The opinion of the court was delivered by: Moss, Justice.
This is a proceeding for compensation under the Workmen's Compensation Act, Section 72-1 et seq., Code of 1952, instituted by Louis Singleton, respondent, against Young Lumber Company, employer, and Granite State Fire Insurance Company, carrier, appellants.
The respondent did, on August 16, 1956, while in the employ of Young Lumber Company, fall from a scaffold on a building under construction into an open septic tank, receiving a compound committed fracture of his right tibia and fibula at the ankle level, and other injuries. It appears that the respondent was treated by a local physician in Beaufort, South Carolina, who referred him to Dr. John A. Seigling, Orthopedic Surgeon of Charleston, South Carolina, for treatment. The respondent was hospitalized in Roper Hospital, in Charleston, South Carolina, from the day of his injury until September 25, 1956. Upon being discharged from the hospital, the respondent returned to his home on St. Helena Island in Beaufort County.
It appears that on August 31, 1956, the parties entered into an agreement on Industrial Commission Form 15, wherein it was admitted that the respondent had received an injury arising out of and in the course of his employment. This agreement provided for the payment of $24.00 per week from August 24, 1956, "until terminated in accordance with the provisions of the Workmen's Compensation Law of the State of South Carolina". This agreement was approved by the Industrial Commission on September 5, 1956. Compensation payments were made under the foregoing award for total disability until July 15, 1957. Apparently the appellants stopped payment of compensation after receiving the report of Dr. Siegling that the respondent was released from further medical treatment as having reached maximum improvement. This surgeon rated the respondent as having sixty per cent disability of his right foot. Thereafter, the appellants, through their counsel, offered to counsel for the respondent, by way of settlement, a payment of compensation for sixty per cent disability of the right foot and Two Thousand ($2,000.00) Dollars for serious bodily disfigurement, which offer was rejected.
It appears from the record that the appellants stopped payment of compensation under the foregoing award without complying with Section 72-352 of the 1952 Code of Laws and Rule 12 of the Industrial Commission.
A hearing was fixed for October 16, 1957, before a Single Commissioner, for the purpose of determining whether or not the appellants had the right to permanently stop payment of compensation, which the Industrial Commission had ordered the appellants to pay, under the agreement approved on September 5, 1956, to which reference has heretofore been made. At the beginning of this hearing the appellants took the position that no hearing should be held until the respondent submitted to an examination by Dr. Robert M.
Paulling, an Orthopedic Surgeon in Charleston, as was demanded on September 26, 1957. It further appears that when the appellants demanded that the respondent appear for examination by Dr. Paulling that they tendered a check for travel expenses of the respondent. The respondent, through his counsel, refused to go to Charleston for examination by Dr. Paulling and the expense check was returned.
The motion for a delay of the hearing until the respondent submitted to an examination by Dr. Paulling was orally denied by the Single Commissioner. The employer and carrier appealed the oral denial of this motion to the Full Commission. Which said appeal was, by letter, denied, on the ground that such was premature. An appeal was taken to the Circuit Court which resulted in the Trial Judge dismissing such.
The scope of the hearing before the Single Commissioner was not only to determine whether or not the appellants had the right to permanently stop payment of compensation, under the approved agreement heretofore referred to, but for the purpose of determining the nature and extent of any disability and disfigurement of the respondent. At the hearing before the Single Commissioner, the testimony of the respondent was taken, and that of Doctors Stanley F. Morse and B.H. Keyserling. The record also shows that the deposition of Dr. John A. Siegling was taken in Charleston on October 27, 1957.
Thereafter, the Single Commissioner filed his opinion and award, wherein he held that the respondent sustained an accidental injury on August 16, 1956, arising out of and in the course of his employment. He also found that the parties entered into an agreement as to compensation on August 31, 1956, which said agreement was approved by the Industrial Commission on September 5, 1956, in accordance with Sections 72-351 and 72-357, of the 1952 Code of Laws. He held that the appellants, without authority, violated the aforesaid agreement and award by arbitrarily stopping the payments of compensation on July 15, 1957, without complying with Section 72-352 of the Code, and Rule 12 of the Commission. He assessed a ten per cent penalty, pursuant to Section 72-159 of the Code, for the failure of the appellants to pay the compensation in accordance with the terms of the agreement approved by the Commission. He also held that the respondent was totally disabled, and the payment of compensation was governed by Section 72-151 of the Code.
