Herndon v. Albuquerque Public School, No. 3164

• Docket Nº: No. 3164
• Citation: 92 N.M. 635, 593 P.2d 470, 1978 NMCA 72
• Case Date: July 18, 1978
• Court: Court of Appeals of New Mexico

Page 470

593 P.2d 470 92 N.M. 635 Mary HERNDON, Plaintiff-Appellee,
v.
ALBUQUERQUE PUBLIC SCHOOLS and Commercial Standard Insurance
Company, Defendants-Appellants. No. 3164. Court of Appeals of New Mexico. July 18, 1978.

[92 N.M. 637]

Page 472

Thomas E. Jones, Albuquerque, for plaintiff-appellee.

Vance Mauney, P. A., Albuquerque, for defendants-appellants.

SUTIN, Judge.

This is a workmen's compensation case. The trial court made the following pertinent findings of fact and conclusions of law:

1. The Plaintiff was an employee of the Defendant, the Albuquerque Public School Systems, for approximately eight (8) years.

2. From the period of June 1975 until September 1975, the Plaintiff suffered An accident within the meaning of the New Mexico Workmens Compensation Act.

3. The Plaintiff gave notice to her employer and the employer had actual knowledge of the accident and injury.

4. The Plaintiff Endured an accident within the meaning of the New Mexico Workmens Compensation Act and the same resulted in an injury which has rendered her 100% Totally disabled.

2. The Plaintiff suffered an accident and resulting injury as a result of An accident within the meaning of the New Mexico Workmens Compensation Act.

3. The injury sustained by the Plaintiff as a result of the accident suffered is a totally disabling injury and the Plaintiff is one hundred percent (100%) disabled, As of June 4, 1975. (Emphasis added.)

Judgment was entered for plaintiff and defendant appeals. We affirm and remand.

A. Facts.

Plaintiff, in her job as a textbook room clerk, was in charge of the total operation of the textbook room, inventorying and classifying all the books used in the school.

Plaintiff had a medical history of back injury and pain. She was hospitalized for three weeks in 1964 for a fractured sacrum (the last bone of the spine) which resulted from a fall. An automobile accident in 1968 and one in 1973 have also contributed to her back pain. Plaintiff had two intervertebral discs excised in August of 1973 and on December 14, 1973, because of discomfort in the lower back, she began to wear a lumbosacral corset for back support. Also, in 1974, plaintiff complained of back pain.

At the close of the 1975 school year, plaintiff's job required her to lift and carry about 13,500 books within a time span of about two weeks. Plaintiff carried books or carted books upstairs and downstairs without the aid of an elevator.

Prior to and during the week of June 4, 1975, plaintiff had no pain in her back and worked without her corset. On June 4, 1975, while pushing a cart of books down a ramp, the cart went so fast that plaintiff was unable to control it and she and the books all landed on the floor. Plaintiff suffered severe pain in her back. While performing her duties, everytime she went up and down the stairs she experienced severe pain in her leg and up her back.

After her fall and until her vacation commenced on July 28, 1975, plaintiff continued to lift heavy loads of books. She made 40-50 trips carrying books down the stairway of the school, each trip causing agony in her leg and back. Plaintiff's intense back pain persisted while she vacationed at her daughter's home. Plaintiff returned to work on August 28, 1975 and continued to work until September 2, 1975, at which time [92 N.M. 638]

Page 473

she terminated her employment because of severe back pain.

Plaintiff's doctor testified that the cause of plaintiff's present condition was the tremendous amount of back sprain and the pressure put on her back by the type of work she performed; that her back was so painful that doctors could do nothing for her; and that he advised her to retire.

Plaintiff made no claim for compensation at the time of the fall on June 4, 1975. Though she was aware of workmen's compensation benefits and her right to receive them, she preferred to work and retain her job. She thought this condition would "straighten up."

On appeal, defendant claims the following errors: Defendant argues (1) that the court made No finding of fact that the accident occurred while plaintiff was acting in the scope of her employment; (2) that the time, place and cause of the injury by accident is not definite and certain as required by law; that no finding was made that this requirement was met; (3) that as A matter of law, plaintiff did not suffer an injury by accident arising out of the course of her employment; (4) that the employer had No actual knowledge of the accident; and (5) that there was no substantial evidence to support the court's findings No. 2, 3 and 4.

