
    BENEFIELD v. ZACH BROOKS DRILLING CO. et al.
    No. 7839.
    Court of Appeal of Louisiana. Second Circuit.
    June 18, 1952.
    On the Merits June 30, 1952.
    Rehearing Denied July 7, 1952.
    
      Morgan, Baker & Skee'ls, Shreveport, for appellant.
    Campbell & Campbell, Minden, for ap-pellee.
   HARDY, Judge.

This is a compensation suit in which the plaintiff employee seeks recovery of compensation at the maximum rate for permanent, total disability against the defendant employer and its insurer. After trial there was judgment in favor of plaintiff, from which defendants have appealed.

As a defense to plaintiff’s demands, in addition to denying the permanent and total nature of the disability, defendants averred that they had offered to furnish plaintiff an operation for the remedy and correction of his condition, which tender had been refused by plaintiff, and, as a consequence, the continued disability, if any, was attributable to such refusal. By way of relief defendants prayed for judgment rejecting plaintiff’s demands, or, alternatively, for an order of court upon plaintiff to submit to an operation for the surgical correction of the condition causing the alleged disability, on penalty of termination of any award of compensation.

Before this Court there is no question made of the nature, character and effect of plaintiff’s disability, and the sole issue tendered for our consideration involves defendants’ alternative prayer for relief.

The proposition of submission to a surgical operation is one which must in the initial instance be determined by the employee, that is, he has the option of submitting or of refusing to submit, to the tendered operation. It is only in the event of the refusal of an employee to submit to a tender of surgical procedure that the matter becomes a question of judicial concern, and there then devolves upon the Court the responsibility for its determination. The Court, in the light of the facts and circumstances of each particular case, must decide whether the refusal of the employee has been arbitrary or reasonable.

In other words, any question of this nature can only be squarely presented by the refusal to submit to an operation, which is an essential element and, indeed, the very foundation for a judicial pronouncement.

We have found it necessary to make the above somewhat elaborate preface by reason of the fact that the record before us is completely devoid of any showing that the plaintiff herein has refused to submit to an operation.

Ordinarily this omission might be considered supplied by the allegations of defendants’ answer, to the effect that it has tendered the operation which plaintiff refused. But these allegations are squarely controverted by the testimony of the plaintiff himself on trial of the case. The plaintiff positively and unequivocally testified on direct examination:

"Q. Now, defendant has alleged in this suit, Mr. Benefield, that they offered you an operation, and that you refused it. Did they ever offer you any operation before this suit was filed? A. They had never been to see me at all. I have never seen an insurance man. They have never contacted me in any way. They cut my payments off before the doctor released me.”

And on cross-examination:

“Q. Mr. Benefield, you stated that no one from the insurance company ever came to see you? A. That’s right.
“Q. You had some correspondence with them, did you not? A. No, sir.
“Q. Did you write to them? A. Yes, I wrote to them.
“Q. Did they ever write to you? A. All they done, they sent the drafts for the first six weeks to El Dorado and I wrote them and asked them why they didn’t send them to me.”

The above is the only testimony in the record that touches the point of tender and refusal of an operation.

It is o'bvious that without evidence of the refusal of an employee to submit to an operation there is no question before the Court. We are convinced that this omission can and should be corrected. Accordingly, we avail ourselves of the provisions of Article 906 of the Code of Practice which authorizes the remanding of a cause to a lower court with instructions as to the testimony to be received in order to permit a definitive pronouncement.

For the reasons assigned this cause is remanded to the Honorable the Second Judicial District Court in and for the Parish of Claiborne, State of Louisiana, with instructions that it be re-opened and testimony received for the purpose of establishing the fact, vel non, of the tender of an operation to plaintiff and his refusal to submit thereto.

It is further ordered that upon the receiving and transcription of the testimony on this point the record be returned to this Court for disposition of the appeal. Costs to await final determination hereof.

On the Merits

In our opinion and judgment of June 18, 1952, we ordered this case remanded for the purpose of supplementing the record on the essential fact as to the tender and the refusal of an operation. This order has been complied with by a stipulation of counsel for the respective parties representing an agreed statement of fact which has been duly filed in this Court. There is no necessity for passing upon the application for rehearing, included in the joint motion of counsel, which accompanied the filing of the stipulation. In the interest of avoiding further delay in the disposition of the case we proceed to a determination of the appeal.

The only issue tendered by the appeal was stated in our opinion above noted, and needs no further restatement or elaboration.

While employed as a driller’s helper, or rough-neck, engaged in the performance of the accustomed duties of such occupation on a drilling rig of his employer on February 21, 1951, plaintiff sustained serious injuries resulting from an accident in which the cat line on the rig became twisted about his right arm, severely injuring the muscles, ligaments and tendons in the area of the right shoulder. The exact injury sustained by plaintiff has been diagnosed as being an acromio-clavicular separation of the right shoulder. The testimony of the medical experts is conclusive on the point that this injury is permanently and totally disabling by reason of the tearing and subsequent disintegration of the ligaments which hold the clavicle or collar bone to the coracoid process, a bony projection of the scapula.

It is further established that the only hope for any real relief of plaintiff’s condition, that is, pain, weakness and inability to fully use his right arm, rests in surgical intervention, the performance of an operation to repair the damage.

Defendant urges that an operation can restore the complete usefulness of plaintiff’s arm, wherefore they pray, alternatively, that he be ordered to undergo an operation by a specialist in the field of orthopedic surgery of his own choice under penalty, in the event of his refusal, of forfeiture of compensation payments. As a condition precedent defendants have established that they have tendered such an operation to plaintiff at their expense, which tender has been arbitrarily refused.

