Bufalino v. Safeway Stores, Inc.

• Decision Date: 10 August 1982
• Docket Number: No. 5545,5545
• Parties: Joseph L. BUFALINO, Plaintiff-Appellee, v. SAFEWAY STORES, INC., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 844

650 P.2d 844

98 N.M. 560

Joseph L. BUFALINO, Plaintiff-Appellee, v. SAFEWAY STORES, INC., Defendant-Appellant.

No. 5545.

Court of Appeals of New Mexico.

Aug. 10, 1982.

John B. Tittman, Robert C. Conklin, Keleher & McLeod, P. A., Albuquerque, for defendant-appellant

James T. Roach, Albuquerque, for plaintiff-appellee.

OPINION

SUTIN, Judge.

Safeway appeals a judgment in which plaintiff was awarded workmen's compensation benefits for total permanent disability arising out of a heart attack while on the job. We affirm.

As summarized, the court found:

On January 17, 1981, plaintiff, 64 years of age, was employed by Safeway as a meat cutter. While performing very heavy lift work, plaintiff felt a sudden disabling pain in his chest, and due to physical stress, suffered a myocardial infarction resulting in disability. Prior thereto, plaintiff told his supervisor he was not feeling well but was told to keep working.

Prior to the heart attack, plaintiff had no symptoms of any heart problems. He had an 80% developmental blockage of one of the descending arteries in his heart but it was unknown to himself or to anyone else. He was fully able to perform all the duties of his work. Immediately after his heart attack to the time of trial, plaintiff was unable to perform his work as a meat cutter or any work for which he was fitted and was permanently disabled.

Plaintiff had spent most of his life as a meat cutter and had no skills or training in any other field.

Safeway claims: (1) plaintiff's heart attack was not caused by his work; (2) the heart attack did not permanently damage plaintiff's heart; (3) if plaintiff is disabled, it was due to natural progression of the underlying disease process; (4) plaintiff was not totally disabled; and (5) the trial court abused its discretion in awarding plaintiff $15,000.00 as attorney fees.

A. Plaintiff's heart attack was caused by his work.

This point is wholly factual. Safeway contends that plaintiff's myocardial infarction was merely an incident of his pre-existing heart disease (arteriosclerosis or clogging of arteries) and did not arise out of and was not incident to his work; that at the time of the onset he was not doing any heavy or exerting activity but was merely pushing a cart with a few empty cardboard boxes on it. Safeway is mistaken.

Plaintiff testified that at the time he felt the sudden chest pain he was either making "burger" or loading boxes which weighed 80 pounds, both being work of heavy lifting. Plaintiff's physician testified that the lifting stress was the precipitating cause of the heart attack. Under the same factual situation, Sanchez v. Board of County Commissioners, 63 N.M. 85, 313 P.2d 1055 (1957), had no difficulty in seeing a compensable accidental injury.

Safeway relies upon the testimony of another meat cutter that plaintiff had pains in his chest while pushing a cart of empty boxes out to the baler. Therefore, the heart attack was merely an incident of his pre-existing heart disease, not his work. Plaintiff's physician testified that if, at the time plaintiff experienced chest pains, he was lifting pasteboard boxes that were empty, it was physical exercise which caused the heart attack, an event that occurs within a fairly reasonable amount of seconds or minutes after the exertion.

In either event, plaintiff's heart attack was caused by his work.

B. The heart attack permanently damaged plaintiff's heart.

The trial court found:

24. Plaintiff suffered a permanent damage to his heart as a result of the myocardial infarction of January 17, 1981.

Safeway concedes that:

There is no dispute that as a result of the heart attack some heart tissue died and was replaced by scar tissue. There is no dispute that this is permanent.

This admission, supported by the evidence, established a permanent damage to the heart. Safeway claims that no significant permanent damage to plaintiff's heart existed because the heart pumps blood just as well as it did before January 17, 1981. To support this conclusion, Safeway points to the testimony of plaintiff's cardiologist who stated that plaintiff had a very small heart attack and found a very small amount of damage. There was no testimony that the heart pumped blood just as well as it did before January 17, 1981.

