On Motion for Rehearing. The majority of this court deems it proper, on appellant's motion for rehearing, to state the reasons that impelled the holding in the original opinion, to the effect that the trial court did not abuse its discretion in refusing to grant appellant's motion to require appellee to submit to a medical examination by a physician chosen by the court. The record shows that the trial court, at the time the motion was submitted, informed appellant's counsel, in effect, that the court would not on its own volition name the physician to conduct the requested medical examination, but, if appellant would name a physician, the court would appoint him and direct the appellee to submit to the examination. Appellant declined to name the physician to be appointed by the court, and the motion was thereupon overruled.
It thus appears that appellant could have secured the desired medical examination by a physician appointed by the court if it had suggested to the court the physician to be appointed, and that the failure to secure a medical examination of appellee, under authority of the court, resulted solely from this refusal of appellant. If appellant had named Dr. A as a competent and disinterested physician to make the examination, and the court had appointed him, such physician would have been the appointee of the court and not the appointee of appellant, and the examination would have been made by Dr. A as a representative of the court and not as a representative of either party. This was the course the trial court offered to pursue, and was not pursued, because of its rejection by appellant.
The procedure to be followed to secure a medical examination of an injured employee is given by certain provisions of chapter 102, p. 175, of the Laws of the Regular Session of the 42d Legislature (Vernon's Ann.Civ.St. art. 8307, § 4). This is an act amending somewhat similar provisions of section 4 *Page 507 of article 8307, R.C.S. 1925, and the provisions pertinent to this inquiry read as follows: "The Board may make rules not inconsistent with this Law for carrying out and enforcing its provisions, and may require any employee claiming to have sustained injury to submit himself for examination before such Board or someone acting under its authority at some reasonable time and place within the State, and as often as may be reasonably ordered by the Board to a physician or physicians authorized to practice under the Laws of this State. If the employee or the Association requests, he or it shall be entitled to have a physician or physicians of his or its own selection present to participate in such examination."
In another paragraph, section 4, supra, reads: "The association [compensation insurer] shall have the privilege of having any injured employee examined by a physician or physicians of its own selection, at reasonable times, at a place or places suitable to the condition of the injured employee and convenient and accessible to him. * * * The injured employee shall have the privilege to have a physician or physicians of his own selection, at the expense of such injured employee, present to participate in such examination."
It must be borne in mind that, while the power to compel a medical examination of an injured employee is given specifically only to the State Industrial Accident Board, the same power is necessarily given to the court in whose forum the case is to be tried on an appeal from the final ruling of such board. In the instant case, therefore, the district court of Dallas county, in which the suit to set aside the award of the accident board was being tried, is vested with the same statutory power with which the board is vested. This power is that the court may require an injured employee to submit himself "to a physician or physicians authorized to practice under the laws of this State." It is our construction of the above provision of this enactment that whether such medical examination shall be required rests exclusively in the judgment of the court trying the cause. If the judgement of the court be that there is no necessity for such examination, and the insurer is not satisfied with the ruling of the court in respect thereto, then such insurer is given a remedy for any injury it may thereby have suffered in the right given in the second paragraph of section 4, supra, to have the court to require the "injured employee examined by a physician or physicians of its own selection." This right of course is given the insurer either when the court declines to direct a medical examination by a physician appointed by the court, or after it has directed such medical examination, and the insurer is not satisfied with the result of such examination.
It is the opinion of the majority of this court, that the only reasonable construction that can be given to the provisions of section 4, relating to medical examinations of an injured employee, is that it was the intention of the Legislature to commit entirely to the discretion of the board, or the trial court, as the case may be, the question as to whether a medical examination should be ordered and conducted as the board's, or trial court's, examination, but, in order to safeguard the rights of a compensation insurer against a mistaken judgment on the part of the board, or the trial court, in a refusal of such an examination, the right is given to such insurer to require the court on proper motion to direct the injured employee to submit to an examination by a physician of the insurer's own choosing. As this record discloses that appellant did not attempt to avail itself of the statutory remedy given in the second paragraph of section 4, supra, for any injury it may have suffered by the ruling of the court, on its motion for the medical examination authorized by the first paragraph of section 4, it is in no position to complain of the court's ruling.
If we are in error in the above construction of the provisions of said section 4, we are nevertheless of the opinion that no reversible error is shown by the record in this case. We are of the opinion that the course the trial court offered to pursue in reference to appellant's motion, that the trial court name a physician of its own choosing and direct appellee to submit to an examination by such physician, constitutes a substantial compliance with the provisions of the statute as same are construed by appellant and the dissenting opinion herein.
The trial court's offer was to appoint any physician named by appellant, the mover in the motion for such examination, and to require appellee to submit to the examination by such physician. If appellant had consented to the pursual of this course and named the physician, a medical examination by a physician appointed by the court and held under the court's direction would have been the result. Such physician would not have been the representative of appellant, but would have been the representative of the court. We believe that the objection of appellant to name a physician for the court to appoint, at the request of the court, to the effect that the mere fact that such physician was named by appellant would weaken the probative force of his testimony, is too shadowy for consideration, and certainly not sufficient to cause a reversal of this case on the ground of an abuse of discretion.
Appellant, as well as the dissenting opinion in this case, relies upon the case of Texas Employers' Insurance Ass'n v. Downing (Tex.Civ.App.)218 S.W. 112, 119. A careful reading of the opinion, we think, clearly discloses that it does not announce a doctrine contrary to the views herein expressed. This is shown by the following excerpt: "It is probably true *Page 508 that the association, before it could complain of the action of the court in refusing to order an examination under its general discretionary authority, would be required to allege that it had requested an examination and been refused. * * * But when the proceeding has reached this stage, that is, request for examination by physicians named by the defendant, has been made and refused by the plaintiff, we think the defendant may then apply to the general power of the court, rather than insist on an examination being made by physicians of its own choosing. * * *"
We are therefore of the opinion that appellant's motion for rehearing should be overruled.
Overruled.