I dissent. In this case an examination of section 4056 of the Labor Code is imperative. It reads as follows: “No compensation is payable in case of the death or disability of an employee when his death is caused, or when and so far as his disability is caused, continued, or aggravated, by an unreasonable refusal to submit to medical treatment, or to any surgical treatment, if the risk of the treatment is, in the opinion of the commission, based upon expert medical or surgical advice, inconsiderable in view of the seriousness of the injury.”
To accept the premise that the expert testimony required by the statute may be supplied by what one doctor, who subsequently changed his opinion, told the applicant for compensation, defeats the purpose of the statute. The language of the statute leads me to conclude that the finding of the commission must be based upon expert medical or surgical advice before the commission, rather than upon a statement to the applicant and repeated by the applicant to the commission, inasmuch as the qualifying phrase follows the word “commission. ’ ’
Accepting the applicant’s theory for the moment—that it was not unreasonable to refuse to submit to the operation— the record discloses that one physician, a Dr. Pender, who was the last to examine the applicant, recommended further *382conservative treatment to relieve the applicant’s difficulties because he felt that prior treatment had been complicated by incomplete rest. The treatment he proposed was simply to put the applicant in bed, flat on his back, for a period of two or three weeks. In answer to the question whether he would submit to such treatment by Dr. Fender, the applicant said he would not. In view of the seriousness of the injury—total disability—a flat refusal to submit to further conservative treatment cannot be said to be reasonable. In my opinion the award should be annulled.
Petitioner’s application for a hearing by the Supreme Court was denied September 27, 1945.