Sarantis v. Sheraton Corp.

688 P.2d 99, 69 Or. App. 575, 1984 Ore. App. LEXIS 3921
CourtCourt of Appeals of Oregon
DecidedSeptember 5, 1984
Docket81-08881; CA A29235
StatusPublished
Cited by2 cases

This text of 688 P.2d 99 (Sarantis v. Sheraton Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sarantis v. Sheraton Corp., 688 P.2d 99, 69 Or. App. 575, 1984 Ore. App. LEXIS 3921 (Or. Ct. App. 1984).

Opinion

GILLETTE, P. J.

Claimant, an immigrant Greek woman in her early 50’s, injured her lower back while working as a maid for respondent’s Lloyd Center Sheraton Hotel in Portland. She has been in constant pain since the injury, and a referee awarded her permanent total disability. The Workers’ Compensation Board reduced the award to 70 percent permanent partial disability, finding that claimant’s refusal to undergo a laminectomy was unreasonable. On de novo review, we reverse and remand.

Although the statutes do not explicitly provide that a permanent disability award should be reduced if the claimant unreasonably refuses to submit to recommended treatment, such a reduction is implicit in Oregon’s Workers’ Compensation Law. The reason is that, to the extent that the rejected treatment would improve the claimant’s condition, the disability is attributable to the claimant’s unreasonable refusal rather than to the employment. Nelson v. EBI Companies, 296 Or 246, 674 P2d 596 (1984); Grant v. State Industrial Acc. Com., 102 Or 26, 41-42, 201 P 438 (1921); Clemons v. Roseburg Lumber Co., 34 Or App 135, 138-39 n 2, 578 P2d 429 (1978); 1 Larson, Workmen’s Compensation Law, § 13.22.

The crucial issue in this case is the reasonableness of claimant’s refusal. This is an appropriate occasion to explain further the criteria by which we determine reasonableness in cases of this sort. We have previously said that the test for reasonableness is “whether, if compensation were not an issue, an ordinarily prudent and reasonable person would submit to the recommended treatment.” The relevant factors include “the worker’s present physical and psychological condition, the degree of pain accompanying and following his treatment, the risks posed by the treatment, and the likelihood that it would significantly reduce the worker’s disability.” Clemons v. Roseburg Lumber Co., supra, 34 Or App at 139. The employer has the burden of showing a refusal to be unreasonable. Nelson v. EBI Companies, supra, 296 Or at 252.

There usually is not just one “correct” decision about the advisability of a course of treatment. Workers have the right to decide whether to undergo treatment, and we determine only whether a decision is reasonable. The law does not force all workers into the same mold. It provides them with [578]*578discretion to make their own decisions about their own lives but protects employers from paying for unreasonable exercises of that discretion.

“[I]t would be surprising to find a provision in our statute giving arbitrary power to the commission, or making the workman’s right of refusal dependent upon medical opinion alone, and entirely ignoring the viewpoint of the workman who is the only one who must take whatever risk is involved, must endure whatever suffering is to be borne, and must accept whatever ill effects may result from the operation.” Grant v. State Industrial Acc. Com., supra, 102 Or at 44.

The question, then, is how we as factfinders determine whether a particular decision is within the range of discretion the law grants the worker. One way to answer it is by stating what we do not do: We do not determine whether we would ourselves choose to undergo the treatment, nor whether a different worker would do so. Rather, to find the refusal unreasonable, we must find that no reasonable person would refuse: “[A]n ordinarily prudent and reasonable person would submit to the recommended treatment.” Clemons v. Roseburg Lumber Co., supra, 32 Or App at 139. (Emphasis supplied.) The test is objective, which means that we do not decide whether this particular claimant’s reasons for refusal are reasonable; rather, we decide whether the decision itself is within the range of decisions reasonable people might make.

Our evaluation of a claimant’s decision by an objective standard of reasonableness has certain consequences. First, we apply the test of reasonableness to the situation as the claimant knew it; medical or other information of which the claimant was unaware or was unable to appreciate is irrelevant in determining whether the decision was reasonable.1 Second, the claimant’s personal characteristics, including his or her physical and psychological condition, are relevant only to the extent that they affect the claimant’s ability to undergo the treatment and achieve a successful result. Third, external influences or irrational fears, no matter how genuine, do not excuse an otherwise unreasonable refusal. Finally, we necessarily consider the risks and pain of the [579]*579treatment from the claimant’s, not the physician’s, perspective. There is a significant distinction between the detached analysis of a surgeon who performs many operations and the interested analysis of a worker who must decide whether to undergo this operation. Clemons v. Roseburg Lumber Co., supra, 32 Or App at 139-140.

Previous decisions and other authority provide examples of how to apply this test. Larson states, almost as an axiom, that, when there is a real risk involved in the proposed medical treatment, a claimant cannot be forced to undergo that risk at the peril of losing compensation. 1 Larson, Workmen’s Compensation Law, § 13.12 at 3-410 to 3-434. That statement is consistent with previous Oregon cases, which have consistently upheld compensation despite refusal of medical treatment that involved a significant risk. See Grant v. State Industrial Acc. Com., supra (refusal to undergo a knee operation that involved an apparently small risk of a permanently stiff knee); Reef v. Willamette Industries, 65 Or App 366, 671 P2d 1197 (1983) (refusal to undergo a myelogram); Gainer v. SAIF, 50 Or App 457, 623 P2d 1093 (1981) (refusal to undergo myelogram and resulting probable laminectomy); Clemons v. Roseburg Lumber Co., supra, 34 Or App at 140 (refusal to undergo relatively painful transaxillary rib resection which required general anesthesia); Finley v. SAIF, 34 Or App 129, 578 P2d 432 (1978) (refusal to undergo myelogram). We now apply our test to this case.

Claimant came to this country in the late 1970’s. She has a third grade education and speaks only Greek. Until her injury, she had never been in a hospital or seen a doctor. She has done physical labor since she was a child, hoeing in the fields before her marriage at age 16 and working in a variety of factory jobs in Greece, Germany and this country before taking her position with respondent. She was injured while folding up a new sleeper sofa after making the bed; the mattress was tight and she strained her back trying to force the sofa together.

After her injury, claimant was taken to a hospital emergency room, where she was treated and referred to an orthopedist. She saw the orthopedist regularly for a year, cooperating readily with his recommended treatment. During this period, she was evaluated by Orthopaedic Consultants [580]*580and, later, by a neurologist; they generally concurred in her orthopedist’s conservative treatment. About a year after the injury, she moved to another part of the city. Her vocational rehabilitation counselor, who apparently disapproved of her orthopedist’s approach, sent her to a different orthopedist closer to her new home. The new orthopedist referred her to Dr. Parsons, a neurosurgeon, who performed a myelogram, which revealed a loss of nerve root sleeve and a probable extruded disk in the lower lumbar region.

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Bluebook (online)
688 P.2d 99, 69 Or. App. 575, 1984 Ore. App. LEXIS 3921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sarantis-v-sheraton-corp-orctapp-1984.