NO. 83-350
IN THE SUPREIlIE COURT OF THE STATE OF h1UNTANA
1984
L U X E. SPALL,
Claimant, Respondent and Cross-Appellant,
-vs-
COPIBUSTION ENGINEERING, Employer,
and
TRANSPORTATION INSURATJCE CO .
Defendant and Appellant.
APPEAL FROM: Workers' Compensation Court, The Honorable Timothy
Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Garlington, Lohn & Robinson; Larry E. Riley,
P'lissoula, Montana
For Respondent:
Charles TI. Hingle, Billings, Montana
Submitted on Briefs: January 26, 1984
Decided: Nay 1, 1984
Filed:
dqy 1 1984
--
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The Workerst Compensation Court found that claimant was
permanently totally disabled. Defendant contends this was
improper because claimant refused low-risk surgery with a 92%
chance of restoring working ability. We affirm the Workers'
Compensation Court.
On July 16, 1981, claimant suffered an industrial
accident during his employment with Combustion Engineering in
Colstrip, Montana. Claimant injured his right knee while
working in a welding shop at the construction site. There is
no dispute with regard to the temporary disability benefits
paid. Following trial before the FJorlcers' Compensation Court
on May 13, 1983, the court entered its findings of fact,
conclusions of law and judgment awarding permanent total
disability to claimant. Defendant appeals.
Defendant's only issue is whether claimant is entitled
to permanent total disability when he refuses to have surgery
which is low risk and which has a 92% chance of restoring his
working capacity. Claimant's only issue is whether there is
substantial evidence to support the findings and conclusions
of the Workers' Compensation Court. We will address both
issues, recognizing that defendant's issue is actually a part
of claimant's issue.
All parties agree that claimant has refused to have
elective surgery to his right knee. Defendant emphasizes the
facts and the law which suggest that an award of total
permanent disability is improper where there is no reasonable
basis for refusal to have low risk surgery. However, this
approach does not adequately address the complex fact
situation present here. Claimant's refusal to have surgery
is not merely an exercise of his decision-making power after
considering the risks attendant upon surgery. Claimant is
suffering from a manic-depressive disorder, which directly
affects his capacity to make a reasoned election regarding
surgery.
Claimant was treated by Dr. Teal, an orthopedic surgeon,
and by Dr. Crowl-ey, a psychiatrist. In addition, claimant
was examined by a professor of rehabilitation counseling at
Eastern Montana College and by a clinical psychologist. We
have considered the depositions of these experts.
The pertinent portions of the undisputed findings of the
Workers' Compensation Court are as follows:
1. The claimant at the time of trial was a
32-year-old male, married with 3 dependent children
and his wife was pregnant with a. fourth child.
"4. On July 16, 1981, the claimant, while stepping
through the doorway of a welding shack, stepped on
a sample coupon that rolled and caused the
claimant's right leg to slip back and out to the
side; he immediately 'felt something give,' a
'twinge,' in his right knee. He wa.s able to return
to work, but it later began to swell and became
painful.
"6. In 1972, the claimant injured his right knee
while playing basketball. Dr. D. P. Jacobson
performed a medial meniscectomy on his right knee
and during the operation discovered an old rupture
of the anterior cruciate ligament.
"12. There exists a surgical procedure to
reconstruct and to repair the claimant's ruptured
anterior cruciate ligament.
"13. The surgery has been 92 percent successful.
"14. If the surgery were unsuccessful, then the
claimant's condition would remain unchanged or
would slightly improve.
"15. The surgery has a low risk to life.
"16. The surgery involves a 5-10 percent chance of
the claimant incurring phlebitis, a 1-30 percent
chance of infection settling in and a 10 percent
chance of an adverse reaction to an anesthetic.
"17. If the claimant submitted to the surqery, he
would have to remain in the hospital for 4 or 5
days after the operation with severe pain for a few
days and diminishing thereafter. Thereafter, the
claimant's knee would be immobilized in a cast for
approximately 6 weeks and then in a brace for
approximately 6 weeks. The claimant could then
return to work from 3 to 6 months after the brace
was removed.
"18. If the claimant submitted to surgery, he
would physically be able to return to work as a
welder.
"19. If the claimant does not submit to surgery,
then the claimant's knee instability will continue.
"20. In late July or early August 1982, the
claimant was suffering from manic-depressive
disorder. [Dr. William Crowley testified in
deposition as follows:]
"Q. Would you explain for us in laymen's
terms what you mean by 'manic-depressive
disorder?'
