Archuleta v. Safeway Stores, Inc.

• Decision Date: 09 September 1986
• Docket Number: Nos. 8320,8360,s. 8320
• Citation: 727 P.2d 77,104 N.M. 769,1986 NMCA 92
• Parties: Mary ARCHULETA, Plaintiff-Appellee, v. SAFEWAY STORES, INC., Employer and Insurer, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 77

727 P.2d 77

104 N.M. 769

Mary ARCHULETA, Plaintiff-Appellee, v. SAFEWAY STORES, INC., Employer and Insurer, Defendant-Appellant.

Nos. 8320, 8360.

Court of Appeals of New Mexico.

Sept. 9, 1986.

[104 N.M. 770] W. Mark Mowery, Rodey, Dickason, Sloan, Akin & Robb, P.A., Santa Fe, for defendant-appellant.

Dennis P. Murphy, Montoya, Murphy, Kauffman & Garcia, Santa Fe, for plaintiff-appellee.

OPINION

BIVINS, Judge.

Defendant appeals from a judgment in this worker's compensation action awarding plaintiff total disability for an injury to her right lower extremity. Three issues are raised: (1) whether the trial court's finding of total disability resulting solely from an injury to the leg is supported by substantial evidence; (2) whether the Workmen's Compensation Act authorizes an award of total disability benefits in cases involving an injury solely to a scheduled member, which issue asks this court to re-examine cases holding it does; and (3) whether the trial court abused its discretion and exceeded its authority in the award of attorney fees and court costs.

While working for defendant as a meat wrapper, plaintiff sustained an accidental injury on December 14, 1982, when a conveyor belt fell, causing a severe and crushing injury to her right leg at the calf. Plaintiff sought total disability on three alternative grounds: first, based on an injury to her back resulting from the leg injury; second, separate and distinct injuries in the form of back injury and/or psychological disorder; or, third, the leg injury alone prevented plaintiff from performing the work she was doing when injured or any other work for which she is fit. The trial court rejected the first two approaches, but found total disability on the basis of the leg injury itself. It awarded plaintiff attorney fees of $24,727.50 for two attorneys and court costs of $6,990.95.

1. Sufficiency of the Evidence

NMSA 1978, Section 52-1-28(B) provides:

In all cases where the defendants deny that an alleged disability is a natural and direct result of the accident, the workman must establish that causal connection as a medical probability by expert medical testimony. No award of compensation shall be based on speculation or on expert testimony that as a medical possibility the causal connection exists.

Since defendant denied causal connection, plaintiff had the burden of proving that fact as a medical probability by expert medical testimony. Failure to do so would have precluded recovery. Gallegos v. Kennedy, 79 N.M. 590, 446 P.2d 642 (1968). Defendant argues that plaintiff failed to meet this burden, and, at best, she only established an injury or impairment as a result of the accident, but not a disability.

While conceding that a worker may testify as to the extent of his disability, defendant contends he may do so only after "the fact of disability, arising as a natural and direct result of the accident, is first established by expert medical testimony." See Salazar v. Pioneer Paving, Inc., 99 N.M. 744, 663 P.2d 1201 (Ct.App.1983). Since Section 52-1-28 refers specifically to "disability," which has a precise definition which relates to the worker's ability to work, then, according to defendant, the burden of proving causal connection can only be met by showing, through expert medical testimony, a decreased capacity to perform work. With this as its premise, defendant then proceeds to demonstrate that the medical evidence failed to establish the requisite causal connection.

Section 52-1-28, however, does not require such an exacting burden. This section only requires a claimant to prove, by a reasonable medical probability, the causal connection between the accident and the disability. Garcia v. Genuine Parts Co., 90 N.M. 124, 560 P.2d 545 (Ct.App.1977) (construing NMSA 1953, Sec. 59-10-13.3(B) (2d Repl.Vol. 9, pt. 1) now codified as Sec. 52-1-28(B)). This section does not require the claimant to prove disability by a reasonable medical certainty. Id. As we stated in Garcia: " 'Disability' is defined in terms of ability to perform work and requires consideration of the claimant's age, education, training, physical capacity, mental capacity and work experience. * * * By statutory definition, more than physical condition is involved in determining 'disability' ". Id. at 127, 560 P.2d at 548 (citations omitted). Therefore, because defendant misconstrues Section 52-1-28, we reject its argument.

