Cox v. Workmen's Compensation Commissioner, 150 W. Va. 412, 146 S.E.2d 577; Barnes v. State Compensation Commissioner, 116 W. Va. 9, 178 S.E. 70. However, a claimant is not required to submit to operative procedures which are not reasonably safe and might further endanger his health. Shrewsbury v. State Compensation Commissioner, 127 W. Va. 360, 32 S.E.2d 361; Gilliam v. Workmen's Compensation Appeal Board, 118 W. Va. 571, 191 S.E. 204. Dr. Humphries' evidence indicates that the success of the operation was anything but certain. There was a possibility of clotting and particularly a danger of serious thrombophlebitis developing in the claimant's leg, which "would be worse than it was in the first place". Under these circumstances, it cannot be said that the claimant's refusal to submit to the further operation was unreasonable and certainly was not sufficient to bar him from receiving a total permanent disability award.
However, a claimant will not be required to submit to a surgical operation in connection with treatment recommended and prescribed by a commissioner where there is a conflict of medical opinion and a sharp divergence as to the benefit of such surgery. Where there is such a sharp divergence, claimant is justified in refusing to submit to such operation, and his refusal is not unreasonable. Gillam v. Workmen's Compensation Appeal Board, 118 W. Va. 571, 191 S.E. 204. See State ex rel. Conley v. Pennybacker, State Compensation Commissioner, 131 W. Va. 442, 448, 48 S.E.2d 9.
Under his general powers, the commissioner has the authority to require a claimant to undergo a rehabilitative surgical operation, Code, 1931, 23-4-9; Shrewsbury v. State Compensation Commissioner; 127 W. Va. 360, 32 S.E.2d 361; Barnes v. State Compensation Commissioner, 116 W. Va. 9, 178 S.E. 70; but a claimant may not, in every instance, be required to submit to a surgical operation in connection with treatment recommended or prescribed by the commissioner. Gillam v. Workmen's Compensation Appeal Board, 118 W. Va. 571, 191 S.E. 204; Cheeks v. State Compensation Commissioner, 115 W. Va. 368, 176 S.E. 421; Cole v. State Compensation Commissioner, 113 W. Va. 579, 169 S.E. 165; Myers v. State Compensation Commissioner, 110 W. Va. 425, 158 S.E. 512. With respect to the necessity of a surgical operation upon the relator and as to whether he may be required to submit to such operation to enable the commissioner to determine his maximum degree of recovery, this Court entertains and expresses no opinion at this time. Whether the condition of the relator has been at times better or worse since his claim was reopened in September, 1947, or whether his present condition is of indefinite duration, does not satisfactorily appear from the pleadings.
However, the way is left open for the resumption of payments if and when claimant submits to this further diagnostic treatment. If a surgical operation is thereafter recommended by the physician, another and different problem will be presented which is not encompassed in this case. It is a troublesome question upon which light is found in the annotations in 6 A.L.R. 1260, 18 A.L.R. 431, 73 A.L.R. 1303 and 105 A.L.R. 1470. A spinal operation of disputed prognosis was the subject of Gillam v. Workmen's Compensation Appeal Board, 1937, 118 W. Va. 571, 191 S.E. 204, where it was held that claimant was justified in his refusal to undergo it. A similar case of like result is Bethlehem Steel Corporation v.Industrial Accident Comm., 1945, 70 Cal.App.2d 369, 161 P.2d 18, where the diagnosis found by the Commission was a dislocated intervertebral disc. These authorities refer, as does the quotation in appellant's brief from Horovitz's Current Trends in Workmen's Compensation, to major rehabilitory operations with which we are of course not here concerned.
The whole concept of the workmen's compensation system is that an injured employee shall be rehabilitated and restored to a sound physical condition, so far as reasonably possible. It certainly never was intended that he should have the power to elect to remain crippled and to capitalize his injury for the purpose of drawing a pension therefrom for the rest of his life. It has always been held in this state, and in all others, so far as I can ascertain, that a claimant who, without reason, refuses to submit to the ordinary and proper surgical treatment to remedy his injury is barred from monetary compensation. Mahone v. Workmen's Compensation Appeal Board, 118 W. Va. 587, 191 S.E. 289; Gillam v. Workmen's Compensation Appeal Board, 118 W. Va. 571, 191 S.E. 204; Barnes v. State Compensation Commissioner, 116 W. Va. 9, 178 S.E. 70. In each of these cases further compensation was denied upon the ground that a workmen's compensation claimant cannot reasonably refuse to undergo a proper surgical operation.
"These are questions of fact to be determined by the trial court before there is anything for review by an appellate court." Rhodes v. Cottle Construction Company, 68 N.M. 18, 23, 357 P.2d 672, 676 (1960); Helms v. New Mexico Ore Processing Co., 50 N.M. 243, 248, 175 P.2d 395 (1946); Gillam v. Workmen's Compensation Appeal Board, 118 W. Va. 571, 191 S.E. 204 (1937). The trial court made no such findings.