FOWLER v. W. G. CONST. CO.

• Decision Date: 06 January 1948
• Docket Number: No. 4963,4963
• Citation: 51 N.M. 441,188 P.2d 160
• Parties: FOWLER v. W. G. CONST. CO. et al.
• Court: New Mexico Supreme Court

51 N.M. 441

188 P.2d 160

FOWLER

v.W. G. CONST. CO. et al.

No. 4963.

Supreme Court of New Mexico.

Aug. 14, 1947.

Rehearing Denied Jan. 6, 1948.

[188 P.2d 160, 51 N.M. 442]

George L. Reese, Jr. and Lon P. Watkins, both of Carlsbad, for appellant.

Seth & Montgomery, of Santa Fe, Jones, Hardie, Grambling & Howell, of El Paso, Tex., and John R. Brand, of Hobbs, for appellees.

SADLER, Justice.

This appeal presents two major questions for decision. They are (1) whether following entry of a judgment awarding compensation for disability under our Workmen's Compensation Law in which the court declined to suspend or reduce compensation unless the employee should undergo a surgical operation calculated to reduce the percentage of disability, the court can reopen the matter and modify the judgment in this respect more than 30 days after entry, even though the right so to do be expressly reserved therein; and (2) may an employee, otherwise entitled to compensation by reason of having incurred a compensable injury, be compelled to suffer reduction or suspension of compensation unless he consents to undergo an operation which does not endanger his life and is reasonably calculated to reduce the percentage of disability from the injury? Of course, a negative answer to the first inquiry will render unnecessary a decision of the second one. Hence, we seek immediately the true answer to the question first propounded.

The claim for compensation arose by reason of an injury suffered in the course of employment by the plaintiff (appellant) on June 23, 1943, in the collapse of a scaffoldon which he was standing thereby dropping him to the ground and resulting in the fracture of his left heel. Following the injury, medical and surgical treatment were furnished the plaintiff by his employer, W. G. Construction Company, one of the defendants, and he was paid compensation for a short time. Some question arising whether his disability might be substantially reduced by a surgical operation, concerning which misunderstanding developed, the defendants stopped the payment of compensation after having paid same from date of injury until February 24, 1944, as for total disability at the rate of $18 per week.

Thereupon, on March 3, 1944, the plaintiff filed his claim for compensation to which an answer was interposed by the defendants, followed by an amended answer filed June 13, 1944. They pleaded payment of compensation as aforesaid, and offered to resume payments, tendering $252, the amount accruing from date payments were suspended to date of filing the answer. They further offered to continue these payments until relieved of the obligation by order of the court. The defendants then alleged that competent medical authority had recommended an operation which would reduce disability to a 10 per cent. loss in the use of his left foot but that plaintiff had declined to undergo the operation.

The day upon which the foregoing amended answer was filed, a hearing took place, in the course of which it was stipulated that plaintiff might accept the $252 tendered as compensation accrued and unpaid to date, without prejudice to his rights in the case. On the day of the hearing, which appears to have been very informal, with only the pleadings and a deposition of Dr. T. W. Bywaters, an orthopedic physician of Dallas, Texas, before the court, the defendants filed with the papers in the case a demand for physical examination by two Dallas physicians, the one named next above and Dr. P. C. Williams, his partner, all expenses to be paid by the defendants. No formal order seems to have been entered following this hearing.

The matter came on for further hearing on August 9, 1944, before the court at Lovington. The deposition of Dr. Bywaters, above mentioned, again was put in evidence. The plaintiff, in the meantime having submitted to the physical examination requested by defendants, the report of such examination, dated July 10, 1944, prepared by Dr. Bywaters of the medical firm of Williams and Bywaters of Dallas, Texas, was read in evidence; also a report by another orthopedic physician of Dallas, Dr. Sim Driver. It was agreed, both by the court and by all counsel, that the condition of plaintiff's foot was no different at the time of this hearing from what it was at the time of the former hearing on June 13, 1944.

At some time after this hearing, a judgment was prepared and signed by the judge, bearing the date of the hearing, namely August 9, 1944, although not filed for entry until December 12, 1944. Formal findings were not requested by either side and the court made none, although the judgment contains a finding that plaintiff was, at thedate thereof, totally disabled by a compensable injury of a nature indicated above, and proceeding further, reads:

'It Further appearing that the medical authorities who have examined the claimant are not in agreement as to whether or not an operation should be performed upon claimants ankle at this time and that such operation might or might not be adviseable in the future.