"A. Yes. What I mean by manic-depressive
disorder is that a patient has an in-born
disturbance of their neurophysiology which has
a cyclical basis. Now, it's not clear exactly
why there is a cycle, how the cycle is
regulated, but what happens is that a person's
mood will gyrate sometimes quite rapidly from
being very depressed and immobilized . . ..
They will swing from that side often to the
other side which is more euphoric in some
cases, but not necessarily so because they may
also be in a very irritable state. Now, Mr.
Small is one of the people that, to me,
appears to have much less of the euphoria and
more of the irritable side of the manic state
" 21. The claimant's manic-depressive disorder
predates his July, 1981, industrial accident.
"22. The claimant's manic-depressive disorder is
the result of abnormal body chemistry.
"23. The claimant's inability to work as a result
of his July, 1981, industrial accident aggravated
his preexisting manic-depressive disorder.
"26. The claimant's manic-depressive disorder will
require treatment for the rest of his life . . . .
"28. During an acute episode (a period prior to
and during hospitalization) of his manic-depressive
disorder, the claimant is unable to work.
"29. Life stresses, such as loss of a job, and a
consequent inability to support oneself and family
can aggravate, i.e., cause to become acutely
symptomatic, a manic-depressive disorder.
"30. The claimant has refused to submit to surgery
to repair his ruptured anterior cruciate ligament
because he fears that the surgery will not be
successful, that he will be completely unable to do
any work, that he will have pa.in in his knee during
the recovery period and thereafter and that he
might reinjure his knee during the recovery period.
"31. The claimant's manic-depressive disorder
distorts his judgment; specifically, it causes him
to focus and dwell on the possible detrimental
consequences of the proposed knee sursery to the
exclusion of the probable benefits. The claimant's
disorder significantly impairs his ability to make
a rational decision.
"34. The claimant currently is 30 percent
permanently impaired compared to the loss of the
function of his lower right leg. If the claimant
submitted to knee surgery and it were successful,
then he would be 10-15 percent permanently impaired
compared to the loss of the function of his lower
right leg." (citations to record omitted)
After considering the various authorities and based upon
the foregoing findings, the Workers' Compensation Court
reached the following conclusion:
"The expert medical opinion, as found by this
Court, is that the proposed knee surgery would
enable the claimant to return to work as a welder.
The proposed surgery is relatively low risk. There
exists an excellent prospect that the surgery would
almost completely restore to the claimant the use
of his right knee and that he would be pain free
relatively soon after the operation. The recovery
period immediately after surgery would expose the
claimant to significant pain. If this Court had
only this information before it, then it would have
to conclude that the claimant's refusal to submit
to knee surgery was unreasonable. But this Court
also has before it the claimant's impaired ability
to evaluate the probable benefits of the surgery.
While the factors the Dosen court relied on frame a
bright picture of recovery when woodenly applied to
the facts of this case, the claimant, because of
his manic-depressive disorder, views these same
facts through a glass darkly, and his view, a
subjective view, is the one this Court too must
take. The claimant's mental disorder distorts his
powers of perception, comprehension and judgment
and conscripts his mind with the possibility of
failure, reinjury and pain; his mental disorder
prevents him from evaluating rationally the
benefits of the proposed surgery. Frorn this
perspective, the claimant's refusal to submit to
knee surgery is not unreasonable."
The Workers' Compensation Court then concluded that the
claimant's refusal to submit to knee surgery was not
unreasonable and had not broken the cha.in of causation
between his work-related injury and his current disabling
knee condition.
The standard of review to be applied by this Court in
its review of the conclusion that the claimant reasonably
refused to submit to knee surgery is stated in 1 Larson, The
Law of Workmen's Compensation S13-22 (1982):
'I. . .
most courts will not at present d.isturb a
finding that refusal to submit to the operation is
reasonable, since the question is a complex fact
judgment involving a multitude of variables,
including claimant's age and physical condition,
his previous surgical experience, the ratio of
deaths from the operation, the percentage of cures,
and many others. The matter cannot be determined
automatically - -a matter of medical sFatistics and
as
expert testimony. The surgeon who sees several
operations every day and who testifies that the
chance of fatality is only five percent naturally
has a different ~ o i n t view than the claimant who
of
has never had major operation and might quite
understandably prefer to enjoy life as best he can
with his injury rather than take a one in twenty
chance of being dead . . .."
