The opinion on rehearing appears to me to be predicated fundamentally upon the following statement therein contained:
"As stated in the original opinion, the injury to the workman in the case at bar was an independent injury which did not arise out of or in the course of his employment. Rather it was the result of a tort committed upon him by third persons — the contracting physicians and their attendants, while treating an injury arising out of and in the course of employment."
The foregoing statement appears to be made both as a *Page 678 statement of fact and of law, each of which I challenge. In the first place, the malpractice here complained of would never have occurred, had it not been for the original injury received "in the course of employment," and which injury was being treated by the company doctor as a result of the accident.
I do not understand how it can be asserted, as either a matter of fact or law, that the alleged malpractice "did not arise out of or in the course of his [the workman's] employment."
In the second place, the assertion, that the malpractice was "the result of a tort committed upon him by third persons," is equally untenable. The alleged malpractice was committed by acontract doctor, whose contract had been submitted to and approved by the Industrial Accident Board and ratified by the employee. It requires an expansive strain of imagination, to hold that a doctor, who is under contract to treat the employees of an employer and who receives and treats an injured workman, does so as a "third person," rather than under hiscontract with the employer approved by the Board.
I adhere to the views expressed in my dissenting opinion on the original hearing.