
    Joseph E. DANGLER, Plaintiff and Appellee, v. FIREMAN’S FUND INSURANCE COMPANY, Defendant and Appellant.
    No. 5518.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1976.
    Rehearing Denied Aug. 26, 1976.
    Davidson, Meaux, Onebane & Donohoe, by L. Lane Roy, Lafayette, for defendant-appellant.
    Fontenot & Mitchell, by Guy O. Mitchell, III, Ville Platt, for plaintiff-appellee.
    Before MILLER, DOMENGEAUX, and PAVY, JJ.
   DOMENGEAUX, Judge.

Defendant, Fireman’s Fund Insurance Company, the workmen’s compensation insurer of plaintiff, Joseph E. Dangler’s employer, appeals the judgment refusing to order Dangler to submit to a second surgical procedure on the middle finger of his right hand. Dangler is currently receiving workmen’s compensation benefits, and it is agreed that he is disabled within the in-tendment of the compensation law in view of the present condition of his finger.

The sole issue is whether Dangler should be ordered to undergo a second surgical procedure as a condition for continuation of workmen’s compensation benefits.

Dangler was injured on June 25, 1974, in the course and scope of his employment as a tire re-capper. A large tire rim fell and injured, among other things not here relevant, the middle finger of his right hand. He was treated by Dr. Laudislas Lazaro, III, an orthopedic surgeon and, in time, enthusiastically submitted to a fusion operation to repair the joint to the distal phalanx of the injured finger. The operation was unsuccessful and Doctor Lazaro recommended a second fusion type operation, this one involving a bone graft. Fireman’s Fund tendered the operation, and Dangler refused. Plaintiff was then examined by Dr. Rodney E. Landreneau, Jr., a general surgeon, who recommended against a second fusion and suggested instead that the finger joint be amputated.

The trial was held on July 29, 1975, at which time certain stipulations were entered into, and the only oral testimony taken was that of the plaintiff. Doctor Lazaro’s deposition, which had been taken on June 3, 1975, was submitted, and the case was left open for the taking of the deposition of Doctor Landreneau, which took place on September 16, 1975. It is evident from the record that the parties and their attorneys as well as the trial judge were cognizant of Doctor Landreneau’s medical conclusions and recommendation of amputation even though same had not yet been reduced to writing by deposition at the time of trial.

On October 31, 1975, the trial judge issued the following reasons for judgment:

“The matter of whether or not plaintiff should undergo surgery for fusion of the distal joint and the two distal phalanges of the middle finger of plaintiff’s right hand has been submitted to the Court on the depositions of Dr. Lazaro, an orthopaedic surgeon and Dr. Rodney Landreneau, who is a general surgeon.
The depositions show that an attempt by Dr. Lazaro to fuse the joints of the finger in a first operation were unsuccessful. The deposition of Dr. Lazaro reveals that success could not be guaranteed on the second surgery.
The deposition of Dr. Rodney Landre-neau indicates that he is of the opinion that there would be no more than 50% chance of successful surgery on an attempted second fusion, and that a great deal of pain would be involved in the operation. Dr. Landreneau is of the opinion that the most reasonable thing to do would be to amputate plaintiff’s finger.
Certainly the Court will not order an amputation of this finger. Further, because of the inclusiveness [sic] of the results of a second surgery, and the incident pain thereto, and because of plaintiff’s strong reluctance, you might say adamant refusal, to undergo the surgery, the Court is not prone to order same.
Accordingly, the request for an order to plaintiff to undergo surgery is denied.”

In the case of Bass v. Service Pipe Trucking Company, Inc., 289 So.2d 78 (La.1974), the Supreme Court set out the general criteria as to whether an employee’s refusal to submit to surgery is reasonable as follows:

“ T. Can it be reasonably assumed that the operation will relieve the sitúation and permit the claimant to resume the type of work he was performing at the time of the accident?
‘2. Will the operation submit the claimant to a minimum of danger and be in no sense dangerous to his life or be attended by no unusual risks and is it attended with but slight pain ?
‘3. Is there no serious disagreement among the surgeons as to the necessity for the operation or the type of operation to be performed, and the probability that the disability will be cured without recurrence ?’ ”

The record as made up in this case shows a disagreement between the two physicians as to the type of operation to be performed, and therefore is non-conforming to the third criteria of Bass, supra.

