Garcia v. Borden, Inc.

• Decision Date: 29 March 1993
• Docket Number: No. 13661,13661
• Citation: 853 P.2d 737,115 N.M. 486,1993 NMCA 47
• Parties: Frank M. GARCIA, Claimant-Appellee, v. BORDEN, INC., and Cigna Insurance, Respondents-Appellants.
• Court: Court of Appeals of New Mexico

Page 737

853 P.2d 737

115 N.M. 486

Frank M. GARCIA, Claimant-Appellee, v. BORDEN, INC., and Cigna Insurance, Respondents-Appellants.

No. 13661.

Court of Appeals of New Mexico.

March 29, 1993.

[115 N.M. 488] Harold O. Atencio, Butt, Thornton & Baehr, P.C., Albuquerque, for respondents-appellants.

David C. Chavez, Chavez & Chavez, Los Lunas, for claimant-appellee.

OPINION

DONNELLY, Judge.

Employer and its insurance company appeal a compensation order of the Workers' Compensation Judge (WCJ) awarding temporary total disability benefits and attorneys' fees to Worker. We discuss whether: (1) expert testimony was required to establish that Worker's accident arose from a risk related to his employment; (2) the decision of the WCJ that Worker suffered a disability due to a work-related accident is supported by substantial evidence; (3) it was error to admit rebuttal testimony concerning the cause of Worker's accident; and (4) the WCJ erred in determining that Worker was temporarily totally disabled. We affirm.

FACTS

Worker was employed as a cheese worker for Employer. His work included, among other things, cleaning pipes and equipment and cooking, processing, and packing cottage cheese. He also was directed to use chlorine to sanitize lines connected to the cheese processing equipment. On March 19, 1991, Worker began work and thereafter began experiencing dizziness while applying sanitation chemicals to the equipment. When the dizziness continued to affect him, Worker decided to go to the employees' locker room and rest with a wet towel over his head. He testified that when he reached into his locker for a towel he was still experiencing the effects of the chlorine, and that he became dizzy and fell, hitting his lower back on the locker door. When he fell to the floor, he heard a pop and felt a pain in his back; thereafter, he experienced tingling and numbness in his legs. He rested for a while and then returned to work. He was told to continue working and to seek medical treatment the next day. Worker was treated for back pain and was given a medical excuse from work for several weeks. When he was released to return to work, he was told his job as a cheese worker was no longer available. Instead, Employer offered him a job doing clean-up work, earning the same salary. Worker refused this job because he was still physically disabled and the new position required more strenuous activity than he could perform. Thereafter, Worker filed a compensation claim; following a hearing the WCJ awarded him temporary total disability benefits, medical benefits, and attorneys' fees.

I. RISK INCIDENT TO EMPLOYMENT

Employer denies that Worker suffered a job-related injury or that Worker's testimony was sufficient to establish that the alleged accident arose out of and in the course of his employment. Employer argues that the WCJ erred in granting an award of compensation because Worker failed to establish by expert testimony that his injury was caused by an accident which arose out of a risk of his employment.

To establish a right to workers' compensation benefits, Worker must prove that he suffered a compensable injury arising out of and in the course of his employment. NMSA 1978, Sec. 52-1-28(A) (Repl.Pamp.1991). For an injury to "arise out of" the employment, there must be a showing that the injury was caused by a risk to which a worker was subject by reason of his employment, and the employment must contribute something to the hazard which gave rise to the injury. Adamchek v. Gemm Enters., Inc., 96 N.M. 24, 26, 627 P.2d 866, 868 (1981); Gutierrez v. Artesia Pub. Sch., 92 N.M. 112, 115, 583 P.2d 476, 479 (Ct.App.1978).

Worker testified that the dizziness he experienced from chlorine was the cause of his fall. Employer disputed this contention and points to testimony of Worker which indicated that his dizziness resulted from bronchitis, and that Worker also testified that he reinjured his back subsequent to March 19, 1991. Whether Worker's back injury occurred during his employment and the cause of Worker's dizziness precipitating his fall were the subject of conflicting testimony. On direct examination, Worker testified that his back injury occurred while working on March 19, 1991. On rebuttal, he testified that chlorine he was using that morning to clean the cheese processing equipment made him dizzy prior to his fall. He stated that his supervisor had given him a paper informing about the chemicals he was required to use. Worker also testified that he had been using chlorine to sanitize equipment for about two weeks prior to his fall, and that chlorine can make you dizzy, "I don't know if it makes other people dizzy, but it made me dizzy." Employer contends that lay testimony was insufficient to establish that Worker's fall was caused by a risk incident to his employment, and that expert testimony was required to show that his exposure to chlorine while at work caused him to become dizzy and fall.

