Aranda v. D. A. & S. Oil Well Servicing, Inc.
| Decision Date | 09 February 1982 |
| Docket Number | No. 5119,5119 |
| Citation | 1982 NMCA 35,98 N.M. 217,647 P.2d 419 |
| Court | Court of Appeals of New Mexico |
| Parties | Elizardo ARANDA, Plaintiff-Appellant, v. D. A. & S. OIL WELL SERVICING, INC., Employer and Employers Casualty Company, Insurer, Defendants-Appellees. |
Plaintiff appeals from a judgment rendered in a workmen's compensation case. We affirm in part and reverse in part.
The court found that plaintiff was employed as a derrick hand and well service employee who suffered an accidental injury on April 23, 1979. His foot was caught and he fell backwards striking his back against the ground resulting in temporary total disability. Defendants paid plaintiff compensation until July 16, 1980. Payments terminated due to plaintiff's refusal to accept medical testing and treatment indicated by a myelogram, electromyelographic study and nerve conduction studies. The court considered this refusal to be arbitrary and unreasonable.
Dr. Maldonado wanted to do additional testing to determine the cause or causes of plaintiff's condition and to determine what treatment would help him. He would be 100% disabled for life and never know what, if any, treatment would help him become a productive member of society.
The myelogram is a standard and proper diagnostic tool for evaluating both scar tissue and the possibility of a reherniation of a disc. The milder complications of a myelogram such as headaches, nausea, vomiting, dizziness occur approximately 25% of the time and are usually shortlived. The more serious complications occur less than half of one percent of the time. Without additional testing, it was not possible to determine at this time the cause of plaintiff's increased symptomatology.
A myelogram would be a reasonable and proper next step in the treatment of plaintiff and is reasonably necessary to promote his recovery.
The court further found:
21. If Plaintiff does not submit to a repeat myelogram within six months from the date of entry hereof, then, in that event, at the end of six months after the date of entry, the payments of compensation to which Plaintiff is otherwise entitled to from that time forward shall be reduced by fifty percent subject to the further order of the Court.
Additional findings were made on attorney fees and rehabilitation.
In its judgment, the trial court ordered plaintiff to submit "to a repeat myelogram within six months" and if plaintiff failed to do so, payments of compensation shall be reduced by 50%. The trial court is mistaken. Section 52-1-51, N.M.S.A.1978, in one portion thereof, reads:
If any workman * * * shall refuse to submit to such medical or surgical treatment as is reasonably essential to promote his recovery, the court may in its discretion reduce or suspend his compensation. (Emphasis added.)
Defendants contend, in other words, the court may exercise its discretion and reduce compensation if (1) a myelogram is a "medical or surgical treatment" and (2) it "is reasonably essential to promote his (plaintiff's) recovery."
1) A myelogram is a medical or surgical treatment.
Dr. Frank Maldonado, an orthopedic surgeon, designated by defendants to treat plaintiff, described a myelogram as follows:
The patient is taken to the Radiology Suite, usually as an in-patient in a hospital. A spinal puncture is done, which is placing a needle into the spinal canal. Some * * * spinal fluid is withdrawn * * * sent to the laboratory, and a medium is placed into the spinal canal. The medium is a clear-looking liquid * * * causes a different opacity in the x-ray * * * is manipulated inside the spinal canal * * * and radiographs are taken in many different projections * * * we were using a water-soluble medium so it absolved by itself.
He then testified that "It's primarily a diagnostic procedure."
This procedure is described by definition of "myelography" in Escobedo v. Agriculture Products Co., Inc., 86 N.M. 466, 525 P.2d 393 (Ct.App.1974). The court said:
The evidence supports the inference that the myelogram would be performed in a hospital and would require both a surgeon and a radiologist. Accordingly, we consider myelography to be in the nature of a surgical procedure. (Id. 470, 525 P.2d 393.)
The trial court found that a myelogram is a standard procedure that "would assist the doctors in diagnosing the cause of the Plaintiff's present complaints." Black's Law Dictionary (Revised Fourth Edition 1968), p. 540 defines "diagnosis" as:
A medical term, meaning the discovery of the source of a patient's illness or the determination of the nature of his disease from a study of its symptoms. Said to be little more than a guess enlightened by experience.
It is quoted in Reams v. State, 279 So.2d 839 (Fla.1973).
