Escobedo v. Agriculture Products Co., Inc. , 86 N.M. 466 ( 1974 )

SUTIN, Judge

(dissenting in part and concurring in part).

I dissent on the issue of “refusal of medical services,” and concur on the remainder of the opinion.

A. The trial court had a duty to make additional findings on refusal to allow a review.

Section 59-10-20, N.M.S.A. 1953 (Repl. Vol. 9, pt. 1) provides in part:

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.

Before the court can exercise its discretion, it must find that the workman’s refusal was arbitrary and unreasonable. The court must also find that the medical or surgical treatment is one which a person of ordinary prudence and courage would undergo for his own betterment regardless of compensation. “These are questions of fact to be determined by the trial court before there is anything for review by an appellate court.” Rhodes v. Cottle Construction Company, 68 N.M. 18, 23, 357 P.2d 672, 676 (1960); Helms v. New Mexico Ore Processing Co., 50 N.M. 243, 248, 175 P.2d 395 (1946); Gillam v. Workmen’s Compensation Appeal Board, 118 W.Va. 571, 191 S.E. 204 (1937).

The trial court made no such findings. This case should be reversed with instructions to the trial court to make the following additional findings:

First, whether the plaintiff arbitrarily and unreasonably refused to submit to a myelogram.

Second, whether a myelogram is one which a person of ordinary prudence and courage would undergo for his betterment regardless of compensation.

With reference to the first finding, what is meant by an arbitrary and unreasonable refusal by a workman to submit to a myelogram? Minor or major surgery is not relevant. We are concerned with whether a myelogram is reasonably essential to promote plaintiff’s recovery from an injury to the low back area.

“Arbitrary” means “arising from unrestrained exercise of the will, caprice, or personal preference”. “Unreasonable” means “not governed by or acting according to reason: evincing indifference to reality or appropriate conduct: ill regulated in behavior: not conformable to reason: absurd”. Webster’s Third New International Dictionary, Unabridged (1966), pp. 110, 2507, respectively; Harris v. State Corporation Commission, 46 N.M. 352, 360, 129 P.2d 323 (1942).

For purposes of guidance, a brief review of some evidence shows that plaintiff was 50 years of age, a common laborer with a seventh grade education. He discussed a myelogram with Dr. Kauffmann, a neurosurgeon. Dr. Kauffmann said he would give plaintiff a myelogram if plaintiff wanted it. Plaintiff had told the doctor that he had a lot of difficulty with the first myelogram. Dr. Kauffmann said this was credible because myelography was not completely deviod of pain. It’s a painful test. Plaintiff knew what the doctor was talking about. The doctor understood plaintiff did not feel this second myelogram was warranted, or plaintiff was pathologically scared of the test itself. Plaintiff testified:

If they recommend me a myelogram, and operate on me, provided they guarantee that I will come out successful, I will consent. Otherwise nothing doing.

* * *

I told the doctor, as I tell you, that without putting me to sleep; nothing doing.

Dr. Kauffmann also testified that myelography has no therapeutic value or any curative effects. “Therapeutic” means “of or relating to the treatment of disease or disorders by remedial agents or methods”. Webster’s, supra, p. 2372. This can be interpreted to mean that plaintiff refused a type of medical treatment that has no value.

Was plaintiff’s refusal arbitrary, unreasonable, capricious? Was it a whim, a fancy, stupid, unwise, silly?

Under similar circumstances, it has been held that a claimant’s refusal to submit to another operation is unreasonable. Dudley v. Ferguson Trucking Company, 61 N.M. 166, 172, 297 P.2d 313 (1956). If an orthopedic specialist does not advise or suggest that a myelogram be given, it is not unreasonable to refuse. Wood v. Industrial Commission, 13 Ariz.App. 449, 477 P.2d 568 (1970). See also, Ripp v. Maryland Casualty Company, 221 So.2d 899 (La.App.1969); Sultan & Chera Corp. v. Fallas, 59 So.2d 535 (Fla.1952); Hartford Acc. & Indemnity Co. v. Barfield, 89 Ga. App. 562, 80 S.E.2d 84 (1954); Bostic v. Dreher, 206 Pa.Super. 257, 213 A.2d 118 (1965).

For medical malpractice in myelography, see Toal v. United States, 306 F.Supp. 1063 (D.Conn.1969).

With reference to the second finding, no suggestions are neccessary to advise a trial court of the meaning of a person of ordinary prudence and courage.

For the above reasons, I dissent.

B. Concurrence in remainder of majority opinion.

I concur in the remainder of the majority opinion.

C. Caution on briefs.

For lawyers who read dissenting opinions and appeal, I want to ipse dixit on the writings of briefs. In the present case, plaintiff’s brief was 60 pages. Defendants’ brief was 90 pages with an extensive appendix. Such briefs are burdensome on courts of review. They are a festivity of words.

Under Rule 9(K) (4) of the New Rules Governing Appeals to the Supreme Court and Court of Appeals, effective April 1, 1974, the argument and authorities “shall not exceed thirty-five typewritten pages unless leave of court is obtained.” [Emphasis added].

If lawyers do not file briefs in accordance with these rules, they will be compelled to rewrite them.