What Safeway argues is that permanent damage to plaintiff's heart did not significantly impair the function of the heart. This means that the function of the heart was impaired but not in a meaningful way. Safeway relies on the testimony of its cardiologist who stated that stress could not precipitate the heart attack; that part of plaintiff's main pumping station was damaged but not to the point where it would limit him significantly. Whatever his opinion means, the trial court rejected it. In workmen's compensation cases, opinion testimony is not conclusive. The trier of the facts could accept, reject or give such weight only as it deemed the same entitled to have, even though uncontradicted. Montano v. Saavedra, 70 N.M. 332, 373 P.2d 824 (1962).

What is meant by "permanent damage to the heart"? This is an innovation in workmen's compensation cases. In Alspaugh v. Mountain States Mutual Casualty Co., 66 N.M. 126, 343 P.2d 697 (1959), the dissenting opinion of Justice Compton sets forth the testimony of a doctor: that the workman had suffered "permanent damage to the heart" as a result of the first attack and that it was natural that subsequent heart attacks would follow the initial one when the heart muscles had been thus damaged.

The line of demarcation between temporary, significant and permanent damage is not susceptible of exact delineation. But practically speaking, permanent damage to the heart is damage that is incurable; that continues or endures without fundamental or marked change, but, coupled with another heart attack can cause heart failure or death. With proper medical guidance, it may delay heart failure but the damage cannot be cured per se. Plaintiff suffered permanent damage to his heart.

What is its significance? Workmen's compensation is allowed " * * * (3) when the disability is a natural and direct result of the accident." Section 52-1-28(A)(3), N.M.S.A. 1978. The primary test of disability is the capacity to perform work. Medina v. Zia Co., 88 N.M. 615, 544 P.2d 1180 (Ct.App.1975). "Permanent damage to the heart" is not a "disability" unless it adversely affects a workmen's capacity to work. If it does, then a workman suffers a permanent disability. In other words, "permanent damage to the heart" is a factor to be considered in the determination of "permanent disability." In this respect, "permanent damage to the heart" is significant whether the damage is large or small.

In the sensitive area of heart damage, when conflicting and confusing medical testimony is presented, neither the district court nor this Court, unlearned in this field of medicine, will dawdle over the meaning of "significant" permanent damage of the heart, nor over ultra technical positions taken by parties. When Safeway stated to the district judge, its cardiologist recommended plaintiff to return and try to work, the judge responded:

But if he goes back to work and has another attack on the job, he may die.

This was a clear and judicious conclusion reached from the medical testimony. It led the court to believe that a significant permanent damage to plaintiff's heart was present. We agree.

C. Plaintiff's disability resulted from his heart attack.

Safeway claims that if plaintiff is presently disabled, it resulted from the natural progression of the underlying disease process, not from a direct and natural result of lifting heavy boxes. It relies upon Sec. 52-1-28(B) which reads:

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.

For a workman to recover, he must show that his disability is a natural and direct result of the accident. Section 52-1-28(A)(3). If the employer denies this fact, the workman is required to produce expert medical testimony to show as a medical probability that his disability was caused by the accident. Anderson v. Mackey, 93 N.M. 40, 596 P.2d 253 (1979).

On the other hand, an award of compensation should be denied (1) if a court must speculate as to whether a workman's disability was caused by the accident; or (2) if an expert testifies that as a medical possibility the workman's disability was caused by the accident.

An "accident" is an unlooked for mishap, or untoward event which is not expected or designed. Herndon v. Albuquerque Public Schools, 92 N.M. 635, 593 P.2d 470 (Ct.App.1978). In the instant case, the accident was the stress which occurred in lifting heavy boxes. The question is:

As a medical probability, did the stress in lifting heavy boxes cause plaintiff's disability, or was disability caused by the natural progression of plaintiff's underlying disease process?

The rule is established that where conflicting medical testimony is presented as to whether a medical probability of causal connection existed between myocardial infarction and work being performed, the trial court's determination will be affirmed. Yates v. Matthews, 71 N.M. 451, 379 P.2d 441 (1963); Thompson v. Banes Company, 71 N.M. 154, 376 P.2d 574 (1962); Montano, supra.

Plaintiff had an 80% obstruction in the artery to the front of his heart prior to the day of the accident. Defendant's cardiologist testified that stress did not cause his heart attack; that it was caused by the progression of the hardening of plaintiff's arteries. The trial court rejected this opinion.

To determine whether plaintiff established the causal connection, it is important to...