Gurule v. Albuquerque-Bernalillo County Economic Opportunity Bd.

• Decision Date: 14 July 1972
• Docket Number: No. 812,ALBUQUERQUE-BERNALILLO,812
• Citation: 500 P.2d 1319,1972 NMCA 94,84 N.M. 196
• Parties: Hermelo C. GURULE, Sr., Plaintiff-Appellee, v.COUNTY ECONOMIC OPPORTUNITY BOARD and Firemen's Fund Insurance Co., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1319

500 P.2d 1319

84 N.M. 196

Hermelo C. GURULE, Sr., Plaintiff-Appellee, v. ALBUQUERQUE-BERNALILLO COUNTY ECONOMIC OPPORTUNITY BOARD and Firemen's Fund Insurance Co. Defendant-Appellant.

No. 812.

Court of Appeals of New Mexico.

July 14, 1972.

Certiorari Denied Aug. 24, 1972.

Peter J. Adang, Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, for defendant-appellant.

Gerald Goodman, Albuquerque, for plaintiff-appellee.

OPINION

HERNANDEZ, Judge.

In this workmen's compensation proceeding, the trial court entered an award for the plaintiff and the defendants appeal.

Defendants raise two points on appeal: (1) The district court committed reversible error in finding that the plaintiff was totally disabled under the New Mexico Workmen's Compensation Act; and, (2) The district court committed reversible error in the method of application of § 59--10--18.8(D), N.M.S.A.1953 (Repl. Vol. 9, pt. 1) to the facts of this case.

Plaintiff was employed by defendant Albuquerque-Bernalillo County Economic Opportunity Board, herein referred to as E.O.B., as a janitorial custodian and watchman. On May 17, 1969, while moving a medical examination table, with the help of another person, plaintiff slipped on a step, injuring his low back.

Plaintiff at the time of the accident was 44 years old and he had worked at the E.O.B. center since June 15, 1967. He had left school at the end of the fifth grade and he had received no other schooling or training. He had worked for a feed store for ten years loading and unloading sacks of feed. He later worked as a truck driver and in 1959 he went to work for a storage company loading and unloading furniture. On November 9, 1961, while employed by the storage company, he injured his back and ultimately underwent surgery three times. The first resulted in laminectomy and fusion at the L5--S1 level of his spine, the second in laminectomy and fusion at the L4--L5 level and the third in laminectomy and fusion at the L3--L4 level. It was determined in cause no. 96873 in December of 1964, in the district court of Bernalillo County that the plaintiff was presently totally disabled and that compensation for total disability was to be paid until further order of the court. From November 9, 1961 until May 31, 1966 the plaintiff was paid $8,875.70 in weekly installments of $38.00 each. On May 31, 1966 a lump sum settlement was reached and he was paid the additional sum of $6,500.00, making the total received $15,375.70. On June 17, 1968, plaintiff was involved in an automobile accident which aggravated his back condition and caused him to miss some work. However he continued to work for E.O.B. until the accident of May 17, 1969 and he has not worked since.

At the outset let us state that we will view this matter in the spirit expressed by Judge Murrah in Evans v. Stearns-Roger Manufacturing Co., 253 F.2d 383 (10th Cir. 1958) 'To hold that the employer's liability should be diminished because his injured workman has seen fit to suffer the discomforts of his infirmity and obtain employment, rather than to simply exist on the compensation the law allows him, seems to us inconsistent with the purpose and intent of the workman's compensation act.'

We will examine the evidence in the light most favorable to the plaintiff and, we will not disturb a finding, supported by substantial evidence, nor will we weigh conflicting evidence. Fitzgerald v. Fitzgerald, 70 N.M. 11, 369 P.2d 398 (1962); Adams v. Loffland Brothers Drilling Company, 82 N.M. 72, 475 P.2d 466 (Ct.App.1970).

An examination of the record reveals the following as to each of these findings of fact which were cited by defendants as not being supported by substantial evidence.

No. 24:

'That plaintiff suffered as a result of the accident and injury of May 17, 1969, a fracture and movement in the prior fusion of the L3--L4 level of his spine, and nerve root compression.'

First, evidence relating to the condition of plaintiff's spine prior to the accident of May 17, 1969 from reports of the surgeon, who performed the three operations necessitated by plaintiff's injury of November 11, 1961: report of June 25, 1965, 'There is no evidence of acute nerve root irritation at the present time . . . 'X-rays of the back reveal what appears to be a solid fusion mass now extending from L3 to the sacrum;' report of December 15, 1965, 'This patient is now over one year following his most recent surgery. X-rays in the past have indicated to me that this patient has a solid spine fusion now extending from L3 to the sacrum.'

