant, cite: Construction of act: 7 S.E.2d 712; 190 S.C. 425; 3 S.E.2d 492; 284 U.S. 408; 76 L.Ed., 368. Review of findings of fact of commission: 8 S.E.2d 408; 4 S.E.2d 906; 7 S.E.2d 415.
Messrs. Willcox, Hardee Wallace, for respondent, cite: Review of finding unsupported by record: 189 S.C. 188; 200 S.E., 727.
November 4, 1940.
The opinion of the Court was delivered by
Thomas T. Hill claimed compensation under the provisions of the Workmen's Compensation Act of this State, for an injury which he sustained while in the employ of H. K. Skinner. A hearing was had before Coleman C. Martin, Esq., a single Commissioner, who awarded compensation from the date of the injury. The full Commission review the action of Commissioner Martin and affirmed it. On appeal to the Court of Common Pleas, the matter was heard by Judge Lide, who modified the award of the full Commission. He denied the compensation given the claimant from October 22, 1938, to May 23, 1939, during which period claimant refused to submit himself to a physical examination, which was demanded by the employer, through its representative, the insurance carrier, United States Fidelity Guaranty Company, which was a defendant in the action. In other respects the award made by the full Commission was affirmed.
The claimant, Hill, appeals from the decree, or order, on eleven exceptions, which his counsel state in their argument are covered by three questions, to wit:
"1. Was claimant requested to submit to a physical examination in accordance with Section 7035-27, 1936 Supplement to 1932 Code of Laws for South Carolina, and, if so, was there such a refusal as is contemplated by said section?
"2. Was there a disputed question of fact?
"3. Was the finding of the trial Commissioner and of the full Commission an exercise of their discretion and not reviewable by the Circuit Court?"
We are satisfied with the order of Judge Lide and affirm it. But a question is made by the argument of appellant's counsel which may need to be made clear.
Section 7035-27, 1936 Supplement Code of Laws of South Carolina, provides: "Examination of Injured — Facts Learned by Doctors Not Privileged — Autopsy. — After an inquiry, and so long as he claims compensation, the employee, if so requested by his employer or ordered by the Industrial Commission, shall submit himself to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer or the Industrial Commission. * * * If the employee refuses to submit himself to or in any way obstructs such examination requested by and provided for by the employer, his right to compensation and his right to take or prosecute any proceedings under this article shall be suspended until such a refusal or objection ceases, and no compensation shall at any time be payable for the period of compensation, unless in the opinion of the Industrial Commission the circumstances justify the refusal, or obstruction. * * *"
Appellant argues that the transaction and negotiation relating to the physical examination of the claimant took place before May 23, 1939, on which date he filed his claim for compensation and that until the claim was so filed he was not required under the terms of Section 27 to submit himself to a physical examination. Judge Lide did not specifically pass upon this question in his order, but it may be held that he has in effect done so by his holding that during the period from October 22, 1938, to May 23, 1939, the claimant may not be allowed compensation because of his refusal to submit to physical examination. If this be a proper conclusion of what the Circuit Court order holds, we think it is a correct holding. Section 27 does not require that the employer must wait until the claimant has filed with the commission a written claim for compensation before making his demand for a physical examination of the claimant. Such requirement would defeat the purpose of such examination. The employer desires to know, and is entitled to know, the condition of the claimant, at the time of the injury. He may take steps to minimize the effects of the injury and thus reduce his liability. It is true, as was said by the court in the case of Ham v. Mullins Lumber Company, 193 S.C. 66; 7 S.E.2d 712, 716, that "compensation acts * * * are intended to be for the benefit of employees and must be construed liberally in their favor". The court adheres to that pronouncement, but it must be construed to mean that the act must not be construed so as to work a hardship on the employer and/or the carrier by the interpolation of words or conditions not found in the act. To say that the claimant may delay the physical examination for so long a time after the injury as he wishes, is to put it in his power to defeat the benefit to the employer of such examination. The act must be construed in justice to both parties and must not impose a burden on either.
When the examination was demanded in this case the claimant may not then have made up his mind whether he would demand compensation or "sue other parties". but he did know that if he did not "sue other parties" he would claim compensation; and he did claim it.
We do not think there is any merit in this contention of appellant. All exceptions are overruled. Let the order of Judge Lide be reported as the judgment of this Court.
MESSRS. JUSTICES BAKER, FISHBURNE and STUKES concur.
MR. ACTING ASSOCIATE JUSTICE L.D. LIDE disqualified.