Ansbach v. Department of Industrial Relations

HOUSER, J.

Certiorari.

Somewhat condensed, the history of the present proceeding before this court is that in the course of his employment petitioner was injured; for which injury, at the instance of the employer and the insurance carrier, petitioner regularly received medical and surgical treatment. Some months after the happening of the accident which caused the injury, and pursuant to the direction of the employer and the insurance carrier, in an attempt to further relieve the employee from the effects of the injury received by him, by reason of the alleged malpractice of the attendant surgeon, petitioner received injuries which greatly added to his infirmities. Thereafter, on application made by petitioner to the respondent tribunal, the compensation to which petitioner was entitled under the provisions of the Workmen’s Compensation, Insurance and Safety Act (Stats. 1917, p. 831, as variously amended) was adjusted.

By the terms of section 26 of said act a claim for compensation from the employer has no effect upon the right of the employee to an action for damages arising out of his injury against any person other than the employer; but where judgment is so recovered against such “third person” the employer is entitled, on application, to a first lien thereon on account of his “expenditures for compensation.”

Following the adjustment of the employee’s compensation by the respondent tribunal, the employee commenced an action against the surgeon for damages alleged to have been

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sustained by the employee by reason of the malpractice of the surgeon. Subsequently, and after a mistrial of the action, a money settlement of the controversy was agreed upon by the respective parties thereto. Later, on application presented by the insurance carrier, the respondent tribunal made an order by which the award theretofore made to the employee was reduced in the amount received by him .in the settlement of the action brought by the employee against the surgeon on account of his alleged' unskilful practice in treating the employee. It is with reference to such order that it is contended the respondent tribunal exceeded its jurisdiction. Before considering the question thus presented, it may be observed that from the conclusion reached herein it becomes unnecessary to definitely decide whether within the meaning of the statute here involved the surgeon was a “third person”; or whether a voluntary settlement by a “third person” in an action brought against him constitutes a “judgment.”