Employer advances two arguments in support of this contention. First, Employer raises a statutory ground; it asserts that Section 52-1-28 requires expert testimony to establish that chlorine actually caused Worker's dizziness and fall in light of Employer's express denial that a connection existed between Worker's accident and a risk of his employment. We disagree with this reading of the statute. Section 52-1-28(B) provides in applicable part: "In all cases where the employer ... den[ies] that an alleged disability is a natural and direct result of the accident, the worker must establish that causal connection as a probability by expert testimony of a health care provider...." We do not interpret the statute as requiring expert medical testimony to establish the cause of Worker's fall under the circumstances presented here. Instead, we think Employer's contention regarding the necessity of expert testimony concerning the cause of Worker's fall more properly is a challenge to the weight of the evidence he presented, not its admissibility. See Hansen v. Skate Ranch, Inc., 97 N.M. 486, 491, 641 P.2d 517, 522 (Ct.App.1982).

The language of Section 52-1-28(B) indicates that proof of causation by a health care provider is required to establish a connection between a worker's injury and disability where the employer denies that the disability resulted from a worker's accident; it does not, however, require expert testimony to establish the cause of the worker's accident. This aspect of proof may be established by either expert or lay testimony. A court will not read into a statute language that is not contained therein, particularly if the statute makes sense as written. See Perez v. Health & Social Servs., 91 N.M. 334, 336, 573 P.2d 689, 691 (Ct.App.1977), cert. denied, 91 N.M. 491, 576 P.2d 297 (1978).

Second, Employer argues that even if the statute does not mandate the use of expert testimony to establish that Worker's contact with chlorine caused his dizziness and fall, the connection between Worker's employment and his claimed injury in the instant case involved facts which were of such a technical nature that expert testimony was required under Section 52-1-28 to prove the claimed fact. Additionally, Employer argues that expert medical testimony is required to be presented where a worker suffers two successive accidents in order to establish the extent of a worker's disability resulting from each accident, and the causal connection, if any, between the two accidents.

We understand Employer's arguments here to be that Worker's resulting dizziness constituted a separate accident apart from the accident which occurred shortly thereafter resulting in his fall in the locker room. Employer argues that Worker failed to present expert medical testimony showing the nexus between the two falls. In advancing these arguments, Employer points out that Worker's initial testimony indicated that he was not certain why he became dizzy at work. On cross-examination, Employer elicited testimony from Worker indicating that Worker's dizziness was caused by bronchitis. During Worker's case in rebuttal, however, he testified that he became dizzy while using chlorine to sanitize the cheese processing equipment. He also testified that he had been working with chlorine at the plant for the previous two weeks and that the chlorine had made him dizzy.

Employer is correct that opinion testimony of lay witnesses is generally confined to matters which are within the common knowledge and experience of an average person. See Young v. Burke, 139 Colo. 305, 338 P.2d 284, 285 (1959) (en banc); see also SCRA 1986, 11-701. However, subject to the trial court's discretion, testimony concerning the personal perception of a lay witness may be given where the witness's opinion might be helpful to the fact finder in resolving a material issue. See Russell v. Russell, 101 N.M. 648, 649, 687 P.2d 83, 84 (1984); see also Pavlos v. Albuquerque Nat'l Bank, 82 N.M. 759, 761, 487 P.2d 187, 189 (Ct.App.1971); see generally 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence p 701 (1992). Under the record herein, we find no error in the WCJ's admission of Worker's testimony. SCRA 11-701 permits a lay witness to state an opinion if the trial court determines that the opinion is "rationally based on the perception of the witness and [is] helpful to a clear understanding of his testimony or the determination of [the] fact[s] in issue." See Hansen, 97 N.M. at 491, 641 P.2d at 522 (lay witness may testify as to his opinion based on personal perceptions); Jesko v. Stauffer Chem. Co., 89 N.M. 786, 788, 558 P.2d 55, 57 (Ct.App.1976) (testimony of lay witness is admissible under Evidence Rule 701 where the opinion is rationally based on his own perceptions and is helpful in determination of basis for damage); see generally 31A Am.Jur.2d Expert and Opinion Evidence Sec. 31, at 42-43 (1989).

Nor do we believe that the out-of-state statutory authority relied...