As we have heretofore stated, the Single Commissioner held that the respondent did not give up his right to compensation by his refusal to submit himself to an examination by Dr. Robert M. Paulling. He held that the demand of the appellants for the further examination of the respondent was untimely and unreasonable, and that the refusal by the respondent was fully justified. The appellants made timely application for a review before the Full Commission of the findings and award made by the Single Commissioner. A majority of the Full Commission affirmed the award of the Single Commissioner. From the findings and award of the majority of the Full Commission, an appeal was made to the Court of Common Pleas for Beaufort County, and such appeal was heard by the late Honorable E.H. Henderson, Presiding Judge, who affirmed the opinion and award of a majority of the Full Commission. Timely appeal to this Court followed. The exceptions of the appellants, in our opinion, raise three questions for determination. (1) Was the respondent justified in refusing to undergo an examination by Dr. Paulling as demanded by the appellants? (2) Did the Trial Judge commit error in affirming the Industrial Commission in assessing the ten per cent penalty for their failure to make the compensation payments under the terms of an agreement entered into by the appellants with the respondent, and approved by the Industrial Commission, without complying with Section 72-352 of the 1952 Code of Laws and Rule 12 of the Commission? (3) Whether total disability may be awarded to the respondent under Section 72-151 of the 1952 Code of Laws of South Carolina, when the sole basis of such award is the loss, or partial loss, of use of a member of the body for which compensation is specifically provided for under Section 72-153 of the Code?
We shall first determine whether the respondent was justified in refusing to undergo an examination by Dr. Paulling as demanded by the appellants. The statute, Section 72-307 of the 1952 Code, provides:
"After an injury and so long as he claims compensation, the employee, if so requested by his employer or ordered by the Commission, shall submit himself to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer or the Commission. * * * If the employee refuses to submit himself to or in any way obstructs such examination requested by and provided for by the employer, his right to compensation and his right to take or prosecute any proceedings under this Title shall be suspended until such refusal or objection ceases and no compensation shall at any time be payable for the period of suspension unless in the opinion of the Commission the circumstances justify the refusal or obstruction."
In the case of Ward v. Dixie Shirt Co., Inc., et al., 223 S.C. 448, 76 S.E.2d 605, 608, this Court, with reference to the above statute, had this to say:
Applying the foregoing rule to the facts of this case, is there any reasonable basis for the conclusion of the Industrial Commission, which was affirmed by the Circuit Court, that the respondent was justified in refusing to undergo an examination by Dr. Robert M. Paulling as demanded by the appellants? It appears that immediately following the injury to the respondent he was examined and treated by Dr. B.H. Keyserling. This physician referred the respondent to Dr. John A. Siegling, an Orthopedic Surgeon of Charleston, South Carolina. The respondent became a patient in Roper Hospital on the day of his injury, and it was there that he was treated by Dr. Siegling until September 25, 1956, when he was discharged and returned to his home. The respondent testified that thereafter he traveled from his home on St. Helena Island in Beaufort County to Charleston, South Carolina, a distance of approximately 85 miles, on eight occasions to see Dr. Siegling. It was necessary for the wife of the respondent to accompany him on these trips because of his physical condition. A trip to the office of the physician in Charleston involved the obtaining of a ride by the respondent from his home to Beaufort, a distance of 15 miles, the taking of a bus and a transfer at Gardens Corner, and on arriving in Charleston, the obtaining of a taxicab to the doctor's office. The return trip would be by the same route and manner, and the entire round trip would take all day. The respondent was examined by Dr. Siegling each time that he went to his office. When the appellants demanded the additional examination by Dr. Robert M. Paulling they assigned no reason for such. It also appears that the respondent reported to and was examined by Dr. Keyserling approximately twelve times after he was discharged by Dr. Siegling. The respondent was also examined by Dr. Stanley F. Morse. All three of these physicians testified in this case, giving different ratings as to the physical impairment of the respondent. It appears that the respondent has fully co-operated with these doctors.
We think the facts in this case, and in view of the co-operation of the respondent with the doctors, reasonably warrant the conclusion of the Commission that the respondent was justified in refusing to undergo further examination by Dr. Paulling, as was demanded by the appellants.
The next question for determination is whether the Trial Judge committed error in affirming the Commission in assessing a ten per cent penalty for the failure of the appellants to make the compensation payments under the terms of an agreement entered into by the parties and approved by the Commission. The respondent and the appellants entered into an agreement pursuant to Section 72-351 of the 1952 Code, which said agreement was approved by the Commission. This agreement and award provided for the payment of compensation from August 24, 1956, "until terminated in accordance with the provisions of the Workmen's Compensation Law of the State of South Carolina." This agreement for the payment of compensation, when approved by the Commission, was as binding on the parties as an order, decision or award of the Commission unappealed from, or an award of the Commission affirmed upon appeal. Allen v. Benson Outdoor Advertising Co. et al., S.C. 112 S.E.2d 722. The agreement approved by the Commission could be enforced as is provided in Section 72-357 of the 1952 Code. It was held in the case of Brown & Sharpe Mfg. Co. v. Giacoppa, 69 R.I. 378, 33 A.2d 419, that where an agreement as to Workmen's Compensation has been entered into and approved by the Director of Labor, that such has the force and effect of a Court decree until modified or terminated in accordance with the provisions of the Workmen's Compensation Act. How could the appellants here be relieved of further payments of ...