Grudzina v. New Mexico Youth Diagnostic & Development Center

• Decision Date: 08 May 1986
• Docket Number: No. 8306,8306
• Citation: 725 P.2d 255,1986 NMCA 47,104 N.M. 576
• Parties: Joseph GRUDZINA, Plaintiff-Appellee and Cross-Appellant, v. NEW MEXICO YOUTH DIAGNOSTIC & DEVELOPMENT CENTER, and the Travelers Insurance Company, Defendants-Appellants and Cross-Appellees.
• Court: Court of Appeals of New Mexico

Page 255

725 P.2d 255

104 N.M. 576

Joseph GRUDZINA, Plaintiff-Appellee and Cross-Appellant, v. NEW MEXICO YOUTH DIAGNOSTIC & DEVELOPMENT CENTER, and the Travelers Insurance Company, Defendants-Appellants and Cross-Appellees.

No. 8306.

Court of Appeals of New Mexico.

May 8, 1986.

Certiorari Quashed Aug. 18, 1986.

[104 N.M. 578] Martha A. Daly, Rothstein, Bailey, Bennett, Daly & Donatelli, Santa Fe, for plaintiff-appellee and cross-appellant.

Stephan M. Vidmar, Miller, Stratvert, Torgerson & Brandt, P.A., Albuquerque, for defendants-appellants and cross-appellees.

OPINION

MINZNER, Judge.

Defendants appeal the trial court's decision to award plaintiff one day's compensation and attorney fees. Defendants contend that one day's temporary disability is not compensable under the Workmen's Compensation Act, NMSA 1978, Sections 52-1-1 through 52-1-69, and that the trial court awarded excessive attorney fees. Plaintiff cross-appeals, claiming the trial court erred in failing to find that he was temporarily totally disabled from the time he resigned to the time of trial and in failing to award past and future medical and rehabilitation benefits. Plaintiff contends that the trial court was bound by uncontradicted medical testimony to find plaintiff was temporarily totally disabled from May 4, 1982 to September 14, 1983.

The district court judge who entered judgment signed and filed findings of fact and conclusions of law prepared by his predecessor, who was the trial judge. Because this court recently ruled, on similar facts, that a successor judge had no power to sign and enter a decision, see Pritchard v. Halliburton Services, 104 N.M. 102, 717 P.2d 78 (Ct.App. 1986), we ordered the parties to brief two additional issues: (1) whether the trial court had authority to enter findings of fact and conclusions of law when it had not heard any of the evidence, but when neither party objected to its action, and (2) whether this court may raise the issue when neither party objected at trial nor raised the issue on appeal.

We now hold that although the trial court lacked authority to enter findings of fact and conclusions of law, neither jurisdictional nor fundamental error is involved. Thus, no appellate issue was preserved. As to the merits of the appeal, we hold that the uncontradicted medical testimony rule is not applicable on these facts and that the relevant findings are supported by substantial evidence. We also hold, however, that an award of one day's benefits is not contemplated by the Act. Because plaintiff cannot recover any compensation, he cannot recover attorney fees or other benefits; we do not reach the issue of whether the attorney fees awarded were excessive.

Facts and Procedural Background

In 1943, plaintiff was diagnosed as having an epileptic condition, and he began receiving partial disability benefits from the Veteran's Administration (VA). In 1948, he was diagnosed as suffering a seizure disorder; he receives a one hundred percent VA disability benefit. The parties stipulated prior to trial that under federal law, plaintiff's disability rating as a veteran is protected from change because it was established over twenty years ago. Plaintiff's seizures became uncontrolled in 1967, and he began receiving benefits from the Social Security Administration for total disability. Plaintiff also began receiving VA housebound benefits.

Between 1974 and 1979, plaintiff obtained a private pilot's license and logged seventy-six hours of flying time. He flew by himself and with family and friends as passengers. Every two years, in connection with renewals of his license, plaintiff certified under penalty of perjury to the Federal Aviation Administration that he did not have epilepsy, fits, or a variety of other medical conditions. In fact, plaintiff's medical records for these periods indicate that he had these conditions.

Between December 1979 and June 1981, plaintiff worked full time. His housebound benefits ceased. In June 1981, plaintiff was advised that he would be required to complete a trial work period intended to test his continued eligibility for social security benefits.

Plaintiff worked for defendant employer from June 15, 1981 to May 4, 1982. In the spring of 1982, plaintiff experienced an increase in his seizures. In February 1982, plaintiff fell in his garage at home. Initially, he believed he could not return to work due to increased seizures, but he subsequently did so. The record indicates that his decision was based on medical advice that his symptoms were temporary and that a serious relapse was a remote possibility. The social security records contain a notation that he also was told his social security disability benefits would end in May. On April 22, he had an "extremely stressful" altercation with a supervisor at work. Plaintiff left work for home and a period of rest. Plaintiff returned to work, however, the next day. He resigned in May.