Plaintiff's condition after the accident of May 17, 1969 from the testimony of Dr. David D. Long, who performed the surgery necessitated by that accident:

'Q. Now what did your surgery (reveal)?

'A. It was as we had anticipated, a pseudoarthrosis at the L3 and L4 level. We decompressed the nerve root at that level on the left-hand side, the one we felt to be related to the radiation of pain down the leg symptomatology. It was fairly devoid of fat around it, which is a sign of irritation. And then went ahead and repeated the attempted fusion at the L3--L4 level.

'Q. Now what is it--you used the word pseudoarthrosis. What do you mean by that?

'A. Pseudo is false and arthrosis is the Greek word for joint, so a pseudoarthrosis is technically a false joint, but motion in an area where more motion should not be existent. And this can occur following a fracture where instead of having a solid healing across it, there is a minor degree of motion. Or, as in this case, following an attempted fusion, where minor degrees of motion still occur, rather than being solid.

'Q. Was it consistent with the complaint that he presented to you in the history, about feeling (like he was being hit by) the sledgehammer being hit in the back at the time he was lifting this heavy object?

'A. Yes.'

He also testified:

'Q. Do you have an opinion, you know the medical probability, based on the history that you took, and examination and surgery and treatment, whether there was a direct causal connection between this injury that he complained of in May of '69, the sledgehammer in the back, and the impairment that you determined on your examination and your surgery?

'A. I think I would have to say 'Yes'.'

On cross-examination he testified, in part, as follows:

'Q. Now, based upon all of the medical reports which I have asked (you) to review here, and what you now know about the prior history of Mr. Gurule, it is possible, is it not, Doctor, that on that date in May, 1969, Mr. Gurule did not suffer any separate or distinct trauma but that what he experienced was simply a recurrence of the condition that he had manifested for some years prior to that time?

'A. In medicine, anything is possible, so I have to say 'Yes'. However, the story that he tells makes me think that is not the situation.'

Findings of fact No. 29 and No. 30 will be considered together and in light of the following definition.

Total disability is defined in § 59--10--12.18, N.M.S.A.1953 (Repl.Vol. 9, pt. 1, Supp.1971), as follows:

'As used in the Workmen's Compensation Act (59--10--1 to 59--10--37), 'total disability' means a condition whereby a workman, by reason of an injury arising out of, and in the course of, his employment, is wholly unable to perform the usual tasks in the work he was performing at the time of his injury, and is wholly unable to perform any work for which he is fitted by age, education, training, general physical and mental capacity, and previous work experience.'

No. 29 reads as follows:

'That plaintiff as a direct and natural result of the accidental injury of May 17, 1969, coupled with the pre-existing painful, limiting condition from which the plaintiff suffered, was and is permanently and totally disabled in that he suffers an entire permanent loss of his wage earning ability, and was and is unable to return to any gainful employment, including plaintiff's inability to perform the same janitorial functions which he performed before May 17, 1969.'

No 30 reads as follows:

'That plaintiff is presently and for the foreseeable future unable to perform the usual tasks of the work he was performing prior to and on May 17, 1969 for the EOB, and he is also unable to perform any tasks which he may have been permitted to perform, taking into consideration his age, education, training, general physical and mental capacity, and previous work experience.'

Plaintiff testified, in part, as follows:

'Q. Do you do anything around the house to help? Can you do any physical kind of work?

'A. No.'

Dr. Peter J. Marquez, an osteopath who treated Mr. Gurule after the accident, testified as follows:

'Q. What was your prognosis as far as Mr. Gurule's future?

'A. I believe he is going to have increasing physical deterioration as concerns his low back. As far as employment is concerned, he is going to have to find something that does not require exertion, perhaps an assembly man job, if we had large factories in Albuquerque, TV repair if he could master the technique, something of absolutely sedentary nature, certainly nothing requiring exertion.'

Dr. David D. Long testified on cross-examination, in part, as follows:

'Q. Now you said in your opinion Mr. Gurule is now disabled from doing heavy work and you have agreed that he was probably disabled from doing heavy work before May, 1969?

'A. Uh-huh.

'Q. That does not mean, you are saying are you, that he is disabled, in your opinion, from doing all kinds of work?

'A. Correct.

'Q. And you would agree, would you not, that Mr. Gurule probably could do, within defined limits, sedentary and light types of labor at the present time?

'A. Probably, yes.'

Also on cross-examination Dr. Long testified as follows:

'Q. In your experience, and in medical literature, do they go back to gainful employment after they have a spinal fusion?

'A. Yes, but the more spinal fusions and the more spinal operations you get, that number decreases...