Angelo Restivo, a workman, employed by R.N. McCulloh Company, was, on October 7th, 1922, injured in the course of that employment, and applied for and was awarded compensation at the rate of eighteen dollars a week, by the Maryland Industrial Accident Commission, which was paid by the Ocean Accident Guarantee Corporation, Limited, the insurer, until March, 1924. The injury was to his right "shoulder joint," and as a result of it he was only able to make partial use of his right arm, and was, he said, unable to "follow his work as a stone mason." *Page 63
On March 3rd, 1924, the insurer requested a hearing to "determine the extent of the plaintiff's disability, and on March 24th, 1924, a hearing was had, and testimony taken in connection with that request and at its conclusion the original order was affirmed.
On July 17th, 1924, another hearing was requested, and in due course was had on August 1st, 1924, and on August 8th, 1924, a supplemental order was passed by the commission, directing the employer and insurer to pay Restivo compensation at the rate of eighteen dollars per week during the continuance of his temporary partial disability.
On August 28th, 1924, the insurer requested a hearing "for the purpose of reopening to present newly discovered evidence," and on September 19th, 1924, in compliance with that request, a further hearing was had, and on October 9th, 1924, the petition to reopen the case was denied, and from that order the employer and insurer appealed to the Baltimore City Court, where an issue, identified as "claimant's issue No. 1," and an interrogatory, known as "first interrogatory," were submitted. At the trial of the appeal both of those issues were decided in favor of the appellants, and the case remanded to the commission.
On June 4th, 1925, the commission reopened the case, further testimony was taken, and on July 22d 1925, it affirmed its previous order of August 8th, 1924, and on August 5th, 1925, the employer and insurer appealed from that order to the Baltimore City Court. Upon that appeal the claimant submitted one issue, which was granted, in the following form: "At the time of the hearing before the State Industrial Accident Commission on June 4th, 1925, was the claimant suffering from any disability due to the accident of October 7th, 1922, disqualifying him from labor in whole or in part, and was the award of the commission of disability correct?", and the employer, three, of which the third, which was in this form, was granted: "Do you find from the evidence in this case that the State Industrial Accident Commission was correct in its order of July 22d 1925, confirming its order of August 8th, 1924?" Of the refused issues submitted for the *Page 64 employer, which were in interrogative form, the first asked the jury to determine whether Restivo had sustained any disability beyond the period of seventy-six weeks for which he had been compensated, and the second asked them to find whether on April 20th, 1923, Restivo had seventy-five per cent. of the use of his right arm. The verdict and judgment on that appeal being for the claimant, the employer and insurer appealed to this court.
At the conclusion of the evidence at the trial in the Baltimore City Court, the claimant submitted two prayers, called "third" and "fourth", which were granted, and the employer three, of which one was granted, and the single exception found in the record brings up for review these rulings of the trial court in connection with the prayers and issues offered by the respective parties.
The claimant's third prayer instructed the jury that the decision of the commission was presumed to be correct, and that the burden was upon the appellants to show, by a clear preponderance of affirmative evidence, that it was erroneous, and his fourth prayer instructed them that if they found that the decision of the commission was "correct" it should be affirmed.
The employer, by his "A" prayer, which was refused, asked the court to instruct the jury that "it appears from the undisputed record in this case that at the trial of this case in this court on April 2d 1925, by the jury's verdict, it was determined as a matter of fact that the claimant left the State of Maryland on April 20th, 1923, and thereafter failed to accept medical attention offered to him by the employer and/or insurer, and failed to procure proper medical attention elsewhere and that by reason thereof his injury or disability was aggravated and prolonged and that therefore, as a matter of law, the claimant is not entitled to any further compensation." By his first prayer, which was also refused, he sought to have the jury instructed that if the claimant, on or about April 20th, 1923, left the State of Maryland, and at that time had only a twenty-five per cent. disability in the use of his arm, and that "the said claimant's condition would have *Page 65 progressed or at least would not have retrogressed except for the failure of the claimant to accept medical attention from the employer and/or insurer, and his failure to procure proper medical attention himself, thereby aggravating and prolonging his disability," they should answer the employer's first interrogatory, "No."
We have deemed it proper to set out in perhaps needless detail the several steps of this persistent and continuous litigation, covering some seven hearings or trials of one kind or another, in three different forums, extending over a period of nearly three years, because it tends in some measure to illustrate the delays and the expense both to litigants and the State possible under the procedure provided for the administration of this law, which was originally designed to afford to the workman speedy relief from the hardships incident to disability resulting from injury in various industrial occupations, to afford to the employer relief from the expense and uncertainty of prolonged and vexatious litigation, and to assist the State in the support of those who, in consequence of such injuries, were likely to become public charges.
Running through it all and connecting it is a single question, which is whether the claimant aggravated or prolonged his injuries by a wilful or negligent failure to receive proper and necessary medical or surgical attention. The commission decided that question four times in favor of the claimant, and the Baltimore City Court once. But the appellants contend that since the Baltimore City Court found in its favor on the issues submitted on its first appeal to that court, that the question became res adjudicata, and that upon its remand to the commission after that trial, the commission had no function to perform other than to rescind its previous order continuing the compensation, and deny the right of the claimant to further compensation, and they have undertaken to present that point by their "A" prayer.