(emphasis added)
(footnotes omitted)
Defendant argues that section 10.44 of the Montana
Workers' Compensation Manual controls:
"An injured worker is obligated to submit to
reasonable medical treatment for an injury and if
claimant declines to undergo such treatment, the
insurer should be released from obligations to
maintain the claimant."
This section of the manual cites as authority Dosen v.
East Butte Copper Mining Co. (1927), 78 Mont. 579, 254 P.
880. In Dosen this Court stated:
"Notwithstanding the fact that the osteomye1it.i~
in
his leg will continue, eventually causing the loss
of his leg, and possibly his life, claimant always
has stubbornly refused to submit to amputation,
although little danger is to be apprehended from
the operation . . ..
The board could not order
claimant to submit to amputation of the leg, but it
could absolve the company from making the payments
during the period of claimant's obstinate and
unreasonable refusal to submit to the operation
advised by the surgeons in this case." 78 Mont. at
606, 254 P. at 8 8 8 .
The Dosen opinion relied solely upon medical testimony
establishing that the amputation procedure was reasonable and
safe. No evidence of other appropriate factors was
apparently taken or considered. The Court considered the
amputation solely from a medical expert's point of view. It
failed to consider the reasonableness of claimant's refusal
in light of the "multitude of variables" appropriate to this
complex factual determination and therefore failed to
properly determine whether claimant's refusal was reasonable.
Dosen displays a casual disregard of the substantial effects
of surgical treatment which is no longer appropriate under
the Workers' Compensation Law of Montana.
We therefore overrule Dosen. The Workers ' Compensation
Court is required to make the reasonableness determination
based upon a multitude of variables, including the age and
physical condition of the claimant, his previous surgical
experience, ratio of deaths from the operation, the extent
and percentage of cures, and other factors of a similar
nature. This standard was not applied in Dosen. Here, the
Workers' Compensation Court properly considered all evidence
relevant to a determination of whether claimant's refusal to
submit to surgery was reasonable, including evidence of
claimant's manic-depressive disorder and its effect upon his
ability to make a decision regarding surgery. The medical
statistics regarding risk of the operation and likelihood of
success alone are not sufficient to render claimant's refusal
unreasonable.
As a result of the overruling of Dosen, section 10.44 of
the Montana Workers' Compensation Manual no longer is
authority for a denial of benefits under the facts of this
case.
The applicable standard of review is stated in Nielsen
v. Beaver Pond, Inc. (Mont. 1983), 661 P.2d 47, 49, 40
"'Our function in reviewing a decision of the
Workers' Compensation Court is to determine whether
there is substantial evidence to support the
findings and conclusions of that court. We cannot
substitute our judgment for that of the trial court
as to the weight of evidence on questions of fact.
Where there is substantial evidence to support the
findings of the Workers' Compensation Court, this
Court cannot overturn the decision. [citations
.
omitted] ' "
A review of the depositions of the various experts,
including the medical experts, and of the transcript
discloses substantial evidence to support both the findings
and the conclusions of the Workers' Compensation Court. We
therefore affirm the court's holding that claimant is
entitled to permanent total disability even though he refused
to have low-risk surgery. We hold there is substantial
evidence to support both the findings and conclusions of the
Workers' Compensation Court.
We point out that the conclusion of the Workers'
Compensation Court with regard to aggra.vation of a
pre-existing mental condition is in accord with Ridenour v.
Equity Supply Co. (Mont. 1983), 665 P.2d 783, 788, 40 St.Rep.
"It appears we are being asked to distinguish
between a pre-existing condition and a pre-existing
disease. However, there is no such distinction in
the application of the aggravation and acceleration
rule. An employer accepts his employee with all of
his injuries and diseases. We have recognized that
diseases are subject to aggravation or
acceleration."
We approve the finding and conclusion by the Workers'
Compensation Court that claimant's manic-depressive disorder
predisposes him to manage money imprudently and that the
claimant is not entitled to convert into a lump sum award any
of the bi-weekly benefits. The court also concluded there
was a possibility of vocational rehabilitation or other
medical treatment and that a change in the claimant's mental
disorder might create a need for additional proceedings. The
court then pointed out that the parties may petition the
court in the future for adjustment of the award based on a
change of circumstances. This approach wisely protects the
interest of both claimant and defendants.
The judgment is affirmed.
F-77
We concur:
,&
3L,#lwc
Chief Justice