Doctor Lazaro, based on his previous experience with and knowledge of the type fusion which he performed on plaintiff, indicated that a fusion enjoys about a 95 per cent success rate, but he had no ready explanation for its non-success in this case. He admitted that the possibility of failure in the second operation is at least as great as in the first. The physician considered the fusion to be a major operation, but of course not as serious as a back operation, for example.

Doctor Landreneau recommended against a second fusion, opining that a second attempt would submit plaintiff to unnecessary suffering and believed that the possibilities of success on a second fusion would be no greater than 50 per cent. Instead, this surgeon suggested that the joint be amputated requiring the removal of approximately one and one-half inches of the end of the finger. The operation would take the fingernail, the last or furthest bone of the finger, and the joint itself. The procedure would actually go beyond the joint in order to remove the cartilage.

We see then that Doctor Landreneau disapproved of a second fusion and recommended an amputation. Doctor Lazaro recommended a second fusion, but was not questioned about an amputation. The sequence in which the two physicians testified by deposition as set out above, may indicate the reason why Doctor Lazaro expressed no opinion concerning an amputation. But as also set out above, Doctor Landreneaü’s recommendation of an amputation was known at the time of trial. We might say that if Doctor Lazaro had preferred the amputation, he would have recommended it instead of a second fusion. We might also say that his recommendation of the fusion is a tacit disapproval of the amputation, or at least a relegation of it to a second preference. But we cannot afford ourselves the luxury of speculation. We can only consider what is contained in the record. Such being the case, we cannot presume that Doctor Lazaro would have agreed to an amputation any more than we can presume that he would have disapproved of that procedure.

We therefore conclude that plaintiff’s refusal to submit to a second surgical procedure is reasonable based upon a serious disagreement between the surgeons as to the type of operation to be performed.

For the above and foregoing reasons the judgment of the trial court is affirmed, at appellant’s costs.

AFFIRMED.

PAVY, J., concurs in the result.

MILLER, J., dissents and assigns written reasons.

MILLER, Judge

(dissenting).

I respectfully dissent. The majority has failed to mention or consider the fact that it is Dangler’s own surgeon, his own witness, who has testified without contradiction that the distal phalanx of Dangler’s index finger should be amputated. And the majority does not mention or consider the cases of Hamilton v. New Amsterdam Casualty Company, 208 So.2d 158 (La.App. 4 Cir.1968); Duplechien v. States Exploration Company, 94 So.2d 460 (La.App. 1 Cir.1957); and Leday v. Lake Charles Pipe & Supply Company, 185 So. 655 (La.App. 1 Cir.1939). These cases required the claimant to submit to similar surgeries or forfeit continuation of compensation benefits.

While the majority acknowledged there was no medical evidence questioning the recommended amputation, they failed to grasp the significance of the fact that Doctor Landreneau was claimant’s physician who testified as his witness. Plaintiff did not plead surprise and he is bound by Doctor Landreneau’s testimony.

Did Doctor Landreneau recommend amputation of the entire finger, as indicated by the trial judge’s quoted written reasons and by plaintiff when he stated the basis for his reluctance to submit to the amputation? Tr. 108, 9. The answer is indisputably no, and there is nothing in this record to suggest the contrary. There is manifest error in the trial court’s failure to consider the actual testimony of Dangler’s surgeon, Doctor Landreneau.

There is no medical testimony to indicate the surgery recommended by Doctor Lan-dreneau should not be accepted by Dangler. Dangler would lose only the fingernail and the last phalanx of the finger. Doctor Landreneau testified that he has performed 100 to 200 such operations with a 100% success factor. He testified that there would be no real danger to Dangler’s life and only minimal pain after the amputation. Tr. 44, 5. Without reservation, Dangler’s surgeon recommended this surgery.

Dangler offered no evidence to indicate there is the slightest medical disagreement, much less a serious disagreement, as to the necessity for the amputation and the probability that the disability will be cured without recurrence.

When Doctor Lazaro testified as Dangler’s witness, Dangler did not present evidence to suggest that amputation of the distal phalanx was not indicated; the proposed amputation was not considered by him. Doctor Lazaro was adamant that Dangler is an excellent candidate for surgery; he only thought a second fusion was the preferred treatment.

