Gonzales v. Stanke-Brown & Associates, Inc.

• Decision Date: 01 July 1982
• Docket Number: No. 5462,STANKE-BROWN,5462
• Citation: 1982 NMCA 109,98 N.M. 379,648 P.2d 1192
• Parties: Casimiro GONZALES, Plaintiff-Appellee, v.& ASSOCIATES, INC. and North River Insurance Co., Defendants-Appellees, and Mountain States Mutual Casualty Company, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1192

648 P.2d 1192

98 N.M. 379

Casimiro GONZALES, Plaintiff-Appellee, v. STANKE-BROWN & ASSOCIATES, INC. and North River Insurance Co., Defendants-Appellees and Mountain States Mutual Casualty Company Defendant-Appellant.

No. 5462.

Court of Appeals of New Mexico.

July 1, 1982.

James E. Snead, James G. Whitley, Jones, Gallegos, Snead & Wertheim, P. A., Santa Fe, for defendant-appellant

Pedro G. Rael, Los Lunas, for plaintiff-appellee.

Deborah S. Davis, Shaffer, Butt, Thornton & Baehr, P. C., Albuquerque, for defendants-appellees.

OPINION

WOOD, Judge.

In this worker's compensation case, the trial court found that plaintiff was entitled to compensation benefits on the basis of two accidents while working for the same employer. At the time of the first accident, on October 1, 1976, North River (North River Insurance Company) was the employer's compensation insurer. At the time of the second accident, on December 21, 1979, Mountain States (Mountain States Mutual Casualty Company) was the employer's compensation insurer. The trial court found that plaintiff had a 45 percent permanent partial disability as a result of the 1976 accident and required North River to pay compensation benefits for 45 percent partial disability, but only until the date of the second accident. The trial court found that plaintiff had a 10 percent permanent partial disability as a result of the 1979 accident and required Mountain States to pay compensation benefits for a 55 percent partial disability from the date of the 1979 accident. The trial court apportioned liability for attorney fees and costs on the basis of the liability of each insurance company to pay compensation benefits.

Mountain States appeals. We (1) summarily answer the issues of notice and disability; (2) decide the liability of each insurance company to pay compensation; and (3) decide the liability of each insurance company to pay attorney fees and costs.

Issues Answered Summarily

(a) Plaintiff did not give written notice of the 1979 accident. Mountain States contends it did not have actual knowledge of the 1979 accident. Plaintiff testified that he told his employer, in a telephone conversation in December, 1979, that he had gotten hurt "at work again", that he "couldn't move no more" and "wanted to go to the emergency room" of the hospital. The employer's representative agreed that the telephone conversation occurred in December, 1979, and testified: "He said that he was hurt. I can't remember the exact words but his back was hurt again, and he went to the emergency room." The employer's representative could not recall whether plaintiff said that the back problem was on the job or off the job. The testimony of plaintiff and the employer's representative sustains the trial court's refusal to adopt Mountain States' requested finding of no actual knowledge of the December, 1979 accident. Section 52-1-29(B), N.M.S.A.1978; Collins v. Big Four Paving, Inc., 77 N.M. 380, 423 P.2d 418 (1967); Beckwith v. Cactus Drilling Corporation, 84 N.M. 565, 505 P.2d 1241 (Ct.App.1972); Rohrer v. Eidal International, 79 N.M. 711, 449 P.2d 81 (Ct.App.1968).

(b) The trial court found a 45 percent partial disability in existence prior to the December, 1979 accident, and a 10 percent partial disability as a result of that accident. Thus, after the second accident, plaintiff's partial disability was 55 percent. Mountain States claims a lack of substantial evidence to support an increased disability as a result of the December, 1979 accident.

A physician testified that plaintiff had an increased medical impairment of 10 percent after the December, 1979 accident. Mountain States correctly points out that impairment does not automatically equate with disability. Anaya v. New Mexico Steel Erectors, Inc., 94 N.M. 370, 610 P.2d 1199 (1980). This, however, does not benefit Mountain States. The physician also testified that limitations in plaintiff's motion increased after the December, 1979 accident. Plaintiff testified as to a decreased ability to perform certain tasks of his job as a cement finisher, such as use of a sledge hammer and the handling of forms. Plaintiff also testified that since the December, 1979 accident, he finishes fewer yards of cement per day. This testimony supports the ruling that plaintiff's disability increased as a result of the December, 1979 accident. Anaya v. New Mexico Steel Erectors, Inc., supra; Garcia v. Genuine Parts Co., 90 N.M. 124, 560 P.2d 545 (Ct.App.1977); see Hales v. Van Cleave, 78 N.M. 181, 429 P.2d 379 (Ct.App.1967).

