DiMatteo v. Dona Ana County By and Through Bd. of County Com'rs

• Decision Date: 22 October 1985
• Docket Number: No. 8068,8068
• Citation: 104 N.M. 599,1985 NMCA 99,725 P.2d 575
• Parties: Edward DiMATTEO, Plaintiff-Appellee, v. The COUNTY OF DONA ANA, State of New Mexico, By and Through its governing BOARD OF COUNTY COMMISSIONERS; Fireman's Fund, and Rockwood Insurance Company, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 575

725 P.2d 575

104 N.M. 599

Edward DiMATTEO, Plaintiff-Appellee, v. The COUNTY OF DONA ANA, State of New Mexico, By and Through its governing BOARD OF COUNTY COMMISSIONERS Fireman's Fund, and Rockwood Insurance Company Defendants-Appellants.

No. 8068.

Court of Appeals of New Mexico.

Oct. 22, 1985.

Certiorari Quashed Sept. 8, 1986.

[104 NM 600] Lawrence M. Pickett, Gordon Berman, Pickett, Bates & Holmes, Las Cruces, for plaintiff-appellee.

Michael Burns, Daniel J. Acosta, Campbell, Reeves & Chavez, P.A., Las Cruces, for defendant-appellant Rockwood Ins. Co.

Larry Ramirez, Weinbrenner, Richards, Paulowsky & Sandenaw, P.A., Las Cruces, for defendant-appellant Fireman's Fund.

OPINION

ALARID, Judge.

Defendant Rockwood Insurance Company (Rockwood) appeals from a judgment for plaintiff in this workmen's compensation case. The judgment awarded the cost of medical services incurred, and to be incurred, as a result of an on-the-job accident, and attorney fees. Rockwood contends that: (1) there was no finding that the resulting injury "arose out" of plaintiff's employment; (2) there was no finding, nor evidence, that the injury was disabling; (3) there was no medical evidence to establish a causal connection between the accident and subsequent injury; (4) there was no proper finding regarding timely notice to the employer, nor evidence to support a finding of timely notice; (5) the judgment rendered was defective because it did not specify an amount due; (6) there was a lack of evidence as to medical expenses; and (7) the award of attorney fees constituted an abuse of discretion. Issues not briefed are abandoned. State v. Ortiz, 90 N.M. 319, 563 P.2d 113 (Ct.App. 1977). We affirm in part, reverse in part, and remand with instructions.

FACTS

On April 14, 1982, plaintiff, an employee of the Dona Ana County Sheriff's Department, injured himself while inspecting an air-conditioning unit on the roof of the Dona Ana jailhouse. While reaching to loosen a wire around a unit, he felt a burning sensation in his back. The following day, he experienced a great deal of soreness in his back. Five or six days later, he suffered from pain in the back and down the left leg.

Plaintiff had suffered three previous work-related injuries to his back in February 1973, July 1973, and June 1974. Between 1973 and 1982, he was treated by various physicians and, in 1973, underwent surgery for a ruptured disc. Prior to 1982, he was still experiencing intermittent back pain, and was restricted in his bending and stretching movements.

Dr. Nelson operated on plaintiff in 1973, and saw him until 1983. After April 14, 1982, Dr. Nelson treated plaintiff for his pain in the back and left leg with muscle relaxants and painkillers, and eventually ordered hospitalization for a spinal myelogram in June 1982. The myelogram showed "deformity" in portions of the lower back region and a possible disc protrusion. After the hospitalization, Dr. Nelson continued him on medication and ordered a nerve stimulation device be used.

As of October 1983, Dr. Nelson believed that additional surgery was not indicated, but that recurring pain would be a future reality. In a letter to counsel dated October 7, 1983, Dr. Nelson stated, furthermore, that he felt the April 14 incident was an aggravation of a previous injury, that plaintiff was presently taking anti-inflammatory medication, and that plaintiff would be seen periodically for his pain in the future.

Plaintiff initially filed a complaint for disability and medical benefits on November 3, 1982. However, at trial, on December 15, 1983, plaintiff withdrew his claim for disability and indicated he was seeking payment only for medical bills incurred after the April 14, 1982 accident. Rockwood refused payment of these bills. It contended that any present problems were the result of the February 1973 accident, which occurred prior to Rockwood's contract for workmen's compensation coverage. Rockwood commenced coverage on August 1, 1981.

Defendant Fireman's Fund paid medical benefits to plaintiff prior to August 1, 1981. On that date, Fireman's Fund terminated its workmen's compensation coverage for Dona Ana County. The liability of Fireman's Fund is not at issue under the resolution of this appeal.

Judgment for plaintiff was entered on September 7, 1984. The terms specified that Rockwood was obligated to pay medical care, physician and hospital costs beginning on April 14, 1982, and that plaintiff was entitled to collect $2,000.00 in attorney fees.

DISCUSSION

Plaintiff argues at the outset, that Rockwood has waived the issues raised in its brief by either failing to request findings or by omissions in the docketing statement. We find, however, that the issues briefed were preserved, and that plaintiff's contention is without merit.

