Gammon v. Ebasco Corp.

• Decision Date: 15 February 1965
• Docket Number: No. 7546,7546
• Citation: 1965 NMSC 15,74 N.M. 789,399 P.2d 279
• Parties: Harrison F. GAMMON, Plaintiff-Appellee, v. EBASCO CORPORATION, Employer, and Mountain States Mutual Casualty Company, Insurer, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 279

399 P.2d 279

74 N.M. 789

Harrison F. GAMMON, Plaintiff-Appellee, v. EBASCO CORPORATION, Employer, and Mountain States Mutual Casualty Company, Insurer, Defendants-Appellants.

No. 7546.

Supreme Court of New Mexico.

Feb. 15, 1965.

Rehearing Denied March 11, 1965.

McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Albuquerque, for appellees.

Tansey, Wood Rosebrough & Roberts, Farmington, for appellants.

J. M. SCARBOROUGH, Distict Judge.

On October 10, 1961, the appellee, Gammon, suffered an accidental injury arising out of and in the course of his employment as an ironworker, by the appellant, Ebasco Corporation. He consulted Dr. Kendall of Farmington concerning low back pain, was hospitalized for about a week, received out-patient care for several weeks and then returned to work for Ebasco on a light duty status on November 7, 1961.

On January 3, 1962, appellee voluntarily terminated his employment with the appellant employer, complaining of increased pain in his back and consequent inability to continue his work.

Dr. Kendall referred appellee to Dr. Forbis of Albuquerque, who examined and treated him on January 18, 23, 25 and February 8. Dr. Forbis advised that appellee could return to light duty work, which he did, working for Boeing Catalytic from February 14 to May 23, 1962, when he voluntarily terminated to seek another job.

On June 7, 1962, appellee began work with Dearborn Machinery Movers. Within an hour and a half after beginning to work for Dearborn, he suffered an onslaught of sever pain in his low back, accompanied by paralysis of his legs. This episode of acute pain and obvious disability arose as appellee was stooping to lift a heavy object but apparently before he had actually begun to lift. Incidentally, appellee has filed suit against Dearborth, claiming total permanent disability as a result of the accident of June 7, 1962, which case was pending at the time of trial of the case here on appeal.

He was taken first from his place of employment with Dearborn to a physician in Colorado, who adminitered heavy doses of drugs designed to relieve pain, and was then taken straightway to Albuquerque, where he was seen, hospitalized and treated by Dr. Conklin, an associate of Dr. Forbis.

During the week or so he was being treated by Dr. Conklin, he was not seen by Dr. Forbis at all; but Dr. Forbis did review the records maintained by Dr. Conklin, of his findings and treatment.

Dr. Forbis did later see and examine appellee in March and on May 6, 1963, both examinations having been made in anticipation and preparation for trial.

On the trial of this cause, the court found the appellee totally disabled for stated periods of time between the date of the accident and August 6, 1962, such periods coinciding generally with his periods of unemployment between the two outside dates. The court found that appellee's disability was 'remitted' from August 6, 1962, until January 15, 1963, during most of which time he was employed. The court further found that the appellee was partially and permanently disabled to the extent of 30% from January 15, 1963.

The appellant insurer paid compensation at the legal rate for the earlier periods following the accident of October, 1961 during which the appellee was unemployed and paid also the medical and hospital charges incurred in connection with treatment by Dr. Kendall and Dr. Forbis. It should be mentioned that all of Mr. Gammon's several jobs between October, 1961, and January, 1963, except possibly one as to which the evidence was not clear, were at a salary rate equal to that he was paid by Ebasco Corporation at the time of the first accident.

From the judgment of the trial court, awarding temporary total and permanent partial disability benefits and possible future medical, the appellants, appeal, asserting a number of points for reversal, only the first of which it will be necessary for us to consider.

As their first point, appellants state: 'There is no evidence to a medical probability of a causal connection between the injury of October, 1961, and appellee's alleged disability.' Based upon this assertion of error, appellants massively attack pertinent findings and conclusions of the trial court. We find appellants' position sound and dispositive of the entire appeal, rendering completely unnecessary and inapprorpriate the consideration by us of other points raised by appellants.

Paraphrased, Sec. 59-10-13.3, N.M.S.A.1953, provides that compensation shall be allowed only when the workman suffers a disability established by expert medical testimony to be the natural and direct result of the accident as a medical probability (when such causal connection is denied by the defendants, as it is here).

The statutory provision is mandatory; its requirement is clear. It has been construed twice by this court since its enactment as a part of Chapter 67, Laws 1959.

The section referred to was first considered by this court in Montano v. Saavedra, 70 N.M. 332, 373 P.2d 824. Mr. Justice Noble, speaking for the court, stated at page 336 of 70 N.M. at page 827 of 373 P.2d:

'To entitle a workmen's compensation claimant to recover he must establish causal connection between the accident and the injury complained of as a medical probability. It is not sufficient that causal connection be established by expert testimony as a medical possibility. * * *' (Italics added).

In Yates v. Matthews, 71 N.M. 451, at page 453, 379 P.2d 441, at page 442, this court said 'The language of the statute is clear and unambiguous in its requirement that medical testimony be produced to establish causal connection between an accident and disability. The requirement is not that this be established by direct and uncontroverted evidence, but as a medical probability. This would seem to envisage opinion evidence of a medical expert. In other words, where causal connection is denied by an employer, in order to prevail, it is is now encumbent upon on a claimant to present one or more qualified medical experts to testify that in his or their opinion there is a causal connection as a medical probability as opposed to possibility. * * *' (Italics added.)

Thus we are required and permitted only to determine whether the 'expert medical testimony' does establish or is sufficient to establish the causal connection between the accident and the...