Shrewsbury v. State Compensation Commissioner

Kenna, Judge: This appeal was granted Vasco Shrewsbury from an order of the Compensation Appeal Board entered February fifth, 1944, affirming an order of the Compensation Commissioner of October eighth, 1943, vacating a five per cent permanent disability award and ordering that “the claimant report to the doctor designated to undergo an operation for the radical cure of a right inguinal recurring hernia and the correction of any nerve impingement, since it appears that the operative procedure is indicated and that it is not one which would cause the .claimant undue suffering, and that the said operation is one which a person of ordinary prudence and courage would undergo for his own betterment, regardless of compensation, and that compensation be awarded upon a temporary total basis' from the date of his hospital entry and to continue during his recuperation from the operation and until he is certified back to work, and that he be examined for permanent partial disability rating thereafter; it is further ordered that should the claimant not submit to the said operative procedure, and that should he refuse to undergo such an operation that no compensation therefor be allowed, and that any further claim for compensation for disability due to his existing condition be rejected; * * From this order the applicant appealed and the Compensation Appeal Board affirmed the Commissioner. Claimant was injured April fourteenth, 1942, while working as a motor brakeman for Black Eagle Smokeless Coal Company. He suffered a double hernia, that on his right side diagnosed as a small indirect inguinal hernia and that *362 on his left side being of the same nature but direct. On May sixteenth, 1942, having applied for compensation and having been directed to do so, claimant' submitted to an operation that included both sides. Compensation was ordered and the claim closed. On April twelfth, 1943, claimant was still suffering and unable to return to his usual employment, so that upon his application he was referred to Dr. Hosmer for examination. Dr. Hosmer reported to the Commissioner on June fifth, 1943, stating that his examination showed no recurrence of hernia, but that from Shrewsbury’s symptoms it was entirely possible a nerve was caught in the scar on his right side and his suggestion was that the incision be reopened and the scar tissue dissected. He did not recommend a second radical operation for hernia. Upon communicating with the claimant, he advised the Commissioner that he did not wish to again undergo an operation, and upon Dr. Hosmer being told that was the case and asked for his recommendation, he advised the Commissioner that his records showed no loss of function resulting from the injury, but assuming that claimant did have the pain complained of, he estimated that a five per cent permanent partial disability award would be fair. That award was granted. Upon Shrewsbury’s protest a hearing was ordered. The hearing was held at Pineville on the twenty-fifth day of August, 1942. Dr. J. K. Lyon, who testified instead of Dr. J. F. Biggart, summoned by claimant but unable to attend, statéd that he had first seen Shrewsbury the day before and had then examined him without the use of an instrument. In his opinion claimant was suffering from a recurrence of an inguinal hernia on his right side that nothing but another operation would correct. He stated that although the hernia was incomplete the claimant- was totally incapacitated from following his usual employment and that he hoped, if he submitted to another operation, it would remove the disability. He was asked concerning Dr. Hosmer’s report and directly disagreed with Dr. Hosmer’s conclusion, and stated that the opinion *363 that Shrewsbury was suffering from a nerve coming in contact with scar tissue, while possible, was only a theory. He testified that Shrewsbury was a strong, healthy young man and that he would recommend the operation. He gave no opinion as to the chances of the operation being successful or the risk that Shrewsbury would run by submitting to it, other than “you might get bad results again”. Asked if Shrewsbury’s present condition was the fault of the operation, he stated that it was the result of the operation and that “we (the medical profession) get good results and we get poor results, * * *; some of them even die you know”. Shrewsbury was put upon the stand and asked why he was unwilling to submit- to a second operation. His answer was to the effect that he had already undergone one by the best surgeon and at the best hospital available, following advice that led him to believe that one operation would take care of his difficulty. Shrewsbury testified that he was then twenty-six years old, weighed one-hundred and thirty-five pounds, as compared with one-hundred and eighty pounds before he was hurt, and that if in the future his hernia “comes down” he may have to have it operated on. Undoubtedly, under his general powers, the Compensation Commissioner has the right to require a rehabilitative major surgical operation. Code, 23-4-9; Barnes v. State Compensation Commissioner, 116 W. Va. 9, 178 S. E. 70; Mahone v. Workmen’s Compensation Appeal Board, 118 W. Va. 587, 191 S. E. 289. Code, 23-4-7, dealing with hernia, requires it to be treated by a radical operation unless it is shown that the employee or claimant is suffering from chronic disease or is otherwise in a physical condition that would make the operation unsafe for him. Counsel representing the claimant urge that this section deals only with hernia cases and is, to the extent of the subject matter, a restriction of any general powers that the Commissioner may possess in cases arising from ordinary injury, and that that being so, since this section vests in the Commissioner the right to require an operation, the provision *364 being expressed in the singular as distinguished from the plural number, the claimant has already complied with its terms and that the Commissioner has no discretionary power to require two, three, or an indefinite number of radical operations. We have examined the authorities from other states on this question, and, while their reasoning is quite persuasive, owing to the difference in the wording of the statutes in different jurisdictions, their direct application to the case under consideration, we believe, would be rather difficult. However, we think that it can be stated with confidence that in hernia cases a fair majority of the holdings are to the effect'that the claimant may not be required, as a condition precedent to an award based upon his present physical condition, to submit to a second radical or major operation. We so hold. See the following annotations: 105 A. L. R. 1470; 73 A. L. R. 1303; 18 A. L. R. 431, and 6 A. L. R. 1260. With the consent of the claimant we believe the Commissioner may so order. The conditions in this case, we believe, further justify the claimant’s refusal to do so. Here the two doctors who examined the claimant did not agree. One was of the opinion that his present difficulty is not caused by hernia, complete or incomplete, but is caused possibly by a nerve impinged by the scar tissue; the other that it is plainly caused by an incomplete hernia and that the scar tissue condition, if existent could be remedied in the same second radical operation. In the latter’s opinion, the second operation might result fatally. In this state of the record the Commissioner did not require claimant to submit to further examination, but apparently based his order upon the opinion of the single doctor who testified that a second radical operation was indicated. We do not believe that we can hold that Shrewsbury thus forfeited his right to be awarded compensation upon the basis of his present physical condition without saying, in effect, that the Commissioner has discretionary powers to require repeated radical operations in hernia cases. That, we believe, is not the purpose of Code, 23-4-7. The *365 section referred to provides expressly that the Commissioner’s right to require a single radical operation is limited so that it does not apply to cases where it is shown that the applicant is in such physical condition as to render it unsafe. We find no statute authorizing the requiring of a second operation. Here the claimant has not shown, nor attempted to show, that it would be physically unsafe to have the operation performed. Neither has it been shown that it would be physically unsafe not to submit to an operation. It has been shown that, in his present condition, Shrewsbury will not be able to follow his usual occupation as motor brakeman and that his compensation award is much less than his usual earnings in his ordinary occupation. Thé extent to which the award would increase the premium charged the employer does not appear, but this would hardly equal the financial sacrifice that the -applicant makes by refusing to undergo a second operation, if that operation were successful in restoring his earning power. There is no showing made in this record concerning even its likelihood of success, and this, we believe, should appear in every case in which submission to a major surgical operation is resisted. For the foregoing reasons, the order of the Compensation Appeal Board and that of the Compensation Commissioner are each set aside and the case is remanded to the Commissioner with instructions to determine the percentage of disability from which the applicant is now suffering, and to enter his order awarding compensation on that basis without requiring Shrewsbury to undergo a second radical operation for hernia. Reversed and remanded.