On appeal from a judgment of the Supreme Court, whose opinion is printed in 13 N.J. Mis. R. 858.
For the prosecutor, Nathan Rabinowitz and Milton C. Kitay (Isadore Rabinowitz, of counsel).
For the respondent, Herbert C. Dolan.
The opinion of the court was delivered by
HEHER, J. The question presented for decision is the meaning of paragraph 20 (e) of the Workmen's Compensation act of 1911 (Pamph. L., p. 134), incorporated therein by chapter 93 of the laws of 1919 (Pamph. L., pp. 201, 209), in terms following:
"Whenever it shall appear that an employer is being prejudiced by virtue of the refusal of an injured employe to accept proffered medical and surgical treatment deemed necessary by the physician selected by the employer, or his failure or neglect to comply with the instructions of the physician in charge of the case, such employer is hereby authorized to file a petition with the workmen's compensation bureau, which is hereby empowered to order proper medical and surgical treatment at the expense of the employer, and in event of refusal or neglect by the employe to comply with this order the bureau shall make such modification in the award contained in the schedule as the evidence produced shall justify."
The injury was sustained on August 25th, 1933; and the petition for compensation was filed with the bureau on April 2d, 1934. The employer, while conceding that prosecutor suffered a permanent disability of the left foot to the extent of sixty-six and two-thirds per cent. of normal function and use, nevertheless insists that proffered medical and surgical aid, refused by prosecutor, would in all human likelihood have effected a "cure," or materially reduced the disability,
and that, in these circumstances, the Bergen County Court of Common Pleas correctly found a compensable disability to the extent only of twenty-five per cent. loss of use of the injured foot. The rejected offer of medical aid was made on September 27th, 1933, but the bureau concluded that inasmuch as the employer did not, by appropriate petition, invoke the provisions of the statute under review, he was precluded from showing in defense that any part of the disability under which prosecutor labors is traceable to her unreasonable rejection of the proposed medical and surgical aid. The Pleas, on the other hand, ruled that the statute in question is "permissive and not mandatory," and that the employer's failure "to comply strictly with the provisions of the act does not preclude him from proving her refusal to accept the medical treatment in diminution of the award." The Supreme Court, on certiorari, affirmed the judgment of that tribunal.
We hold to the view that the latter interpretation of the statute does not effectuate the legislative purpose. The right of the employer to impose medical or surgical treatment upon the injured employe is not, of course, an absolute one. Compulsion in such matters must needs be cautiously exercised. The employer's right in this regard is necessarily circumscribed by the corelative right of the employe to avoid, if he chooses, peril to life, however slight, and undue risks to health, and anguish that goes beyond the bounds of reason. The employe's refusal to submit to the tendered treatment, whether medical or operative, is not unreasonable, and therefore unjustifiable in the legal sense, unless it is free from danger to life and health, and extraordinary suffering, and, according to the best medical or surgical opinion, offers a reasonable prospect of restoration or relief from the disability. And the reasonableness of the refusal, tested by this standard, is one of fact. McNally v. Hudson and Manhattan Railroad Co., 87 N.J.L. 455; affirmed, 88 Id. 729.
Viewing the statute in the light of this principle, rooted in reason and justice, the legislative design palpably was to provide for a judicial determination of such an issue at the time it arises, when the proposed remedy, if it satisfies the
legal standard, can be effectively applied, and not at the final hearing of the cause, when, in the event of a determination adverse to the employe, it may not, due to the changes worked by time, be efficacious or practicable. The considerations underlying this policy are obvious. It is ordinarily a controversy of such moment as to require the judgment of an impartial tribunal. It would be manifestly unfair to place the burden of a correct decision solely upon the employe, and to charge him with the full consequences of error, even though his judgment was entirely free from bad faith. It is to be remarked, in passing, that an injured person is rarely moved by bad faith in resisting efforts to effect physical rehabilitation. That such is the scheme of the statute is implicit in the language employed to express the legislative intention. The employe suffers no loss of the prescribed compensation until he shall have refused or neglected to submit, at the expense of the employer, to the medical or surgical treatment which the bureau shall ...