tenance he was legally liable, the compensation may, in the discretion given the California Commission by a provision authorizing it to apportion death benefits among the dependents in proportion to their respective needs, be equally divided between such beneficiaries.70

That decedent was a member of the family of his brother, who was partially dependent upon him, does not make the brother a "next of kin," entitled to compensation under the Massachusetts Act, in preference to decedent's surviving father." Under the Connecticut Act, where the deceased workman leaves two dependent daughters, one over 18 dependent in fact, and one 17 dependent both presumptively and in fact, the total death benefit may be awarded to the latter until she reaches the age of 18, and thereafter be divided equally between the sisters.72

The insurer cannot litigate by appeal the proportions of the division of a death benefit after a decree apportioning same, from which the dependents themselves do not appeal.73

The word "portions" as used in the federal Act, refers to the division of the compensation among the claimants, and not to its division into weekly or monthly payments, and the Secretary is authorized to direct that one beneficiary receive a larger and another a smaller portion; his authority in this regard may even justify his direction that the whole compensation be paid to one beneficiary, to the exclusion of the others."

70 (Wk. Comp., etc., Act Cal. § 19 [e]) Rossi v. Standard Oil Co., 2 Cal. I. A. C. Dec. 307.

71 (St. 1911, c. 751, pt. 2, § 6, and part 5, § 2) In re Kelly's Case, 222 Mass. 538, 111 N. E. 395.

72 Maher v. N. Y., N. H. & H. R. R. Co., 1 Conn. Comp. Dec. 82 (affirmed by superior court).

As to payment to representatives in general, see § 79, ante.

73 In re Janes (1914) 217 Mass. 192, 104 N. E. 556.

74 In re Brinkley, Op. Sol. Dept. of L. (1915) 603.

'ARTICLE V

TREATMENT AND FUNERAL EXPENSE

DIVISION I.-EXPENSES OF MEDICAL, SURGICAL, AND HOSPITAL TREATMENT Section

195. Failure or neglect of employer-Procurement of services and treatment

by employé.

196. Where physician is furnished by employer.

197. Change of physician or service.

198. Expense for which employer is liable.

199. Recovery by physician.

200. Services of nurse or member of the family.

DIVISION II.-FUNERAL EXPENSES

201. Provisions allowing funeral expenses.

DIVISION I.-Expenses of MEDICAL, SURGICAL, AND HOSPITAL TREATMENT

§ 193. Rights, duties, and liabilities in general

The common legislative requirement that the employer bear the burden of reasonably necessary medical and surgical treatment of his injured employé was not intended as a charity to one, or as a penalty to the other, but as the recognition of the economic truth that such expense is a legitimate element in the cost of production, and should be placed upon the product as directly as practicable, using the employer as the first necessary step. The legislative idea is that an employer is so specially interested in his injured employé being restored as soon as practicable as to be most likely to provide proper medical and surgical treatment.75 Since the employer must

75 City of Milwaukee v. Miller, 154 Wis. 652, 144 N. W. 188, L. R. A. 1916A. 1, Ann. Cas. 1915B, 847.

pay the cost, he is given the privilege of selecting the physican and services requisite to proper treatment. This is a privilege, however, which must be exercised without unnecessary delay." By necessary implication there is reserved to the employer, under ordi

76 The plain purpose of this section is to impose upon the insurer the duty of providing reasonable medical and hospital services and medicines when they are needed. Manifestly, the workman is not permitted generally to select his own physician or hospital, but should accept that which the law thus requires to be provided for him. (St. 1911, c. 751, pt. 2, § 5) In re Panasuk, 217 Mass. 589, 105 N. E. 368. Where services or supplies of the character indicated by the provision requiring that the employer promptly provide for the injured employé "such medical, surgical or other attendance or treatment, nurse or hospital service, medicine, crutches and apparatus as may be required or be requested by the employé during the sixty days after the injury," are needed or are reasonably or properly requested by the employé, the employer must provide same, using his own judgment and exercising his own choice, so long as he does not make an unreasonable selection as to the person who shall render such services and as to the nature of the supplies, and it is only when he fails to provide that the employé may do so at the employer's expense. Where the employer has not failed in his duty in this respect, the employé cannot designate the particular individual who shall render the required services. Keigher v. General Electric Co., 158 N. Y. Supp. 939. Inasmuch as the employer or his insurance carrier must pay the disability indemnity, if the disability is not relieved, and must pay full death benefits or permanent disabilities, in addition to the medical and surgical charges, if incompetent physicians or hospitals aggravate the injury, the statute gives the party who must pay the cost the right to select the physician and hospital. McNamara v. United States Fidelity & Guaranty Co., 1 Cal. I. A. C. Dec. 138.

77 Scott v. Etna Life Ins. Co., 1 Cal. I. A. C. Dec. 343.

Where evidence shows an unreasonable delay on the part of the employer and his insurance carrier in offering medical treatment to the employé, the latter will be awarded the reasonable cost of such services which he himself has contracted for. De Mott v. Stone & Webster Construction Co., 1 Cal. I. A. C. Dec. 187. By the term "seasonable" the law means "in due season," "opportunely," "timely," which, in most cases of physical injury, means forthwith, inasmuch as delay causes danger of infection. In a city or other populous community, an insurance carrier or employer should have its physician in charge of the injured employé, if not in time to render first aid, at least within a very few hours, certainly as soon as it is necessary to change an emergency dressing. Failure to do this forfeits the right to designate

HON.COMP.-44

nary circumstances, reasonable opportunity to exercise the privi lege, and the right of the employé to obtain such treatment, or for

who shall furnish medical treatment. Scott v. Etna Life Insurance Co., supra.

