CARLOS FLORES, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, STATE COMPENSATION INSURANCE FUND et al., Respondents, 36 Cal. App. 3d 388

Opinion GARGANO, J. This litigation presents a fundamental question. To safeguard his workmen’s compensation benefits, must an employee who has sustained a surgically treatable industrial injury and whose employer has denied liability for the injury, submit to surgery offered by a county welfare department if he does not have the financial means to pay for the treatment? The pertinent facts are undisputed. Petitioner is a beekeeper’s helper who injured his left knee on April 30, 1969, when he fell from a pickup truck into a concrete-lined pit; he continued with his work even though the leg severely pained him.

At the end of the day petitioner reported the injury to his employer; he was told to put some hot pads on his knee and he would be all right. On May 3, 1969, as petitioner was helping his employer load beehives, he felt a pain in the area of his groin; he did not mention the pain to the employer. On the following day petitioner noticed a lump in his groin on the left side. He consulted a Dr. Slepnikoff and was told that he had ruptured himself; the doctor was unable to state that the injury to petitioner’s leg. was the determining cause of the hernia. One week later a lump appeared on the right side of his groin.

Subsequently, petitioner was examined by Dr. Otto Tuschka on behalf of the respondent insurance carrier. Dr. Tuschka reported that petitioner had an inguinal hernia and that in his opinion the injury was not industrial. Thereafter, petitioner was examined by Doctors Guttormsson, Daggett, Moffatt, Kaufman and Argo, and the consensus of this medical opinion was inconclusive as to whether the inguinal hernia was an industrial injury. On August 24, 1971, petitioner consulted Dr. Clark at the request of the Madera County Department of Public Welfare. Dr.

Clark concluded that petitioner had a surgically treatable left and right inguinal hernia and that he could not perform hard labor at that time. After that examination petitioner declined an offer of an operation by the welfare department because “he did not want to become a welfare patient.” Petitioner’s application for adjudication of claim was filed with the Workmen’s Compensation Appeals Board on October 3, 1969; the hearing commenced on November 13, 1972.

At the hearing it was revealed for the first time that petitioner did not feel any pain in his groin area until three days after the fall from the pickup truck and that he felt the pain as he was helping his employer load beehives. In addition, Dr. Tuschka testified that while a person can develop a hernia gradually through a degenerative process, the development can be accelerated by a specific incident like lifting or falling. Petitioner was granted leave to file a second application on the basis of the new development, and the applications were consolidated for hearing.

At the conclusion of the consolidated hearing, the referee found that petitioner sustained a bilateral hernia on May 3, 1969, that the injury occurred in the course of his employment with respondent John C.

Allred, that the injury caused continuing temporary total disability from May 4, 1969, to November 27, 1972, and thereafter, that respondent’s insurance carrier failed to furnish medical treatment to relieve the effects of the injury after notice of the need, that further medical treatment was required, and that petitioner’s claim for workmen’s compensation resulting from his second injury was not barred by the statute of limitations. The referee, inter alia, awarded petitioner temporary disability indemnity payable at the rate of $62.50 per week beginning May 4, 1969, through November 27, 1972, and thereafter.

On February 20, 1973, respondents filed a petition for reconsideration and the petition was granted. In its decision after reconsideration the Workmen’s Compensation Appeals Board upheld the referee’s finding that petitioner had sustained a bilateral hernia and that the injury occurred in the course of his employment but, by a two to one majority, decided that the period of temporary disability terminated on September 15, 1969, because petitioner had refused to submit to the surgery offered by the Madera County Department of Public Welfare.

The board concluded that this refusal was unreasonable and fell within the ambit of

section 4056 of the Labor Code. The

section provides: “No compensation is payable in case of the death or disability of an employee when his death is caused, or when and so far as his disability is caused, continued, or aggravated, by an unreasonable refusal to submit to medical treatment, or to any surgical treatment, if the risk of the treatment is, in the opinion of the appeals board, based upon expert medical or surgical advice, inconsiderable in view of the seriousness of the injury.” Preliminarily, we are confronted with two dubious rulings.

