The majority opinion holds that in this case the plaintiff has no cause of action for alleged negligence of the defendant.
The juridical principle underlying such compensation laws as the one involved is a departure in many respects from principles heretofore established. As pointed out in State ex rel. Dushek v. Watland, 51 N.D. 710, 39 A.L.R. 1169, 201 N.W. 680, the injured employee does not receive the award from the Fund nor the determination of the extent of his employer's liability, because of the negligence of his employer, but because of conditions inherent in the industry. We said:
"It substitutes the principle of compensation for that of liability for fault."
See also Pace v. North Dakota Workmen's Comp. Bureau, 51 N.D. 815, 201 N.W. 348; Ross v. Erickson Constr. Co. 89 Wn. 634, L.R.A. 1916F, 319, 155 P. 153. The injured workman may recover, even if he be negligent himself so long as his injury is not wilfully self-inflicted, or received while wilfully inflicting an injury on another. Where the employer has complied with the requirements of the statute the injured employee as against him is relegated to his rights secured by the act. No matter what may have been his common law rights against his employer these are all abrogated except so far as specifically exempted by the law. In some respects the injured employee has increased rights; in others his rights are decreased. Where the employer has complied with the requirements of the statute then the injured employee as against the employer has recourse for his injuries "only to the North Dakota Workmen's Compensation Fund and not to the employer." Section 396a6 Supp. and this fund is distributed only to employees "who shall have been injured in the course of their employment — and such payment — shall be in lieu of any and all right of action whatsoever against the employer of such injured . . . employee. . . ." But not only must the injured workman show he was an employee, but he must also show that the injury for which he seeks compensation was received in the course of his employment. Because A may happen to be an employee of B does not give him a right to compensation unless he be injured in the course of employment. *Page 176 Section 396a2 of the Supplement defines "Injury" and says:
"`Injury' means only an injury arising in the course of employment — The term `injury' includes in addition to an injury by accident, any disease proximately caused by the employment." I see no special force in the provision set forth in Section 396a3 Supp. providing rates for "total disability" "temporary partial disability" and "permanent partial disability." These terms refer to the injury received and the term "injury" must be interpreted according to the definition given in § 396a2 of the Supplement.
The injury for which the plaintiff seeks compensation in this case was not received in the course of his employment. It is claimed there is such causal connection between the injury involved in this action and the injury received in the course of the employment that the bureau must take it into consideration in awarding damages, and that the bureau did so. It is true that the law contemplates the injured employee shall receive compensation for any expense he was put to in the treatment of his injury and if he thereby incur doctor bills and hospital expenses he will be reimbursed therefor or the bureau will pay them. However, this means proper treatment; the treatment naturally expected — not negligence — and the bureau is bound by the usual practice of surgeons, and must pay for it; but the surgeon is not an insurer of his acts. His work is presumed to be beneficial to the injured workman, even if he can not restore him to his pristine condition.
But in the case involved here there is a new element entirely — the alleged negligence of the surgeon. Assuming there was such negligence then the surgeon was a tort-feasor. The injured employee always had a right of action against the doctor for malpractice. It is immaterial what right of action the employee had against the employer under the common law with reference to negligence of a doctor, for this was based on the negligence of the employer. He is not negligent in the purview of this statute. Compensation is not based on negligence. It is utterly immaterial to the employer whether the surgeon employed is guilty of malpractice or gives the very best service. The employer has nothing whatever to do with the selection of a doctor. He is in no way responsible for it. There is "concert neither in project nor in action" between the employer and the surgeon selected by the employee. They are not joint tort-feasors and certainly the servant has a cause *Page 177 of action for aggravation of injury. See Viou v. Brooks-Scanlan Lumber Co. 99 Minn. 97, 108 N.W. 891, 9 Ann. Cas. 318.
As between the injured employee and the employer the recourse to the fund is a complete settlement, and is a settlement which is compelled by law; but, as said in Viita v. Fleming, 132 Minn. 128, L.R.A. 1916D, 644, 155 N.W. 1077, 1080, Ann. Cas. 1917E, 678:
"When it appears, as it clearly does here, that there is a liability on the part of the physician to the patient, it is a strain to hold that a settlement between the injured man and the wrong doer for the injury by the accident, whether made under the Compensation Act or outside of it, includes the claim that the injured man has against his physician for a separate and subsequent injury."
This was an action against the physician. The plaintiff was injured in the course of his employment, and the employer selected a competent physician to treat him. The opinion states the employer and the employee "agreed upon a settlement for the injuries received by plaintiff in the accident, and petitioned the court for its approval under the terms of the Workmen's Compensation Act. The court approved the settlement agreed upon, which contained a provision that, when all payments thereunder had been made, the `employer shall be and hereby is released from all claims on account of said injury in said act or otherwise.' The claim here is that this settlement released the employer, and also the defendant, (the doctor) from all liability for negligence in the treatment of plaintiff's injury."
