Hernandez v. Mead Foods, Inc.

• Decision Date: 25 February 1986
• Docket Number: No. 8472,8472
• Citation: 104 N.M. 67,1986 NMCA 20,716 P.2d 645
• Parties: Joe A. HERNANDEZ, Plaintiff-Appellant, v. MEAD FOODS, INC., Employer, and Commercial Union Insurance Companies, Insurer, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 645

716 P.2d 645

104 N.M. 67

Joe A. HERNANDEZ, Plaintiff-Appellant, v. MEAD FOODS, INC., Employer, and Commercial Union Insurance

Companies, Insurer, Defendants-Appellees.

No. 8472.

Court of Appeals of New Mexico.

Feb. 25, 1986.

[104 N.M. 68] Richard J. Crollett, Albuquerque, for plaintiff-appellant.

Debra Romero Thal, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for defendants-appellees.

OPINION

HENDLEY, Judge.

Plaintiff appeals a denial of workmen's compensation benefits. The major issues raised concern whether plaintiff has recovered from his injuries and whether plaintiff is still disabled. The minor issues concern failure of the trial court to include overtime wages in its calculation of wages for the limited time during which plaintiff was disabled, and failure to award some past and future medical benefits, vocational rehabilitation benefits, and attorney fees.

We affirm.

I

Plaintiff is a 26-year-old laborer. Prior to his employment with defendant Mead's bread plant, plaintiff had not held any jobs for long. At Mead's, plaintiff was a bread wrapper and then a checker-loader.

The duties of a wrapper include standing in front of the machinery and putting bread into baskets or trays. The baskets are then stacked up to a height of about five and one-half feet; the trays are slid into racks which have shelves from almost ground level to about seven feet high. The baskets and trays weigh from twelve to twenty-one pounds. A full rack will weigh 200 pounds. The duties of a checker-loader include filling individual orders by putting the orders of bread into racks and then rolling the racks up a ramp onto a truck. The jobs involve bending, twisting, reaching, pushing, and pulling. Although plaintiff testified that the jobs involve standing on one's feet from eight to sixteen hours a day, a supervisor testified that there are mandatory lunch and mid-shift breaks. Additionally, the supervisor testified that after each run of a variety of bread--there are about a dozen varieties run every day--there are breaks in the work.

Plaintiff testified that he suffered an accidental injury at work when a rack fell on him, spilling the bread all over the floor, in April of 1983. He said that the supervisor saw him on the floor with all of the bread. This accident was not reported, nor did plaintiff seek medical attention or time off from work at the time. The supervisor testified that he would have remembered such an accident because it would have involved $500 worth of damaged bread and he did not remember such an accident. The trial court found there was no notice of this accident and an appellate issue relating to this finding has been abandoned.

In September of 1983, plaintiff hurt himself while pushing one of the 200-pound racks. Plaintiff was off work for less than a week and saw Dr. Lowe, a vascular surgeon for this injury to his back. The injury was diagnosed as a back sprain. At plaintiff's request, Dr. Lowe released him to go back to work. In October of 1983, plaintiff's back was still bothering him. He went back to see Dr. Lowe. This time, plaintiff was off work for more than a week and received compensation. Dr. Lowe still diagnosed plaintiff's injury as back strain. Dr. Lowe sought a second opinion from Dr. Martinez, a neurosurgeon. Dr. Martinez took x-rays. They showed plaintiff had a congenital condition in his lower back. It was Dr. Lowe's opinion that the condition would not make plaintiff more vulnerable to injury, nor would it prevent normal healing of a lumbar strain. Neither Dr. Lowe nor Dr. Martinez saw any evidence of arthritis in the x-rays, nor was there any nerve involvement. At plaintiff's request, both doctors released him to go back to work and he did so.

In December of 1983, a rack fell on plaintiff's ankle. He saw Dr. Gelinas, an orthopedic surgeon, for this injury. The diagnosis was abrasions and contusions (scrapes and bruises) on the ankle. The ankle was swollen. Dr. Gelinas saw plaintiff about every other day for a week. The ankle was immobilized and plaintiff was given crutches. Plaintiff reported improvement at each visit. X-rays taken of plaintiff's ankle were normal; there was no arthritis evident. Plaintiff received compensation for this time off for this injury. Dr. Gelinas saw plaintiff for the last time on a Friday. At this visit, plaintiff was doing well. Dr. Gelinas thought plaintiff could return to work the next Monday. He recommended that plaintiff soak the ankle over the weekend and then return to work. He made this recommendation, not at plaintiff's request, but because plaintiff was medically able to work. He told plaintiff that if he had any problems he should call him, and that if he did not hear from him, he would assume that he was fine.

