Evans v. Stearns-Roger Manufacturing Co.

• Decision Date: 02 April 1958
• Docket Number: No. 5737.,5737.
• Citation: 253 F.2d 383
• Parties: Winford Leo EVANS, Appellant, v. STEARNS-ROGER MANUFACTURING CO., Employer; and Standard Accident Insurance Co., Insurer, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

253 F.2d 383 (1958)

Winford Leo EVANS, Appellant, v. STEARNS-ROGER MANUFACTURING CO., Employer; and Standard Accident Insurance Co., Insurer, Appellees.

No. 5737.

United States Court of Appeals Tenth Circuit.

February 19, 1958.

Rehearing Denied April 2, 1958.

R. F. Deacon Arledge, Albuquerque, N. M. (Charles Driscoll, Albuquerque, N. M., on the brief), for appellant.

A. H. McLeod, Albuquerque, N. M. (W. A. Keleher, Albuquerque, N. M., on the brief), for appellees.

Before MURRAH, LEWIS and BREITENSTEIN, Circuit Judges.

MURRAH, Circuit Judge.

This appeal is from an order of the trial court reducing an injured employee's New Mexico workmen's compensation award from 75 to 50 percent disability, and further ordering that the award be reduced to 25 percent disability if he refuses to undergo corrective surgery. The main question presented is whether the court was empowered, under New Mexico law, to compel claimant-appellant to submit to surgical treatment, medically termed a laminectomy, or in the alternative, to suffer a reduction in his award.

Appellant, Winfred Leo Evans, received an injury to his spine during the course of his employment with appellee, Stearns-Roger Manufacturing Company. He brought suit under the workmen's compensation statutes of New Mexico (59-10-1, et seq., N.M.S.A.1953), and was awarded 75 percent disability, attorney fees, and certain medical expenses. On October 23, 1956, he initiated this proceedings for increased compensation under 59-10-25, N.M.S.A. In response, appellees, Stearns-Roger and its insurer, sought reduction of the award on the grounds that appellant's disability had been diminished since the original award, and because he refused to undergo spinal surgery to alleviate his condition. In its letter memorandum, the trial court found that since the original award, appellant has been able to earn "fairly steadily, wages in the approximate amount of $126.00 per week", about the amount he was earning at the time of the injury, though "he must suffer some pain at times", concluding that the award should be reduced to 50 percent disability. The court also concluded that appellant's refusal to undergo surgical removal of his herniated or "slipped" disc was unreasonable because it would materially diminish his disability without danger to him, and ordered a further reduction in the original award to 25 percent disability if he did not elect to undergo the operation within thirty days.

At the outset, there is no merit to appellees' contention that the appeal should be dismissed because appellant did not object or except to actions of the court during the trial of the case, and "does not now invoke any ruling of the trial court." It seems clear enough that the appeal specifically challenges the order of the court reducing appellant's disability to 50 percent, and ordering him to undergo major surgery or suffer a further disability reduction. These objections are contained in his statement of points relied upon, and since he was unaware of the trial court's decision until the letter memorandum was issued, it is difficult to conceive how he could more timely or forcefully have asserted his points of error than in fact he does by this appeal. See Monaghan v. Hill, 9 Cir., 140 F.2d 31.

Nor are we persuaded that appellant is barred from prosecuting the appeal because he accepted certain benefits under order of the trial court, i.e., payment by appellees of $200 attorney fees and $268.80 in medical bills. In New Mexico, as elsewhere, a plaintiff who accepts satisfaction, in whole or in part, of a judgment rendered in his favor waives his right to maintain an appeal or seek review of the judgment for error. Wells v. Romero, 22 N.M. 191, 159 P. 1001; cases collected 169 A.L.R. 985, 989. Under workmen's compensation law, however, the prevailing view is that a workman cannot be denied the right of appeal by his acceptance of a compensation award in an amount less than that to which he is entitled. See Otter v. Dept. of Labor and Ind., 11 Wash.2d 51, 118 P.2d 413; Shaffer v. Great American Indemnity Co., 5 Cir., 147 F.2d 981; Grigsby v. Texas Co., 14 La.App. 689, 130 So. 871; Sanders v. Rock Island Coal Mining Co., 138 Okl. 45, 280 P. 290; McShan v. Heaberlin, 105 W.Va. 447, 143 S.E. 109; Smith v. Revere Copper & Brass, 196 Md. 160, 76 A.2d 147; Bramlett v. Luper Transportation Co., Okl., 258 P.2d 895.

This brings us to the merits of the appeal. Under the provisions of the New Mexico Act, "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." Section 59-10-20. The matter is clearly one within the discretion of the trial court, but the discretion is judicial and subject to review by this court.

Construing this provision in Fowler v. W. G. Construction Co., 51 N.M. 441, 188 P.2d 160, 167, the New Mexico court cited and relied upon cases collected at 6 A.L.R. 1260, supplemented in 18 A.L.R. 431, 73 A.L.R. 1305, and 105 A.L.R. 1470, to evolve the rule that "an 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", and that a refusal to undergo such an operation is unreasonable within the meaning of the statute. "On the other hand", said the court, "if the operation be of a major character and attended with serious risk of 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."

We are convinced that the operation to which appellant has been ordered to submit, or suffer reduction of his monetary award, cannot be categorized as a "simple" one to which no risk of life or limb attaches. In the proceedings below, both doctors testified that the operation contemplated would be a "major" one, with only 80-85 percent possibility of resulting improvement in claimant's condition. They also testified that some risk to life or limb would be involved, one expert indicating that a "slip of the knife" during the operation would render the patient's legs useless for the remainder of his life. The serious, even perilous, nature of the operation is further indicated in Sultan & Chera Corp. v. Fallas, Fla., 59 So.2d 535, 537, where...