Escobedo v. Agriculture Products Co., Inc.

• Decision Date: 26 June 1974
• Docket Number: No. 1344,1344
• Citation: 86 N.M. 466,525 P.2d 393,1974 NMCA 63
• Parties: Roberto F. ESCOBEDO, Plaintiff-Appellant, v. AGRICULTURE PRODUCTS CO., INC., and American Employer's Insurance Company, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 393

525 P.2d 393

86 N.M. 466

Roberto F. ESCOBEDO, Plaintiff-Appellant, v. AGRICULTURE PRODUCTS CO., INC., and American Employer's

Insurance Company, Defendants-Appellees.

No. 1344.

Court of Appeals of New Mexico.

June 26, 1974.

Rehearing Denied July 16, 1974.

Glenn B. Neumeyer, Sosa & Neumeyer, Las Cruces, for appellant

Edward E. Triviz, Las Cruces, C. Fincher Neal, Neal & Neal, Hobbs, for appellees.

OPINION

WOOD, Chief Judge.

Plaintiff's appeal in this workmen's compensation case raises issues concerning: (1) refusal of medical services; (2) a gap in compensation benefits; (3) cost of a deposition; (4) reexamination of plaintiff and doctor-patient privilege; and, (5) attorney fees.

Refusal of medical services.

The trial court found that plaintiff 'has suffered and is suffering a total temporary disability' as a result of a compensable injury on December 31, 1970. The trial court also found that plaintiff 'has refused and refuses to submit to a myelogram or to any medical or surgical treatment that might be indicated by the results thereof.' It found that the myelogram and treatment indicated by the results of the myelogram 'is reasonably essential to promote Plaintiff's recovery, and which would probably reduce Plaintiff's disability to fifteen percent (15%) of the body as a whole.'

On the basis of the above findings, the trial court directed that compensation payments for temporary total disability be resumed on entry of judgment. It also directed plaintiff to submit to a myelogram and treatment indicated by the result of the myelogram. It ruled that if plaintiff failed to comply with the trial court's directive, compensation benefits were to be reduced to a fifteen percent (15%) permanent disability of the body as a whole.

Section 59--10--20, N.M.S.A. 1953 (Repl.Vol. 9, pt. 1) states 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 language, Rhodes v. Cottle Construction Company, 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.' There is no express finding that plaintiff's refusal of a myelogram and treatment indicated by the myelogram is arbitrary and unreasonable. However, the trial court did find that these procedures were reasonably necessary to promote plaintiff's recovery. Accordingly we interpret the trial court's findings to mean that plaintiff's refusal of the procedures was arbitrary and unreasonable.

Plaintiff asserts a finding that his refusal was arbitrary and unreasonable is erroneous. The parties, both in brief and argument, present this issue as a single question. The trial court's decision, however, has two parts, and our answer is directed to the two parts. One part involves the myelogram. We affirm the trial court's decision in reducing compensation if plaintiff refuses to submit to a myelogram. We do so on the basis of the evidence presented. The second part involves treatment indicated by the myelogram. We reverse the trial court's decision in reducing compensation if plaintiff refuses to submit to treatment indicated by the myelogram. We do so because of a lack of evidence.

Plaintiff's injury is in the low back area. One diagnosis was that plaintiff had multiple degenerative joint disease in the lower thoracic and lumbar spine with chronic sciatica on the left due to a partial or complete ruptured disc at a lower lumbar level. The clinical findings of several physicians indicated the level of L5--S1. These physicians recommended a myelogram in order to arrive at a definite diagnosis and in order to determine what treatment was needed. At least one physician testified that a myelogram not only would assist in diagnosis but would help in disability evaluation.

Several specialists explained a 'particular need' for a myelogram in this case. Plaintiff underwent a hemilaminectomy at the L5--S1 level, on the left, in 1954. Because of this prior surgery and abnormal clinical findings which could be attributed to the prior surgery, a myelogram was recommended in order for the specialists to determine whether there was nerve root compression at the present time and, if so, the level of the compression. There is evidence that a myelogram is a superior method for making such a determination in the low back area because it is more accurate than the discogram or electromyogram in determining the level of a disc problem. The physicians favoring a myelogram stated a myelogram was either 'usual' or 'standard' and was a 'reasonable' or 'proper' procedure in this type of case.

