Elsea v. Broome Furniture Co. Inc.

• Decision Date: 19 October 1943
• Docket Number: No. 4761.,4761.
• Citation: 47 N.M. 356,143 P.2d 572
• Parties: ELSEAv.BROOME FURNITURE CO., Inc., et al.
• Court: New Mexico Supreme Court

47 N.M. 356

143 P.2d 572

ELSEA

v.BROOME FURNITURE CO., Inc., et al.

No. 4761.

Supreme Court of New Mexico.

Oct. 19, 1943.Rehearing Denied Dec. 20, 1943.

Appeal from District Court, Bernalilole County; Albert R. Kool, Judge.

Suit under the Workmen's Compensation Act by Harry U. Elsea against Broome Furniture Company, Inc., employer, and the Ocean Accident & Guarantee Corporation, Limited, insurer, to recover compensation alleged to have been sustained in three successive accidents. Judgment for employee, and employer and insurer appeal.

Affirmed.

A fee of $400 was allowed counsel for compensation claimant in resisting appeal of employer and compensation insurer.

Frank O. Westerfield, of Albuquerque, for appellants.

Rodey, Dickason & Sloan and Frank M. Mims, all of Albuquerque, for appellee.

MABRY, Justice.

Suit was filed by plaintiff-appellee, who may hereinafter be referred to as plaintiff, against defendants-appellants, the employer and insurer, who may hereinafter be referred to as Employer and Insurer respectively, to recover under the Workmen's Compensation Act on account of injuries alleged to have been sustained by plaintiff in three successive accidents.

Plaintiff complains that he suffered successive accidents on February 12, May 2, and June 29, 1940, and that as a result thereof he sustained injuries to his shoulders, arm, head, and other portions of his body, the shoulder and arm injury being permanent, which injury or injuries brought on epileptic seizures from which he suffered and will continue to suffer, and that he was and is thereby permanently disabled; that by reason of mental confusion and lapse from normal mentality he was prevented from exercising diligence in the prosecution of his claim for compensation; and that, in addition, he was delayed in such prosecution by being “misled in whole or in part” through the conduct of the Employer or Insurer, which reasonably led him to believe that compensation to which he was entitled would be paid without formal claim or suit being filed.

Defendants answered denying that the injuries relied upon occurred in the regular course of employment and denied that any of such injuries resulted in disability from any accident arising out of or in the course of plaintiff's employment; denied that plaintiff was compelled to spend any amount for medical services or that he suffered mental confusion or was misled by either the Employer or the Insurer with reference to any claim for compensation. The defense further interposed is to the effect that no notice was given in writing or otherwise to the defendants or either of them as required by our statute, and urged the bar of the statute against the further prosecution of his claim.

Plaintiff had worked regularly for Employer for several years prior to February, 1940, for a weekly wage of approximately $21.50. The first injury occurred on February 12, 1940, when plaintiff fell while descending into the warehouse basement upon the Employer's premises. In this fall both arms were “strained” and the claimant was “dazed for quite a spell”. There was an abrasion on the cheek or jaw, the bruises on his head extended from the ear to about the middle of the head, since which time one of claimant's eyes watered constantly. Immediately after falling he lay in a dazed condition for five to ten minutes, and both arms, more particularly his left one, was wrenched. Following the accident plaintiff lost much of the use of his left arm and was troubled by pain centering in the back of his neck and at times reaching to his head from the left side; that as a result of this particular accident and injury the claimant was treated by the Insurer's doctor, and upon the advice of such doctor returned to work after some eleven days absence. He was treated at this time for bruises and injuries, including, incidentally, some treatment for head injuries. He was advised that his shoulders would have to “work out of” their condition.

The president and manager of the Employer corporation knew of the accident at the time, and he himself sent claimant to the doctor employed by the Insurer Company and claimant, and plaintiff was, by Employer, paid wages for the eleven day period he was first absent. Claimant's arm continued to bother him at various times from the date of the first accident, and, on May 2 following, while assisting another workman of Employer in carrying downstairs a large buffet one end of the buffet, dropped by the fellow workman, caused plaintiff to be thrown against the wall, causing, immediately, a severe pain in the bowels, resulting shortly thereafter in the development of double inguinal herniae.

