Holliday v. Talk of the Town Inc.
| Decision Date | 10 June 1982 |
| Docket Number | No. 5497,5497 |
| Citation | 648 P.2d 812,1982 NMCA 103,98 N.M. 354 |
| Parties | William HOLLIDAY, Plaintiff-Appellant, v. The TALK OF THE TOWN INC. and New Hampshire Insurance Group, Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
This is a workmen's compensation case arising out of an injury to plaintiff-appellant, who as an entertainer played lead guitar and fiddle.
On July 25, 1974, plaintiff suffered an accidental injury arising out of and in the course of his employment with the defendant "Talk of the Town." The ends of his ring finger and middle finger on his left hand were severed below the fingernail and below the distal joint of each of the fingers.
At trial the court found that plaintiff suffered an accidental injury to a scheduled body member as provided in § 59-10-18.4, N.M.S.A.1953, now § 52-1-43(A)(19), (23), N.M.S.A.1978, and was entitled to compensation for a period of twenty weeks at the appropriate compensation rate. The court further found that plaintiff was not totally disabled within the meaning of the Workmen's Compensation Act. Judgment was entered for plaintiff on March 22, 1976; the same date plaintiff received a lump sum settlement and signed an instrument entitled "Satisfaction of Judgment and Release in Full." This instrument provided as follows:
Plaintiff hereby acknowledges the sum of One Thousand Six Hundred and Thirty-Five Dollars and No Cents ($1,635.00) from Defendants in full payment and satisfaction of the Judgment heretofore entered herein and upon the filing of this Satisfaction of Judgment, signed by Plaintiff and his attorney, that Defendants, and each of them, shall fully and finally be released and discharged from any further claim by Plaintiff on account of the accident, injury and disabilities alleged in the Complaint.
Some thirty-eight months after the entry of judgment on March 22, 1976, plaintiff filed a petition to increase compensation pursuant to § 52-1-56(A), N.M.S.A.1978.
On June 18, 1980, the court denied the defendants' motion to dismiss and granted an interlocutory appeal. This application was filed June 23, 1980, but an order was entered June 24, 1980, denying the interlocutory appeal. On April 23, 1981, defendants filed a motion for summary judgment. The trial court entered summary judgment for defendants on October 9, 1981. Plaintiff appeals.
We affirm.
Plaintiff claims:
1. The trial court erred in granting summary judgment because the extent of aggravation of plaintiff's hand injury presents a genuine issue of material fact.
2. The trial court erred as a matter of law in denying total disability.
3. The trial court erred in concluding that the entire claim had been released and/or satisfied.
Point I. There was no genuine issue of material fact concerning aggravation of plaintiff's hand injury.
N.M.R.Civ.P. 56(c), N.M.S.A.1978 (Repl.1980 Pamph.) allows summary judgment when there is no genuine issue of material fact. In determining whether summary judgment is proper the evidence must be viewed in the light most favorable to support the right to a trial on the merits. Gonzales v. Gackle Drilling Company, 70 N.M. 131, 371 P.2d 605 (1962).
In this case, however, the evidence so viewed does not present a genuine issue of material fact. Plaintiff states that there was unrebutted evidence that plaintiff had an increase in the "injury" to the two fingers of his left hand. Under the provisions of § 52-1-56, N.M.S.A.1978, an increase or aggravation of "disability" is required. But despite this difference in semantics there is no factual issue as to the alleged aggravation of the hand injury.
Plaintiff contends that Dr. Colocho established that the injury to his hand has been exacerbated so that the entire hand is affected and almost useless. That is not the effect of Dr. Colocho's statement. To the contrary, the doctor found only a normal post-amputation condition of the ends of the two fingers involved, and stated that the injury was well healed. He stated that it did not appear to be painful. There is no statement from the doctor of exacerbation or any other indication of an increase in or aggravation of the disability suffered by the plaintiff as a result of his on-the-job injury. Dr. Colocho also stated that, from a medical point of view, there is nothing further that can be done for the plaintiff's fingers. The foregoing shows an absence of aggravation of the hand injury, and not being contradicted, supports the summary judgment.
Point II. Plaintiff is not entitled to total disability benefits.
Plaintiff had emphysema at the time of his hand injury. According to plaintiff he was hired as an entertainer. After his hand injury,...
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...award where his disability has been shown to have increased, defendants nevertheless argue that under Holliday v. Talk of the Town Inc., 98 N.M. 354, 648 P.2d 812 (Ct.App.1982), and DiMatteo v. County of Dona Ana, 109 N.M. 374, 785 P.2d 285 (Ct.App.1989) (DiMatteo II ), the trial court lack......
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Shryock v. Madrid
...on appeal must be viewed in the light most favorable to support the right to a trial on the merits. Id.; Holliday v. Talk of the Town, Inc., 98 N.M. 354, 648 P.2d 812 (Ct.App.1982). It follows that if Vincent Madrid, in support of his motion for summary judgment, made a prima facie showing ......
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1997 -NMCA- 85, Edmiston v. City of Hobbs
...injury and the later unrelated illness. Id. at 323, 720 P.2d at 1264. We reached a similar result in Holliday v. Talk of the Town Inc., 98 N.M. 354, 356, 648 P.2d 812, 814 (Ct.App.1982) in which the worker had sustained a scheduled injury to his hand and later became totally disabled due to......