Gallegos v. Workmen's Compensation Appeals Board

STEPHENS, J.

An employee seeks review and annulment of an award of the Workmen’s Compensation Appeals Board.

The appeals board found that the employee sustained industrial injury to his back on December 29, 1967, that he unreasonably refused to submit to surgery, the risk of which was inconsiderable in view of the seriousness of the injury, and therefore, pursuant to the provisions of Labor Code, section 4056,

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the compensation insurance carrier for the employer was not liable for any medical treatment or temporary disability indemnity after March 19, 1968, or for any permanent disability in excess of the probable disability which would remain after surgery. It concluded that the probable disability would be a restriction from heavy lifting or repetitive bending which rated at 25 percent. The award is limited to compensation for permanent disability of 25 percent together with medical-legal costs of $50.

Petitioner contends that the evidence compels a finding that his refusal of surgery was reasonable, that he is totally disabled and, therefore, the award should have been for 100 percent permanent disability. He also asserts that there is no medical evidence to support the finding that the risk of surgery was inconsiderable in view of the seriousness of the injury or to show the probable permanent disability which would remain after surgery.

The medical record is comprised of the reports of Dr. Hopkins, the treating physician, and Dr. Shepro. Dr. Hopkins reported that following the injury he had treated petitioner for low back pain and shooting pains and numbness in the left foot and leg by hospitalization, traction, and medicines until

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March 6, 1968. A report addressed to the insurer under date of March 20, 1968 advised that after an examination of the petitioner on March 6, 1968, the doctor diagnosed his condition as herniation and disc disease of two intervertebral discs and that it was his opinion that petitioner required a lumbar laminectomy with disc removal at two levels. In the report the doctor expressed the further opinion that this type of operation was .the only feasible method of returning petitioner to employment and that if the operation were performed it would require one to two weeks of hospitalization followed by approximately four months of temporary total disability. He stated that he had told the petitioner that his condition would be improved by such an operation but that petitioner was véry "reluctant to proceed and would return in one week for reexamination at which time, the doctor would advise the insurer regarding the petitioner’s decision.