Liability of Each Insurance Company to Pay Compensation

Where, as here, the worker has had successive compensable disabilities, the liability of successive compensation insurers for the same employer is not different, conceptually, from the liability of successive employers. Thus, in considering the liability of the compensation insurers in this case, successive employer cases are applicable.

The trial court ruled that North River must pay compensation for a 45 percent partial disability existing prior to the December, 1979 accident; however, after that accident, North River was not required to pay any compensation and Mountain States was required to pay the entire 55 percent partial disability. In so ruling, the trial court followed Powers v. Riccobene Masonry Const., Inc., 97 N.M. 20, 636 P.2d 291 (Ct.App.1980). The reasoning by which the result was reached in Powers is an aberration; the reasoning departs from both judicial decisions and the statutory law of New Mexico.

Powers states:

There are two rules generally used in determining which of two insurance companies is liable in second injury cases. One rule, frequently referred to as the Massachusetts-Michigan rule, see generally, 4 Larson, Workmen's Compensation Law §§ 95.12 and 95.31 (1980), is that the second insurer is liable if the second injury contributed even slightly to the cause of the disability. Rock's Case, 323 Mass. 428, 82 N.E.2d 616 (1948). The other rule, known as the Florida rule, Hanks v. Walker, 60 N.M. 166, 288 P.2d 699 (1955), is that the insurance company covering the risk at the time of the first injury pays if the second injury is the result of the first injury from which the workman has never recovered, and is a manifestation of the continuance of that injury. Brewer v. Pan American Airways, Inc., 156 Fla. 812, 24 So.2d 521 (1946). Both rules have been cited with approval in New Mexico. See, Hanks; Perea v. Gorby, 94 N.M. 325, 610 P.2d 212 (Ct.App.1980); Ponce v. Hanes L'Eggs Products, Inc., 91 N.M. 112, 570 P.2d 943 (Ct.App.1977). A third alternative, used in some states, is apportionment. 4 Larson, Workmen's Compensation Law §§ 95.00 and 95.31 (1980); 16 Williamette L.Rev. 137 (1979). Apportionment has not been used in New Mexico. The Legislature has not enacted a statute allowing it * * *.

We discuss: (a) the inapplicability of either the Massachusetts or Florida rule in New Mexico; (b) the reasons why the three New Mexico cases cited in the quotation provide no guide for deciding either Powers or this case; and (c) the New Mexico law which disposes of this issue.

(a) Neither the Massachusetts nor Florida rule applies in New Mexico.

We do not consider whether the characterization of the two rules is accurate or complete; we proceed on the assumption that the characterization of the rules in Powers is sufficient. However, see Hanks v. Walker, 60 N.M. 166, 288 P.2d 699 (1955), which refers to both rules with approval, but adopted neither rule.

In discussing the two rules, the parties proceed on the basis that the rules are antithetical, that only one of the rules applies in a particular jurisdiction. This is incorrect. The discussion in 4 Larson, Workmen's Compensation Law § 95.12 (1982), is that both rules are, in effect, rules of causation; depending on causation in fact, either rule could be applicable to a particular case. Thus both rules could apply in a particular jurisdiction.

New Mexico has its own rules of causation; there is no need to adopt causation rules of other jurisdictions. We need not be concerned with questions of slight causation (see characterization of the Massachusetts rule in the above quotation) or manifestations of the continuance of an injury (see characterization of the Florida rule in the above quotation).

Compensation is paid, under New Mexico law, for disability. See §§ 52-1-41 and 52-1-42, N.M.S.A.1978. For an accidental injury to be compensable, the disability must be a natural and direct result of the accident and where such a result is denied, causation must be established as a medical probability by expert medical testimony. Section 52-1-28, N.M.S.A.1978. This causation requirement applies to any claim for worker's compensation; it makes no difference whether the claim is for a first, second or successive accidental injury.

In Reed v. Fish Engineering Corporation, 76 N.M. 760, 418 P.2d 537 (1966), the worker suffered a low back injury in 1959. He suffered an injury in 1962 to the same area of the back. The trial court found that plaintiff's disability at the time of trial was caused by the 1959 injury and not by the 1962 injury; the finding was affirmed because it was supported by substantial evidence. In Ballard v. Southwest Potash Corporation, 80 N.M. 10, 450 P.2d 448 (Ct.App.1969), the claim against the subsequent injury fund was denied even though there was a certificate of pre-existing disability. The trial court found, on the basis of substantial evidence, that the claimant's disability resulted from the on-the-job accident and that this disability had not been increased by the pre-existing condition. See also, Gammon v. Ebasco Corporation, 74 N.M. 789, 399 P.2d 279 (1965).

Although compensation is paid for disability caused by an accidental injury, a frequent question has been whether the employer or insurance company should be liable for the entire disability; specifically whether...