                                    NO. 83-350

                IN THE SUPREIlIE COURT OF THE STATE OF h1UNTANA
                                        1984




L U X E. SPALL,
                 Claimant, Respondent and Cross-Appellant,

    -vs-

COPIBUSTION ENGINEERING, Employer,
    and
TRANSPORTATION INSURATJCE CO    .
                 Defendant and Appellant.




APPEAL FROM:      Workers' Compensation Court, The Honorable Timothy
                  Reardon, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:

                Garlington, Lohn & Robinson; Larry E. Riley,
                P'lissoula, Montana

         For Respondent:
                Charles TI. Hingle, Billings, Montana



                                    Submitted on Briefs:   January 26, 1984

                                                 Decided: Nay 1, 1984


Filed:
          dqy   1 1984


      --
                                    Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
        The Workerst Compensation Court found that claimant was
permanently totally disabled.              Defendant contends this was
improper because claimant refused low-risk surgery with a 92%
chance of restoring working ability.            We affirm the Workers'
Compensation Court.
        On   July    16,    1981, claimant     suffered    an    industrial
accident during his employment with Combustion Engineering in
Colstrip, Montana.           Claimant injured his right knee while
working in a welding shop at the construction site.                There is
no dispute with regard to the temporary disability benefits
paid.    Following trial before the FJorlcers' Compensation Court
on May 13, 1983, the court entered its findings of fact,
conclusions of        law and     judgment awarding permanent total
disability to claimant.          Defendant appeals.
        Defendant's only issue is whether claimant is entitled
to permanent total disability when he refuses to have surgery
which is low risk and which has a 92% chance of restoring his
working capacity.           Claimant's only issue is whether there is
substantial evidence to support the findings and conclusions
of the Workers' Compensation Court.              We will address both
issues, recognizing that defendant's issue is actually a part
of claimant's issue.
        All parties agree that claimant has refused to have
elective surgery to his right knee.            Defendant emphasizes the
facts and the         law which suggest that an award of total
permanent disability is improper where there is no reasonable
basis for refusal to have low risk surgery.                However, this
approach      does    not     adequately   address   the   complex     fact
situation present here.           Claimant's refusal to have surgery
is not merely an exercise of his decision-making power after
considering the risks attendant upon surgery.                   Claimant is
suffering from a manic-depressive disorder, which directly
affects his capacity to make a reasoned election regarding
surgery.
     Claimant was treated by Dr. Teal, an orthopedic surgeon,
and by Dr. Crowl-ey, a psychiatrist.    In addition, claimant
was examined by a professor of rehabilitation counseling at
Eastern Montana College and by a clinical psychologist.    We
have considered the depositions of these experts.
     The pertinent portions of the undisputed findings of the
Workers' Compensation Court are as follows:
      1.   The claimant at the time of trial was a
     32-year-old male, married with 3 dependent children
     and his wife was pregnant with a. fourth child.


     "4. On July 16, 1981, the claimant, while stepping
     through the doorway of a welding shack, stepped on
     a sample coupon that rolled and caused the
     claimant's right leg to slip back and out to the
     side; he immediately 'felt something give,' a
     'twinge,' in his right knee. He wa.s able to return
     to work, but it later began to swell and became
     painful.


    "6. In 1972, the claimant injured his right knee
    while playing basketball.     Dr. D. P. Jacobson
    performed a medial meniscectomy on his right knee
    and during the operation discovered an old rupture
    of the anterior cruciate ligament.


     "12.     There exists a surgical procedure to
     reconstruct and to repair the claimant's ruptured
     anterior cruciate ligament.
     "13.   The surgery has been 92 percent successful.
    "14.   If the surgery were unsuccessful, then the
    claimant's condition would remain unchanged or
    would slightly improve.
     "15.   The surgery has a low risk to life.
     "16. The surgery involves a 5-10 percent chance of
     the claimant incurring phlebitis, a 1-30 percent
     chance of infection settling in and a 10 percent
     chance of an adverse reaction to an anesthetic.
"17. If the claimant submitted to the surqery, he
would have to remain in the hospital for 4 or 5
days after the operation with severe pain for a few
days and diminishing thereafter. Thereafter, the
claimant's knee would be immobilized in a cast for
approximately 6 weeks and then in a brace for
approximately 6 weeks.    The claimant could then
return to work from 3 to 6 months after the brace
was removed.
"18.    If the claimant submitted to surgery, he
would physically be able to return to work as a
welder.
"19. If the claimant does not submit to surgery,
then the claimant's knee instability will continue.
"20. In late July or early August 1982, the
claimant was     suffering from manic-depressive
disorder.     [Dr. William Crowley testified in
deposition as follows:]
     "Q.   Would you explain for us in laymen's
     terms what you mean by 'manic-depressive
     disorder?'
    "A.   Yes.   What I mean by manic-depressive
    disorder is that a patient has an in-born
    disturbance of their neurophysiology which has
    a cyclical basis. Now, it's not clear exactly
    why there is a cycle, how the cycle is
    regulated, but what happens is that a person's
    mood will gyrate sometimes quite rapidly from
    being very depressed and immobilized    . . ..
    They will swing from that side often to the
    other side which is more euphoric in some
    cases, but not necessarily so because they may
    also be in a very irritable state. Now, Mr.
    Small is one of the people that, to me,
    appears to have much less of the euphoria and
    more of the irritable side of the manic state

