Brooks v. Hobbs Municipal Schools

• Decision Date: 16 August 1984
• Docket Number: Nos. 7582,7587,s. 7582
• Citation: 688 P.2d 25,1984 NMCA 88,101 N.M. 707
• Parties: Betty Sue BROOKS, Plaintiff-Appellant and Cross-Appellee, v. HOBBS MUNICIPAL SCHOOLS and Employers National Insurance Company, Defendants- Appellees and Cross-Appellants.
• Court: Court of Appeals of New Mexico

Page 25

688 P.2d 25

101 N.M. 707

Betty Sue BROOKS, Plaintiff-Appellant and Cross-Appellee, v. HOBBS MUNICIPAL SCHOOLS and Employers National Insurance Company, Defendants- Appellees and Cross-Appellants.

Nos. 7582, 7587.

Court of Appeals of New Mexico.

Aug. 16, 1984.

W. Gilbert Bryan, Bryan & Fischer, Hobbs, for plaintiff-appellant and cross-appellee

J.W. Neal, Neal & Neal, Hobbs, Sasha Siemel, Sutin, Thayer & Browne, Albuquerque, for defendants-appellees and cross-appellants.

OPINION

BIVINS, Judge

In this worker's compensation case plaintiff Brooks appeals from a judgment reducing her compensation benefits by 50% because of refusal to submit to medical or surgical treatment. Defendants cross-appeal the award of attorney fees on the basis that Brooks was unsuccessful. Because the defendants were voluntarily paying compensation benefits at the time they petitioned the trial court to terminate Brooks' benefits for refusal to submit to medical or surgical treatments, we requested counsel to brief the question as to whether the trial court had jurisdiction to entertain defendants' petition.

The issues presented raise questions of statutory construction under the Workmen's Compensation Act, NMSA 1978, Secs. 52-1-1 to -69 (Orig.Pamp. and Cum.Supp.1984). The issues are:

(1) Did the trial court have jurisdiction to consider defendant's petition to terminate Brooks' benefits? If so,

(2) Did the trial court err in finding Brooks' refusal to submit to medical or surgical treatment unreasonable?

(3) Since Brooks suffered a reduction in benefits as a result of that refusal, can she nevertheless recover attorney fees?

We answer these issues by holding that the trial court did have jurisdiction, that it erred in finding Brooks' refusal to submit unreasonable, and because this holding justifies an award of attorney fees, we do not reach the third issue but remand for a hearing on attorney fees in light of Brooks' success on appeal.

FACTS

Brooks suffered an injury to her lower back in February 1979, while working as a cook for defendant Hobbs Municipal Schools. In December 1980, pursuant to a stipulation, the trial court entered an order requiring that compensation be brought current from the date of the accident, and that Brooks submit to a myelogram and other necessary care by Dr. Maldonado. The order dismissed Brooks' complaint without prejudice.

In February 1981, Brooks submitted to a myelogram which revealed a probable herniated disc at the L4-5 level. Dr. Maldonado recommended a diskectomy, which Brooks refused. She later saw Dr. Altman, an orthopedic surgeon in Albuquerque, who also offered Brooks medical treatment to relieve her pain. Dr. Altman suggested chemonucleolysis. Again Brooks refused. Defendants' motion to terminate benefits followed.

1) Jurisdiction.

At the time defendants filed their motion to terminate benefits, there was no pending action and no judgment determining disability and awarding future compensation to Brooks; only the order of dismissal filed in December 1980. Recognizing a potential problem, counsel for defendants brought the question of jurisdiction to the attention of the trial court as the first order of business at the hearing on the motion to terminate benefits. The parties stipulated and the trial court agreed that the hearing could proceed either as a reopening of the order of dismissal or as a complaint for declaratory judgment.

Because of this court's concern that the trial court may have lacked jurisdiction to reopen, see Elwess v. Elwess, 73 N.M. 400, 389 P.2d 7 (1964), we raised the question during the calendaring process on our own motion, see Pacheco v. Pacheco, 82 N.M. 486, 484 P.2d 328 (1971), and asked the parties to brief the issue. The parties complied and we are now satisfied the trial court did have jurisdiction to proceed as it did.

Although this court in Glover v. Sherman Power Tongs, 94 N.M. 587, 613 P.2d 729 (Ct.App.1980), held that, except in rare circumstances, any judgment for compensation in a worker's compensation case may be reopened during the remainder of the statutory period for the purpose of requesting an increase or decrease in compensation benefits, we do not rest our decision on that case. Unlike Glover there has never Nor do we base our decision on the Declaratory Judgment Act, NMSA 1978, Secs. 44-6-1 to -15, although arguably that Act could be made to apply through NMSA 1978, Civ.P.R. 57 (Repl.Pamp.1980) and NMSA 1978, Sec. 52-1-34.

been a prior judgment awarding future compensation or, for that matter, any determination of disability. Thus, NMSA 1978, Sec. 52-1-56 does not apply here.

