(dissenting).
I disagree with the conclusion of the majority that the record supports the findings and decision of the Industrial Commission and hence, I dissent. Claimant here sustained a compensable injury while employed by Traffic Control Company in 1972 and the surety entered into an agreement with claimant awarding him temporary total disability and permanent partial disability and also paid all medical costs. Those costs were based on voluminous reports furnished the surety by the attending physician. The record (including answers to interrogatories of the surety) demonstrates that claimant following the accident was unable to and had no employment other than the performance of what might be characterized “odd jobs.” The claimant did not earn enough money in 1974 to require him to pay any income tax.
It is undisputed that by January 2, 1975, claimant was experiencing considerable difficulty with the same back problem which had resulted from the industrial accident. Claimant’s attorney on that day called the office of the surety and secured permission for him to be examined by the same physician which had almost continually treated him following the industrial accident and until November of 1973. On January 7, 1975, claimant’s attorney advised the surety that the physician had determined that claimant should be admitted to the hospital on 21 January 1975 for the performance of a myelogram and depending upon the results, claimant should submit to surgery on the following day. Claimant’s attorney requested the authorization of the surety therefor which was denied. That denial was based upon the lack of medical information and claimant’s employment record during the year 1974.
The myelogram procedure was performed on claimant on January 22, 1975, and the results thereof indicated the necessity for additional surgery and it was scheduled for the following morning of January 23. Surety was again contacted for authorization for that scheduled surgery but again it was denied since its “investigation” was incomplete and no information had been received from the examining physician. Thereafter, claimant was discharged from the hospital without the surgery and the proceedings before the Industrial Commission ensued as set forth in the majority opinion.
The record demonstrates the activities of the surety during the various time intervals at question herein. Surety had knowledge as of January 2 that claimant would be examined by the same physician from which surety had received voluminous reports regarding claimant in the past. On January 8, surety was aware that the physician had examined claimant and that claimant would require hospitalization on January 21 and possible surgery on January 23. During that period of time surety made no attempt whatsoever to contact the physician and determine his findings. The written report of the physician was made under date of January 21, 1975. Surety was aware prior to January 22 that claimant had worked part time for four employers during the year 1974. Prior to January 22, surety made no attempt to contact the brother of the claimant who was one of those employers. As to the other three, surety’s investigator was asked:
“Q. How much time would you say that you spent with respect to efforts to locate these people? (employers of claimant)
A. Are you talking about the time ?
Q. Prior to the 22nd.
A. Prior to the 22nd?
Q. Of January.
A. Very little time. Only the time it took to discover that some of the people were not listed in the phone book and did not have telephones.
Q. A few minutes, then?
A. Certainly.”
*530Insofar as the cooperation of the claimant in assisting the surety to locate his past employers, the investigator of the surety stated:
“Q. Mr. Manuel, did you ask Mr. Troutner of the addresses of these people when you took his statement?
A. I don’t remember if I did or not, to be perfectly honest.
Q. Is there any reason why you couldn’t have asked him ?
A. Absolutely none.”
When the investigator was asked if he was able to contact the previous employers of the claimant following the proceedings in February, he answered:
“I reached Mr. Mason, I also talked to Mr. Troutner. Helen talked to Mr. Allen and I believe neither of us to date has been able to contact Mr. Stoddard.”
I agree with that language of the majority opinion which concludes that since claimant had some employment record, however sparse, between November 1973 and January 1975 a defense could conceivably exist which the surety might desire to assert. Under the circumstances of this case which indicate the need for emergency medical treatment I cannot believe that surety was entitled to sit on its hands and do nothing. It admittedly had notice as early as January 2 of claimant’s medical difficulties. It authorized medical examination by the same physician which had previously treated claimant and from which the surety had received voluminous reports. The surety was aware of the imminent hospitalization and. possible surgery. A simple telephone call to the office of the physician would have produced the report which would in part at least have indicated the existence or non-existence of a defense. Given the circumstances, I cannot agree that the surety’s inaction was reasonable. I find the surety’s conduct of its “investigation” when it admittedly knew of a time deadline for surgery to be likewise unreasonable. The previous and long existing relationship between the claimant, the surety and the physician, is, in my judgment, a further factor in demonstrating the unreasonableness of surety’s conduct.
The majority opinion suggests that if claimant had remained in the hospital and himself paid for the surgery, the surety nevertheless would have been liable. I am sure that is small comfort to the claimant in light of his financial condition and the fact that the hospital discharged him without the required surgery because of his inability to pay.