This workmen’s compensation case involves an employer’s liability for the expense of a surgical operation performed upon an injured employee. The operation was a success, and we know now that it was necessary; but it was performed by a surgeon engaged by the employee against the wishes of the insurance carrier and at a time when the physician selected by the insurer thought surgery to be inadvisable. The commission’s refusal to charge the employer with the expense of the operation was upheld by the circuit court.
There is no dispute in the material facts. Caldwell, the claimant, suffered a compensable back injury on August 23, 1960. He was unable to work for about a week, during which he was treated by a general practitioner. After the claimant returned to his job he continued to suffer pain, although he did not lose any more time from his work until he entered the hospital about fourteen months later.
Caldwell first saw a specialist on January 18, 1961, when the insurer sent him to Dr. Nixon, an orthopedic surgeon. In the course of visits extending over about two months Dr. Nixon prescribed an elevated shoe to compensate for a congenital difference in the length of Caldwell’s legs.
On August 8,1961, the claimant on his own initiative consulted Dr. Murphy, the orthopedic surgeon who was later to perform the operation in controversy. Dr. Murphy concluded that Caldwell had a disc problem and should have a myelogram. A myelogram is described as a diagnostic procedure in which an opaque dye is injected into the spinal canal so that X-ráy pictures can be taken. In September Dr. Murphy sent the insurance company a bill for his services, but the insurer refused to pay it, explaining that medical attention was being provided by other doctors. Later on a representative of the insurer also told Caldwell himself that the company would not pay for the operation that Dr. Murphy had in mind.
Later in August the claimant, without authorization from the insurer, was treated unsuccessfully by a chiropractor.
On October 18, at the direction of the insurer, Caldwell went to Dr. Hundley, another orthopedic surgeon. Dr. Hundley diagnosed Caldwell’s trouble as a degenerative disc and accordingly began a course of conservative daily therapy, involving exercise, heat application, and sonic treatments. On October 27, after nine days,- the patient appeared to be greatly improved.
On Sunday, October 29, Caldwell’s condition suddenly became much worse; he suffered severe pain in his back and partial paralysis. His wife called Dr. Murphy, who arranged for Caldwell’s admission to a hospital. On Monday Dr. Murphy did a myelogram, which indicated that the patient was suffering not from a degenerative disc but from a more serious condition known as an extruded disc. This extruded disc had been forced from its position between two vertebrae and was lying in the spinal canal. On Tuesday morning Dr. Murphy operated, removing the extruded disc and fusing the two vertebrae that it had cushioned. After a convalescence of several months Caldwell was able to return to work Avith entire freedom from pain. His recovery was complete except for some stiffness that was occasioned by the bone fusion and that resulted in a slight permanent partial disability.
It is shown by undisputed evidence that the operation not only was necessary but also was successful. It is true that Dr. Nixon and Dr. Hundley, concededly qualified orthopedic surgeons selected by the insurer, testified that they would have continued conservative therapy for a while longer before considering a myelogram or surgery. But their preference for conservative measures AAras based upon their belief that CaldAvell was suffering from a degenerative disc, for which conservative therapy is effective. Such treatment, however, is of no avail in the case of an extruded disc. Surgery alone can then give relief from pain and protection against the possibility of further complications. Thus the only real difference between the position taken by the insurer’s doctors and that taken by Dr. Murphy is that, the latter resorted to surgery earlier than the former thought such action to be advisable. In this conflict of opinion hindsight proves conclusively that Dr. Murphy’s decision was actually right. As the court observed in Laws v. Industrial Comn., 116 Utah 432, 211 P. 2d 194, surgery has rendered certain that which was previously uncertain.
Our statute requires an employer to provide promptly for an injured employee such medical and surgical service “as may be necessary” during the period of six months after the injury and for such additional time as the commission may require. Ark. Stat. Ann. § 81-1311 (Repl. 1960). (We should add that the six-month limitation is not in issue here, for the insurer recognized its continuing obligation to provide medical care, as, for example, by sending Caldwell to Dr. Hundley more than a year after the injury occurred.)
There is much discussion in the briefs about the right of an injured employee to make his own free selection of a doctor. We do not reach this issue-. Even if we should concede, without deciding, that the insurance carrier has the right in the first instance to select the physician, it does not unavoidably follow that Caldwell’s later choice of Dr. Murphy exempts the appellees from the expense of the operation.
It was the employer’s duty to provide this injured employee with necessary surgery. It has now been demonstrated with certainty that the operation was necessary. In fact, if the surgeons selected by the insurer had realized that the patient was suffering from an extruded disc they too would doubtless have recommended the procedures that Dr. Murphy adopted. The appellees ought not to be in a position to profit by their physicians ’ erroneous diagnosis, and this is true even though the error was made in complete good faith by doctors whose ability and standing are not questioned in the least.
Our holding is not intended to, and does not, give an injured workman unrestricted freedom to reject the medical care offered by his employer. Counsel for the appellant concede that Caldwell acted at his peril in overriding the insurer’s warning that the proposed operation would be at the claimant’s own expense. If the operation had disclosed a degenerative disc, for which conservative treatment was indicated, the surgical expense would not have been the employer’s responsibility. (Similarly, there is no contention that the appellees should pay for the claimant’s unauthorized and unavailing visits to the chiropractor.) It develops, however, that it was Dr. Hundley’s treatment that was in a sense unnecessary, in that it could not correct the condition that really existed, while the surgical operation was the right and necessary step. In this situation there is no sound basis for exempting the employer from liability upon the present claim. See Atlas Powder Co. v. Grimes, 200 Tenn. 206, 292 S. W. 2d 13.
The appellees also rely heavily upon this sentence in our compensation act: “The Commission may order a change of physicians at the expense of the employer when, in its discretion, such change is deemed necessary or desirable.” Ark. Stat. Ann. § 81-1311 (Repl. 1960). We believe that this provision was inserted in the statute to anticipate any possible doubt about the power of the commission to order a change of physicians. It should not be regarded as establishing an exclusive method of procedure, for, as a practical matter, an injured employee ordinarily has no lawyer and is not in a position to apply to the commission for a change of physicians. To construe the statute as narrowly as the appellees would have us do would convert this provision from a remedial measure designed to help the workman into a punitive measure designed to hurt him.
The judgment must be reversed, and the cause will be remanded, through the circuit court, to the commission for the entry of an award against the appellees for the reasonable expense of the surgical operation and for the claimant’s disability during his period of convalescence. The award should also provide compensation for any permanent partial disability that the commission finds to exist.
Reversed.
McF addin, J., concurs; Robinson, J., dissents.