People v. Cantor, 198 C.A.2d Supp. 843, 18 Cal.Rptr. 363, 365 (1961) says:
Diagnose is defined by Stedman's Medical Dictionary, 18th Ed. (1953) p. 381: "To determine the nature of a disease; to make a diagnosis", and "diagnosis" is "The determination of the nature of a disease. * * * " "Disease" is defined as "illness, sickness * * *, or an abnormal state of the body as a whole, continuing for a longer or shorter period." (Id. 395.)
In other words, a myelogram is a standard surgical procedure that would assist doctors in discovering the source of plaintiff's illness or sickness, or, from a study of the symptoms, a determination of the nature of his disease. It has been generally held that a myelogram is a "medical or surgical treatment." Provident Life and Accident Insurance Co. v. Hutson, 305 S.W.2d 837 (Tex.Civ.App.1957), 65 A.L.R.2d 1443 (1959); McKay v. Bankers Life Company 187 N.W.2d 736 (Iowa 1971); Mutual Life Ins. Co. of New York v. Bishop, 132 Ga.App. 816, 209 S.E.2d 223 (1974), (dissenting opinion); Aetna Life Ins. Co. v. Scarborough, 556 S.W.2d 109 (Tex.Civ.App.1977); Barkerding v. Aetna Life Ins. Co., 82 F.2d 358 (5th Cir. 1936); Order of United Commercial Travelers v. Shane, 64 F.2d 55 (8th Cir. 1933).
These cases involve insurance policies which deny its benefits for any loss to which a contributing cause is "medical or surgical treatment."
In Provident Life, a doctor performed a pneumoencephalogram. It consists of making a spinal puncture in the lower lumbar region of the spine. A small amount of spinal fluid is removed and replaced with oxygen or air which arises and enables the ventricles of the brain to be x-rayed. It was a diagnostic test made to determine with greater accuracy the patient's physical condition and the cause thereof. The court said:
We have concluded that the appellant is correct and we hold that the performance of the pneumoencephalogram under the circumstances shown above, constitutes medical and surgical treatment, as a matter of law. (305 S.W.2d 839.)
A myelogram is a similar surgical procedure. It falls within the category of medical and surgical treatment.
(2) A repeat myelogram is not essential to promote plaintiff's recovery.
The definition of "promote" includes "to further; to advance." People v. Augustine, 232 Mich. 29, 204 N.W. 747 (1925). "Essential" means "indispensably necessary; important in the highest degree; requisite." Pittsburgh Iron & S. Foundries Co. v. Seaman-Sleeth Co., 236 F. 756 (D.C.Pa.1916). The question is:
Is a myelogram indispensably necessary to advance plaintiff's recovery? We believe not.
Dr. Maldonado was asked this question to which he made this answer:
Q. Does a myelogram itself in any way promote recovery itself?
A. No.
The reason is obvious. A myelogram indicates the source, if any, of the patient's illness. This indication, if shown, does not promote plaintiff's recovery. Its value depends upon any results shown. The radiologist or surgeon does not know what the results will be. The trial court did not order plaintiff to submit to any medical or surgical treatment that might be indicated by the results.
On June 8, 1979, Dr. Maldonado did the first myelogram and some other studies. It showed a deformity at the bottom joint of the spine on the left side. He felt plaintiff had a herniated disc and performed a lumbar discectomy, a spinal operation, on July 5, 1979. As of July 1, 1980, a year later, plaintiff remained totally disabled. Dr. Maldonado suggested a repeat myelogram and other studies to determine if there was a problem and, if so, how to help him. If not, Dr. Maldonado had to make a decision "that it's time to go to work." Dr. Maldonado's services ended and nothing further was done.
Dr. Zigmond Kosicki, an orthopedic surgeon, testified that if the second myelogram showed instability of the spine, a spinal fusion was the only alternative for surgical treatment, a major operation. A second fusion operation required when the first fusion does not work, increases the risks.
We find nothing in the record to support the trial court's finding "That additional testing of plaintiff is reasonably necessary to promote his recovery." We find nothing presented by defendants that a repeat myelogram is essential to promote plaintiff's recovery, nor the right of the court to exercise its discretion. The logical conclusion is that the trial court may not exercise its discretion to reduce plaintiff's compensation.
Defendants state:
Whether a myelogram is included in the statutory term "such medical or surgical procedure" is a question of law. Casados v. Montgomery Ward & Company 78 N.M. 392, 432 P.2d 103 (1967); Malone v. Swift Fresh Meats Company, 91 N.M. 359, 363, 574 P.2d 283 (1978).
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