Batte v. Stanley's

• Decision Date: 14 August 1962
• Docket Number: No. 7155,7155
• Citation: 1962 NMSC 105,70 N.M. 364,374 P.2d 124
• Parties: William R. BATTE, Claimant, Plaintiff-Appellee, v. STANLEY'S, a co-partnership, Employer, and The Fidelity & Casualty Company of New York, Insurer, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 124

374 P.2d 124

70 N.M. 364

William R. BATTE, Claimant, Plaintiff-Appellee, v. STANLEY'S, a co-partnership, Employer, and The Fidelity &

Casualty Company of New York, Insurer,

Defendants-Appellants.

No. 7155.

Supreme Court of New Mexico.

Aug. 14, 1962.

George L. Zimmerman, Alamogordo, for appellants.

Albert J. Rivera, Alamogordo, John Anderson, Lordsburg, Smith, Kiker & Kitts, Richard E. Ransom, Albuquerque, for appellee.

MOISE, Justice.

This is an appeal by defendant-employer from a judgment finding claimant 60% disabled and entitled to compensation on this basis for not to exceed 500 weeks.

The question presented for determination under the facts is the sufficiency of the findings of the court to support the conclusion that claimant had suffered a reduction of wage earning ability to the extent of 60 per cent.

The facts found by the court disclose that claimant was 43 years old, had a 7th grade eduction, was qualified to do nothing except manual labor and driving of light trucks; that on April 20, 1960, he suffered an injury to his back in the course of his employment with defendant for whom he worked for some 14 years; that at the time of his injury he was earning $1.35 per hour, with time and a half for over time, and was working a 48 hour week so that his weekly wages were $70.20.

The findings of the court show that after the injury on April 20, 1960, claimant did not work until April 27 when he returned to work with defendant at the same rate of pay and continued this employment until July 15. From July 15 to July 23 he was unemployed, and on the latter date went to work for Navajo Freight Lines at $2.45 per hour and worked until August 19, earning $221.21. He was then unemployed until September 1 when he went to work for Uptown Cleaners earning $65.00 per week, and continued in this employment until November 1, when he went to work for a trucking contractor for whom he worked until December 1, being paid on a ton-mileage basis and earning $111.21 for 3 weeks work. On December 1, he returned to work for Uptown Cleaners, where he worked until May 1, earning $60.00 per week. From May 1 and continuing to September 29, the date of the trial, he worked for Tularosa Hardware and earned $60.00 per week. During the entire period claimant lost 22 working days due to all causes.

The court made additional pertinent findings which for convenience are quoted in full, as follows:

'10. That the claimant herein, William R. Batte, is now and has been employed by the Tularosa Hardware Company at the rate of $1.25 per hour for a 48 hour week; that he entered this employment on the basis of being well acquainted with the managerowner of this business, who had known him previously and worked previously with him at Stanley's in Alamogordo; although he knew that Mr. Batte had an injured back, he did not know the exact extent of the injury and stated that if he had known he would not have employed him, but out of special consideration he kept him on and had one of the other employees assisting in lifting heavy objects; that at the present time he will be unable to continue this employment of Mr. Batte due to the economic recession in the business; that he will be unable any longer to employ an assistant to help Mr. Batte in lifting heavy objects and that he can employ one man to do the entire job, which he is going to be forced to do.

'12. That since, but not before, the incapacitating injury, at and present, William R. Batte's back hurts him constantly. It interferes with his rest in that he is unable to sleep through the entire night and frequently has to sleep on the floor. The sharp pain from his back radiates to his lower extremities with attending stiffness and numbness. He is unable to recline in a sitting position except for brief periods of time without having great difficulty in resuming an erect position. He is unable to do anything that approaches normal lifting, and frequently drops things. He is irritable and quick tempered to his own family as well as strangers. He experiences extreme pain upon coughing. He experiences difficulty in maintaining proper balance. He stumbles quite often and has limitations in ordinary walking and is unable to do manual labor consistently and continuously.

