Skip to main content


Reset A A Font size: Print

District Court of Appeal, First District, Division 2, California.


Civ. 9550.

Decided: November 26, 1934

Pillsbury, Madison & Sutro, of San Francisco (Francis Gill, of San Francisco, of counsel), for petitioner. Everett A. Corten, of San Francisco, for respondent Industrial Accident Commission. J. Francis Shirley, of San Francisco, for respondent Fibush.

The petitioner has applied to this court for a writ of review for the purpose of having annulled an order made by the Industrial Accident Commission determining the amount of and approving a purported lien in favor of the respondent Arthur Fibush.

On August 29, 1929, Margaret Kassebaum, while employed by the petitioner and in the course of her employment, was hit on the back of the neck by the dropping of a counter door. The petitioner is a self-insured employer. It paid to Miss Kassebaum the indemnity provided by law and furnished the medical treatment designated by law. Section 9, Workmen's Compensation, Insurance and Safety Act of 1917 (St. 1917, p. 836, as amended by St. 1929, p. 420). No claim is made that it neglected to do so. No change of physicians was requested. The medical treatment was administered by Dr. Tracy Russell, who was one of the surgeons on the medical staff of the petitioner. He made his examination on September 4, 1929, and continued to treat her from that date until December 3, 1930, when the patient was discharged as cured. Later she was treated by Dr. Bill. The record does not disclose that he was a member of the medical staff of the petitioner. While being treated by him Miss Kassebaum consulted Dr. Fibush. He advised her and directed his assistant in administering some massage treatments. There is no claim that he furnished her clothes, lodging, or board. Before proceeding to treat Miss Kassebaum, Dr. Fibush testified that he telephoned Dr. Russell about her call and request for treatment and that Dr. Russell said: “All right, go ahead and give her your treatments.” Pointing to that conversation the respondents assert that Dr. Fibush was employed by the petitioner. There is no evidence in the record that Dr. Russell had authority to employ, on the account of the petitioner, other doctors, nor that the petitioner directly employed Dr. Fibush. On the contrary, there is direct evidence that whenever the development of the case of any patient seemed to require a change in treatment the facts were communicated by Dr. Russell to the head office of the petitioner in New York and he received orders from that office as to what he should do. There is no claim that such course was followed, nor that the New York office was requested to make, nor that it made, any order in the premises.

On November 25, 1933, Miss Kassebaum applied to the Industrial Accident Commission for an award adjusting her compensation. After several hearings the claim was compromised. The agreement of compromise was signed October 4, 1933. Dr. Fibush filed with the commission a notice of lien on October 7, 1933. On that same day this petitioner received by mail a copy of the notice of lien. The commission approved the agreement of compromise on October 9, 1933. On October 24, 1933, the commission proceeded to conduct hearings on the lien. On April 10, 1934, it made an order as follows:

“Arthur Fibush, M. D., having on October 7, 1933, filed a request for a lien in the sum of $261.10, and the matter having been heard before Margaret McGuire, Referee, and submitted for decision, this Commission now makes the following Findings and Order:

“Findings of Fact.

“1. During the months of November and December, 1932, and January and February, 1933, Arthur Fibush, M. D., rendered certain medical treatment to the employee. Said treatment is a part of the living expenses incurred by the employee subsequent to her injury, and the lien is allowed in the sum of $178.50, in favor of Arthur Fibush, M. D. * * *”

From the facts which we have recited we think it clearly appears that there was no evidence that Dr. Fibush at any time furnished any living expenses to Miss Kassebaum, and therefore the findings contained in the award dated April 10, 1934, were in excess of the jurisdiction of the respondent commission. There was no evidence that the petitioner or any of its authorized agents ever employed Dr. Fibush to render any medical services to Miss Kassebaum and, if medical services can under the statute be treated as living expenses, there was no evidence to support the award. But medical treatment cannot under the statute be said to be living expenses. It is a cardinal rule of statutory construction that every word in a statute should be given force and effect. It is another cardinal rule of construction that when the statute contains a general provision and a specific provision on the same general subject the special provision is the rule governing the special subject. Therefore, assuming for the purposes of this decision that under some circumstances some statutes as to living expenses may be treated as including medical treatment, we are not at liberty to so treat section 24 of the statute before us (St. 1917, p. 851, as amended by St. 1929, p. 323). It expressly enumerates living expenses and when they may be allowed, and it expressly enumerates medical treatment and when such expenses may be allowed. The lien claimant did not introduce evidence supporting a claim against the petitioner under either theory.

The briefs seem to imply that the commission entertained the opinion that although its order dated October 9, 1933, held that the petitioner was not liable to Dr. Fibush, nevertheless, if Miss Kassebaum received his services for any ailment suffered or contracted after the accident and later she was given an award by the commission then Dr. Fibush was entitled to file a lien. We do not so understand the law. The commission is not a general collection agency. Pacific Employers' Ins. Co. v. French, 212 Cal. 139, 298 P. 23. The lien claims for medical treatment of which it has jurisdiction are limited to those growing out of the treatment of the injury arising out of and in the course of the employee's employment, and no more.

For the reasons hereinabove set forth the order dated April 10, 1934, is annulled.


We concur: NOURSE, P. J.; SPENCE, J.

Copied to clipboard