For the third time in the course of slightly more than a year this Court finds itself confronted with the determination of the merit of an injured employee’s refusal to submit to a surgical operation. In Fredieu v. Mansfield Hardwood Lumber Company, 53 So.2d 170 (writs refused), decided May 30, 1951, this Court held that the employee’s refusal to submit to an operation for the repair of a tear of the medial semilunar cartilage of the right knee was arbitrary and unreasonable and entered judgment ordering plaintiff to submit to such operation within a period of sixty days, and in the event of his continued refusal, authorizing the discontinuance of his compensation payments. In the recent case of Johnson v. U. S. Fidelity & Guaranty Company of Baltimore, Maryland, La.App., 58 So.2d 261 (writs refused June 2, 1952), this Court refused to order a 49-year old employee to submit to a surgical operation for the repair of a hernia.

We predicated our judgment ordering an operation in the Fredieu case upon the conclusion, as expressly stated in the opinion, that the operation was relatively simple and the advantages to be procured thereby were so nearly certain that the claimant should be required to submit. Contrariwise, in the Johnson case, we expressed the opinion that a hernia operation was susceptible of serious complications constituting grave dangers to life itself, and, further, that the likelihood of relief was uncertain and speculative. Additionally, there was another element present in the Johnson case which was the fear of a serious operation on the part of the plaintiff himself.

In the instant case we are able to eliminate certain factors which necessarily enter into consideration of the major question. We think the evidence in the record before us fully justifies the conclusion that an operation in the acromio coracoid area is relatively simple, is not attended with any extensive pain or suffering, and there is a minimum danger of any fatal results. These conclusions leave one important -consideration, namely, whether an operation would be reasonably certain to restore the full use and function of the arm. Under the facts adduced we are constrained to ■find that this point has not been affirmatively established.

Bearing directly upon this question we are impressed with the sharp divergence of opinion as expressed in the testimony of the medical experts. This was adduced from two general 'practitioners and one orthopedic specialist tendered as witnesses for plaintiff, and one orthopedic specialist, who appeared as a witness on behalf of defendant. Both specialists are possessed of the highest qualifications and their resepec-tive reputations in this field are beyond question. The specialist who testified on behalf of plaintiff recommended two operative techniques, either of which he felt assured would bring about a marked improvement and probably complete relief of plaintiff’s condition. The doctor suggested the excision of the distal third of the clavicle and asserted that this procedure would relieve plaintiff of -the pain which he now suffers, would restore a considerable part of the use of his arm, and would permit him to build the strength of his shoulder back to a condition approaching normal. However, admittedly, this suggestion was subject to some criticism, and the -technique which this witness appeared to prefer and to more highly recommend involved the removal of a strip of fascia from the thigh and its use for reconstruction of the ligatures binding the outer portion of the clavicle to the coracoid process of the scapula.

The orthopedic specialist tendered by defendant questioned the efficacy of the techniques suggested by plaintiff’s witnesses and stated his positive preference for a third procedure, namely the fusion of the outer end of the clavicle with the scapula. Plaintiff’s expert did not have the opportunity to express his opinion on this spe-ciflc recommendation, but since it was not even considered or mentioned in his testimony, it is to be reasonably assumed that he would no more favor such a technique than his colleague approved the ones he suggested. Additionally, there is in the record the testimony of one of the general practitioners who attended and treated plaintiff, and who was thoroughly familiar with the case from every standpoint, which testimony seriously questioned the practical value of the fusion technique on the ground that it would incline to become stiff and thereby cause a consequent impediment in the use of the shoulder.

We do not think lit necessary for this Court, composed of laymen, to pass upon the efficacy, vel non, of what are, obviously, involved and disputed questions of surgical procedure. The one principal fact with which we are here concerned is that the medical experts could not agree among themselves and it is a quite conclusively established fact that plaintiff in this case not only failed to receive reasonable assurance of the probability of a cure of his condition, but was confronted with a violent disagreement between -the medical consultants. It is no wonder, indeed, if plaintiff was bewildered and confused and, certainly, it is clear that the result of such confusion had the effect of prejudicing his mind against submission to an operation. Surely under such circumstances his refusal cannot possibly be construed as arbitrary or unreasonable, but, on the contrary, must be considered to be completely justifiable.

We have no difficulty in resolving the conclusion that in instances where distinguished medical scientists are in disagreement as to -the character, nature, procedure and result of proposed surgical intervention, it would be presumptuous and unjust for any court to pronounce the judgment sought by defendants herein.

For the reasons assigned the judgment appealed from is affirmed at appellants’ cost.

On Application for Rehearing

PER CURIAM.

In application for rehearing counsel for defendant has called the Court’s attention to an error in its original opinion herein on the point discussing the testimony of the orthopedic specialists for the respective parties. It was, in fact, the specialist tenp dered by defendant who recommended two operations, the efficacy of both of which was questioned by the specialist who was a witness for plaintiff, and who recommended a third procedure. It is further true that the testimony of both witnesses was taken by deposition out of court and the defendants’ expert witness testified first, which prevented him from the opportunity of expressing his opinion on the recommendation of plaintiff’s expert.

This correction is made in the interest of accurate expression, but we do not think it has any bearing upon the material facts and the conclusions reached as a result of the consideration thereof.

The application for rehearing is denied.  