Subsequently, plaintiff attempted to retain his social security benefits. On May 28, he reported that he could no longer work due to the increase in his seizure activity, blaming the increase in seizure activity on the fall and the altercation at work. On June 10, he reported that he was experiencing fifteen to twenty seizures per week. On June 21, however, he took another FAA physical examination, certifying under penalty of perjury that he did not have and never had had epilepsy or fits. Plaintiff's social security benefits were terminated in October. He appealed.

While his appeal was pending, plaintiff applied to the VA for housebound benefits. On June 18, 1983, plaintiff reported that his seizure activity was increasing and that he was becoming more and more dependent upon his wife. On July 11, however, he applied for and received a motorcycle license certifying under penalty of perjury that he did not suffer from epilepsy or fits. On August 9, he reported that his condition was worse than in many years and that he had been substantially confined to his house since May 4. In September 1983, plaintiff's wife reported to the VA that his condition had gotten progressively worse since February 1982. Plaintiff's housebound benefits were terminated in October. He appealed.

Plaintiff's social security benefits were restored in January 1984 while this case was pending in the trial court. The record does not indicate the result of plaintiff's application that housebound benefits be restored.

Judge Steinmetz heard four days of trial, on September 13 and 14, 1984 and on December 13 and 14, 1984. She prepared findings of fact and conclusions of law but did not sign and file them prior to leaving office. Her successor, Judge Mowrer, signed her findings and conclusions and entered judgment. Neither party objected to his action nor raised the issue on appeal.

The trial court found that plaintiff was able to perform all of the tasks of his employment while working for defendant employer. The trial court also found that as a result of a work-related accident, plaintiff's preexisting seizure disorder was aggravated, but that he was disabled only for one day, April 22, the day of the altercation. Finally, the trial court awarded attorney fees.

We address (1) the additional questions this court asked the parties to brief, then answer (2) whether the trial court should have awarded benefits up until the time of trial, (3) whether the Worker's Compensation Act provides for one day's compensation, and (4) whether plaintiff is entitled to attorney fees and medical and rehabilitation expenses.

Whether the Trial Court's Entry of Findings and Conclusions Prepared by his Predecessor was Jurisdictional or Fundamental Error that Necessitates a New Trial

Normally, only the judge who conducted the trial may enter a decision in the case. In re Death of Elwell, 66 Haw. 598, 670 P.2d 822 (1983). NMSA 1978, Civ.P. Rule 63 (Repl.Pamp.1980) and the identical federal rule provide a limited exception to this rule. Pritchard v. Halliburton Services. Where a judge becomes disabled after a verdict is returned or findings of fact and conclusions of law are filed, a successor judge may perform further duties required by the court. Resignation or completion of a full term is equated with disability for purposes of the rule. See State v. Kelsey, 532 P.2d 1001 (Utah 1975). Disability for this purpose refers to incapacity of the judge to do a legal act. See 7 J. Moore & J. Lucas, Moore's Federal Practice Sec. 63.03 (1985). The rule does not provide authority for a successor judge to sign and enter findings of fact and conclusions of law drafted by his or her predecessor. Pritchard v. Halliburton Services.

The initial question is the nature of the right to have the judge who tried the case and heard the evidence enter findings and conclusions. An Indiana appellate court recently described the right to have the trial judge determine the weight and credibility of the testimony as a due process right. See Farner v. Farner, 480 N.E.2d 251 (Ind.App.1985). The court observed that the right could be waived. "Thus, when the trial judge who heard the testimony and observed the demeanor of the witnesses at trial is unavailable to render a decision thereon, the parties may stipulate that the substitute judge should determine the case on the record." Id. at 257. We agree with this analysis of the right at issue. It is consistent with the widely applied rule that the parties may agree to have the successor judge enter findings of fact and conclusions of law and otherwise complete the case. See Bell v. Great Lakes Container Corp., 702 P.2d 387 (Okla.App.1985); Reinhold v. Fee Fee Trunk Sewer, Inc., 664 S.W.2d 599 (Mo.App.1984); Christopher v. Nelson, 50 Mich.App. 710, 213 N.W.2d 867 (1973). See also Milbrew, Inc. v. Commissioner of Internal Revenue, 710 F.2d 1302 (7th Cir.1983).

Although there are cases to the contrary, see Welsh v. Brown-Graves Lumber Co., 58 Ohio App.2d 49, 389...