11. Medical examination.—
(1) Where a workman has given notice of an accident he shall, if the employer, before the expiry of three days from the time at which service of the notice has been effected offers to have him examined free of charge by a qualified medical practitioner, submit himself of such examination, and any workmen who is in receipt of a half-monthly payment under this Act shall, if so required, submit himself for such examination from time to time:
Provided that a workman shall not be required to submit himself for examination by a medical practitioner otherwise than in accordance with rules made under this Act, or at more frequent intervals than may be prescribed.
(2) If a workman, on being required to do so by the employer under sub-section (1) or by the Commissioner at any time, refuses to submit himself for examination by a qualified medical practitioner or in any way obstructs the same, his right to compensation shall be suspended during the continuance of such refusal or obstruction unless, in the case of refusal, he was prevented by any sufficient cause from so submitting himself.
(3) If a workman, before the expiry of the period within which he is liable under sub-section (1) to be required to submit himself for medical examination, voluntarily leaves without having been so examined the vicinity of the place in which he was employed, his right to compensation shall be suspended until he returns and offers himself for such examination.
(4) Where a workman, whose right to compensation has been suspended under sub-section (2) or sub-section (3) dies without having submitted himself for medical examination as required by either of those sub-sections, the Commissioner may, if he thinks fit, direct the payment of compensation to the dependants of the deceased workman.
(5) Where under sub-section (2) or sub-section (3) a right to compensation is suspended, no compensation shall be payable in respect of the period of suspension, and, if the period of suspension commences before the expiry of the waiting period referred to in clause (d) of sub-section (1) of section 4, the waiting period shall be increased by the period during which the suspension continues.
(6) Where an injured workman has refused to be attended by a qualified medical practitioner whom services have been offered to him by the employer free of charge or having accepted such offer has deliberately disregarded the instructions of such medical practitioner, then, 1[if it is proved that the workman has not thereafter been regularly attended by a qualified medical practitioner or having been so attended has deliberately failed to follow his instructions and that such refusal, disregard or failure was unreasonable] in the circumstances of the case and that the injury has been aggravated thereby, the injury and resulting disablement shall be deemed to be of the same nature and duration as they might reasonably have been expected to be if the workman had been regularly attended by a qualified medical practitioner 2[whose instructions he had followed], and compensation, if any, shall be payable accordingly.
Determination of loss of earning capacity
Loss of earning capacity has to be determined by taking into account the diminution or destruction of physical capacity as disclosed by the medical evidence and then it has to be seen to what extent such diminution or destruction should reasonably be taken to have disabled the affected workman of his class ordinarily performs. The medical evidence as to physical capacity is an important factor in the assessment of loss of earning capacity, in the absence of medical evidence by doctors examining the claimant on behalf of either side, it is difficult to measure the physical disability of the claimant and thus also the diminution or otherwise of the earning capacity; Bengal Coal Co. Ltd. v. Barhan Gopel, 1983 II LLJ 86 Cal.
(i) It is the responsibility of the employer to press for medical examination of the workman receiving injuries in an accident; Madhya Pradesh Mining Corporation v. Munda Kol, 1990 LLR 115 (MP).
(ii) No doubt section 11 provides that medical examination can be ordered by the Commissioner under the Workmen’s Compensation Act but it has been held that it is the responsibility of the employer to press for the medical examination of the workman; Madhya Pradesh Mining Corporation through Manager Mines, Satve v. Munda Kol Son, of Kutti, 1990 LLR 115 (MP).
1. Subs. by Act 9 of 1938, sec. 6, for certain words.
2. Ins. by Act 9 of 1938, sec. 6.