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Most courts do not require a claimant to submit to surgery in a situation where it has been reasonably refused.
Claimant Robert Moilanen injured his back on September 4, 1979, while working for Marbles Moving & Storage Company of Great Falls. State Fund, the carrier for the employer, accepted liability and began paying claimant temporary total disability benefits beginning September 6, 1979. Moilanen was never able to return to work since that time and the primary issue is whether he should be required to submit to surgery before a determination can be made that he is permanently totally disabled. Back and leg pain prevented claimant from returning to work, and in April 1980, a doctor performed a myelogram. This test showed essentially normal conditions except that a large cyst was disclosed on the nerve root in the lumbar region of claimant's back. Moilanen had an adverse reaction to the myelogram and he was hospitalized for nine days because of complications.
Moilanen continued to have pain and could not work as a furniture mover. The State Fund requested that a Great Falls evaluation panel determine his condition. The panel consisted of two medical doctors, a registered physical therapist and a clinical psychologist. A majority of the evaluation panel found no objective or neurological reason for Moilanen’s continued pain, and, using the evaluation guide, the panel gave him a zero impairment rating. The clinical psychologist, however, differed with the conclusion of zero impairment, and further stated that Moilanen’s pain and inability to provide for his family produced anger and frustration that resulted in extreme functional disorders. Although the psychologist did not agree with the panel's conclusion of zero impairment, she did not provide an opinion on what the impairment rating would be. A short time later, Dr. Johnson examined Moilanen but he found no neurological problem. Nonetheless, Moilanen continued to have severe pain and a second myelogram was performed. It, too, indicated a normal back condition. But a few months later another doctor, Dr. Nelson, examined Moilanen, and found that Moilanen had a herniated disc in the lumbar area. In his report to Moilanen’s attorney he suggested that Moilanen would need surgery. Dr. Nelson later stated that surgery would decrease 45 percent of Moilanen’s back pain and 70 percent of his leg pain, but that without surgery, his condition would be permanent. Yet another doctor examined Moilanen, and he also concluded that Moilanen had a herniated disc. Dr. Snider, and orthopedic surgeon, reported that Moilanen had a possible herniated disc in the lower lumbar area. The doctor rated Moilanen’s physical impairment at 5 percent as compared to the whole body. However, Dr. Snider did not recommend surgery. Rather, he recommended use of a back support and attendance at a "back school."
From the time of his injury and continuing to the present, Moilanen has received temporary total disability benefits. While the case for the collection of benefits was pending before the Worker's Compensation Court, the State Fund, based on medical reports that Moilanen was not temporarily totally disabled, sent Moilanen notice that his benefits would be reduced to permanent partial benefits. However, before his benefits were actually reduced, the Workers' Compensation Court ruled on the issues, the effect of which maintained claimant's status receiving temporary total disability benefits.
Was Moilanen able to prove that he was permanently disabled?
In ruling on the extent of disability issue, the trial court held that Moilanen should be continued on the status of temporary total disability. The court stated that "the evidence in this case clearly establishes this claimant is not as far restored as the permanent character of his injuries will permit." The trial court relied on the testimony of Dr. Nelson, the report of Dr. Snider, the reports of the psychologists, and the testimony of Moilanen. In recommending back surgery, Dr. Nelson predicated that without it Moilanen’s condition was permanent. And claimant was justifiably skeptical about undergoing back surgery. The prognosis was that even with surgery, at least some pain would continue, and Moilanen justifiably had concern because of the complications that had developed after the performance of the first myelogram. Without surgery Moilanen’s condition is permanent and there is not even a contention that claimant unreasonably refused to have surgery. Thus, Moilanen was not required to undergo back surgery before a determination could be made on the extent of his disability.
Nor does Dr. Snider's testimony indicate that Moilanen’s back injury was anything less than permanent. Though he recommended a back school and use of an abdominal support, the recommendations were not made because of a belief that claimant would, with the best results, be able to enter the normal labor market again. His recommendations were simply made with the belief that Moilanen’s symptoms would be alleviated to some extent -- in effect, that these measures might help claimant live with his condition. His condition, and the symptoms caused by this condition, would not be eliminated.
Finally, the psychologists indicated that Moilanen needed more therapy for his depression, and there is no doubt he was depressed. Much of this depression was caused by Moilanen’s inability to accept his condition and the consequences of not being able to support his family as he had in the past. Although the therapy they recommended may have helped Moilanen deal with his back condition, the therapy would not heal Moilanen’s back condition.
The result is that Moilanen would, in any situation, have a permanently injured back. The real issue is not whether he was permanently disabled, but how that permanent disability may have affected his ability to function in the normal labor market. The trial court did not rule on all the statutory factors affecting a claim for permanent disability, and the factual decision of whether Moilanen is totally or partially disabled is not one for this Court to make in the first instance. The trial court must therefore make these factual determinations.