Assuming, but not deciding, that the objection can be raised in that way, we find no error in the refusal of that prayer, because it is defective not only for the reason that *Page 66 the theory upon which it is based is unsound, but because it is technically bad. The elements of the rule of res adjudicata are clearly and correctly stated by the appellants in their brief, but the law as stated there has no application to the facts upon which the prayer is predicated. The theory of the prayer is that if Restivo "failed to accept medical attention offered to him" by appellants, and failed to procure "proper" medical attention elsewhere, and that by reason of such failure his disability was aggravated or prolonged, that such failure barred his right to further compensation. But that is not the law, and in the absence of adequate legislative powers, the jury on the first appeal could not establish it as the law, because their function was to find facts and not to make law. It may be conceded that it is the duty of an injured employe to accept any medical or surgical assistance available to him, which offers a reasonable hope for the lessening of any disability resulting from the injury for which he is compensated, provided such assistance involves no real risk to life or health, nor is likely to cause such pain or inconvenience, which as a reasonably prudent man he could not be expected to undergo. But those qualifications are quite as vital as the rule itself, and cannot be disregarded in any application of it. In other words, the question is not simply whether the claimant refused medical or surgical attention, but whether under the circumstances of the case his refusal to accept such treatment was arbitrary or unreasonable (Dickson v. Beasley,146 Md. 570; Schiller v. Balto. O.R. Co., 137 Md. 246), and the same principle is stated in United Rwys. Elec. Co. v.Dean, 117 Md. 686.
The prayer under consideration ignores that qualification entirely in its statement of the legal principle which it asserts was established on the first appeal, and for that reason is bad. But it is also bad because the fact that the jury on the first appeal found that Restivo had refused to accept medical or surgical attention and that his refusal prolonged or aggravated his injury did not determine his right to further compensation, because it may have been that the treatment offered, even if it were the proper treatment, would have *Page 67 subjected him to such risk, pain, or inconvenience, that as a reasonably prudent and careful man he would have preferred to endure the existing disability rather than accept the treatment, and yet the jury were not asked to pass on that question at all. But the question of Restivo's disability was really not directly involved in the first appeal, because the question which the commission was asked to decide at the hearing reviewed on that appeal, and which by the order appealed from they did decide, was whether they would reopen the case, and it is not clear how the Baltimore City Court, on appeal from an order refusing to reopen a case, could not only direct the case to be reopened, but decide the very question which under the statute the commission alone had the jurisdiction to decide in the first instance, after it had been reopened.
Appellants' "first" prayer was also properly refused, because it denied the claimant's right to continued compensation if it were found that he refused to accept medical attention, regardless of whether such refusal was reasonable or unreasonable.
As stated by the appellants, claimant's issue No. 1 is unquestionably erroneous, since it transfers to the jury the functions of the court, but we are unable to say that appellants were injured by its allowance, since in their "third interrogatory," which was granted, they submit the same question in much the same form. They further object that it is duplicitous, but, while it is not very clearly phrased, it is, we think, reasonably clear that its purpose was to submit to the jury the single question whether, at the time of the hearing on June 4th, 1925, claimant was still suffering from the injury for which he was receiving compensation, and we find no reversible error in its allowance. Nor do we find any reversible error in the refusal of the appellants' first issue. In so far as it related to any question raised by the appeal, it was covered by their third issue which, while erroneous, was nevertheless granted by the court at their request. Nor is it apparent how the appellants were *Page 68 injured by the refusal of their second issue, which asked the jury to determine whether on April 20th, 1923, Restivo had "seventy-five per cent. use of his right arm," since the jury would necessarily have considered that question in deciding whether Restivo had unreasonably refused treatment which would have cured or improved his injury, had that question been properly submitted to them. And back of these defects there was the fact that the appeal before the court was not to determine whether Restivo should continue to receive compensation for his disability, but whether the commission should reopen the case to consider that question. The claimant's "fourth" prayer permitted the jury to decide whether the order of July 22d 1925, of the commission was "correct." That prayer was, for reasons already stated, bad, but the appellants cannot complain of the error, for they submitted to the jury in their third issue the identical question. The form of the claimant's third prayer was condemned in Jewel Tea Co. v. Weber, 132 Md. 178, and Stewart Co. v.Howell, 136 Md. 423, although under the circumstances of that case the error in granting such a prayer was held in Jewel TeaCo. v. Weber not to be reversible, because "it could not have misled the jury." And since it was decided in that case that the legal principle stated in the prayer is correct, and as we see no reason why it should have misled the jury in this case any more than in that, we are unwilling to reverse the judgment on that error alone. Finding no reversible error in the rulings involved in the first and only exception, the judgment appealed from will be affirmed.
Judgment affirmed, with costs.