DISSENTING OPINION. I am unable to agree with the conclusion reached in this case by a majority of the court.
There is no contention concerning the facts. After appellant was willing to undergo the surgical operation for the relief of a right inguinal hernia resulting from an injury arising out of and in the course of his employment, he consulted two doctors selected by his employer and two doctors of his own choice. The doctors designated by the employer advised against the operation, and the doctors chosen by appellant advised him to undergo the operation.
Although appellee knew that its doctors had advised against the operation, appellee proffered the services of *Page 673 one of them to appellant. The offer was refused, and appellant submitted to the operation by a doctor of his own choosing.
The court, in its opinion, concedes that a refusal of such medical and surgical services by an employee does not bar his claim for compensation, unless the refusal is unreasonable, and refers to the case of Witte v. J. Winkler Sons, Inc. (1934), 98 Ind. App. 466, 190 N.E. 72. In that case this court held that the burden of proving that the employee's failure to accept such services was unreasonable and without just cause is upon the employer.
There is no express provision in the Workmen's Compensation Act applicable to the facts here authorizing the employer to designate who the surgeon shall be, nor was such the intention of the Legislature. There is no provision in the statute denying the employee the privilege of choosing his own surgeon. The most that can be said of the statute is that it requires the employer to furnish the services in order to fix liability therefor within the period specified by the statute.
In the case of Witte v. J. Winkler Sons, Inc., supra, this court very wisely stated (p. 475): "This question of the justification of an employee in refusing proffered services of a physician or surgeon tendered by his employer is one of great importance to this court as well as to the Industrial Board. . ..
"The question of whether an employee is justified in refusing to submit to a surgical operation proffered by his employer is one that has to do largely with the personal element. It is the employee upon whom the operation has to be performed, and his rights and interests should be seriously considered."
The question in the instant case is not whether the surgical services proffered by the employer were reasonable, but whether or not the refusal of the employee, *Page 674 under the facts and circumstances, was unreasonable. The bare fact that an employee desires to submit to the services of a physician or surgeon of his own choosing, and, by reason of that fact alone, all other facts being equal, refuses the same services proffered by his employer, is not of itself a sufficient basis to warrant the conclusion that such refusal was unreasonable.
It would be a harsh rule that bound an employee to submit to a surgical operation where life is at stake, at the hands of a surgeon, who, after diagnosing the case and consulting the patient, advised against the operation, simply because the surgeon is being furnished by the employer. Such is not the statutory law and was never intended to be. Any attempt to so make such a provision would not only be a travesty of justice but an unreasonable hardship upon employees.
To hold that the appellant, under the facts in the instant case, must be denied his compensation is not justified in fact or in law. Since the evidence is entirely lacking to sustain the conclusion reached by the Industrial Board, the award should be reversed.