Baca v. Swift & Co.

• Decision Date: 18 May 1964
• Docket Number: No. 7070,7070
• Parties: Teofilo Tom BACA, Claimant, Plaintiff-Appellee, v. SWIFT & COMPANY, Employer, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 407

392 P.2d 407

74 N.M. 211

Teofilo Tom BACA, Claimant, Plaintiff-Appellee, v. SWIFT & COMPANY, Employer, Defendant-Appellant.

No. 7070.

Supreme Court of New Mexico.

May 18, 1964.

Merritt W. Oldaker, Roy F. Miller, Jr., William H. Oldaker, Albuquerque, for appellant.

Sheehan, Duhigg & Christensen, Albuquerque, for appellee.

CASWELL S. NEAL, District Judge.

This is an appeal by Swift and Company, appellant-employer, from a judgment entered in the district court of Bernalillo County in favor of Teofio Tom Baca, employee-appellee, in a case arising under the Workmen's Compensation Act of New Mexico as it existed on April 15, 1959, the date of the alleged accidental injury.

The case was tried before a jury and two separate verdicts were returned by the jury. One verdict found that the appellee had been totally disabled for 115 weeks prior to the trial on June 23, 1961. The other verdict found that appellee was suffering from total and permanent disability at the time of the trial. Judgment was entered for total and permanent disability on the verdicts, medical costs assessed and a $2,500.00 attorney fee was awarded appellee's attorneys. An appeal has been timely taken.

The facts, which are in some dispute, are substantially as follows:

On April 13, 1959, appellee was engaged in unloading quarters of beef from the delivery truck he was operating for Swift and Company. He experienced the onset of a low back pain. He returned to the plant of appellant and reported the accident to his supervisor, the plant superintendent in charge of all of the plant's employees. The supervisor advised appellee to consult Dr. Farrell, the company doctor, after calling the doctor and making an appointment for appellee. Appellee consulted the doctor who concluded that appellee had suffered an acute lumbo-sacral strain with no involvement of the spinal boney processes. The doctor ordered claimant to bed and to 'lay off work' and started him on physical therapy treatment. He treated claimant on April 13, 16, 17, 18, 20, and 22; and on April 22 authorized claimant to return to light work. He returned to work on April 22, but after about four hours work he found 'he could not take it,' and returned to the doctor, who again ordered that he not return to work and proceeded with his therapy treatments on April 23, 24, 25 and 27. On April 27, he authorized claimant to return to work, he having, according to the doctor, no pain and no disability which the doctor could diagnose. Appellee nevertheless was supplied with, and was wearing, a lumbo-sacral corset, receiving analgesic medication and was to continue treatment. Appellee claims he was still suffering pain. The doctor called appellee's supervisor and advised that appellee had progressed satisfactorily and could return to work. Claimant was instructed to return to light work as a precautionary matter. He returned to work on April 28, 1959, and performed light work for a few days and then returned to his regular duties.

On May 5, appellee was sent to the office of Mr. Hulsey, the office manager, by his supervisor for the purpose of taking care of compensation arrangements for his temporary total disability and was given a draft in the amount of $35.30 representing 5 days total temporary disability at the rate of $42.50 per week, it being the appellant's policy to advance compensation to injured employes and add thereto the difference between the compensation to which they were entitled and their regular salary with the understanding that when compensation payments were received the company's payroll would be reduced to the extent of the amount of the compensation paid. Claimant was so advised and endorsed the check, which is in evidence, and turned it over to appellant. He was asked to sign a release, which he did. The evidence is conflicting as to the circumstances under which the release, which appellee did not read before he signed, was signed. Appellant claims it was a full release and final payment of all compensation arising from the accident and injuries. Appellee denies this, or that it was so intended. Appellee worked from April 28 through May 11, during which time he suffered pain and consulted Dr. Farrell on April 30, May 1, 2, 5 and 7. He complained of his back hurting 'around the office' and to the other employees. He claims he told his supervisor that his back was hurting and that his supervisor knew that he was wearing a corset. On May 12 he was discharged because, according to his supervisor, his work prior to his injury had been unsatisfactory and he had been warned that incidents of absence would not be tolerated. His discharge was over the phone. Appellee claims he had called to tell his supervisor he was going to the doctor, but that he was discharged before he had a chance to do this. The supervisor had another version of the conversation. Subsequent to the phone call the supervisor had no further communication from the appellee until suit was filed. However, on June 20, 1959, he received Dr. Farrell's report and was aware that appellee had been treated by the doctor subsequent to April 28, the day he had returned to work for the last period. On May 12, claimant visited Dr. Szerlip who examined the claimant at request of claimant's attorney and found no diagnosis of impairment or disability to any intervertebral disc. Appellee worked at various jobs hereinafter set out until he filed this claim on February 25, 1960.