Plaintiff's original injury of February 12 deprived him of some use of his left arm as a result of which, while carrying the buffet, a somewhat heavy load, he was put in a position of strain as to other parts of his body that would not have occurred had both arms functioned normally. The president and manager of Employer company also knew at the time of this second accident and he was advised immediately of the severe pain in the bottom of plaintiff's bowels, and, likewise, of the herniae resulting shortly thereafter. Claimant, at his own expense, at once secured a truss which he continued to wear since that time; and he continued to work for Employer without a layoff, until June 29, 1940.

Then, on June 29, 1940, while employed at “hard work”, and after having worked until 11:00 P. M. the previous day, he was seized with a sudden attack which “struck him” in the intestines. He straightened up and fell over, striking his head and arms against a work bench, becoming and remaining unconscious for some time. He was later revived by his son, who had been summoned by the manager of the Employer company, and taken home. He performed no labor after the date last above mentioned. According to the medical testimony the seizure of June 29 probably was of the type of grand-mal epilepsy, as distinguished from a typical epileptic seizure as contended for by defendants.

On July 13, 1940, plaintiff was discharged by Employer. He continued to suffer from occasional epileptic seizures from the time of his injury until he secured medical relief. The relief secured was only against seizures and does not constitute a cure. The treatment must be continued indefinitely. There is no particular dispute about the present condition of the claimant and there is no basis for any contention that he is not totally and permanently disabled, if such contention is, in fact, made by defendants. It is clear that claimant is suffering from double inguinal herniae, a severe arthritic condition of the left shoulder, associated with a condition of torn ligaments and what might be a grand-mal epilepsy.

[1] The real conflict arises over the cause of claimant's injuries and disabilities, and the nature thereof, and there is a clear conflict of evidence as to this, excepting as it relates to herniae. As to herniae the evidence is substantially uncontradicted that it occurred at the time, and because of the strain imposed, when, on May 2, plaintiff was helping to carry the large buffet downstairs.

The medical witness testifying on his behalf supports plaintiff's contention that his epilepsy was traumatic in origin and was doubtless caused by the head injury suffered on Feb. 12, 1940, although defendants produced clearly conflicting evidence to the effect that the epilepsy could possibly be traced to cerebral arteriosclerosis. There is evidence in the record, however, to the effect that plaintiff showed no indication of arteriosclerosis. He had normal blood pressure.

As to the arthritic condition of the shoulder, plaintiff's medical testimony is categorically to the effect that it was traumatic and caused by the injury of Feb. 12, at the same time of the injury to the body and the face and head. Contrary to the medical testimony on behalf of plaintiff, defendants furnished medical testimony attributing the shoulder condition complained of to chronic arthritis, attaching no weight to the history of the shoulder injury of February 12.

In the month of August, 1940, plaintiff took his first steps to secure workman's compensation. This was at the suggestion of the employer. Plaintiff went to see the Insurer's local agent, who in turn referred him to the Denver office. He was advised by the Denver office of Insurer that the matter was being referred to their Albuquerque representative “for investigation”, and stating that the matter would receive further attention when an investigation was completed. Subsequently plaintiff was called upon by an Albuquerque adjusting firm acting on behalf of Insurer, to whom he gave a statement of his injuries, thereafter going more than once to the Employer's doctor for examination. Plaintiff afterwards returned to the adjusters and gave a further statement, at which time he was advised by one of the adjusters that he had a legitimate claim and stating that it was only a matter of time until it would be paid.

Plaintiff contacted the adjusters from time to time thereafter, and upon each contact he was told by them that they had not been advised of the company's decision whether or not to allow the claim. He was never told the claim would not be paid. Then, on October 15, 1941, he wrote the Denver office of the Company requesting compensation, and within a few days thereafter he was advised through a letter from the company that his claim was not compensable and that it would not assume responsibility for any compensation or medical expense. At no time prior to this date was plaintiff advised by the Insurer, the Employer, or the adjusters, that his claim would not be paid; and he testified that at all times prior to October 27, 1941, the date of the letter disclaiming liability, he believed the claim would be paid, and for that reason had not otherwise persevered in the filing of his claim or securing settlement.

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