Borders v. Lumbermens Mut. Cas. Co.

• Decision Date: 06 October 1956
• Docket Number: No. 4247,4247
• Citation: 90 So.2d 409
• Parties: Roy Lee BORDERS, Plaintiff-Appellant, v. LUMBERMENS MUTUAL CASUALTY CO., Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 409

90 So.2d 409

Roy Lee BORDERS, Plaintiff-Appellant, v.LUMBERMENS MUTUAL CASUALTY CO., Defendant-Appellee.

No. 4247.

Court of Appeal of Louisiana, First Circuit.

Oct. 6, 1956.

Rehearing Denied Nov. 26, 1956.

Writ of Certiorari Denied Jan. 21, 1957.

H. Alva Brumfield, Baton Rouge, for appellant.

Durrett & Hardin, Baton Rouge, for appellee.

TATE, Judge.

The plaintiff was injured on November 1, 1954, in an accident which resulted in a crushing of the index finger of his right hand.Compensation was paid, voluntarily, until July 25, 1955, but after that date no further payments were made.Upon the trial it was stipulated that plaintiff Borders was disabled from doing the kind and character of work which he was pursuing at the time of the accident, and further that compensation payments were terminated because Borders declined to submit to an operation.

The judgment of the District Court decreed that plaintiff is to receive no additional compensation beyond July 25, 1955, 'unless within a reasonable time, not to exceed one year from the date of this judgment, plaintiff submits to an operation for amputation of all or a part of the index finger of his right hand by Dr. Thomas Campanella or by any other competent surgeon chosen by plaintiff and approved by defendant.'The judgment further decreed that if plaintiff should submit to the operation his rights to recover additional compensation and medical expenses are reserved.Plaintiff devolutively appeals from this judgment.

The sole question is whether Borders' refusal to submit to the operation tendered by the employer was reasonable.For while the jurisprudence cited below is uniform to the effect that the courts may not compel an injured employee to submit to surgery, it also supports the principle that the courts may order compensation payments withheld when an employee unreasonably refuses to submit to surgery which will remove his disability.

The able District Court summarized the criteria of whether an injured employee's refusal to submit to operative procedure is reasonable or not, as follows:

1.Can it be reasonably assumed that the operation will relieve the situation 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?

Both parties concurred with this summary of the applicable law, which indeed is supported by the following jurisprudence, inter alia: Simmons v. Blair, 194 La. 672, 194 So. 585;Turner v. Southern Industries Company, La.App. 1 Cir., 88 So.2d 238;Ashworth v. Calcasieu Paper Company, La.App. 1 Cir., 85 So.2d 681;Clements v. Liberty Mutual Insurance Company, La.App. 1 Cir., 85 So.2d 675;Ebarb v. Southern Industries Company, La.App. 1 Cir., 78 So.2d 553, Per Curiam on rehearing, 78 So.2d 560;French v. Employers Mutual Insurance Company, La.App., 70 So.2d 179;Johnson v. United States Fidelity & Guaranty Company, La.App., 58 So.2d 261, 263;Fredieu v. Mansfield Hardwood Lumber Company, La.App., 53 So.2d 170;Powers v. Allied Chemical & Dye Corporation, La.App. 1 Cir., 45 So.2d 214;Leday v. Lake Charles Pipe & Supply Company, La.App. 1 Cir., 185 So. 655.

Three medical witnesses testified in this case: Doctors Chester A. Williams(general practitioner) and Thomas Campanella(orthopedist), called by plaintiff; Dr. George Azar(surgeon), called by defendant.

These three doctors agreed that Borders could not perform the duties of ironworker with the present condition of the injured right index finger, which is atrophied in part, swollen in part, and fixed in a claw position; it has reached maximum improvement without the intervention of surgery.They further agreed that all or part of this finger should be removed, as useless and in the way of use of the hand, whether or not Borders was engaged in manual labor; that the operation was of minimum pain and danger, and performed under local (rather than general) anesthesia; and that the prognosis of improvement was of reasonable certainty.

Dr. Azar believed that with the operation there is a 'reasonable certainty of returning to the position he occupied prior to the injury.'