'13. That the testimony of two physicians was taken in this case, one employed by the liability carrier who fixed this man's total disability at 10 per cent, but said this was done on examination of his reactions and certain tests that he put him through and x-rays. Claimant's physician testified that he was, in his opinion, 60 per cent disabled. This was based on the fact that he performed a discogram of William R. Batte wherein he found that he had a herniated disc in the lumbar spine at the level of the fourth and fifth lumbar inner spaces, being the same area as the strain which the previous evaluation was made by the liability carrier's physician. He also stated that as far as doing any manual labor was concerned, which involved truck driving or other jobs of unskilled employment, that he thought he was probably disabled; however, that he would fix his disablement of the body as a whole at 60 per cent.

'14. The evidence established that employment opportunities for labor work in the area of Otero County was nearly nil for a prospective employee known to have two ruptured discs in his lower back area.

'15. Both the employer's medical expert and the plaintiff's medical expert established the fact that William R. Batte would not be recommended for employment requiring manual labor by either of them.

'16. That as a reasonable medical certainty, continued attempts to perform manual labor will intensify the present injury as the alignment and functioning ability of the entire spine is affected by the two injured discs.

'17. That as a reasonable medical certainty, the injury is permanent, and will become more aggravated with the passage of time.

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'28. That on April 19, 1960, plaintiff's principal occupation was that of a delivery man, and ahat all of his employment subsequent to April 19, 1960, and up to and including September 29, 1961, the date of trial, the plaintiff's principal occupation was that of a delivery man.

'29. That the plaintiff voluntarily resigned his employment from Navajo Freight Lines, Inc. as a delivery truck driver; that the plaintiff voluntarily resigned his employment from Uptown Cleaners on two occasions; and that the plaintiff voluntarily resigned his employment from Harcrow Trucking Company, all because his back hurt and he could no longer continue.'

Based upon these findings, as already stated, the court concluded there was a 60% reduction in claimant's wage earning ability.

Defendant complains that in so determining, the court failed to apply the formula contained in Sec. 59-10-18.3, N.M.S.A.1953. As we understand the argument, it is to the effect that this statute sets up a mathematical formula and that the court is required to follow it. Defendant admits that under one method of applying the formula, claimant's earning capacity may have been reduced 14 1/2%, under another the reduction would have been 14 1/3%, and under still another it would have been 17%, and concedes that a conclusion of 17% would have been within the proof.

The sections of the statute involved are Secs. 59-10-12.1(A)(C), and 59-10-18.3, N.M.S.A.1953, which read as follows:

'59-10-12.1. As used in the Workmen's Compensation Act [59-10-1 to 59-10-37]:

'A. 'Disability' means a decrease of wage earning ability due to a workmen's injury suffered by accident arising out of and in the course of his employment.

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'C. 'Partial disability' means a reduction in, but not an entite loss of, a workman's wage earning ability due to an injury suffered by accident arising out of and in the course of his employment.'

'59-10-18.3. For partial disability the workmen's compensation benefits not specifically provided for in section 59-10-18.4 New Mexico Statutes Annotated 1953 Compilation, shall be that percentage of the benefit payable for total disability, as provided in section 59-10-18.2, New Mexico Statutes Annotated, 1953 Compilation, which is derived by dividing the workmen's average weekly wage before the disability into the difference between such average weekly wage before disability and the average weekly wage he earns or is able to earn after disability, in any employment, which benefits shall be payable for the duration of the workmen's partial disability but in no event longer than five hundred (500) weeks.'

It is apparent from reading the statutes that 'disability' is defined as a 'decrease of wage earning ability' and 'partial disability' is a 'reduction in, but not an entire loss of a workman's wage earning ability.' The formula in Sec. 59-10-18.3, N.M.S.A.1953, provides that the compensation benefits where a workman is partially disabled is arrived at by 'dividing the workman's average weekly wage before the disability ($70.20 in the...