B. Deficiencies in trial court's findings and their interpretation.

The trial court found that plaintiff suffered an accident within the meaning of the New Mexico Workmen's Compensation Act from the period of June 1975 until September 1975, "endured" it, but was totally disabled as of June 4, 1975.

Haphazard findings of fact were submitted by plaintiff's attorney and adopted by the trial court. Our continued criticism of this practice has been disregarded. We do not condone this careless conduct, but we must try to interpret the findings made, from the comments of the court and the evidence in the record, to support the judgment entered.

Safeco Insurance Co. of America, Inc. v. McKenna, 87 N.M. 481, 482, 535 P.2d 1332, 1333 (1975) says:

This court is not authorized to make findings which the district court should have made, nor to draw inferences therefrom. (citation omitted.) We are not a fact finding body and must depend upon the district court for findings of fact.

This means that it is beyond the function of an appellate court to find facts omitted by the trial court. Our duty is to interpret the findings made to determine whether the findings are sufficient to support the judgment entered.

The spirit of the Workmen's Compensation Act does not speak in terms of technical deficiencies; it speaks in terms of a system of compensation for impaired workmen that is humanitarian, economical and seeks to avoid harsh results. While we do not condone the sloppy findings made, there is no harm in giving findings of fact a liberal interpretation if the interpretation is supported by the evidence.

The phrase "within the meaning of the New Mexico Workmen's Compensation Act" can be given a broad and liberal construction. At the close of the trial, the court said:

The plaintiff, Mary Herndon, suffered an injury in the course of her employment on or about June the fourth, 1975.

Section 59-10-13.3(A), N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1) reads as follows:

Claims for workmen's compensation shall be allowed only:

(1) when the workman has sustained an accidental injury arising out of, and in the course of his employment;

(2) when the accident was reasonably incident to his employment; and

(3) when the disability is a natural and direct result of the accident.

When a finding is made that an accident occurred "within the meaning of the Act," it is implicit that it occurred in the course of the claimant's employment. This is especially true when the court orally makes a comment to that effect and the evidence is [92 N.M. 639]

Page 474

undisputed. If the trial court had not believed that the statutory requirements were met, it would have denied plaintiff workmen's compensation benefits.

We interpret the finding of the court to mean "The plaintiff suffered an accident which complied with the provisions of the New Mexico Workmen's Compensation Act."

C. The time, place and cause of the accident was definite and certain.

What is meant by the phrase, "an accident within the meaning of the Workmen's Compensation Act?" In the sense of the statute, an "accident is an unlooked for mishap, or untoward event which is not expected or designed." Lyon v. Catron County Commissioners, 81 N.M. 120, 464 P.2d 410 (Ct.App.1969). How can such an accident occur for a period of time from June 1975 until September 1975? How does a workman "endure" this accident? How can plaintiff be totally disabled on June 4, 1975 when she performed her duties until September 2, 1975?

With reference to the date of the accident, we agree that the time, place and cause of the injury must be definite and certain. Stevenson v. Lee Moor Contracting Co., 45 N.M. 354, 115 P.2d 342 (1941). This is essential to determine whether the employer had written notice or actual knowledge of the accident within 30 days after its occurrence pursuant to § 59-10-13.4. Beckwith v. Cactus Drilling Corporation, 84 N.M. 565, 505 P.2d 1241 (Ct.App.1972).

It has been firmly established that the 30 day provision for written notice applies to the substitute provision for actual knowledge. The employer must have actual knowledge of the accident within 30 days after its occurrence. Rohrer v. Eidal International, 79 N.M. 711, 449 P.2d 81 (Ct.App.1968); Anaya v. Big Three Industries, Inc., 86 N.M. 168, 521 P.2d 130 (1974); Norris v. Amax Chemical Corporation, 84 N.M. 587, 506 P.2d 93 (Ct.App.1973).

Plaintiff and defendants rely upon those cases in which the injury is gradual and progressive and not immediately discoverable under these authorities, the precise time of the beginning of the accident is uncertain. Weeks or months may pass before a...