Where an employer's foreman has knowledge of the injury on the day it happened, Saturday, but no steps are taken by the defendants to furnish medical attention until the following Monday, and the injured man has, in the meantime, secured the services of another physician, who continues to treat him until his cure, the defendants must pay the reasonable value of the services rendered by the employé's physician. While the law gives the employer the right to select the physician, it does not allow him to sleep upon that right. If he does not furnish medical attention "seasonably," the employé may secure medical attention at his employer's expense. Simpson v. Paraffine Paint Co., 1 Cal. I. A. C. Dec. 76. Where an employer is notified at the outset of the serious condition of his employé, caused by an infected wound, and the insurance carrier offers the services of its own physician on the same day, Tuesday, but, the physician not being present and the case urgent, an arrangement is made to meet this physician later in the afternoon, but he does not get into communication with the employé until the following Friday, after a serious operation has been performed, the insurance carrier has not seasonably tendered medical treatment, and is liable for the reasonable value of the treatment procured elsewhere. Jameson v. Bush, 1 Cal. I. A. C. Dec. 507. Where an employé sustains a fracture and is taken to a physician by his employer, who later calls in another physician, and the employé, without further instructions from his employer, retains the second physician and dismisses the first, and where instructions as to medical treatment are not furnished by the insurance carrier for nearly a week, and not until after the employé has completed final arrangements for his treatment and is about to undergo or has just undergone an operation, the tender of medical treatment by the insurance carrier is not made seasonably, and it is liable for the reasonable value of treatment rendered to the employé by a physician of his own choice. Hotchkiss v. Boyer, 2 Cal. I. A. C. Dec. 51. Where the employer or insurance carrier is notified at once of the accident and instructs its physician to treat the injured employé, and the physician, after making a superficial examination, neglects the patient for five days, though requested to call, and the employé in the meantime secures other medical attention, the employer or his insurance carrier has not seasonably furnished medical attention within the meaning of the Act, and is therefore liable for the reasonable value of services contracted for by the employé. Bailey v. Wheeler Co., 1 Cal. I. A. C. Dec. 142. Where a series of delays of the employer and insurance carrier to provide medical treatment occurred, during which time the applicant went to her own physician, and then, after a mistaken diagnosis by the insurer's physician, she again went to her own physician and received

the same to be obtained in his behalf, at the expense of the employer, is contingent upon such opportunity having been accorded, and proper notice of the injury having been given,"

78

necessary treatment, the defendants are chargeable with all such treatment received. Allard v. Browne, 2 Cal. I. A. C. Dec. 489. Where an employé accidentally sustains a hernia which is irreducible, and immediate operation is therefore required, and notice is given to the insurance carrier the day of the happening of the accident, and an operation is performed by the employé's physician within two or three days thereafter, the insurer not having tendered medical treatment of its own selection within such period, it is liable for the reasonable cost of the operation, for the reason that, in view of the urgency of the case, it did not seasonably tender treatment. Viglione v. Montgomery Garage Co., 2 Cal. I. A. C. Dec. 87.

78 City of Milwaukee v. Miller, 154 Wis. 652, 144 N. W. 188, L. R. A. 1916A, 1, Ann. Cas. 1915B, 847. The privilege accorded the employer requires as air incident reasonable time to exercise it after notice of the need therefor. Competency of an injured employé to procure medical and surgical treat ment, or for such to be procured in his behalf, at the expense of the employer, under the Workmen's Compensation Act, exists for the reasonable time after the injury required for such employé to afford the employer opportunity to exercise his privilege; it is then suspended if the employer exercises such privilege, but revives and relates back to the time of the suspension, if necessary, if the employer unreasonably neglects or refuses to exercise such privilege. Id.

79 The law does not cast upon employers the duty of active vigilance to discover cases of personal injury to their employés, but casts upon the latter such vigilance as they can reasonably exercise to bring such injuries to the attention of employers, with their need and desire for medical and surgical treatment to be provided. City of Milwaukee v. Miller, 154 Wis. 652, 144 N. W. 188, L. R. A. 1916A, 1, Ann. Cas. 1915B, 847. Where an employé is derelict in not reporting the fact of injury to his employer in time to give the latter opportunity to select the surgeon to treat him, no award of cost of medical and surgical care will be made. Jenkins v. Pieratt, 1 Cal. I. A. C. Dec. 114. Where an employé receives a slight injury, and does not notify the employer until after he has procured all necessary medical treatment himself, and the employer, not knowing of the happening of any accident, did not have opportunity to furnish medical treatment of his own selection, then the employer is not liable for the reasonable cost of medical treatment secured by the injured employé. Morrish v. Brookmiller, 2 Cal. I. A. C. Dec. 76.

Where an injured employé notifies his employer that his hand has been injured, but omits to inform the employer of the cause of the injury, or to connect it with the employment, or with any accident, and no request is made