Bass v. Service Pipe Trucking Co., Inc.

• Decision Date: 29 January 1973
• Docket Number: No. 4075,4075
• Citation: 273 So.2d 349
• Parties: Calvin BASS, Plaintiff-Appellant, v. SERVICE PIPE TRUCKING COMPANY, INC., et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 349

273 So.2d 349

Calvin BASS, Plaintiff-Appellant, v.SERVICE PIPE TRUCKING COMPANY, INC., et al., Defendants-Appellees.

No. 4075.

Court of Appeal of Louisiana, Third Circuit.

Jan. 29, 1973.

Rehearing Denied Mar. 7, 1973.

Writ Granted May 7, 1973.

Drewett & Jacques, by Robert T. Jacques, Jr., Lake Charles, for plaintiff-appellant.

Davidson, Meaux, Onebane & Donohoe, by L. Lane Roy, Lafayette, for defendant-appellee.

Before FRUGE , HOOD and DOMENGEAUX, JJ.

HOOD, Judge.

This is a workmen's compensation suit instituted by Calvin Bass against Service Pipe Trucking Company, Inc., and the latter's insurer, Employers Mutual Liability Insurance Company of Wisconsin.Defendants tendered to plaintiff the surgery which is needed to repair his injury, but plaintiff refused that tender.Judgment was rendered by the trial court ordering that plaintiff submit to surgery for the repair of his injury within 45 days from the date of that judgment or, in default thereof, that compensation payments cease.Plaintiff appealed.

The sole issue presented is whether plaintiff was unreasonable in refusing the tender of surgery by defendants.

Plaintiff sustained an injury to his right knee on September 22, 1971, while working for Service Pipe Trucking Company.The injury was diagnosed as a deranged or torn medial meniscus.Dr. George P. Schneider, an orthopaedic surgeon, treated plaintiff for that injury, and he is the only medical expert whose testimony appears in the record.His views thus are uncontradicted.

Dr. Schneider feels that the injury is disabling, and that plaintiff will continue to be disabled unless and until his knee injury is repaired.He believes, however, that the injury can be repaired by surgery, consisting of the removal of the cartilage in that knee.A general anesthetic would be required in performing such an operation, and plaintiff would have to be hospitalized for a period of from five to seven days following surgery.Dr. Schneider recommends this surgery, and he feels confident that it will relieve plaintiff of his disability and will enable him to return to heavy manual labor in approximately four months after the operation.

Plaintiff sustained a similar injury to his left knee in 1966, and shortly thereafter that injury was repaired surgically by Dr. Schneider.The surgery performed at that time resulted in plaintiff's complete recovery from that knee injury, and in due course following the operation he returned to hard manual labor.Dr . Schneider recommends that the same type operation be performed on plaintiff's right knee at this time, and he feels that the same results should be achieved now as were accomplished in the earlier operation.

In Duplechien v. States Exploration Company, 94 So.2d 460(La.App. 1 Cir.1957), the First Circuit Court of Appeal held that the following tests should be applied in determining whether an injured employee should be required to submit to treatment or surgery, under penalty of forfeiture of compensation benefits:

'(1) Can the operation reasonably be expected to relieve the legal disability?

(2) Will it cause the claimant a minimum of danger to his life and a minimum of pain?; and

(3) Is there substantial agreement among all medical witnesses testifying as to the necessity for the operation and the probability that the disability will be cured without recurrence?'

Substantially the same tests were applied in Borders v. Lumbermens Mutual Casualty Company, 90 So.2d 409(La.App. 1 Cir.1956);Hamilton v. New Amsterdam Casualty Company, 208 So.2d 158(La.App. 4 Cir.1968);Desormeaux v. American Mutual Liability Insurance Company, 224 So.2d 198(La.App. 3 Cir.1969);andCoine v. Smith, 100 So.2d 902(La.App. 1 Cir.1958).

The uncontradicted testimony of Dr. Schneider is to the effect that the surgery recommended by him can reasonably be expected to relieve the legal disability, and that it will enable plaintiff to return to the same type of work he was performing at the time the accident occurred.There is no disagreement with Dr. Schneider's testimony that the surgery recommended is necessary, and that if such surgery is performed it is probable that the disability will be cured without recurrence.Most of the conditions needed to meet the above mentioned tests thus are present here.Plaintiff contends, however, that the operation recommended will subject him to more than a 'minimum of danger to his life,' and that it will be attended by more than a 'minimum of pain.'He argues, therefore, that his refusal to submit to surgery is not unreasonable .

Dr. Schneider classified the operation which was tendered to plaintiff as being major surgery, and he stated that it would have to be performed under a general anesthetic.We understand his testimony to be that there is no particular danger or risk associated with the operation other than the hazard which accompanies the administering of a general anesthetic.He stated that 'actually there's danger with any type of anesthesia,' and that this operation 'carries the hazards of any operation under a general anesthetic.'Plaintiff argues that the danger associated with a general anesthetic is sufficient to justify his refusal to submit to the surgery.

In Duplechien v. States Exploration Company, supra, the court held 'that in this particular case the risk of death or danger through use of general anesthesia is not substantial enough so as to excuse the employee's continued refusal to submit to surgery after a final judicial assessment of the risk as such.'The Fourth Circuit Court of Appeal said in Hamilton v. New Amsterdam Casualty Company, supra, that 'the risk of danger through the use of a general anesthetic is not so substantial as to excuse a claimant's refusal to undergo surgery.'And, in Fredieu v. Mansfield Hardwood Lumber Company, 53 So.2d 170(La.App. 2 Cir.1951), where the same type of injury and the same surgical procedure recommended here were involved, the court required the injured employee to submit to the surgery which was tendered in spite of the fact that it was to be performed under a general anesthetic, and that 'the only danger involved related to the administering of anaesthetic.'

In the instant suit Dr. Schneider recommends surgery on plaintiff's knee without 'any hesitation.'He stated that he would be willing to perform such an operation, that he has performed hundreds of other similar operations, and that he would 'expect a...