The court held any duty the employer owed the employee was discharged, when it selected a competent physician, but that the employer "was not liable to the employee for the negligence of the physicians. It was not required to compensate plaintiff for damages sustained by their malpractice and the settlement did not purport to include any such element." Under our law the compensation is not paid by the employer, it is paid by the bureau; but I see no reason why, in principle, settlement by the bureau should be considered settlement for the negligence of the physician under our law, and yet the employer be held not liable under the Minnesota law. The comment that "the settlement did not purport to include any such element" does not vary the principle. The employee is the only one who can waive his right against the physician. In Minnesota his settlement with the employer *Page 178 was no waiver; neither is his settlement with the employer through the bureau in the instant case. Because he told the bureau the doctors removed the astragalus, and the bureau paid for medical service is no waiver by the employee. There must be something more definite than this to bind the unfortunate worker to a release of his rights. Why, in personal injury cases, even a settlement and compromise of personal injuries made deliberately is voidable while the injured person is "under disability from the effect of the injury so received," (§§ 5941a1 and 5941a2 Supp.) so well do we safeguard the interests of the injured.
In my view the subsequent case of Pederson v. Eppard, ___ Minn. ___, 231 N.W. 393, does not vary this rule. The Minnesota court refers to the Viita v. Fleming Case and shows that the matter involved was an injury "under the Workmen's Compensation Act. The employer was not charged with negligence. It was bound under the Compensation Act to pay compensation. The compensation paid did not include damages for malpractice." The settlement with the employer said nothing about the claim against the physicians. They were neither included nor excluded in the settlement. They were not included in the settlement, and thus the settlement was no bar to the suit. Had they been included in the settlement then the injured man would have released them. If the bureau obligated itself to pay anything on the malpractice alleged it had the remedy in its own hand by review, instead of shutting out the injured workman from his undoubted right to recover a much larger compensation from the physician in the way of damages. Under the Compensation Act the employer is no longer a "wrong doer" but this does not alter the relationship between the injured employee and the doctor. Thus a settlement on behalf of the employer does not affect the other claim. In Ruth v. Witherspoon-Englar Co.98 Kan. 179, L.R.A. 1916E, 1201, 157 P. 403, an action had been commenced by an injured employee against his employer directly under the provisions of the Kansas Workmen's Compensation Act, and thereunder the employee is limited to recovery for injuries received "out of and in the course of his employment." The court held that "so much of an employee's incapacity as is the direct result of unskillful medical treatment, as such incapacity does not arise `out of and in the course of his employment' within the meaning of that *Page 179 phrase as used in the statute. — For that part of his injury his remedy is against the persons answerable therefor under the general law of negligence, whether or not his employer be of the number." The employer was not liable under the compensation act as for negligence, but "on the theory that it (the accident) should be treated as part of the ordinary expense of operation." But the negligence of the surgeon was a separate and distinct injury. The fact that under our law the workman is not limited to injuries received out of the employment; but may recover for any injury received in the course of employment does not affect the principle enunciated.
In Hoehn v. Schenck, 221 App. Div. 371, 223 N.Y. Supp. 418, the employee's application to the bureau "for injuries sustained in the course of employment" was held to be "no bar, on theory of election of remedies, to action for malpractice, against physician treating such injuries, any overpayment in compensation award, because of inclusion therein of damages arising from malpractice — being available by defendant in mitigation of damages." In White v. Matthews, 221 App. Div. 551, 224 N.Y. Supp. 559, it was held that the compensation received by the injured employee "was not based on negligence, or wrongful act, but merely on fact of injury alone, and recovery of compensation did not bar action for malpractice against physician, aggravating injuries which were entirely independent of injuries for which compensation was received." The lower court held that payment by the industrial commission was an absolute defense for the physician; but the Supreme Court held "the court below fell into the error of assuming that the proceeding to obtain compensation was an action for damages and that there were two tort-feasors. Plaintiff's claim for compensation under the workmen's compensation law was not based upon negligence, or any wrongful act or omission on the part of the plaintiff's employer. Compensation was sought and received by plaintiff upon the fact alone that when she sustained her injuries she was an employee of the women's hospital." The court then said "how therefore, can it be said that the plaintiff's employer and the defendant were joint tort-feasors? No part of the moneys received by plaintiff was for compensation for negligence, but was based alone upon the fact of employment." When the new element of malpractice enters however, the employee becomes vitally interested. Under *Page 180 the theory of the majority opinion it is essential for the employee to very carefully distinguish between the classes of injury which he receives. He must differentiate between the injury received in the course of his employment — in this case the broken astralagus — and the alleged malpractice in the removal of the astralagus. He must inform the bureau that he is asking from it compensation for the first only, that he intends to sue the surgeon for the other act. Unless he does this he is shut out from recovery against the doctor.
