Casaus v. Levi Strauss & Co.

• Decision Date: 07 June 1977
• Docket Number: No. 2767,2767
• Citation: 1977 NMCA 63,90 N.M. 558,566 P.2d 107
• Parties: Bessie CASAUS, Plaintiff-Appellant, v. LEVI STRAUSS & CO., Employer, and Insurance Company of North America, Insurer, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 107

566 P.2d 107

90 N.M. 558

Bessie CASAUS, Plaintiff-Appellant, v. LEVI STRAUSS & CO., Employer, and Insurance Company of North America, Insurer, Defendants-Appellees.

No. 2767.

Court of Appeals of New Mexico.

June 7, 1977.

Writ of Certiorari Denied June 30, 1977.

John Hogan Stewart, P. A. and Leof T. Strand, Albuquerque, for plaintiff-appellant

Bryan L. Query, Steve Williams, Shaffer, Butt, Jones, Thornton & Dines, P. C. Albuquerque, for defendants-appellees.

OPINION

SUTIN, Judge.

Plaintiff appeals a workmen's compensation judgment that awarded her compensation for total temporary disability for a period of 19 months ending November 1, 1975, but did not award her any compensation for any disability thereafter. We reverse.

A. Plaintiff was entitled to 25% partial disability after November 1, 1975.

The trial court found that plaintiff was totally disabled from June 4, 1974, until November 1, 1975; that plaintiff did not have any disability subsequent to November 1, 1975, which would prevent her from returning to work for her employer or for some other employer.

The test is whether plaintiff, after November 1, 1975, was partially unable to perform any work for which she was fitted. Section 59-10-12.9, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1); Medina v. Zia Company, 88 N.M. 615, 544 P.2d 1180 (Ct.App.1975).

Plaintiff worked as an inspector for 15 days. This work involved standing for eight hours, picking up pants, bending and pushing. She suffered an accidental injury on March 25, 1974. She had a high school education and had worked as an egg candler, office clerk or assistant bookkeeper and a live-in housekeeper. As an egg candler she had to stand and lift egg cartons, containing 40 dozen eggs, for eight hours a day. As an office clerk or assistant bookkeeper, she had to sit for eight hours a day. As a live-in housekeeper, she did all of the cooking and cleaning for a widower and his three children which involved bending, standing and lifting.

On August 28, 1974, a surgeon removed a coccygeal joint, the end of the vertical column beyond the sacrum, the last bone on the spine. It is referred to as the "tailbone." On November 25, 1975, subsequent to termination of her total temporary disability, she suddenly got worse with pain in the coccygeal-rectal area, and medication was renewed. The last time the surgeon saw her was February 9, 1976. At that time she complained that "her neck was very tight and tense for three or four days, and that she was somewhat dizzy." She could not stand or sit for more than a few hours without changing her position, and she could not return to work where she had to stand all day long.

The surgeon stated that in his opinion, based upon reasonable medical probability, the accident she suffered during her employment was the cause of her impairment of function and disability at the time of trial on April 15, 1976. It was his opinion that she was unable to work in employment that required standing or sitting all day long; she would probably be able to work if she could change positions, part-time standing, part-time sitting, frequently changing her position every few hours. She was still suffering pain.

In the surgeon's opinion, plaintiff was totally disabled until November, 1975. From that date forward she had 15% partial impairment of function to the lower body and 25% partial disability. Plaintiff has not worked from March 25, 1974. There was substantial evidence to support the surgeon's opinion.

Unfortunately, the trial court did not state any reason why the surgeon's testimony on partial disability was disregarded. It is impossible to guess what the judge did experience in trying this case and what his reactions were to the evidence. It appears that the trial court's beliefs were based on an emotional observation of subjective factors, and not objective data. Appellate courts are often similarly affected by desires and aims that push and pull them without regard to the objective situation.

Defendant relies on the testimony of three doctors who examined plaintiff in 1974. One doctor examined her on April 8, 1974. A second doctor examined her on May 31, 1974, and the third doctor last examined her on June 28, 1974. From their testimony, the court could have found that she did not suffer a work related injury. Defendant, however, did not cross appeal on this issue. The trial court chose not to accept this testimony. It chose the testimony of plaintiff's surgeon. We cannot see how the testimony of defendants' doctors can serve as a foundation for a decision that the plaintiff was not disabled. Not one of the doctors had seen plaintiff in the 17 months preceding November 1, 1975.

