Desormeaux v. American Mut. Liability Ins. Co.

• Decision Date: 12 June 1969
• Docket Number: No. 2709,2709
• Citation: 224 So.2d 198
• Parties: Curtis DESORMEAUX, Plaintiff-Appellant, v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 198

224 So.2d 198

Curtis DESORMEAUX, Plaintiff-Appellant, v.AMERICAN MUTUAL LIABILITY INSURANCE COMPANY et al Defendants-Appellees.

No. 2709.

Court of Appeal of Louisiana, Third Circuit.

June 12, 1969.

J. Minos Simon and John Rixie Mouton, Lafayette, for plaintiff-appellant.

Mouton, Roy, Carmouche & Hailey, by Harmon F. Roy, Lafayette, for defendants-appellees.

Before FRUGE , SAVOY, and CULPEPPER, JJ.

FRUGE , Judge.

This is an appeal by the plaintiff, Curtis Desormeaux, from a judgment awarding him total and permanent compensation benefits, but conditioning payment on his submission to treatment and possible surgery in an attempt to alleviate his disability.

Plaintiff suffered injury to his left hand, the condition of which, at time of trial, was that he had a well-healed fracture involving the third metacarpal shaft of the left hand and he had a 'stenosing tenosynovitis' to the flexor tendon of the long finger.In more understandable terms, the 'tenosynovitis' is an inflammation of the sheath around the tendon.The 'stenosing' denotes a closing of the sheath over the tendon or a reduction of the space in which is located a tendon.According to the medical testimony in the record, plaintiff's condition can be aided by treatment, or surgery, the only question being as to the method and time necessary for such treatment.

The medical evidence in the record consisted mainly of the testimony of Dr. Blaise Salatich and Dr. Ray J. Haddad, both orthopedists.On plaintiff's behalf, Dr. Salatich testified that plaintiff was totally incapacitated from work of a nature to which he was accustomed.He recommended conservative treatment in the form of physiotherapy administered for a sufficiently long period of time.Should this fail he would resort to surgery.

Dr. R. J. Haddad, testifying on behalf of defendants, recommended injections of steriod-cortisone at the site of inflammation and difficulty for a period of six weeks to two months.In the event that this treatment did not cure plaintiff's condition, he would recommend that plaintiff undergo what he considered to be a minor surgical procedure, four to six weeks after which he believed plaintiff could be returned to work.

The trial court accepted the recommendations involving the injections and possible surgery, over that of the physiotherapy method, simply because it chose to give more weight to the testimony of Dr. Haddad over that of Dr. Salatich.Based upon its acceptance of Dr. Haddad's recommendation it conditioned plaintiff's award as follows:

1.It was ordered that plaintiff submit to the treatment recommended by Dr. Haddad, said treatment to be performed by Dr. Haddad or other doctor of defendants' choice.The treatment was to begin no later than February 17, 1969, or sooner, by agreement of counsel.If plaintiff refused to submit, defendants could cease payment of benefits.

2.A period not to exceed four months was granted from the commencement of treatment for the purpose of determining whether or not the treatment would alleviate plaintiff's condition without surgery.

3.If on or before the expiration noted above, Dr. Haddad or other physician performing the treatment indicated that surgery as indicated in the record would become necessary, then the plaintiff was to submit to said surgery within thirty days of receipt of the report or letter from the physician.The period could be extended by the court for cause.Surgery would be performed by surgeon of plaintiff's choice.

4.The defendants were reserved the right to show that by reason of the treatment, or surgery, that plaintiff's disability no longer exists, and that compensation should cease.

5.If surgery was indicated as necessary, and plaintiff refused to submit to such under the terms and conditions indicated by the judgment, then defendants were authorized to discontinue payments.

Plaintiff complains in his appeal that the court committed error in selecting the more radical treatment of injection and possible surgery, recommended by Dr. Haddad, over the somewhat more conservative approach of Dr. Salatich, and by holding that plaintiff might forfeit his compensation benefits if he does not submit to the treatments advocated by defendants' witness.

The jurisprudence of our state is uniform to the effect that while the courts may not compel an injured employee to submit to certain treatment or surgery, the courts may order compensation payments withheld from an employee who unreasonably refuses to submit to treatment or surgery which will remove his disability.Borders v. Lumbermens Mutual Casualty Company, 90 So.2d 409(La.App.1st Cir., 1956), and citations therein.

In view of the above, the sole issue remaining is whether the trial court committed error in burdening the receipt by plaintiff of compensation benefits with the conditions noted above.

In considering the propriety of the trial court's ruling, we note that our jurisprudence has established three tests to be applied in determining whether an employee should be required to undergo treatment or surgery under penalty of forfeiting his compensation benefits.

(1) Can the treatment or surgery reasonably be expected to relieve the disability?

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

(3) Is there substantial agreement among all medical witnesses as to the necessity of the treatment or operation and the possibility that the disability will be cured without reoccurrence?

Hamilton v. New Amsterdam Casualty Company, 208 So.2d 158(La.App.4th Cir., 19...