Plaintiff did not report for work on Monday. According to plaintiff, his ankle still hurt too much and he was still soaking it. Yet, he did not call Dr. Gelinas. Plaintiff testified that he sent his wife to Mead's to get his check. He testified that he called to report for work on Thursday, but was informed he had already quit by not reporting to work earlier. The supervisor testified that he saw plaintiff's wife at work, but that she was not there to pick up plaintiff's check. Rather, she was looking for plaintiff.

Plaintiff applied for unemployment compensation. It was denied because plaintiff voluntarily left his employment at Mead's. He then searched for other employment. Finding no employment, he sought the advice of counsel. Counsel referred him to Dr. Rosenbaum, an orthopedic surgeon. Plaintiff testified that he talked to his supervisor about the defendants paying for the services of Dr. Rosenbaum; the supervisor testified that the only conversation he recalled with plaintiff was when plaintiff asked whether he could get his job back. Dr. Rosenbaum testified plaintiff has a congenital problem with his back which makes it vulnerable to injury and prevents normal healing; plaintiff has low-grade arthritis; plaintiff has residual sprains and strains which have aggravated the arthritis; the arthritis makes the strains and sprains chronic; and plaintiff is disabled from doing his job at Mead's and any prior job he has held. Dr. Gelinas testified there is no such thing as low-grade arthritis. Both Dr. Gelinas and Dr. Lowe testified plaintiff could perform his job as bread wrapper. Dr. Rosenbaum had been treating plaintiff from January 1984 until the time of trial.

At the conclusion of the case, the trial court commented that Dr. Rosenbaum's testimony was not worthy of belief and that plaintiff had a few minor injuries from which he had recovered. Findings, conclusions, and a judgment were entered which indicated that plaintiff had recovered from his work-related accidental injuries and that he was neither entitled to payment of Dr. Rosenbaum's bills nor to any other compensation benefits on account of the injuries to his back or ankle.

II

Plaintiff recognizes that "[r]arely should an appeal be taken by a workman or employer based upon a lack of substantial evidence to support the findings." Perez v. International Minerals & Chemical Corp., 95 N.M. 628, 624 P.2d 1025 (Ct.App.1981). Nonetheless, plaintiff critically analyzes each individual piece of evidence and concludes there was uncontradicted medical evidence, binding on the trial court, that he had not fully recovered from his injuries and he was still disabled. Primary reliance is placed on Dr.Rosenbaum's so-called uncontradicted testimony. Plaintiff has both misunderstood the applicability of the uncontradicted medical evidence rule and ignored certain exceptions to the rule.

The uncontradicted medical evidence rule, first enunciated in Ross v. Sayers Well Servicing Co., 76 N.M. 321, 414 P.2d 679 (1966), is an exception to the general rule that a trial court can accept or reject expert opinion as it sees fit. Lucero v. Los Alamos Constructors, Inc., 79 N.M. 789, 450 P.2d 198 (Ct.App.1969). The rule is based on NMSA 1978, Section 52-1-28(B), which requires the worker to prove causal connection between disability and accident as a medical probability by expert medical testimony. Because the statute requires a certain type of proof, uncontradicted evidence in the form of that type of proof is binding on the trial court. See Ross.

However, the statute and the exception to the general rule only apply to the causation issue; on other issues, such as percentage of disability, the medical testimony may be contradicted by the other facts and circumstances of the case. Lucero. See also Chapman v. Jesco, Inc., 98 N.M. 707, 652 P.2d 257 (Ct.App.1982), overruling Chavira v. Gaylord Broadcasting Co., 95 N.M. 267, 620 P.2d 1292 (Ct.App.1980), to the extent that Chavira requires expert medical testimony for anything other than causation; and Casaus v. Levi Strauss & Co., 90 N.M. 558, 566 P.2d 107 (Ct.App.1977). Although Mares v. City of Clovis, 79 N.M. 759, 449 P.2d 667 (Ct.App.1968), appears to apply the uncontradicted medical evidence rule to a question of duration of disability, in light of the language in Mares, to the effect that the disability was suffered as a natural and direct result of the accident, Mares is also a causation case. See also Lyon v. Catron County Commissioners, 81 N.M. 120, 464 P.2d 410 (Ct.App.1969), in which the uncontradicted expert medical testimony was that there was a causal connection between the worker's disability and an incident that ruptured his disc at work.

Moreover, the rules concerning uncontradicted testimony have their exceptions. Uncontradicted testimony need not be accepted as true if (1) the witness is shown to be unworthy of belief, or (2) his testimony is equivocal or contains inherent improbabilities, (3) concerns a transaction surrounded by suspicious circumstances, or (4) is contradicted, or subjected to reasonable doubt as to its truth or veracity, by legitimate inferences drawn from the facts and...