" In the instant case, where causal connection has been denied and must be established by medical testimony as a medical probability, and where medical opinion based on the facts has been expressed and is uncontradicted, the evidence is conclusive upon the court as trier of the facts." Ross v. Sayers Well Servicing Company, 76 N.M. 321, 326, 414 P.2d 679, 683 (1966); Lyon v. Catron County Commissioners, 81 N.M. 120, 464 P.2d 410 (Ct.App.1969). This means that the uncontradicted evidence is conclusive as to the establishment, as a medical probability, of the causal connection between the accident and the disability as expressly required by § 59-10-13.3, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1). Lucero v. Los Alamos Constructors, Inc., 79 N.M. 789, 450 P.2d 198 (Ct.App.1969). The causal connection was established in the instant case.

Opinion testimony of a medical expert can also be considered as substantial evidence upon which a finding of total or partial disability can be made. Roybal v. County of Santa Fe, 79 N.M. 99, 440 P.2d 291 (1968). However, a percentage opinion may be disregarded by the trial court if there is other competent evidence to the contrary. This is of necessity true when more than one medical expert testifies. Lucero, supra; Seal v. Blackburn Tank Truck Service, 64 N.M. 282, 327 P.2d 797 (1958). Neither is the medical opinion conclusive if there is lay opinion testimony to the contrary on the determination of a fact in issue. State v. Lujan, 87 N.M. 400, 534 P.2d 1112 (1975); State v. Smith, 80 N.M. 126, 452 P.2d 195 (Ct.App.1969); see Rule 701 of the Rules of Evidence (§ 20-4-701, N.M.S.A.1953 (Repl. Vol. 4, 1975 Supp.)).

We can find neither expert nor non-expert testimony in the record to conflict with the percentage opinion of plaintiff's surgeon on partial disability. The percentage opinion stands uncontradicted as competent evidence. It cannot be disregarded by the trial court. We have a well established rule that where facts are not in dispute and but one reasonable inference can be drawn therefrom, this Court can independently draw its own conclusion and overrule contrary conclusions of the trial court. Lyon v. Catron County Commissioners, supra. We do so in this case.

The plaintiff is entitled to 25% partial disability compensation payments from November 1, 1975, as provided by law.

B. Plaintiff was entitled to payment of minor medical expense.

The trial court excluded plaintiff's offered exhibits 7 and 8 in the sum of $72.68. These were charges of the New Mexico Medical Foundation and Bernalillo County Medical Center incurred by plaintiff on March 25, 1974, when plaintiff went to the emergency room of the Medical Center. The reasonableness of the bills was not questioned.

Plaintiff's surgeon testified that these charges were "necessary, usual and customary." The trial court requested authority for admission of this evidence. Later, after authorities were presented, the trial court denied admission of the exhibits because "The doctor said that he didn't even know." We cannot find such testimony on the part of plaintiff's doctor.

For the benefit of court and counsel generally, we emphasize Rules of Evidence 702, 703, and 704 (§§ 20-7-702, 703, 704, N.M.S.A.1953 (Repl. Vol. 4, 1975 Supp.) ). These rules pertain to expert testimony, basis of opinion testimony and opinion on ultimate issue. These rules should convince a trial court that testimony such as that of Dr. Altman is sufficient to warrant the admission of the evidence in this case.

Medical bills are admissible in evidence when it is "shown that the services for which the bills were rendered were reasonably necessary as a result of plaintiff's accident." Williams v. City of Gallup, 77 N.M. 286, 293, 421 P.2d 804, 809 (1966).

In Williams, the treating doctor did not testify that a medical center bill and the bill of a doctor on its staff were reasonably necessary as a result of the accident. We do not know whether this rule applies to a non-treating doctor who first examines the patient several months later. We believe the same rule should apply to the non-treating doctor.

A non-treating doctor is a medical expert. His knowledge of the facts which led a patient from an accidental injury into a hospital is sufficient upon which to render an opinion that the services rendered were reasonably necessary. In fact, under Rule 705 of the Rules of Evidence, "(t)he expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination." Section 20-4-705, N.M.S.A.1953 (Repl. Vol. 4, 1975 Supp.). Even when the plaintiff is available as a witness, "(s)tatements made for purposes of medical diagnosis or treatment" are admissible as an exception to the hearsay rule. Section 20-4-803(4), N.M.S.A.1953 (Repl. Vol. 4, 1975 Supp.).

The surgeon's opinion that the bills were "necessary, usual and customary" was sufficient to allow the exhibits in evidence.

Plaintiff is entitled to payment of $72.68.

C. Attorney fee granted plaintiff in trial court was not an abuse of discretion.

The trial court awarded plaintif...