Helms v. N.M. Ore Processing Co.

• Decision Date: 19 December 1946
• Docket Number: No. 4927.,4927.
• Citation: 50 N.M. 243,175 P.2d 395
• Parties: HELMSv.NEW MEXICO ORE PROCESSING Co. et al.
• Court: New Mexico Supreme Court

50 N.M. 243

175 P.2d 395

HELMS

v.NEW MEXICO ORE PROCESSING Co. et al.

No. 4927.

Supreme Court of New Mexico.

Dec. 19, 1946.

Appeal from District Court, Grant County; A. W. Marshall, Judge.

Proceeding under the Workmen's Compensation Act by George E. Helms, claimant, opposed by the New Mexico Ore Processing Company, employer, and the Standard Accident Insurance Company, to recover compensation for indirect inguinal hernia sustained by claimant in an accident arising out of and in course of employment. From a judgment awarding claimant compensation for 40 per cent. permanent disability, the employer and insurer appeal, and the claimant cross-appeals.

Judgment affirmed.

For an injured employee to be “totally and permanently disabled” within meaning of the compensation act, he need not be so disabled as to be unable to perform any kind of work.

[175 P.2d 395 , 50 N.M. 243]

Hubert O. Robertson, of Silver City, for appellants and cross-appellees.

Woodbury & Shantz, of Silver City, and Tom R. Files, of El Paso, Tex., for appellee and cross-appellant.

HUDSPETH, Justice.

This is an appeal by the defendants and a cross-appeal by the plaintiff from a judgment granted plaintiff on the basis of 40% total disability by reason of a right indirect inguinal hernia sustained by him in an accident arising out of and in the course of his employment.

Defendants' main contention is that under the hernia paragraph of the Workmen's Compensation Act, N.M.S.A., 1941 Comp. Sec. 57-918, plaintiff was not entitled to compensation for permanent disability upon his refusal to submit to an operation upon the tender by defendants of the sum fixed by statute for medical and hospital expense. Plaintiff's theory is that his claim filed in the District Court for total permanent disability, or 100% instead of 40%, should have been allowed and judgment granted therefor.

Plaintiff, a man 59 years of age with fourth grade education, had been employed by defendant for about five months prior to the accident, Nov. 27, 1944. He immediately reported to his employer's surgeon, who advised him to rest for a few days, after which he resumed work, at a ‘sitting job,’ and continued at that supervisory work for a few weeks. He then bought a small restaurant which his family conducted with a little help from plaintiff until April 28, 1945, when he sold it.

Plaintiff did no other work between November 27, 1944, the date of the accident and the date of the trial, July 11, 1945. He testified that he applied for work at two mines but was refused employment because of the hernia.

A surgeon consulted by plaintiff and employer's doctor both recommended surgery. Doctor Watts, plaintiff's witness, testified, in part, as follows:

‘Q. In such an operation, the intestines of the patient are touched, or exposed, or moved, are they not? A. Not necessarily.

‘Q. Would you state that in Mr. Helms' case that might be necessary? A. No, we only expose the intestines in case there is a strangulation of the intestine, or strangulation of the omentum. * * *

‘Q. Do you always give a general anesthetic, doctor, when you do a hernia operation‘ A. Not always. I have done several herniae under strictly local anesthesia while the majority of herniae are performed under a spinal anesthesia. Anesthesia in such cases involves only the lower segments of the spinal cord and the patient has sensation from the umbilicus upward, but none from the umbilicus down.

‘Q. Doctor, what percentage of the hernia operations that you have done made a full and complete recovery? A. I have had 5% recurrence. * * * I may add that practically all of the recurrences which competent surgeons confront have to do with the direct, rather than the indirect type of hernia. * * *

‘Q. Doctor, assuming a man 59 years of age, who had done hard, manual labor all his life, suffering from a right inguinal hernia, if he were not operated on, could you state whether or not he would be totally disabled to do hard labor? A. There are, I presume, many thousands of men working today who do have herniae, some of whom are doing industrial work, and many of these employees obtained employment without physical examination and herniae have been discovered later on when industrial laws made it necessary to have a complete physical examination. In examining such employees, we find a rather large percentage of herniae, some of which are giving symptoms and some of which employees state are symptom free; some employees get by by using a well-fitting truss; some wear no support at all; so, after all, each complaint resolves itself into a personal equation-some employees will have symptoms and some will not.

‘Q. Back to Mr. Helms; would you advise him, doctor, to do heavy, manual work in his present condition? A. No, not without the use of a truss.