While the board determined that petitioner refused to submit to surgery offered by the Madera County Department of Public Welfare on or about September 15, 1969, it seems very clear from the record that the surgeiy was not offered to petitioner until sometime after August 26, 1971; petitioner not only testified that he consulted Dr. Clark in August of 1971, but his testimony was corroborated irrefutably by the doctor’s report to the welfare department; this report was dated August 26, 1971, and stated that the doctor examined petitioner two days earlier.

The board apparently gave undue weight to petitioner’s inadvertent statement that the Madera County Department of Public Welfare offered him a hernia operation after he was examined by Dr. Slepnikoff in September 1969. A reading of Dr. Slepnikoff’s letter shows that petitioner visited him on May 4, May 16 and June 3, 1969, not in September of that year.

Furthermore, the board terminated petitioner’s temporary disability payments as of September 15, 1969, on the ground that he refused to submit to surgery offered by the Madera County Department of Public Welfare even though respondents proffered no evidence to show that the surgery and hospital treatment offered were at least equal to that which petitioner was entitled to receive from his employer.

We do not suggest that surgical and hospital treatment offered through a county welfare department necessarily is inferior to that which can be obtained through private means, but if respondents wished to rely on that defense it was at least incumbent upon them to offer some evidence as to the nature, caliber and extent of the surgical and hospital treatment petitioner refused in order to show that the refusal was unreasonable. We do not find it necessary to concern ourselves further with these rulings.

We turn instead to the grave questions which have arisen by virtue of the board’s decision, because it apparently is grounded on the sweeping proposition that under

section 4056 of the Labor Code an employee who sustains an industrial injury and whose employer has denied liability for the injury must either accept medical or surgical treatment offered by an independent third party, such as a relative, friend or charity, or run the risk of forfeiting his workmen’s compensation benefits.

Section 4056 obviously was adopted by the Legislature to protect employers who tender medical or surgical treatment to their injured employees by making certain that workmen will be returned to the labor market as quickly as possible; its plain purpose is to prevent employees with treatable injuries from resorting to unfounded beliefs, ungrounded fears or personal idiosyncrasies or convictions to reject. proffered treatment. (See 2 Hanna, Cal. Law of Employee Injuries and Workmen’s Compensation (2d ed. 1966) § 16.05[3][e].) Furthermore, the

section does not state that every refusal of medical or surgical treatment shall result in a forfeiture; it provides that a forfeiture occurs only if the risk of treatment is “inconsiderable in view of the seriousness of the injury,” and then delegates to the board the duty of resolving any dispute which might arise in this respect. If the forfeiture provisions of

section 4056 apply .to a case where an employer has denied liability for the injury, how can an employee who in good faith believes that the risk of medical or surgical treatment is considerable have that issue resolved promptly? Finally,

section 4056 is a part of a separate

chapter which deals exclusively with medical examinations requested by the employer of the injured employee. In fact, all of the sections in that

chapter which precede sections 4056 pertain to the duty of the employee to cooperate with his employer regarding such medical examinations. Suddenly to construe this

section to apply to medical and surgical treatment offered by someone other than the employer is not consonant with ordinary doctrines of statutory construction. In our view,

section 4056 contemplates an admitted or adjudicated industrial injury, and a tender of medical or surgical treatment by the employer himself is an essential prerequisite to any possible forfeiture under that section. As the California Supreme Court stated in Fruehauf Corp. v. Workmen’s Comp. App.

Bd., 68 Cal.2d 569, 577 [68 Cal.Rptr. 164, 440 P.2d 236]: “Limitations provisions in the workmen’s compensation law must be liberally construed in favor of the employee unless otherwise compelled by the language of the statute, and such enactments should not be interpreted in a manner which will result in a right being lost before it accrues.” The remaining question is whether the board’s decision is sustainable under the mitigation doctrine applicable in tort actions.

According to this doctrine, sometimes referred to as the doctrine of avoidable consequences, a person injured by the wrong of another must mitigate the damages if reasonably possible, and he 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. We have concluded that the answer to this question is in the negative.

First, the board’s decision, to the extent that it sets a precedent which would require an employee who has sustained a compensable industrial injury to submit to surgical treatment furnished through a county welfare department, contravenes the public policy of this state. Experience teaches us that innumerable good faith disputes can and do arise as to the cause, nature and extent of alleged industrial injuries. Experience also teaches us that a large segment of the working population is not sufficiently affluent to attain and to pay for adequate medical aid from personal financial resources.

