Gillam v. Workmen's Compensation Appeal Board

Hatcher, Judge: This appeal involves the right of the Workmen’s Compensation Commissioner to require a rehabilitation operation. The claimant received a severe injury to his back in 1932 while at work for a subscriber to the Compensation Fund, and has been totally disabled ever since. He was paid compensation until August 15, 1935. Further compensation has been denied both by the Commissioner and the Appeal Board because he would not submit to an operative fusion of the lumbo-sacral and sacral joints. This operation is not described or its attendant suffering mentioned. Three physicians recommend the operation without further comment. A fourth concurs, adding that the operation is reasonably safe, and that the claimant is in reasonably good general physical condition and would be relieved of disability by the operation. Five other physicians (two by hearsay, not objected to) oppose the operation. There is practically the same professional division on diagnosis. With such sharp divergence of professional opinion, the claimant’s refusal to submit to the operation was not unreasonable. Schneider, Workmen’s Compensation Law (2d. Ed.), sec. 496, p. 1651. Such an operation may be the condition for further compensation only when surgical opinion substantially concurs that the operation is indicated, that it is reasonably safe and not attended by unusual suffering, that it will likely produce material physical improvement, and that it is one which a person of ordinary prudence and courage would undergo for his own betterment, regardless of compensation. Barnes v. Compensation Commissioner, 116 W. Va. 9, 178 S. E. 70. *573 The ruling is reversed and the cause remanded for further consideration, uninfluenced by claimant’s refusal to submit to the operation. Reversed and remanded.