Carmody v. City of St. Paul

It seems to me that the court misconstrued the provisions of L. 1921, c. 82, § 19, in Lading v. City of Duluth, 153 Minn. 464,190 N.W. 981, when it held § 19 thereof to vest in an injured employe the right to select a physician of his own choice. That section required an employer to furnish such medical, hospital, and other expenses specified as might reasonably be required, within limits as to time and amount provided in the act, to cure and relieve an injured employe from the effects of an injury. Then followed the provision which gave to the employe the right to petition the industrial commission for a change of physicians, clearly indicating a legislative intent to give to the employer the original right of selection. It reads [L. 1921, c. 82, § 19]: *Page 427

"The Commission may upon the petition of an employe and a proper showing of cause therefor order a change of physicians and designate a physician suggested by the injured employe or by the Commission itself and in such case the expense thereof shall be borne by the employer upon the same terms and conditions as hereinbefore provided in this section for medical and surgical treatment and attendance."

While the exact question presented in the Lading v. City of Duluth case, 153 Minn. 464, 190 N.W. 981, does not appear to have been before the court since that case was decided in 1922, the principle involved has been referred to in a number of subsequent decisions. Zobitz v. Oliver I. Min. Co. 167 Minn. 424,209 N.W. 313; Lund v. Biesanz Stone Co. 183 Minn. 247,236 N.W. 215; Clausen v. Minnesota Steel Co. 186 Minn. 80,242 N.W. 397. These references have all indicated a view out of harmony with that expressed in the Lading case. The courts of other states having compensation acts similar to ours have almost universally followed the opposite rule. Johnson v. Roberts, 212 Ala. 535, 103 So. 563; Cella v. Industrial Acc. Comm. 38 Cal. App. 760, 177 P. 490; Olmstead v. Lamphier,93 Conn. 20, 104 A. 488, 7 A.L.R. 542; Johnston v. A. C. White Lbr. Co. 37 Idaho, 617, 217 P. 979; Swift Co. v. Industrial Comm. 288 Ill. 132, 123 N.E. 267; Indiana Liberty Mut. Ins. Co. v. Strate, 83 Ind. App. 493, 148 N.E. 425; Almquist v. Shenandoah Nurseries, Inc. 218 Iowa, 724, 254 N.W. 35; Coleman v. Butler, 166 La. 138, 116 So. 828; Gardner v. Michigan Sugar Co. 231 Mich. 331, 204 N.W. 100; Schutz v. Great American Ins. Co. 231 Mo. App. 640, 103 S.W.2d 904; Radil v. Morris Co.103 Neb. 84, 170 N.W. 363, 7 A.L.R. 539; Grogan v. Granger, 16 N.J. Misc. 533, 2 A.2d 884; Johnson v. Armstrong Armstrong, 41 N.M. 206, 66 P.2d 992; Szold v. Outlet Embroidery Supply Co. Inc. 159 Misc. 911, 289 N.Y. S. 411; Skelly Oil. Co. v. Barker, 132 Okla. 279, 270 P. 566; Smith v. State Industrial Acc. Comm. 104 Or. 640, 208 P. 746; Security Union Ins. Co. v. McClurkin (Tex.Civ.App.) *Page 428 35 S.W.2d 240; City of Milwaukee v. Miller, 154 Wis. 652,144 N.W. 188, L.R.A. 1916A, 1, Ann. Cas. 1915B, 847.

However, the legislature has seen fit to permit the compensation act to stand substantially as it was when the Lading case [153 Minn. 464, 190 N.W. 981] was decided, altering its effect, insofar as the right to select a physician is concerned, only to the extent of permitting the employer, as well as the employe, to petition the industrial commission for a change of physicians. L. 1923, c. 300, § 6. Because of the failure of the legislature to amend the statute so as to negate the Lading case, I feel compelled to join the other members of the court in accepting the rule there enunciated as the law.

There is much to be said in favor of permitting an employe who is injured to select his family physician or some other physician of his choice. There is also much to be said in favor of giving to the employer, who is required to pay the bills, a voice in the selection of the physician. This is a matter of policy, however, for determination by the legislature and is not a question which concerns the court.