miliarity with our language, and of slight means, is held only to a reasonable degree of diligence in taking steps to see that efforts are made toward effecting a cure. Mankind in general is careless in matters of this nature, and that fact is to be taken into account in determining rights growing out of injuries requiring treatment. Great diligence is not to be looked for or expected." 71

The provisions of the California Act that compensation shall not be paid for disability so far as it is caused, continued, or aggravated by an unreasonable refusal to submit to medical or surgical treatment the risk of which is inconsiderable in view of the seriousness of the injury does not exclude all other exceptions and authorize the commission to award compensation for subsequent injuries not occurring during the employment.72 The above-stated test of reasonableness has apparently been used in applying this statute to the particular cases.7 The California Commission has stated that

went home, where the infection developed seriously before he sought a physician, the resulting incapacity was not the proximate result of his injury, but of his failure to accept the proper treatment. Christiansen v. St. Mary's Hospital, Rep. Wis. Indus. Com. 1914-15, p. 20.

71 Carlson v. Emanuelson, 1 Conn. Comp. Dec. 139.

72 (Wk. Comp. Act, § 16, par. "e"). McCay v. Bruce, 2 Cal. I. A. C. Dec. 975, 171 Cal. 319, 153 Pac. 24.

73 The employé, a native of Turkey, refused to undergo an operation because he and his family and countrymen would be distressed at the appearance of his hand with the finger removed, when he returned home. The medical testimony showed that, if a simple operation were performed, he would be recovered therefrom and able to resume his regular work in six weeks thereafter. It was held that the employé's refusal to undergo the operation was unreasonable, and that his compensation for total or partial incapacity should terminate at the end of six weeks from date of hearing. Ollie v. Travelers' Insur. Co., 2 Mass. Wk. Comp. Cases, 676 (decision of Com. of Arb.). The employé received a personal injury while lifting a bale of scrap metal, by reason of which a hernia developed in the right inguinal region. Compensation having been paid for two months, the insurer offered an operation for the radical cure of the hernia without cost to the employé. This was declined by the employé after time had been given in which to consider the offer, and after having been informed that a refusal would be regarded as unreasonable by the Committee. The Commission held that the employé was

it will apply to employés who neglect or refuse to have themselves properly cared for the same principles regarding such neglect that

not incapacitated for work by reason of the injury. Yukanovitch v. Mass. Employés' Insur. Ass'n, 2 Mass. Wk. Comp. Cases, 787 (decision of Com. of Arb.).

The workman suffered an injury which necessitated an operation, but refused to allow an operation until the next day, although he was told that it was necessary. While the operation was being performed, he vomited, and some of the vomit was drawn into his lungs, causing pneumonia, which resulted in his death. The Board held that the refusal to be operated on when first requested was not so unreasonable as to defeat the claim for compensation, since the employé finally consented when convinced that the operation was absolutely necessary. Detroit Steel Products Co. v. Jendrus, Op. Mich. Indus. Acc. Bd., Bul. No. 3, p. 21.

Where, because of the employé's refusal to have performed an operation tendered, his disability was thereby prolonged beyond a normal period, the refusal of the employer to pay compensation beyond such normal period was justifiable. Wheatley v. Smith, 2 Cal. I. A. C. Dec. 910. Where, under medical advice, an employer offered an operation to break up adhesions and improve a deformity resulting from an accidental fracture of the shoulder of his employé, 59 years of age, and the employé, upon advice received from her physicians that improvement from such an operation was doubtful, refused to submit to the operation on this ground and on that of her age and the requirement of anæsthetics, such a refusal was justified. Leonard v. Fremont Hotel, 2 Cal. I. A. C. Dec. 998. Where an employé is suffering from hernia caused by injuries received in the course of his employment, and the employer offers to make arrangements for, and defray all expenses of, an operation by a skilled physician at a reputable hospital to cure said hernia, and the employé refuses such operation, because he does not like the hospital chosen, and wished the operation to be performed by his own family physician, such refusal is unreasonable, and the employé is not entitled to compensation in so far as his disability is caused, continued, or aggravated by such refusal. (Wk. Comp., etc., Act, § 16) McNamara v. United States Fidelity & Guaranty Co., 1 Cal. I. A. C. Dec. 138. The employer and the industry should not be chargeable with a disability prolonged by unreasonable and inexcusable neglect to secure treatment from a competent physician. Where the evidence shows that, had the applicant been properly treated, he would certainly have recovered within 12 weeks from the date of the accident, and that his disability was prolonged by unreasonable failure to secure medical treatment, compensation will not be allowed for a greater period than 10 weeks' disability following the waiting period of 2 weeks. Brown v. Corona Citrus Ass'n, 2 Cal. I. A. C. Dec. 144. Where a partial disability is shown, which may continue indefinitely, and competent medical authorities advise that it can be removed by

it applies to employers who neglect or refuse to furnish requisite treatment to their injured workmen." 74 The Commission has fur