But here is a separate and independent injury, not received in the course of the employment, but received after the employment. The holding of the majority would take away from the injured employee his right of action in such case. True, the injured employee in filing his application, showed that the astralagus had been removed and it is claimed that he thus submitted to the bureau the alleged negligence of the doctor, and the bureau compensated him therefor. Of course the injured employee stated to the bureau the full extent of the injury from which he was suffering. He would be unfair to the bureau if he did not. It is not for him to determine how far the bureau may go in compensating him; but it is his duty to give the bureau a fair statement of the condition in which he is at the time he makes his statement. The burden does not rest upon the injured employee to determine at his peril how much he must tell the bureau. The burden rests on the bureau to investigate the case, hold hearings, secure the testimony and protect the workmen's rights. The bureau determines the extent of its own jurisdiction in distributing the funds of the bureau. It knows it can allow only for injuries received in the course of employment, but it is for the bureau to determine this factor. The testimony in this case shows that whatever compensation the injured employee received was made "under the limitation of the Compensation Act." This is the statement of the only member of the bureau who testified. He did say the bureau "allowed for 50% of permanent partial liability at the time of the final supplemental award based on the condition existing then." But the bureau "did not take into consideration pain or suffering or anything of that kind." When the bureau says it will allow for the negligence of the doctor it is doing an injury both to the fund and to the injured employee. It is distributing a fund for matters outside of its province, and it is taking from *Page 181 the employee his right of action against the doctor on the theory that he told the bureau about the removal of the astralagus and the bureau allowed therefor. This gives to the bureau, — a non-judicial body — the right of determining the extent of the negligence of the doctor, and allowing what it sees fit, instead of having the matter submitted to a jury.
It is claimed the bureau is subrogated to the rights of the injured employee against the physician. Under the provisions of § 396a20 Supp. "when an injury . . . for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than the North Dakota Workmen's Compensation Fund a legal liability to pay damages in respect thereto, the injured employee, . . . may, at his . . . option, either claim compensation under this act or obtain damages from or proceed against such other person to recover damages; and if compensation is claimed and awarded under this act the North Dakota Workmen's Compensation Fund shall be subrogated to the rights of the injured employee . . . to recover against that person. . . ." This brings us back to the character of the injury for which compensation is payable. If the negligence of the physician be compensable the injury either must have been received in the course of the employment, or such negligence must be a factor considered such a natural and probable consequence flowing from the injury received in the course of employment as to be included therein, as the only injuries compensable are injuries received in the course of employment. The bureau is not subrogated to any cause of action for which it cannot be compelled to pay damages. Appellants cite the case of Tandsetter v. Oscarson, 56 N.D. 392, 217 N.W. 660. We held there that an injured employee could not recover from the bureau for injuries received in the course of his employment at the hands of a third person, and at the same time sue the third person. He could not do both. He could recover from the bureau for injuries received in the course of his employment whether inflicted by a third person or whether such as would otherwise have been considered to be a result of the negligence of his employer. In such case of a third person he could refrain from seeking compensation from the bureau, even though the injuries were received in the course of his employment, and he could sue the third person. He had *Page 182 his choice. In order to give the bureau the right of subrogation we must consider the claim in two sections — the original injury received in the mine for which the bureau must pay compensation and for which it has no recourse against some one else, and the aggravation by the physician after the employment ceased and which is said to have such a causal connection with the original injury as to be included therein. With reference to the latter I take it the defendant claims the bureau is subrogated to the plaintiff's cause of action against him because it is said in stating his injuries he told how the astralagus had been removed and he claimed compensation therefor; and because it is said the bureau allowed for the acts said to be those of negligence. It is clear that the physician if liable at all is not liable for the whole injury in any event, but for the aggravation thereof. I take it the gist of the holding of the majority is that the plaintiff, if he wanted to pursue his right of action against the defendant, should have said to the bureau, in effect, I want you to pay me for the original injury only and I will sue the doctor for his negligence, and that, not having so done he lost to the bureau his right of action. I do not see how there can be subrogation.
I believe that in this particular case there should be a reversal, but the reversal comes from the failure to instruct the jury on a matter pertinent to the issue when written request was made therefor and the request contained a correct statement of the law applicable to the case — there being no instruction given as fully in equivalent language. The defendant asked for an instruction to the effect that he was not an insurer of his treatment and that the doctrine of res ipsa loquitur did not apply. I believe the court should have instructed the jury as requested; but that is a matter peculiar to this suit.
However, this does not affect the general principle involved. If the law set forth in the majority opinion be correct then it was immaterial what errors, if any, the trial court committed in the instructions. According to this decision the plaintiff has no cause of action whatever on this claim. *Page 183