Dr. Williams stated: 'Barring any complications or residual from amputation, I think he could probably go back to work as an ironworker.I'm sure that there are ironworkers that have fingers off, and other things being equal, he probably could.Now, whether he would be as good a risk or not on the job, I can't say.The index finger is a very important finger of course.I think he could probably hold down a job as an ironworker, but the only way to see is rather ambiguous, is to try him at it, so to speak.'

Dr. Campanella testified that after amputation: 'He still will have a permanent loss of that finger and naturally that's a key finger, for that reason we give it a twenty-four value, but he would have to rehabilitate himself and let the third finger do the work of the index finger.He may take a considerably longer time for that adjustment, but eventually I think that he could perform any duties that he would train himself to do, even ironworker.'

The only other witnesses to testify, aside from Borders himself, were five experienced ironworkers, including the business manager of plaintiff's union responsible for assigning ironworkers to various jobs.Their testimony was uniform to the effect that an ironworker's right hand is most important in performance of his duties, which require him to climb up as high as 80 feet, using only hands and legs on the 'web' of the iron, and to cling to the iron beams, where he is supposed to be able to handle the various wrenches and tools, to do feats of strength, and not to drop these tools.

Every single lay witness testified that a man with a missing index finger or a missing part of an index finger cannot perform the duties of an ironworker, and that he would be a danger to himself and to his co-workers.They testified without exception that certain ironworkers with missing fingers (who had testified in the Powers case, see below) were used on crews only to perform lighter and non-climbing duties.The business agent (Melton) testified that room was made for these crippled men, but that often such amputees could not get employment when light duties were unavailable, since they could not perform substantial functions of the ironworkers' trade.

If this lay testimony is correct and can be accepted as determinative, it is apparent that were we faced with the determination of the degree of plaintiff's disability after an operation amputating his index finger, we would have to hold plaintiff permanently and totally disabled under the record before this court.SeeBrannon v. Zurich General Accident & Liability Insurance Company, 224 La. 161, 69 So.2d 1, where a carpenter able to perform only the lighter or non-climbing duties of his trade, for whose services consequently there was less market due to the residual from the accident, was held to be totally and permanently disabled within the meaning of the compensation act.

In Newsom v. Caldwell & McCann, La.App., 51 So.2d 393, this court in an opinion written by our distinguished predecessor, Judge Dore, had occasion to pass upon a very similar question.Newsom was an ironworker with a slight (10%) residual disability of the leg.Both doctors testifying thought that this residual disability should not prevent a return to the job.This court found Newsom disabled in view of the testimony of the lay witnesses, other ironworkers, that a man with this disability was dangerous to work with, and in view of plaintiff's own fear of injury due to this weakness.

Regarding the doctors' feeling that upon a return to work, the injured employee Should be able to compensate for his weakness, Judge Dore commented, 51 So.2d 397:

'If, however, plaintiff cannot go back to climbing steel structures, either because of a fear on his part that climbing would endanger his life or because of a similar fear on the part of employers, then he will never have an opportunity to 'regain his function', and the opinion by the doctor that his efficiency would increase after he returned to the job becomes meaningless and of no value.'

Further, Dr. Williams frankly admitted that the degree of risk to himself and others involved in a finger-amputee's attempting to perform the climbing duties of an ironworker was 'hardly even a medical question.I think a layman could make that opinion.'As Judge Dore stated in the Newsom case, 51 So.2d 393, at page 397:

'The court can take cognizance of the fact that when doctors express opinions on such a subject as this their opinions are not fortified by experience such as has been had by the men who have for years climbed and straddled the steel girders.'

Defendant-appellee in most able brief and oral argument urge that this Court in Powers v. Allied Chemical & Dye Corporation, La.App., 45 So.2d 214, has ruled that an ironworker is not disabled from performing the duties of his trade by an amputated index finger.It is true that the very able and distinguished Judge Ad Hoc Fruge held under the facts and circumstances of that case, and based Upon the record before the court in that case, that such a determination by the trial court therein was not manifestly erroneous.

It is of some interest that in the Powers case, the lower court and ourselves relied upon the testimony of Messrs. Nesom, Ellis, and Norman, ironworkers with amputated fingers who testified they were performing the duties of their trade without difficulty.The lay witnesses testifying in the present case(under...