On March 16, 1960, he called on Dr. Waldo Hanns who found a minimal narrowing of the lumbo-sacral joint and a congenital defect of the sacrum, and told claimant to rest and to avoid activities causing back pain.

On March 20, 1960, while in the employ of San Bar Construction Company, he fell off a tractor and reported he had hurt his back and shoulder. After this incident he did not return to work at San Bar until the week ending June 16, 1960, but in the interim worked about one and one-half months for Morris Contractors doing heavy labor. While there, he slipped and almost fell, pushing a loaded wheelbarrow, and experienced the same sensation in his back as on April 13, 1959. He left this job because his back was hurting and returned to work with San Bar. On October 18, he again visited Dr. Hanns, who examined appellee again and concluded that appellee's back was degenerated and he should obtain and wear an adequate support. He found no disc injury.

On November 29, 1960, Dr. Hanns did a discogram and concluded that a spinal fusion should be done. He found two discs in the early stages of degeneration which, from the history given only, he related to the injury of April 13, 1959.

On January 20, 1960, Dr. Hanns performed a lamindectomy and exploration of L-5, S-1 disc. Appellee remained in the hospital ten days and suffered a pulmonary embolus, resulting from his surgery and bed rest. He was readmitted to the hospital for treatment for his embolus, which subsided. He remained in the hospital until February 14. At the time of the trial, the fusion was not solid; it was attended with pain and claimant was then 100 percent disabled. At the time of the trial, future prognosis was uncertain but statistically a solid fusion would result, in which event claimant will be 25 to 30 percent totally disabled, in terms of heavy labor. Fusion solidification should occur in a few months to a year. There was no medical evidence of total permanent disability.

There is pending herein a motion to strike from the appellee's brief Exhibits 2 and 3, being reports relating to the matter, one being the superintendent's report to Swift and Company and the other a medical report. These were not admitted into evidence nor considered by the jury. They will be stricken and not considered by the court. It was improper for counsel to inject evidence into the case by way of his brief, not admitted into evidence by the trial court or considered by the jury. In re Guardianship of Caffo, 69 N.M. 320, 366 P.2d 848; Linton v. Mauer-Neuer Meat Packers, 71 N.M. 305, 378 P.2d 126.

Numerous points are relied upon for a reversal of the judgment.

POINT I:

THE COURT ERRED IN REFUSING TO DISMISS CLAIM HEREIN, CLAIMANT NOT HAVING COMPLIED WITH CONDITIONS PRECEDENT TO THE FILING OF CLAIMS UNDER THE WORKMEN'S COMPENSATION ACT OF THE STATE OF NEW MEXICO PERTAINING TO NOTICE AND THERE BEING NO FAILURE OR REFUSAL BY EMPLOYER THE CLAIM HEREIN WAS PREMATURE.

It is claimed, as to this point, that the court erred in refusing to dismiss te claim as prematurely brought because of the claimant's failure to 'give notice in writing of such accident and of such injury * * * within thirty (30) days after the occurrence thereof, * * *.' Sec. 59-10-13, N.M.S.A. 1953 (since repealed).

This statute further provided:

'* * * that no such written notice shall be requisite where the employer or any superintendent or foreman or other agents in charge of the work * * * had actual knowledge of the occurrence thereof. * * *' It is admitted that following this accident on April 13, 1959, the accident was reported to claimant's supervisor, who was the employer's plant superintendent. Appellee was referred to Dr. Farrell who found the claimant was suffering from an acute lumbo-sacral strain. The treatment prescribed is hereinabove set out. He returned to work April 28, performing light duties for a few days and then returned to his normal duties until he was discharged on May 11. Other circumstances during this period have been set forth hereinabove.

This court is committed to the doctrine that the verbal reporting of the accident and injury to the employer or his agent, under the circumstances shown here, satisfies the requirement of written notice or actual notice in the statute. Buffington v. Continental Casualty Co., 69 N.M. 365, 367 P.2d 539; Winter v. Roberson Construction Co., 70 N.M. 187, 372 P.2d 381; Lozano v. Archer, 71 N.M. 175, 376 P.2d 963. We are also committed to the doctrine that...