My conclusions differ in two respects. I disagree with the view that on appeal from an order of the commission refusing to reopen a case before it, the trial court should confine *Page 69 itself to the mere interlocutory question of whether the commission should consider the matter sought to be presented, then return the case to the commission for that consideration, and then, only on a second appeal, consider it in the trial court. There has been a precedent for a directly contrary course in the decision of this court in Bethlehem Shipbuilding Co. v.Simmons, 143 Md. 506. That contrary course seems to me to be in accordance with the statutory provision for review "by a proceeding in the nature of an appeal," and the broad purpose of that proceeding as stated in the statute, Code P.G.L., art. 101, sec. 56. And it seems to be the sensible, economical method, and the only one which would conform to the purpose of avoiding excessive delays and expense to litigants and to the State in compensation proceedings. Incidentally, it seems to me the trial court could not, in accordance with the statute, submit to the jury, as the court did in this case, a question whether the commission should reopen the case; the statute authorizes submitting to a jury only questions of fact involved in a case, and a question whether a case should be reopened is not a question of fact involved in it.
My conclusion has also differed from that of the majority in that I believe that, in this particular case, there was no question of reasonableness or unreasonableness in the workman's refusal of medical attention for his injury to be submitted to the jury on the first appeal, that any refusal would have been, under the admitted circumstances, unreasonable, and that the only question to be submitted to the jury was that of the fact of refusal — the question which was submitted and decided. There was no question of a dangerous or doubtful operation, such as has been considered in most of the cases on a workman's refusal of treatment; and according to the evidence there was no pain threatened except, perhaps, that which might attend a forcible flexing of the arm. There was no question, therefore, of an unreasonable demand upon the man for measures to relieve the necessity for continuing him on compensation, and there was no question of any failure *Page 70 of the workman to understand his instructions and the desire of the physicians and of the employer and insurer that he continue the treatment. Indeed, before the expiration of the time for which he has been paid full compensation, that is to say, on March 24th, 1924, a hearing had been held by the commission on the question of stopping compensation because of his failure to submit to treatment.
Testimony taken on the first trial on behalf of both parties reviewed the man's condition at the various examinations made since his injury, and the treatment given, and that still needed; and a signed statement previously obtained from Restivo was placed in evidence and recounted his movements since the injury, and the medical attention he received, while away from Baltimore. According to that statement, he had, in eighteen months, called only a very few times on a doctor to whom he had been referred by the insurer, then, three months later, called on another doctor in Buffalo at the expense of the insurer, then on a doctor of his own choice not more than three times, and from September 4th, 1923, to August 24th, 1924, or nearly a year of the time for which he claimed compensation, he had seen no doctor. Restivo testified again at this first trial, concerning his movements and his experience with the injury, and said that he had difficulty understanding the statement he had signed. After the jury had answered, as stated, that the case should be reopened, and that Restivo had failed to accept medical attention offered to him, and failed to procure proper medical attention elsewhere, and that by reason thereof his injury or disability had been aggravated or prolonged, the issue should, in my opinion, have been treated as closed. A fundamental principle of orderly procedure seems to require this. *Page 71