" 21.   The claimant's manic-depressive disorder
predates his July, 1981, industrial accident.
"22. The claimant's manic-depressive disorder is
the result of abnormal body chemistry.
"23. The claimant's inability to work as a result
of his July, 1981, industrial accident aggravated
his preexisting manic-depressive disorder.


"26. The claimant's manic-depressive disorder will
require treatment for the rest of his life  . . . .

"28. During an acute episode (a period prior to
and during hospitalization) of his manic-depressive
disorder, the claimant is unable to work.
      "29. Life stresses, such as loss of a job, and a
      consequent inability to support oneself and family
      can aggravate, i.e., cause to become acutely
      symptomatic, a manic-depressive disorder.
      "30. The claimant has refused to submit to surgery
      to repair his ruptured anterior cruciate ligament
      because he fears that the surgery will not be
      successful, that he will be completely unable to do
      any work, that he will have pa.in in his knee during
      the recovery period and thereafter and that he
      might reinjure his knee during the recovery period.
      "31.    The claimant's manic-depressive disorder
      distorts his judgment; specifically, it causes him
      to focus and dwell on the possible detrimental
      consequences of the proposed knee sursery to the
      exclusion of the probable benefits. The claimant's
      disorder significantly impairs his ability to make
      a rational decision.


      "34.     The claimant currently is 30 percent
      permanently impaired compared to the loss of the
      function of his lower right leg. If the claimant
      submitted to knee surgery and it were successful,
      then he would be 10-15 percent permanently impaired
      compared to the loss of the function of his lower
      right leg." (citations to record omitted)
      After considering the various authorities and based upon
the   foregoing   findings, the   Workers'   Compensation   Court
reached the following conclusion:
      "The expert medical opinion, as found by this
      Court, is that the proposed knee surgery would
      enable the claimant to return to work as a welder.
      The proposed surgery is relatively low risk. There
      exists an excellent prospect that the surgery would
      almost completely restore to the claimant the use
      of his right knee and that he would be pain free
      relatively soon after the operation. The recovery
      period immediately after surgery would expose the
      claimant to significant pain.    If this Court had
      only this information before it, then it would have
      to conclude that the claimant's refusal to submit
      to knee surgery was unreasonable. But this Court
      also has before it the claimant's impaired ability
      to evaluate the probable benefits of the surgery.
      While the factors the Dosen court relied on frame a
      bright picture of recovery when woodenly applied to
      the facts of this case, the claimant, because of
      his manic-depressive disorder, views these same
      facts through a glass darkly, and his view, a
      subjective view, is the one this Court too must
      take. The claimant's mental disorder distorts his
      powers of perception, comprehension and judgment
      and conscripts his mind with the possibility of
      failure, reinjury and pain; his mental disorder
      prevents him    from evaluating rationally the
       benefits of the proposed surgery.      Frorn this
       perspective, the claimant's refusal to submit to
       knee surgery is not unreasonable."
       The Workers' Compensation Court then concluded that the
claimant's         refusal    to    submit    to    knee   surgery   was   not
unreasonable and         had       not    broken   the   cha.in of   causation
between his work-related injury and his current disabling
knee condition.
       The standard of review to be applied by this Court in
its review of the conclusion that the claimant reasonably
refused to submit to knee surgery is stated in 1 Larson, The
Law of Workmen's Compensation S13-22 (1982):
       'I.   . .
               most courts will not at present d.isturb a
       finding that refusal to submit to the operation is
       reasonable, since the question is a complex fact
       judgment involving a multitude of variables,
       including claimant's age and physical condition,
       his previous surgical experience, the ratio of
       deaths from the operation, the percentage of cures,
       and many others. The matter cannot be determined
       automatically - -a matter of medical sFatistics and
                     as
       expert testimony.      The surgeon who sees several
       operations every day and who testifies that the
       chance of fatality is only five percent naturally
       has a different ~ o i n t view than the claimant who
                                of
       has never had      major operation and might quite
       understandably prefer to enjoy life as best he can
       with his injury rather than take a one in twenty
       chance of being dead               . . .."
                                           (emphasis added)
       (footnotes omitted)
       Defendant      argues       that    section 10.44     of   the Montana
Workers' Compensation Manual controls:
       "An injured worker is obligated to submit to
       reasonable medical treatment for an injury and if
       claimant declines to undergo such treatment, the
       insurer should be released from obligations to
       maintain the claimant."
       This section of the manual cites as authority Dosen v.
East Butte Copper Mining Co.                (1927), 78 Mont. 579, 254 P.
880.     In Dosen this Court stated:
       "Notwithstanding the fact that the osteomye1it.i~
                                                       in
       his leg will continue, eventually causing the loss
       of his leg, and possibly his life, claimant always
       has stubbornly refused to submit to amputation,
       although little danger is to be apprehended from
       the operation         . . ..
                               The board could not order
        claimant to submit to amputation of the leg, but it
        could absolve the company from making the payments
        during the period of claimant's obstinate and
        unreasonable refusal to submit to the operation
        advised by the surgeons in this case." 78 Mont. at
        606, 254 P. at 8 8 8 .
The   Dosen      opinion   relied   solely    upon   medical     testimony
establishing that the amputation procedure was reasonable and
safe.       No    evidence     of   other    appropriate      factors   was
apparently taken or considered.              The Court considered the
amputation solely from a medical expert's point of view.                 It
failed to consider the reasonableness of claimant's refusal
in light of the "multitude of variables" appropriate to this
complex     factual    determination        and   therefore    failed    to
properly determine whether claimant's refusal was reasonable.
Dosen displays a casual disregard of the substantial effects
of surgical treatment which is no longer appropriate under
the Workers' Compensation Law of Montana.
      We therefore overrule Dosen.           The Workers ' Compensation
Court is required to make the reasonableness determination
based upon a multitude of variables, including the age and
physical condition of the claimant, his previous surgical
experience, ratio of deaths from the operation, the extent
and percentage of cures, and other factors of a similar
nature.     This standard was not applied in Dosen.             Here, the
Workers' Compensation Court properly considered all evidence
relevant to a determination of whether claimant's refusal to
submit    to     surgery was    reasonable, including         evidence of
claimant's manic-depressive disorder and its effect upon his
ability to make a decision regarding surgery.                 The medical
statistics regarding risk of the operation and likelihood of
success alone are not sufficient to render claimant's refusal
unreasonable.
        As a result of the overruling of Dosen, section 10.44 of
the     Montana       Workers'     Compensation    Manual          no    longer   is
authority for a denial of benefits under the facts of this
case.
        The applicable standard of review is stated in Nielsen
v.    Beaver Pond, Inc.            (Mont. 1983), 661 P.2d               47, 49, 40