‘Q. Do you feel that a truss would be a successful support for him in doing heavy, manual labor? A. I do not recommend a truss in any instance where surgery can be utilized with a fair promise of success.’

Dr. Frazen, defendants' witness, testified, in part, as follows:

‘My findings at that time were right inguinal hernia. Treatment advised was surgery. Treatment needed is surgery performed; in hospital two weeks; light work six weeks, and regular work in three months. * * *

‘I told him, as I understood our compensation law, that they allowed $100.00 for surgery, $50.00 for hospitalization, which I explained to him was not enough-didn't cover it-and also that from the other cases that we had had, they allowed $3.00 a day for disability compensation until he resumed work, which was usually three months. He said he didn't feel at that time that he would like to lay off that length of time for two reasons: 1) Scarcity of labor, and 2) from a financial standpoint, * * *

‘In industrial work, we classify men for light work, average work, or heavy work. Seldom, if ever, do I classify a man for heavy, manual work at the age of Mr. Helms. Industrial organizations will not take a man of that age for what they consider heavy, manual labor.

‘The Court: In your opinion, he can now do average work?

‘The Witness: He can do average work.’

The trial court found that plaintiff had worked all his life at hard manual labor, that he had no special skill or ability to do any other type of work, and is only fitted to do hard manual labor; that the injury and resulting hernia had rendered plaintiff unable to do hard manual labor: that plaintiff's refusal to submit to a surgical operation was not unreasonable, and that the injury and resulting hernia had caused partial permanent disability of plaintiff to the extent of 40% of total disability.

There is practically no conflict in the expert testimony, and it is admitted that plaintiff sustained the injury in the course of his employment.

The hernia paragraph of the Workmen's Compensation Act, N.M.S.A., 1941 Comp., Sec. 57-918, is as follows:

‘A workman in order to be entitled to compensation for a hernia, must clearly prove: (1) that the hernia is of recent origin, (2) that its appearance was accompanied by pain, (3) that it was immediately preceded by some accidental strain suffered in the course of the employment, and (4) that it did not exist prior to the date of the alleged injury. If a workman, after establishing his right to compensation for hernia as above provided, elects to be operated upon, a special operating fee of not to exceed one hundred dollars ($100.00) and reasonable hospital expenses not exceeding ($50.00) fifty dollars shall be paid by the employer or his or its insurer. In case such workman elects not to be operated upon and the hernia becomes strangulated in the future, the results from such strangulation shall not be compensated; Provided, that before said workman shall be compelled to prove the facts above mentioned in order to be entitled to compensation for hernia the employer must first prove that he caused the workman to be physically examined previous to his employment for the existence of a hernia, and provided further that where the employer has not made provisions for, and does not have at the service of the workman adequate surgical, hospital and medical facilities and attention, or fails to offer such during the period necessary said workman shall have the right to select the surgeon operating upon him and/or the hospital wherein such operation is performed and said workman is treated therefor.’

Defendants maintain the hernia paragraph quoted above is not intended to provide plaintiff with compensation for permanent disability upon his refusal to submit to recommended surgical treatment for hernia. The question is one of first impression in this state, although defendants cite many cases from other jurisdictions supporting their theory.

The Supreme Court of Iowa in Stufflebean v. City of Fort Dodge et al., 233 Iowa 438, 9 N.W.2d 281, 283, said:

‘Counsel on both sides concede that which our investigation of the decisions tends to verify, namely, that this precise question has not been previously presented to this court. In most of the states, the compensation statutes specifically provide that an arbitrary or unreasonable refusal to submit to offered medical or surgical treatment, which does not seriously endanger claimant's life or health and which is shown to be reasonably certain to minimize or cure the disability for which compensation is sought, will warrant reduction, suspension or forfeiture of such compensation. In a number of states where there is no such express statutory provision, a similar rule appears to prevail by reason of judicial decision. Strong v. Sonken-Galamba [Iron & Metal] Co., 109 Kan. 117, 198 P. 182, 18 A.L.R. 415; Gentry v. Williams Bros., 135 Kan. 408, 10 P.2d 856; Schiller v. Baltimore & O. R. Co., 137 Md. 235, 246, 112 A. 272, 276; Pritchard v. Ford Motor Co., 276 Mich. 246, 267 N.W. 622; Myers v. Wadsworth Mfg. Co., 214 Mich. 636, 183 N.W. 913; O'Brien v. Albert A. Albrecht...