'It Further appearing that at this time the defendants are in default in payment of compensation without reasonable cause or excuse and that Claimant should be paid compensation during the continuance of his disability and that his attorney's fees should be allowed in the sum of $500.00 which sum the Court finds to be reasonable, for services performed to and including the hearing of August 9th, 1944.

'It Is Therefore Ordered, Adjudged And Decreed that the Defendants pay to Claimant compensation at the rate of $18.00 per week, commencing seven days after the date of his injury on June 23, 1943, during the continuance of his total disability but for not more than five hundred fifty (550) weeks, less compensation previously paid him, and that they also pay to his attorney, C. Melvin Neal, the sum of $500.00 as his fees in this matter, to and including the hearing of August 9th, 1944.

'It Is Further Considered And Ordered By the Court that this Judgment is subject to the right of defendants at any future date to reopen the same for the purpose of determining whether Plaintiff should be required to submit himself to a surgical operation.'

A few days prior to entry of the foregoing judgment and on December 4, 1944, the defendants filed formal written motion, reciting salient historical facts touching the plaintiff's injury, treatment, negotiations looking to an operation, the recommendation therefor by certain physicians alleged to be competent, the furnishing to plaintiff by defendants of a certain type shoe recommenced by Dr. Driver but that the plaintiff had failed to discard his crutches and that he still used them. The motion set up the plaintiff's refusal to undergo the operation, notwithstanding the defendants' expressed willingness to pay all expenses incident thereto. It alleged further that the proposed operation would correct the plaintiff's condition to a point where not more than 10 to 15 per cent. disability would remain. The prayer was that the plaintiff be required to undergo theoperation or suffer a reduction in his compensation to that appropriate for the disability likely to remain following the operation proposed. The plaintiff's answer to this motion denied that he should be required to submit to the operation, or that competent medical opinion would approve the operation.

The next step in the proceedings took place on January 10, 1945. On that date, a hearing was held at Lovington, New Mexico, apparently on the issues raised by the aforesaid motion and the plaintiff's answer thereto, the parties and the court seemingly unmindful of the fact that the motion had not been refiled after entry of judgment on December 12, 1944. Again the reports of Drs. Williams and Bywaters and of Dr. Sim Driver were introduced in evidence and, in addition, a report of Dr. W. E. Badger of Hobbs, New Mexico, dated November 27, 1944. It should be recalled that the reports of Drs. Williams and Bywaters, dated July 10, 1944, and of Dr. Sim Driver of Dallas, dated June 29, 1944, were before the court at the August 9, 1944 hearing. There was then a divergence of opinion between Dr. Driver, on the one hand, and Drs. Williams and Bywaters on the other, as to the wisdom of an operation at the time. Dr. Driver recommended that plaintiff try out a certain type of shoe, with a progressively increasing use of the foot over a period of three months, before resorting to an operation. He agreed and advised, however, that if at the end of that time, satisfactory progress had not been made, the operation presently advised by Drs. Williams and Bywaters should be performed. At this hearing in January, 1945, the defendants took the position that, the three months waiting period advised by Dr. Driver having elapsed and the improvement expected not materializing, this physicianwould himself now join in recommending the operation.

Dr. Badger's report of November 27, 1944, discouraged hope for further improvement from use of the shoe suggested by Dr. Driver. Testifying at this hearing, Dr. Badger joined in approving the same kind of operation recommended by Dr. Bywaters of Dallas. Dr. Badger is the physician who first treated plaintiff and advised that he be taken to Dr. Bywaters in Dallas for examination and diagnosis. As a witness at this hearing, he agreed that it could not be said with any assurance that Dr. Driver would now join with Drs. Williams and Bywaters in recommending the operation without an opportunity to re-examine the plaintiff following the three months trial use of the shoe advised by him. The hearing apparently closed in an agreement by all parties with the court's approval for another examination of plaintiff by Dr. Driver in Dallas.

The next and final hearing occurred on February 13, 1945. The plaintiff had returned to Dallas pursuant to the understandingreached at the close of the hearing immediately preceding on January 10th and was there again examined by...