We also hold that substantial evidence supports the trial court's finding of total disability. In order to receive total disability compensation, a claimant must make a two-part showing. First, he must show that "by reason of an injury arising out of, and in the course of, his employment, [he] is wholly unable to perform the usual tasks in the work he was performing at the time of his injury. * * *." NMSA 1978, Sec. 52-1-24. Second, he must show that "[he] is wholly unable to perform any work for which he is fitted by age, education, training, general physical and mental capacity and previous work experience." Id.

As to the first part, the trial court found that the job of meat wrapper required plaintiff "to continuously stand for most of an eight (8) hour workday and further requires repeated stooping, bending, reaching and lifting of meat or trays of meat as well as constant exposure to cold temperatures." It also found that as a result of the injury to her right leg, plaintiff was "limited in her ability to stand for long periods of time, to repeatedly stoop, bend, reach or lift and to withstand cold temperatures," and, therefore, "is unable to perform the regular and normal duties of a meat wrapper."

Dr. Steven Weiner, an orthopedic surgeon, testified that he treated plaintiff for a crush injury to her leg. When asked whether plaintiff has a "limitation" returning to her occupation as a meat wrapper, the doctor replied, "Yes." The doctor was then asked whether plaintiff was totally disabled to perform her occupation, given her inability to work in a cold environment, her standing limitation of three hours out of an eight-hour day, and her ability only to lift a fifty-nine-pound maximum. The doctor replied, "Based on her description of the job to me, yes." Thus, the court's first finding was supported by substantial evidence.

As to the second prong of total disability, the trial court found that plaintiff, aged fifty-four with an eighth-grade education, had no previous work experience except as a meat wrapper, a job she occupied for thirty-five years. It further found that she possessed little capacity for "re-education or re-training" and had no transferable work skills or other attributes that would render her employable in any field other than as a meat wrapper. These findings are sufficient to satisfy this prong.

Applying the standard of appellate review, see Sanchez v. Homestake Mining Co., 102 N.M. 473, 697 P.2d 156 (Ct.App.1985), we hold that substantial evidence supports the finding of total disability.

2. Does the Workmen's Compensation Act authorize total disability in cases involving injuries solely to a scheduled member?

Defendant correctly notes that prior to this court's decision in Witcher v. Capitan Drilling Co., 84 N.M. 369, 503 P.2d 652 (Ct.App.1972), the scheduled member section in NMSA 1978, Section 52-1-43 (then codified as NMSA 1953, Sec. 59-10-18.4 (Repl.Vol. 9, pt. 2, Supp.1971)), was exclusive, unless there was evidence of separate and distinct impairment to other parts of the body in addition to the injury to a scheduled member. See Montoya v. Sanchez, 79 N.M. 564, 446 P.2d 212 (1968). Witcher held, however, that where an injury to a scheduled member results in total disability, the scheduled member section does not prohibit compensation based on such total disability.

Claiming that the reasoning in Witcher is seriously flawed, defendant urges this court to re-examine its holding and to overrule that decision. Even if we were otherwise inclined to do so, that would not be possible since the supreme court adopted the same rule in American Tank & Steel Corp. v. Thompson, 90 N.M. 513, 565 P.2d 1030 (1977). This court is governed by the precedents of the supreme court. Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973).

3. Attorney Fees and Costs

(a) Defendant's claim of excessive and unauthorized attorney fees raises the questions of whether an award may be made to a compensation claimant for the services of two attorneys and whether the award should include time spent in pursuit of unsuccessful claims.

In this case, plaintiff had two attorneys representing her throughout the proceedings. The trial court's findings reflect that one attorney expended 166.7 hours in the case while the other expended 125.5 hours. The trial court's award of $24,727.50 is for two attorneys. We hold that this award for double representation was impermissible under NMSA 1978, Section 52-1-54(D) which speaks of "attorney" in the singular. While there is no restriction on the number of attorneys a worker may engage, a reasonable fee will be allowed only for single representation.

The trial court found that "the only issue which was truly contested was the nature and extent of the Plaintiff's disability," and, further, that "[t]he factual and legal issues in this case were within the normal range of complexity * * *." As noted earlier, plaintiff attempted to circumvent the restrictions of the scheduled member section by claiming separate and distinct injuries in the form of a back injury and/or psychological disorder. The trial court rejected these claims and found, as part of the attorney fees proceeding, that the claim of disability based on psychological disability had little or no chance of succeeding. At the hearing, the trial court characterized this claim as "frivolous." Nevertheless, the trial court went on to find that it was

unwilling to reduce the award of attorneys fees based on it's [sic] disapproval of the ...