Wiley Sanders Truck Lines, Inc. v. McLain

591 So. 2d 527, 1991 Ala. Civ. App. LEXIS 667, 1991 WL 255900
CourtCourt of Civil Appeals of Alabama
DecidedDecember 6, 1991
Docket2900468
StatusPublished
Cited by3 cases

This text of 591 So. 2d 527 (Wiley Sanders Truck Lines, Inc. v. McLain) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wiley Sanders Truck Lines, Inc. v. McLain, 591 So. 2d 527, 1991 Ala. Civ. App. LEXIS 667, 1991 WL 255900 (Ala. Ct. App. 1991).

Opinion

RUSSELL, Judge.

This is a workers’ compensation case.

In November 1987 Richard McLain (employee) suffered an injury to his back as a result of a work-related accident that occurred while he was in the employ of Wiley Sanders Truck Lines, Inc. (employer). The employee subsequently underwent back surgery. He continued to experience pain and other debilitating symptoms following the operation and was unable to continue his work with the employer. The employer, however, maintained that the employee should not continue to receive compensation benefits because he refused to submit to a second back operation, which the employer had requested that he undergo.

After an ore tenus proceeding, the trial court issued an order on December 7, 1990, finding that the employee was totally and permanently disabled and further finding that his refusal to submit to the second [528]*528back operation was reasonable. The trial court awarded the employee compensation benefits for permanent total disability and permanent loss of ability to earn, for so long as he remains disabled. The court also awarded attorney fees of $72,064.63 to the employee’s counsel, $66,917.25 of which was based upon the purported present value of the unaccrued future income stream to -be paid to the employee and $5,147.38 of which was based on accrued but unpaid disability benefits. The employer’s post-trial motions were denied, and the employer now appeals. We affirm in part and reverse in part and remand.

On appeal the employer contends that the trial court erred in finding that the employee’s refusal to submit to the second back operation was reasonable. The employer also contends that the trial court erred with regard to the appropriate award of attorney fees to be paid to the employee’s trial counsel for the present value of the unaccrued future income to be paid to the employee.

At the outset we note that appellate review in workers’ compensation cases is a two-step process. First, this court will look to see if there is any legal evidence to support the trial court’s findings. If such evidence is found, this court will then determine whether any reasonable view of that evidence supports the trial court’s judgment. Ex parte Eastwood, Foods, Inc., 575 So.2d 91 (Ala.1991).

The record shows that the employee, who worked for the employer as a truck driver, was injured while unloading a truck in November 1987. The injury was diagnosed as a herniated disc at the L-4/L-5 level, and surgery in the form of a laminectomy was recommended to relieve the employee's symptoms of severe back pain, numbness in the right leg, and attendant diminished physical abilities. The employee underwent the laminectomy in February 1988. However, the operation failed to relieve his pain, and following a reinjury to his back that occurred when he returned to work in July 1988, he was no longer able to perform even light-duty work for the employer.

The employee, who testified at trial to constant pain, significant limitation of motion, weakness, and muscle spasms, even after the initial back surgery, must use a cane to walk and wears a back brace intermittently. He takes prescribed medication for his pain. He was hospitalized in August 1988, at which time Dr. John E. Hack-man, the neurosurgeon who performed the original operation, diagnosed a “recurrent lumbar radiculitis secondary to central disc protrusion and acquired lumbar spinal sten-osis.” It was Dr. Hackman’s opinion that the employee would require additional surgery to relieve the symptoms that persisted after the first operation. At the employer’s request, Dr. Walter Whitehurst also examined the employee in January 1989. Dr. Whitehurst recommended that the employee undergo exploratory surgery.

The employee was rehospitalized in February 1989, and again in June 1990, in Atlanta, Georgia, where he was examined and treated by Dr. Mark W. Fortson, a neurologist. Dr. Fortson determined that ordinary physical activity — e.g., walking or bending — would greatly increase the pain experienced by the employee, to such a degree as to cause distraction from or total abandonment of the activity. Dr. Fortson also felt that although the employee’s pain might be less intense in the future, it would remain a significant element in his life. Dr. Fortson, who testified by deposition at trial, recommended that the employee undergo a second laminectomy. However, as of this date, the employee has refused to submit to further surgery.

The applicable law in Alabama regarding workers’ compensation and refusal of medical treatment is found at § 25-5-77(b), Ala.Code 1975, which reads in part as follows:

“If the injured employee refuses to comply with any reasonable request for examination, or refuses to accept medical service or physical rehabilitation which the employer elects to furnish under the provisions of this chapter, his right to compensation shall be suspended and no compensation shall be payable for the period of such refusal.”

[529]*529Thus, an injured employee receiving compensation benefits may refuse medical treatment or surgical procedures, without suspension of benefits, if such refusal is deemed “reasonable.” Scott v. Alabama Machinery & Supply Co., 52 Ala.App. 459, 294 So.2d 160 (Ala.Civ.App.1974).

Our supreme court has construed the reasonableness standard to mean that where a surgical operation is indicated, there must be some reasonable expectation that the employee’s condition will improve as a result and that the operation required will be reasonably danger free. Gulf States Steel Co. v. Cross, 214 Ala. 155, 106 So. 870 (1926). See also Scott, 52 Ala.App. 459, 294 So.2d 160. The employee’s subjective fear of surgery, alone, is not a reasonable basis for refusal of such an operation. Scott, 52 Ala.App. 459, 294 So.2d 160. However, if there are credible reasons given for the refusal of medical treatment, the refusal is reasonable. See Elbert Greeson Hosiery Mills, Inc. v. Ivey, 472 So.2d 1049 (Ala.Civ.App.1985). The test of reasonableness, vel non, is a question for the trier of fact. Scott, 52 Ala.App. 459, 294 So.2d 160.

Based on the testimony in Dr. Fortson’s deposition, the trial court concluded that the employee would benefit from further surgery and that the surgery would be relatively danger free. However, the court was “unable to conclude the extent to which [the employee] would benefit from surgery.” The court further found that although Dr. Fortson testified that the employee was “the most clearcut patient I’ve had ... with a history of back surgery who I feel I can strongly recommend that he go through back surgery again with the hope of curing him” and that there' is “a reasonable chance” that the employee would experience “significant improvement were surgery to be performed and ... completed in an uncomplicated fashion,” neither Dr. Fortson nor any other physician who treated the employee defined “reasonableness” in terms of probable chances of success. Accordingly, the court concluded that it was not unreasonable that the employee had difficulty in agreeing to a second operation based on his physicians’ prognoses.

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

Related

Saad's Healthcare Services, Inc. v. Meinhardt
19 So. 3d 847 (Court of Civil Appeals of Alabama, 2007)
Baptist Memorial Hospital v. Gaylor
646 So. 2d 93 (Court of Civil Appeals of Alabama, 1994)
Simpson v. DALLAS SELMA COM. ACTION AGENCY
637 So. 2d 1360 (Court of Civil Appeals of Alabama, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
591 So. 2d 527, 1991 Ala. Civ. App. LEXIS 667, 1991 WL 255900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiley-sanders-truck-lines-inc-v-mclain-alacivapp-1991.