Texas-Oklahoma Express v. Best

1978 OK 42, 576 P.2d 1177, 1978 Okla. LEXIS 350
CourtSupreme Court of Oklahoma
DecidedMarch 28, 1978
DocketNo. 50361
StatusPublished
Cited by2 cases

This text of 1978 OK 42 (Texas-Oklahoma Express v. Best) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Texas-Oklahoma Express v. Best, 1978 OK 42, 576 P.2d 1177, 1978 Okla. LEXIS 350 (Okla. 1978).

Opinion

DAVISON, Justice:

Claim for compensation alleged accidental injury January 8, 1975, during covered employment. A trial judge awarded compensation for permanent total disability resulting from accidental injury. Petitioners, hereafter respondents, perfected proceeding for direct review by Supreme Court. 85 O.S.1971 § 29.

Issues advanced on review present arguments which rest upon respondents’ interpretation as to weight and quality of medical evidence to support this award. The first contention urges lack of competent medical evidence because the physicians’ evidence was based upon incomplete and inaccurate history which did not take prior accident and history into account. The second contention insists claimant cannot recover compensation for disability resulting from unreasonable refusal to submit to surgery.

Medical evidence agreed claimant was suffering from varicose veins in both testicles. When this occurs along the testicular vein, the plexus of veins within the scrotum are tremendously engorged and dilated with blood, and the condition is diagnosed as varioceles. Claimant was suffering from bilateral variocele, as a result of which he was permanently disabled from performance of manual labor.

Claimant, with a history of childhood her-niorrphapys, first was employed in 1968 after physical examination. In 1969, he resumed work for respondent after physical examination, and in 1973, suffered severe strain in region of right testicle while lifting heavy freight. Respondent’s doctor treated claimant with penicillin injections. Respondent sent claimant to another physician who diagnosed condition as variocele, a term claimant had not heard, and prescribed wearing a support. A claim adjustor advised this condition was not work-related, but paid claimant a nominal sum and no claim for compensation was filed.

[1179]*1179Claimant continued to have increasing problems, evidenced by pain and swelling, alleviated somewhat by resting and hot baths. About January 5, 1975, this condition was aggravated when claimant assisted in loading a boat onto a trailer, but responded to heat treatment and the next day claimant returned to work. On January 9, 1975, claimant was handling heavy freight on respondent’s dock when stricken by severe pain and greater swelling which forced claimant to stop work. This was reported to the foreman who told claimant to go home. Having already been told his condition was not work-related, claimant did not request medical treatment.

Thereafter, claimant was seen by Dr. P., who diagnosed varioeele of right testicle, prescribed continued wearing of support, and advised claimant to quit his job because no longer able to perform heavy labor. Dr. P. made written report of claimant’s condition and physical disability to perform usual work, but later moved away.

On April 28,1975, claimant was examined by Dr. D., who took history of injuries and problems from pain and swelling upon exertion. Examination disclosed varioeele on right and less pronounced on left, and claimant was directed to continue wearing support and refrain from lifting or manual labor. Dr. D. assisted claimant in preparation of forms required for application to receive union health and accident benefits, and indicated problems were not work-related, but resulted from boat loading incident. Claimant continued to see Dr. D. as required during 26 weeks union benefits were paid. Application for insurance benefits was filed upon the foreman’s suggestion, and at no time were any rights under workmen’s compensation explained.

Deposition testimony of Dr. D. reflected history of injury in 1973, intermittent difficulties and claimant’s eventual indisposition after January 9, 1975. While treating claimant conservatively, the doctor had advised claimant surgery was indicated if persistent pain continued, or if there was recurrence of ifrflammatory epididymitis which the doctor treated. Nature of surgery and attendant risks had been discussed as varioeele could be progressive. Although a cure might be effected, there was possibility surgery could result in loss of a testicle.

Respondent introduced deposition of a specialist in urology (Dr. R.), who examined claimant twice, the last occasion being May 12, 1976. History included 1973 injury and earlier diagnosis of varioeele with recommendation for wearing support. The doctor denied receiving history of injury from loading boat, or loading dock injury on January 9, 1975. However, when interrogated concerning effect of boat loading incident and injury of January 9, 1975, the doctor stated these were factors in aggravating the varioeele. Any. trauma to testicles, strenuous activity, or prolonged standing could have aggravated the condition. From claimant’s history, the doctor's opinion was this condition could have been aggravated by hernia repair, various injuries described, or prolonged standing, but no opinion could be given as to one specific cause.

Extensive testimony concerned surgical procedures, amount of risk involved, and prognosis for complete recovery. One procedure would be simple litigation of testicular vein, which could be performed if it was determined varioeele had not been caused by prior hernia repair. In this procedure which causes blood to be centered into collateral type circulation, there is virtually no reason to damage the testicle or testicular artery, and is a much safer operation, successful in 95% of cases.

In the event surgical exploration revealed obstruction of the inguinal canal, a second procedure (variocolestomy) to actually remove the entire varioeele would be performed. The risk in this procedure is greater even in the best expert’s hands, and a small possibility of testicular atrophy existed. Claimant already was suffering from slight atrophy of testicles, and conceivably could lose a testicle inadvertently, although this is very rare in hands of a qualified surgeon.

The claimed insufficiency of medical evidence concerns claimant’s failure to relate difficulties following boat loading incident [1180]*1180to Dr. D., together with failure to advise Dr. R. of that incident, or work related injury on January 9, 1975. This argument is advanced upon authority of decision in Acme Flour Mills v. Bray, 185 Okl. 516, 94 P.2d 828; Western Good Roads Service Co. v. Coombes, 185 Okl. 599, 95 P.2d 633; and Snow v. Kinta Stripping Company, Okl., 372 P.2d 34 (1962). The general expression of these decisions declares a physician’s opinion must be predicated upon facts substantially in the nature of evidence disclosed on hearing.

Asserted lack of probative medical evidence, because of insufficient history measured by requirements of the cited cases, lacks substantial merit. These decisions have been distinguished so often, extended discussion is not required. The underlying basis for conclusion reached in those decisions was fatal variance between history assumed by the expert witness and undisputed facts the injury disclosed by the proof. History which incorporates substantially the facts a party’s proof fairly tends to establish and which are consistent therewith, is sufficient. Because one expert assumes less comprehensive facts than assumed by an adversary does not, within itself, destroy probative value of expert opinion. Black, Sivalls & Bryson, Inc. v. Story, Okl., 378 P.2d 764 (1963); Brooks & McConnell, Inc. v. Strong, Okl., 396 P.2d 525 (1964).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Gobble v. Chesapeake Energy Corp.
2013 OK CIV APP 89 (Court of Civil Appeals of Oklahoma, 2013)
Wilson Paving, Inc. v. Abernathy
2003 OK CIV APP 72 (Court of Civil Appeals of Oklahoma, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
1978 OK 42, 576 P.2d 1177, 1978 Okla. LEXIS 350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-oklahoma-express-v-best-okla-1978.