I. FINDING AS TO "ARISING OUT OF" EMPLOYMENT

Rockwood argues that there was no finding that any injury subsequent to April 14, 1982 "arose out of" plaintiff's employment and that, absent such a finding, any subsequent injury was not within the scope of the compensation statutes. See Hernandez v. Home Education Livelihood Program, Inc., 98 N.M. 125, 645 P.2d 1381 (Ct.App.1982). The statutes require that an accidental injury arise out of and in the course of the workman's employment to be compensable. NMSA 1978, Secs. 52-1-9 and -28; Sena v. Continental Casualty Co., 97 N.M. 753, 643 P.2d 622 (Ct.App.1982).

Rockwood's position is without merit. Finding No. 10 provides:

On April 14, 1982, plaintiff suffered an accidental injury while in the course and scope of his employment while inventorying and numbering air conditioners.

Finding No. 14 provides:

Plaintiff has incurred and reasonably will incur medical expenses due to the symptomatic problems with his lower back exacerbated by the incident of April 14, 1982.

"Arise out of" relates to cause. Hernandez. "Exacerbated by" is, under the facts, equivalent to "cause of" the injury. The findings, taken together, include the necessary prerequisites for coverage under the statutes.

Moreover, the letter of Dr. Nelson wherein he states that "the incident related [of April 14, 1982] is a sufficient reason to consider this [pain] an aggravation of a previous injury" provides substantial evidence that problems resulted from the incident.

II. ABSENCE OF EVIDENCE, AND FINDING OF DISABILITY

Rockwood also appears to contend that because there was no evidence, nor finding, as to disability, plaintiff was precluded from an award for medical expenses. However, disability was not at issue here because of plaintiff's relinquishment of that claim. An award of medical expenses is properly made despite the absence of a finding of disability. Mirabal v. Robert E. McKee, General Contractor, Inc., 77 N.M. 213, 421 P.2d 127 (1966). Rockwood's contention is erroneous.

III. MEDICAL EVIDENCE OF CONNECTION BETWEEN ACCIDENT AND INJURY

Rockwood argues there was no testimony that, as a medical probability, the injury subsequent to April 14, 1982 resulted from the incident of April 14, 1982. Such medical testimony is necessary to establish disability, which is not at issue here. Mirabal. Rockwood, nevertheless, overlooks the letter opinion of Dr. Nelson. That the opinion does not track the exact language of Section 52-1-28(B), is not fatal. Dr. Nelson's statement, referred to earlier, "reasonably connotes precisely what the statute categorically requires." Gammon v. Ebasco Corp., 74 N.M. 789, 794, 399 P.2d 279 (1965). The statement is sufficient to link the injury with the accident. Id.

IV. EVIDENCE AND FINDING OF NOTICE

Rockwood challenges the sufficiency of Finding No. 11, and argues that there was no evidence to establish that plaintiff, in writing, notified his employer of the injury and accident within thirty days after their occurrence, as mandated by NMSA 1978, Section 52-1-29. Finding No. 11 states:

Plaintiff notified Robert Wesel, personnel Director for defendant employer within thirty (30) days of the injury.

Rockwood correctly points out that notice of both the injury and accident within thirty days after their occurrence is a requirement if written notice is relied on. Herndon v. Albuquerque Public Schools, 92 N.M. 635, 593 P.2d 470 (Ct.App.1978). The finding, however, goes to actual, rather than written, notice.

Section 52-1-29(B) further provides, however, that no written notice is required where the employer had "actual knowledge" of the occurrence of the accident. See Beckwith v. Cactus Drilling Corp., 84 N.M. 565, 505 P.2d 1241 (Ct.App.1972). Robert Wesel, the personnel director in charge of compensation claims, testified that plaintiff notified him, in April, "shortly after the occurrence" of the injury, which plaintiff briefly described, and of the manner in which the accident took place. The requirements of Section 52-1-29(B) were met. See Herndon.

Rockwood does not dispute the existence of this transaction. Rockwood cites this testimony in its brief, but seeks, rather, to elaborate upon ambiguities present in the written report of injury submitted by plaintiff as to the date of injury. Given Wesel's testimony, we are unconcerned with the written report. There was actual notice, which was timely.

V. UNCERTAINTY OF JUDGMENT AND LACK OF EVIDENCE OF MEDICAL EXPENSES

Rockwood attacks the uncertainty of the judgment in terms of the amount and nature of liability specified therein. The judgment provides:

IT IS THEREFORE, ORDERED, ADJUDGED AND DECREE [sic] that Rockwood Insurance Company was the insurance carrier on April 14, 1982, and the medical care, physician, hospital and medication costs beginning April 14, 1982 are the obligation of Rockwood Insurance Company.

IT IS FURTHER ORDERED that Fireman's Fund Insurance Company was the workmen's compensation carrier for the County of Dona Ana, State of New Mexico until August 1, 1981, and ceased coverage thereafter.

IT IS FURTHER ORDERED that Plaintiff is entitled to recover...