The trial judge properly refused to order the fusion surgery because of the medical dispute on that issue. However there is no medical opinion opposing the amputation recommended by Dangler’s own surgeon, Doctor Landreneau, who testified as his own witness. His undisputed testimony is persuasive and requires a reversal.

Furthermore, the jurisprudence involving similar conditions which required surgery was not considered by the trial court or the majority; it also requires a reversal.

In Hamilton v. New Amsterdam Casualty Company, 208 So.2d 158 (La.App. 4 Cir.1968), claimant had been awarded compensation for partial disability of the hand. Defendant insurer tendered an operation and contended claimant should undergo surgery to amputate the first distal phalanx of his index finger as a condition for continued compensation. Claimant refused the operation recommended by his own specialist. Three tests were used to determine whether a claimant is justified in refusing to submit to surgery: 1) Can the operation relieve the disability? 2) Will it cause a minimum of danger to life and a minimum of pain? 3) Is there substantial agreement among the medical witnesses as to its necessity, and the probability that the disability will be cured without a recurrence ? The three tests were met: 1) There was only a possibility of “phantom pain” common after such amputations and no other disability. 2) The only major risk was attributable to the use of a general anesthetic. 3) As in the present case, only one physician testified about the amputation, hence no disagreement was found. 208 So.2d 158 at 161. The court ordered the amputation holding: “Because only the tip of his index finger is involved, if we do not order this operation, it is difficult to envision a situation in which an operation should be ordered.” 208 So.2d 158 at 162.

The three tests recited in the Hamilton case were approved in Bass v. Service Pipe Trucking Company, Inc., 289 So.2d 78 (La.1974).

In Duplechien v. States Exploration Company, 94 So.2d 460 (La.App. 1 Cir. 1957), the court affirmed the trial judge and required claimant to submit to surgery to have the lower ¿4 inch of the inner bone of his right forearm removed. A general anesthetic was required.

In Leday v. Lake Charles Pipe & Supply Company, 185 So. 655 (La.App. 1 Cir. 1939), the trial court required claimant to submit to a second amputation between the first and second joints of the index finger of his right hand as a condition to receiving further compensation. The procedure there was more radical than that which Dangler’s surgeon proposes, and the procedures are now more refined. Nevertheless, in 1939, the court affirmed on finding the surgery was minor; it was unattended by danger of serious consequences; it involved little pain and suffering, and was almost certain to relieve the disability. The court held it would be unfair and inequitable for claimant to continue to draw full compensation when he had it within his power to minimize the damage by submitting to a minor and relatively simple operation. 185 So. 655 at 657. See also Larson, Workmen’s Compensation Law (1972), Volume 1, § 13.22 and the cases cited at note 15.

Dangler’s refusal of the tendered amputation surgery, unqualifiedly recommended by his own surgeon, is unfair to claimant and his family, for all of them will benefit when claimant is once again able to resume his place as an able bodied workman.

The difference between the majority and dissenting positions is simple: the majority finds a tacit disapproval of the amputation because Dangler’s first surgeon recommended another fusion operation and never considered an amputation; the dissent finds no disapproval, either tacit or expressed, because all physicians unqualifiedly recommended surgery and no medical opinion was expressed which would question the need for, or efficacy of, the amputation. And these facts were developed from Dangler’s own expert witnesses.

It is respectfully submitted that the trial court judgment should be reversed and set aside insofar as it refused to order the surgery which was recommended by Dangler’s own surgeon, who testified as his own witness, without the slightest suggestion of opposition in this record. 
      
      . The author of this opinion would also conclude that plaintiff’s refusal to submit to a second surgical procedure is reasonable in view of his expressed fear, uncertainty, and apprehension about such a second operation. As we said in Bass v. Service Pipe Trucking Company, Inc., 273 So.2d 349 (La.App.3rd Cir. 1973):
      “This is not to state, however, that a compensation claimant, under all circumstances, may never be justified in refusing surgery based on fear and concern for his physical well-being because of experiences undergone as a result of previous surgery or surgeries. In each such case the question of whether he is justified in refusing surgery must be determined by the facts of each particular case.”
      Plaintiff’s first operation was not successful. The second one may likewise be unsuccessful. I feel that his misgivings about another operation justifies his refusing same.
     