We do not need to look beyond the worker's compensation act for authority. The parties argue, and we agree, that NMSA 1978, Sec. 52-1-51, the statute under which Brooks' compensation was reduced, implicitly contemplates the very procedure followed in this case. Section 52-1-51 provides that an employer is entitled to require a physical examination of a claimant before or after a claim has been filed or an award of compensation made. If a worker refuses to submit to such medical or surgical treatment as is reasonably essential to promote his or her recovery, the court may in its discretion reduce or suspend compensation. Id. Implicit in this section is the jurisdiction of the district court to entertain defendants' motion to terminate compensation even though no claim for or award of future disability compensation was before the court. Section 52-1-56(A) provides that a district court "in which any workman has been awarded compensation" may order an increase, diminution, or termination of compensation based on changes in the claimant's condition. Had the legislature wished to put such language in Section 52-1-51, requiring that compensation have been awarded before a reduction may be made, it could easily have done so. It did not. The Workmen's Compensation Act must be construed liberally to give effect to its benevolent purpose in favor of the worker. Glover. To hold that the court has no jurisdiction under Section 52-1-51 until the worker has been forced to file a claim because the employer has reduced or terminated compensation would not be construing the act in favor of the worker.

As defendants state, their "decision to go to court rather than preemptorily reduce or terminate benefits to induce a claim by plaintiff accords with the spirit of the workmen's compensation act, and the court's power to hear that petition exists in the letter and spirit of that act." We commend defendants' actions and, by interpreting Section 52-1-51 as we do, encourage that practice.

We now turn to the merits of Brooks' appeal.

2. Refusal of medical or surgical treatment.

Section 52-1-51 provides in part:

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.

Interpreting this provision, Rhodes v. Cottle Construction Co., 68 N.M. 18, 357 P.2d 672 (1960) states:

An employee may not be denied compensation because of his failure or refusal to accept medical treatment unless it be shown that such refusal was arbitrary and unreasonable.

68 N.M. at 23, 357 P.2d 672 (citation omitted). Thus, the question of whether refusal to submit to medical treatment should result in a reduction or suspension of compensation turns on a determination of whether the refusal is reasonable.

The trial court found that "[p]laintiff's refusal to undergo ... medical treatment is unreasonable." Whether refusal of medical treatment is arbitrary and unreasonable is a question of fact. The issue on appeal therefore is whether the court's finding that Brooks' refusal was unreasonable is supported by substantial evidence. Escobedo v. Agriculture Products Co., 86 N.M. 466, 525 P.2d 393 (Ct.App.1974). On appeal, the court will view the evidence, together with all inferences reasonably deducible therefrom, in the light most favorable to support the findings of the court. In order to determine whether a worker has acted reasonably in refusing medical or surgical treatment, a trial court necessarily balances risks against benefits. This involves weighing the probability that the treatment will reduce the worker's disability by a significant amount against the probable risks associated with the treatment. A. Larson, The Law of Workmen's Compensation Sec. 13.22 (1982). We recognize that there may be instances where the risks may be so great that the trial court would be justified in refusing to compel medical or surgical treatment no matter what benefits might be obtained. As noted in Fowler v. W.G. Construction Co., 51 N.M. 441, 188 P.2d 160 (1947), if the operation is of a major character and attended by serious risk, the rule is that an injured employee's refusal is not unreasonable. We discuss the risks and the benefits to determine whether the record will support a finding that Brooks' refusal was arbitrary and unreasonable.

Gonzales v. Bates Lumber Co., 96 N.M. 422, 631 P.2d 328 (Ct.App.1981).

a. The Risks.

Although the parties introduced a number of depositions which antedate the myelogram, the primary evidence before the trial court consisted of Brooks' testimony, the deposition of Dr. Altman, and medical reports of Dr. Maldonado and Dr. Maier. Dr. Maldonado, in his medical reports which were admitted into evidence, recommended a diskectomy. The surgical procedure is described in 1 J. Schmidt, Attorneys' Dictionary of Medicine D-90 (1984) as "the surgical excision (cutting out) of all or part of an intervertebral disk (a disk of cartilage between two adjacent vertebrae)." Dr. Maldonado did not describe the risks; however, Dr. Altman does. He also explains the difference between a diskectomy and chemonucleolysis, an alternative procedure which he preferred.

According to Dr. Altman, chemonucleolysis involves injecting dye into the disc...