I concur. That the applicant sustained an injury in the course of his employment is clear enough. Let it also be assumed that in consequence thereof he was entitled to some compensation, though his injured fingers had entirely healed and the injury had not resulted in any permanent disability. *Page 510 But that is not the point. The commission allowed him compensation on the basis of the present condition of his fingers hand, and wrist. To the extent that such conditions and disability were produced or materially contributed to by an unreasonable refusal of the applicant to submit to proper medical and surgical treatment tendered him, he was not entitled to receive compensation and the commission was not justified in awarding it. The commission from the evidence adduced expressly found that the applicant refused medical aid tendered him, and "as a result of which he contracted a very severe infection resulting in the loss of the great finger of the left hand and at this time a considerable loss of function of the left hand at the wrist." Notwithstanding the found and described conditions and disability were due to the refusal of the applicant to accept or permit proper medical treatment, the commission nevertheless allowed him full compensation therefor. Unless there was some just and reasonable ground or basis for the refusal, the commission was not justified in awarding compensation resulting from or contributed to by the refusal. That the applicant refused the tendered treatment and aid is amply supported by the evidence. The only found ground or basis for the refusal is that the "applicant was very timid and probably over-sensitive" and "for that reason he refused the treatment." But that is not a sufficient or a reasonable ground. From the findings it appears that the commission took the view that unless the refusal was "from willfulness on his part to thwart the purposes of the surgeons or extend the period and extent of his disability period," the refusal in effect was not unreasonable and would not deprive the applicant from receiving compensation for a condition or disability directly resulting from the refusal. An award made on such basis is defenseless. An allowance of compensation or an award made on such theory or basis, if not directly predicated on, as here it seems to be, nevertheless, is influenced and induced by a misconception and misapplication of the law, and hence an award so made is against *Page 511 law and ought to be annulled. Denver Rio Grande R. Co. v.Industrial Comm. (Utah) 272 P. 239.
The argument that the infection was not the result of the refusal and that the finding to that effect is not supported by the evidence is beside the question, and in no particular tends to obviate or cure the mischievous effect of allowing compensation and making an award on a wrong principle of law or on a basis or theory not sanctioned by the law.
Further, I think there is ample evidence in the record to support the finding in such respect. The applicant received first aid from a local physician and surgeon and then was immediately sent to the regular physician and surgeon of the employer to have the injured fingers and hand X-rayed and the applicant given such treatment as was required. The applicant visited the regular physician, who took an X-ray of the fingers and hand and advised him what was necessary to be done and that unless treatment as advised was given the injury would result in a deformity of the finger. The applicant had a compound fracture and laceration of one of his fingers and lacerations and bruises of others. The regular physician and surgeon testified that the applicant would not permit him "to do anything" by way of treatment except to use moist dressings; that he was unusually patient with him, attempted to probe and cleanse the wounds and adjust the fracture, offered to take the applicant to a hospital, give him an anaesthetic if he desired, and offered to treat the wounds as they ought to have been treated, but that the applicant would not permit him to do so, or to do anything, except apply moist dressings; that the physician told him that unless he consented to proper treatment to be given him he would not be responsible for whatever conditions might result; that the applicant signed a written statement to that effect, and that he informed the applicant that if he desired he could be treated by whatever physician and surgeon he might select; that the applicant came to him irregularly and but a few times for moist dressings; that he came to him the first time about February 9th *Page 512 and after giving a few moist dressings, the next the physician knew about the case was on February 14th when the applicant at midnight called up the office and, the regular physician being ill and absent at the time, another physician got the call, visited the applicant, found the wound badly infected and the finger swollen and much pus, and ordered the applicant to the hospital, where the finger was amputated. The physician further testified that if the applicant had permitted proper treatments to be given there would have been no occasion or necessity for the amputation. He was asked by one of the commissioners:
"Q. Would you say doctor that if the applicant had submitted to treatments as suggested by you on the first examination that he would not have had infection in his finger? A. The only thing we have to go on Commissioner Knerr is that we don't expect those results if we get them and give them the proper care. We can't always prevent an infection, but we don't get infection of any consequence — probably once in fifty cases.
"Q. If he had submitted to your treatment do you think it would have been necessary to amputate the finger? A. I don't think so.
"Q. You expected under ordinary conditions to get a good result? A. Yes. I never mentioned amputation, and it was not a case where amputation would be considered."
By counsel for the applicant the physician was asked:
"Q. Assuming that his hand at the time of the injury was dirty, and the bone protruded from the flesh at the break, isn't it likely that that might have been a case of infection? A. Oh, yes. Anyone with a break in the skin may have an infection.
"Q. You would not say that the infection was the cause of his refusal to have it set at that time? A. No, absolutely not.
"Q. It may have been dirt that got into the wound at the time of the injury? A. Yes, but having antiseptic and surgical treatment, and in addition cleaning of the wound and proper drainage ordinarily you would not get infection. * * *
"Q. If some dirt had got in there, by yielding to your suggested treatment in setting the bone, would not have prevented the infection? A. I would say that in forty-nine cases out of fifty it would. We don't look for results of that kind if they are properly taken care of. If infection has developed, you can open the wound and use antiseptic and drainage and very often it will subside. *Page 513
"Q. Isn't it very unusual for serious infection of this kind to happen where the bones are broken if the skin is not broken? A. Very unusual, yes.
"Q. And in this case the skin was broken? A. In this case the skin was broken, yes. It was a compound fracture."
To thus argue that it was conclusively shown — that there was no evidence to the contrary — that the infection and amputation were not the result of the applicant's refusal to submit to proper treatment and that it was conclusively shown that had he yielded to the treatments tendered him and had he been properly treated, an infection and amputation nevertheless would have developed and would have been required, is not, as I think, supported by the record, and is merely conjectural.