There is conflicting evidence. A physiatrist (a medical doctor specializing in physical medicine and rehabilitation) testified that he does not use myelograms and most of the time would not be impressed with the results of a myelogram done by somebody else. An orthopedic surgeon testified there was no reason to perform a myelogram unless surgery was contemplated and there was insufficient neurological deficit to justify considering surgery in plaintiff's case. This orthopedist testified that healing time, with or without surgery, is about the same, and that surgery would not accelerate plaintiff's recovery.

Whether plaintiff's refusal of a myelogram is arbitrary and unreasonable is a question of fact. Rhodes v. Cottle Construction Company, supra. To the extent the foregoing evidence concerning a myelogram in plaintiff's case is legally sufficient, there is substantial evidence to support the determination that refusal of the myelogram was arbitrary and unreasonable. Plaintiff's contention is that the foregoing evidence, concerning the need for and uses of a myelogram, is legally insufficient to support a finding of arbitrariness and unreasonableness. We agree that more is required. Our concern is with the nature and the consequences of the procedure which is being refused, in this case a myelogram.

Numerous physicians testified in this case concerning a myelogram; not one of the physicians was asked to define a myelogram or describe that is involved when a myelogram is performed. 1 Schmidt's, Attorneys' Dictionary of Medicine (1973) defines 'myelography' as the introduction of a contrast medium into the spinal canal, into the space between the pia mater and arachnoid membrane, so that the configuration of the subarachnoid space is brought out in x-ray pictures. See Wright v. Celebrezze 246 F.Supp. 330 (E.D.Tenn.1965). Because the area of plaintiff's difficulties is in the low back, we assume the contrast medium would be introduced by lumbar puncture. Toal v. United States, 306 F.Supp. 1063 (D.Conn.1969), aff'd 438 F.2d 222 (2d Cir. 1971). 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 myelograph to be in the nature of a surgical procedure.

Whether refusal of a surgical procedure is arbitrary or unreasonable is to be determined by the standard stated in Fowler v. W. G. Const. Co., 51 N.M. 441, 188 P.2d 160 (1947):

'. . . (A)n injured workman will be denied compensation for an incapacity which may be removed or modified by an operation of a simple character, not involving serious suffering or danger. A refusal to undergo an operation under such circumstances is deemed unreasonable. . . . On the other hand, if the operation be of a major character and attended with serious risk to life or member, the rule is that an injured employee's refusal to submit to such operation is deemed not unreasonable, and compensation should not be denied on that account. . . .'

There is no testimony in this case that a myelogram is a 'major' procedure or is attended with a serious risk to the patient. There is evidence that the procedure is painful and there is 'some hazard.' Arachnoiditis can result if the inside of the arachnoid membrane reacts to the dye (contrast medium) and this produces pain and discomfort. Headaches can also be produced if the dural sac tears and the contrast medium leaks. If a nerve is punctured there may be long lasting pain. The specialist testifying as to these items stated that 'there are very few collateral effects of mylography (sic).' The specialist testified that myelography has risks 'but the risks are minimal, when you compare the amount of information you get.' An orthopedist who did not favor a myelogram in this case testified the lay public has a lot of misconceptions about myelograms; that complications are very rare although they do occur once in awhile. Compare Wright v. Celebrezze, supra, where a myelogram is characterized as 'a reasonably safe medical procedure.'

In the light of the foregoing, we cannot say that plaintiff could reasonably refuse a myelogram as a matter of law. The unreasonableness of plaintiff's refusal being a factual determination, the question is whether substantial evidence supports the determination. The evidence of the need for the myelogram in this case, and the evidence of minimal risks being involved in the procedure, supports the trial court's determination that refusal was arbitrary and unreasonable.

Plaintiff's efforts to avoid this result are based on three items. One item is the contention that defendants had the burden of proving that the refusal was arbitrary and unreasonable. The evidence reviewed herein meets that burden. A second item is that plaintiff feared myelography. This is evidence to be considered on the question of a reasonable refusal but is not sufficient in itself to require a finding that refusal was reasonable.

The third item is that one may reasonably refuse a second myelogram. The claim is that plaintiff had undergone a myelogram in the past, presumably at the time of...