To hold that workmen who incur industrial injuries and are in need of medical or surgical treatment and do not have the financial ability to obtain such treatment must resort to public welfare or risk the loss of further medical aid and disability payments from their employers would either compel the injured workman to forego the prompt treatment to which he is entitled or would foist upon the general public, in the first instance, a responsibility the California Legislature has declared belongs to industry. As was said in Union Iron Wks. v. Industrial Acc.

Com., 190 Cal. 33, 39 [210 P. 410]: “The underlying principle upon which the Workmen’s Compensation Act rests is, as its title indicates, the providing of compensation to an employee for injuries resulting from his employment. It emanates from the economic thought that personal injury losses incident to an industry is a part of the costs of production to be borne, just as the depreciation and replacement of a machine is borne, by the industry itself, which compensation will be included in the cost of the product of the industry. (Western Indemnity Co. v.

Pillsbury, 170 Cal. 686 [151 Pac. 398.)” Second, 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; this right is “ ‘. . . a part of the whole compensation due to the employee as the result of his injury.’ ” (Zeeb v. Workmen’s Comp. App. Bd., 67 Cal.2d 496, 500-501 [62 Cal.Rptr. 753, 432 P.2d 361]; Union Iron Wks. v. Industrial Acc. Com., supra, 190 Cal. 33, 39-40.) In the broad sense’ the employee also is the third party beneficiary of the employer’s insurance contract. (Lab.

Code, § 3753.) Yet, to uphold the board in this case, not only would we have to equate the rights of workmen under a salutary statutory scheme enacted for their benefit with the right of a person to recover damages for the wrong of another, but we would have to extend the mitigation doctrine to a case where the employee does not have the financial ability to procure his own medical treatment by compelling him to submit to the indignity of becoming a public ward.

We do not believe that the Legislature intended this harsh result when it adopted the comprehensive workmen’s compensation law of this state, nor does such a result find support in the court decisions.

On the contrary, an eminent writer on the subject of workmen’s compensation has pointed out that while an employee has the right to procure medical treatment at his employer’s expense if the latter neglects or refuses to provide it, the workmen’s compensation law is silent as to any duty on the employee to secure treatment on his own, and no California case has gone so far as to hold that the employee should be penalized for his failure to do so. (See 2 Hanna, Cal. Law of Employees Injuries and Workmen’s Compensation (2d ed. 1966) § 16.05[5].) The case of Granado v. Workmen’s Comp. App.

Bd., 69 Cal.2d 399, 406 [71 Cal.Rptr. 678, 445 P.2d 294], though not entirely in point, is helpful. In that case the Supreme Court held that medical treatment for an industrial injury which aggravates a pre-existing condition is not apportionable. The court stated: “If medical expense reasonably necessary to relieve from the industrial injury were apportionable, a workingman, who is disabled, may not be able to pay his share of the expenses and thus forego treatment.

Moreover, the uncertainties attendant to the determination of the proper apportionment might cause employers to refuse to pay their share until there has been a hearing and decision on the question of apportionment, and such delay in payment may compel the injured workingman to forego the prompt treatment to which he is entitled.” Respondents rely on Marshall v. Ransome Concrete Co., 33 Cal.App. 782 [166 P. 846], Danziger v. Industrial Acc. Com., 109 Cal.App. 71 [292 P. 525], and Gallegos v. Workmen’s Comp. App. Bd., 273 Cal.App.2d 569 [78 Cal.Rptr. 157], for the opposite proposition.

These cases are distinguishable and are not authoritative. Marshall is an early case and was not decided under the present comprehensive workmen’s compensation law of this state.

It was decided under the Roseberry Act of 1911, and the court merely suggested that the injured employee had some duty “to mitigate the trouble and promote recovery.” It is one thing to suggest that an employee who has the financial means to procure his own medical or surgical treatment should do so in order to shorten the period of his disability, but it is quite another matter to declare unequivocally that an employee who has incurred a compensable industrial injury and who does not have the money to pay for the surgery required to treat the injury must resort to public aid to protect his statutory and contractual rights.