operation without serious risk, and it may be cheaper for the employer to pay all costs of such operation, instead of paying the weekly disability benefits indefinitely, the Commission will make the same award as has heretofore been made for hernia, namely, that the employer may tender all proper costs and arrangements for such operation by competent surgeons, with hospital facilities, nursing, and compensation for loss of time while totally disabled by such operation, in lieu of weekly disability benefits, and if the employé refuses to undergo such operation, all compensation payments shall cease pending such refusal. Mitchell v. McNab & Smith, 1 Cal. I. A. C. Dec. 116. Where as the result of accidental injury the workman is suffering from internal disability of doubtful nature, but probably kidney trouble, and after months of medical treatment, with continuing disability, the physicians advise an exploratory operation as the only chance of improvement and recovery, and it appearing that the risk was inconsiderable in view of the seriousness of the injury, the employer, after offer of such operation at its own expense and the refusal of applicant to submit thereto, is released from further liability for the continuance of the disability. Jaco v. Los Angeles Gas & Electric Co., 2 Cal. I. A. C. Dec. 512. Where, after the Commission has determined that an operation will be advisable to relieve the disability of an injured employé, and that its risk is inconsiderable in view of the seriousness of the injury, the injured employé continues to refuse to accept it, his insurance carrier is authorized to terminate payments of disability compensation during the period of such refusal to submit to proper medical or surgical treatment. Upon request, the Industrial Accident Commission will also give notice to the employé that, if he fails to accept such offer within a short period from the date of said notice, all his rights to compensation will be forever barred, and will thereafter enter its order terminating payments of compensation in the event of continued refusal. Aylward v. Oceanic Steamship Co., 2 Cal. I. A. C. Dec. 95. Where medical treatment or appliances are tendered by employer or insurance carrier upon the advice of the surgeon in charge, the Commission can require the injured person to accept such treatment or forego further compensation, and will use its power to facilitate recovery of the patient from his injury. Burkard v. San Francisco Breweries, Ltd., 2 Cal. I. A. C. Dec. 365. Where an injured employé is suffering from a disability which can be cured by operation, and a temporary total disability award was made in his favor, the payments to continue until the termination of his disability, the Commission will provide in the award that such payments shall be suspended upon the offering to the applicant of an operation to cure his injury at the expense of the employer or insurance carrier and its refusal by such employé. Printy 74 Brown v. Corona Citrus Ass'n, 2 Cal. I. A. C. Dec. 144.

ther said that where an employé, following an accident causing hernia, is offered his choice of an operation or a truss, and because of pressing family reasons at the time he accepts a truss, and within a reasonable time thereafter requests an operation, such operation will be awarded if the applicant is otherwise entitled thereto. The act of the employé in endeavoring to settle his claim by the receipt of a truss instead of having an operation performed is not binding unless and until approved by the Commission. Settlements by injured employés waiving a necessary operation will not be approved where the best interests of all parties concerned dictate that the employé be cured of his condition, if the law otherwise authorizes such relief." Where the employé's refusal of an operation or medical treatment is due to ignorance or mistake, he may be given another chance to accept such treatment.70

v. Jacobsen-Bade Co., 1 Cal. I. A. C. Dec. 519. If an employé is offered medical treatment at the expense of his employer after the expiration of 90 days from the date of the accident and refuses to accept it, and also refuses to procure adequate treatment elsewhere, his right to compensation under section 16 (e) of the Compensation Act is lost as to any aggravation of his disability which may occur by reason of such refusal to accept proper treatment. Parini v. Selby Smelting & Lead Co., 2 Cal. I. A. C. Dec. 192.

75 Taylor v. Spreckels, 2 Cal. I. A. C. Dec. 62.

76 Where the employé has before the filing of his application, or before the hearing thereof, in ignorance of the requirements of the law, refused a proper offer of an operation, and such operation is still advisable, the Commission may require the employer or his insurance carrier to renew such offer at the time that the award is made, such offer to be in accordance with the usual conditions as to prospective operations. McNamara v. United States Fidelity & Guaranty, 1 Cal. I. A. C. Dec. 138. Where an injured employé is tendered an operation at the expense of his employer's insurance carrier, and refuses such operation upon the ground that his own physician has advised him that such operation would be futile, and it is subsequently determined by the Commission, upon the advice of medical experts appointed by it, that such operation would be advantageous and that its risk would be inconsiderable in view of the seriousness of the operation, such employé has not lost his right to compensation up to the date of the award of the Commission, upon the ground that the continuation of his disability was caused by his unreasonable refusal to submit to medical or surgical treatment. Aylward v. Oceanic Steamship Co., 2 Cal. I. A. C. Dec. 95.

The legislative tendency abroad and in this country has been to deal with industrial accidents distinct from occupational diseases. None of the Acts in this country expressly include disease. Of the ten Acts which on their face do not exclude occupational diseases, three, the Acts of Ohio and Michigan and Connecticut, have been construed by the courts to exclude them," and two, the Acts

77 In 1912 the constitutional convention submitted to the people of the state of Ohio what is now section 35 of article 2, which provided that: "For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational diseases, occasioned in the course of such workmen's employment, laws may be passed," etc. This proposition was ratified by the people by a most decisive majority and gave the authority necessary to the Legislature for the enactment of the present Act. In 1913 the existing compulsory Act was passed. Act March 14, 1913 (103 Ohio Laws, p. 72). It is to be observed that the constitutional amendment differentiates between injuries and occupational disease. It clearly recognizes three distinct classes for which provision may be made: (1) Injuries resulting in death; (2) nonfatal injuries; and (3) occupational diseases and all are to be limited to such as might be occasioned in due course of employment. In Industrial Commission of Ohio v. Brown, 92 Ohio St. 309, 110 N. E. 744, L. R. A. 1916B, 1277, the court (opinion by Nichols, C. J.) said: "It is no difficult matter to bring within the purview of the words 'personal injuries sustained in the course of employment' occupational diseases incurred in the course of employment. It can be further conceded that, had the Legislature, in enacting either the original or the present law, desired to make plain its intention to exclude occupational disease from participation in the fund, the exclusion could readily have been made by adding to the words 'personal injuries,' the qualifying phrase 'by accident.' As against all this the court feels impelled to follow both the executive and the legislative construction of the word 'injury' as employed in this Act, and to limit recovery of compensation to such as may have suffered injury otherwise than through disease. The victims