       "'Our function in reviewing a decision of the
       Workers' Compensation Court is to determine whether
       there is substantial evidence to support the
       findings and conclusions of that court. We cannot
       substitute our judgment for that of the trial court
       as to the weight of evidence on questions of fact.
       Where there is substantial evidence to support the
       findings of the Workers' Compensation Court, this
       Court cannot overturn the decision. [citations
                  .
       omitted] ' "
       A review of the depositions of the various experts,
including     the       medical      experts,    and     of    the       transcript
discloses substantial evidence to support both the findings
and the conclusions of the Workers' Compensation Court.                           We
therefore     affirm         the   court's     holding    that       claimant     is
entitled to permanent total disability even though he refused
to have     low-risk surgery.               We hold there is substantial
evidence to support both the findings and conclusions of the
Workers' Compensation Court.
       We   point      out    that    the    conclusion       of    the   Workers'
Compensation          Court    with    regard     to     aggra.vation of           a
pre-existing mental condition is in accord with Ridenour v.
Equity Supply Co. (Mont. 1983), 665 P.2d 783, 788, 40 St.Rep.


       "It appears we are being asked to distinguish
       between a pre-existing condition and a pre-existing
       disease. However, there is no such distinction in
       the application of the aggravation and acceleration
       rule. An employer accepts his employee with all of
       his injuries and diseases. We have recognized that
       diseases    are   subject    to   aggravation    or
       acceleration."
      We approve the finding and conclusion by the Workers'
Compensation Court that claimant's manic-depressive disorder
predisposes him to manage money imprudently and that the
claimant is not entitled to convert into a lump sum award any
of the bi-weekly benefits.      The court also concluded there
was   a   possibility   of vocational   rehabilitation or other
medical treatment and that a change in the claimant's mental
disorder might create a need for additional proceedings.    The
court then pointed out that the parties may petition the
court in the future for adjustment of the award based on a
change of circumstances.     This approach wisely protects the
interest of both claimant and defendants.
      The judgment is affirmed.
                                  F-77
We concur:


       ,&
 3L,#lwc
Chief Justice