In Danziger the employee refused the employer’s tender of medical treatment. In Gallegos the employee had sustained an admitted industrial injury to his back, and the Workmen’s Compensation Appeals Board determined that the compensation insurance carrier was not liable for any medical treatment or temporary disability indemnity after March 19, 1968, because the employee unreasonably refused to submit to surgery, the risk of which was inconsiderable in view of the seriousness of the injury.

In reversing the board’s decision, the court held that a six-week delay in undergoing surgery was not sufficient to constitute a refusal to submit to surgery. It is significant that the court stated that: “. . . the respondent insurer had the burden of showing . . . that it had made an uriequivocal tender of surgery [citations] and that petitioner refused to submit to surgery without good cause [citation]; that the risk of the surgery was inconsiderable in view of the seriousness of the injury; and that surgery would reduce disability to a particular extent.” (Gallegos v. Workmen’s Comp. App.

Bd., supra, 273 Cal.App.2d 569, 574.) We do not censure an insurance carrier for seeking to protect itself against the added liability which could flow from its denial of medical, treatment to a disabled employee if it is later determined that the disability was caused by an industrial injury. Nor do we declare, unequivocally, that we believe that the mitigation doctrine is never applicable to a, workmen’s compensation claim; it is conceivable that circumstances could arise where justice and equity would dictate some duty on the part of the employee “to mitigate the trouble and promote recovery.” (Marshall v.

Ransome Concrete Co., supra, 33 Cal.App. 782, 786.) We hold that the carrier, although it may have acted in good faith, cannot gain such protection at the employee’s expense and in derogation of his statutory rights by compelling him to become a recipient of public aid. In his dissent our colleague has expounded forcefully the opposite viewpoint. A few answering comments are appropriate. The dissent states that we have not cited any authority for the proposition that the doctrine of avoidable consequences has no application to the facts of this case.

It is significant that the dissent, likewise, does not cite, nor has our research uncovered, any reported decision which has applied the doctrine in a tort action to the extent of requiring a person to resort to the generosity of his friends or relatives or to public welfare for essential medical or surgical treatment.

Our colleague also challenges our statement that under the workmen’s compensation law an employee who incurs an industrial injury has a statutory right to receive medical or surgical treatment at the expense of the employer; he suggests that “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.” Regardless as to how the employee’s right to compensation benefits is categorized, the right emanates from the workmen’s compensation law and is statutory; while the employee may have the burden of proving that his injury was incurred in the course and scope of his employment, once he has met that burden the benefits are fixed as of the date of the injury.

The ratio decidendi of the dissent is based on the petitioner’s refusal to accept the medical and surgical treatment offered by the welfare department, and on the fact that he already may have been on welfare when he declined the offer., However, the necessary implication of the dissenting opinion is not limited to actual refusal to accept such offer. On the contrary, it would foist upon the injured employee the affirmative duty of seeking medical or surgical treatment from local or state welfare agencies.

Furthermore, in this case it is very likely that petitioner was on welfare because the employer refused to provide the essential medical and surgical treatment in the first instance. As our Supreme Court stated in Zeeb v. Workmen’s Comp. App.

Bd., supra, 67 Cal.2d 496, 501, “[t]he employer’s refusal to provide adequate and necessary medical care, whether or not in good faith, may impose a great hardship upon an employee, who due to the injury frequently is without funds to properly support himself and his family or is without funds to obtain the necessary care.” To set a precedent which would require a conscientious workman, who has striven diligently to support his own family, to accept a gift from a friend or relative, no matter how generous the gift may be, or to resort to public welfare in order to cure an injury he believes in good faith was incurred in the course of his employment would add unduly to the hardship and would shock the conscience.

Respondents’ final argument is that the board’s decision must be upheld because there was an undue delay between the filing of petitioner’s application for adjudication of claim and the date of the hearing. The record does not show, the reason for the delay; it shows only that respondents moved for a dismissal and the motion was denied. The board’s decision was not based on the delay; it was predicated on the sole premise that petitioner had refused to submit to surgery offered by the welfare department.

The decision of the appeals board is annulled, and the cause is remanded for further proceedings consistent with the views expressed herein. Franson, J., concurred. See Solari v. Atlas-Universal Service, Inc., 215 Cal.App.2d 587, 600 [30 Cal.Rptr. 407], where it is explained that compensation benefits are not “damages” for injury because the purpose of workmen’s compensation is to rehabilitate, not to indemnify.