Jaramillo v. Consolidated Freightways

• Citation: 1990 NMCA 8,109 N.M. 712,790 P.2d 509
• Decision Date: 25 January 1990
• Docket Number: No. 11344,11344
• Parties: Eddy JARAMILLO, Plaintiff-Appellant, v. CONSOLIDATED FREIGHTWAYS, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 509

790 P.2d 509

109 N.M. 712

Eddy JARAMILLO, Plaintiff-Appellant, v. CONSOLIDATED FREIGHTWAYS, Defendant-Appellee.

No. 11344.

Court of Appeals of New Mexico.

Jan. 25, 1990.

Certiorari Denied March 27, 1990.

[109 N.M. 713] Benito Sanchez, Benito Sanchez, P.A., Albuquerque, for plaintiff-appellant.

Charles E. Stuckey, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for defendant-appellee.

OPINION

DONNELLY, Judge.

Plaintiff appeals from the trial court's denial of his motion to increase a prior award of workers' compensation benefits and for an award of vocational rehabilitation benefits. We discuss (1) whether the trial court erred in determining that there had been no increase in plaintiff's disability; and (2) whether the court erred in denying plaintiff's request for the award of vocational rehabilitation benefits. We affirm in part and reverse in part.

This is the third appeal since the filing of plaintiff's original workers' compensation action. On remand following the first appeal, the trial court entered judgment in 1986 determining that plaintiff suffered a work-related accident on January 22, 1983 but that no immediate disability resulted from the accident; that in March 1983, plaintiff aggravated his prior injury; and that "[p]laintiff became 60% disabled on January 1, 1984, and this disability was caused by the ... March 1983 incident."

The 1986 judgment entered by the court provided that plaintiff was "100% unable to return to his former employment, i.e., truck driver, and 60% disabled from performing other work and duties commensurate with his age, level of education, background and work experience." The court ordered that plaintiff be awarded "60% permanent partial disability for injuries sustained [to] his low back," together with payment of reasonable medical expenses and attorney fees.

Both plaintiff and defendant appealed from the judgment on the mandate. On February 26, 1987, this court affirmed the trial court's judgment determining the amount of plaintiff's disability.

In June 1985, plaintiff underwent a laminectomy and fusion of his lower back. Subsequent to the 1985 trial, plaintiff began complaining of pain in his left hip. A medical examination revealed that plaintiff was suffering from septic necrosis, a deterioration of his hip joint caused by medication prescribed in the treatment of his back condition. The examination indicated that the degeneration was most prevalent in plaintiff's left hip. Thereafter, plaintiff underwent a total left hip replacement in February 1986.

In February 1988, plaintiff filed a motion to increase his workers' compensation benefits, alleging that his disability had increased since the entry of the prior judgment for workers' compensation benefits.

I. CLAIM OF INCREASE IN DISABILITY

Plaintiff asserts that the trial court erred in denying his motion to increase the amount of his disability. Plaintiff argues that subsequent to his previous workers' compensation trial wherein the trial court determined that he had suffered a 60% permanent partial disability, his physical condition has deteriorated so that he is currently permanently totally disabled.

Plaintiff's claim for modification and increase in his workers' compensation disability award is governed by the law in effect on the date of his accidental injury resulting in his disability. Thus, the 1983 law is controlling since plaintiff's original accident occurred in 1983. See Varos v. Union Oil Co. of California, 101 N.M. 713, 688 P.2d 31 (Ct.App.1984).

Under NMSA 1978, Section 52-1-56 (Orig.Pamp.), a worker may petition the court to modify or increase the amount of compensation payable to him based upon a showing that his disability "has become more aggravated or has increased without the fault of the workman." See also DiMatteo v. County of Dona Ana, --- N.M. ----, 785 P.2d 285 (Ct.App.1989); Holliday v. Talk of the Town, Inc., 98 N.M. 354, 648 P.2d 812 (Ct.App.1982). A worker has a right to reopen his claim when there is a showing that his disability has increased and that the increase in disability is causally related to his initial compensable injury. Rumpf v. Rainbo Baking Co., 96 N.M. 1, 626 P.2d 1303 (Ct.App.1981); Glover v. Sherman Power Tongs, 94 N.M. 587, 613 P.2d 729 (Ct.App.1980). An increase in physical impairment, however, will not automatically result in an increase in the worker's disability. Tafoya v. Leonard Tire Co., 94 N.M. 716, 616 P.2d 429 (Ct.App.1980). See also Goolsby v. Pucci Distrib. Co., 80 N.M. 59, 451 P.2d 308 (Ct.App.1969); Gallegos v. Kennedy, 79 N.M. 590, 446 P.2d 642 (1968).

Because plaintiff previously obtained an award of permanent partial disability, it was his burden to show facts indicating that his physical condition had changed and that there had been an increase in his disability since the original award in 1985. E.g., Amos v. Gilbert W. Corp., 103 N.M. 631, 711 P.2d 908 (Ct.App.1985). Since the trial court found that the medical treatment rendered to plaintiff for his original back problems caused plaintiff's deteriorating hip conditions, the critical question thus becomes whether the aggravation of plaintiff's original disability has resulted in any diminishment of his ability to perform to some percentage extent the usual tasks in the work he was performing at the time of his injury, and whether plaintiff is unable to some percentage extent to perform work for which he is fitted by age, education, training, general physical and mental capacity, and previous work experience. See NMSA 1978, Secs. 52-1-25, -26, -56 (Orig.Pamp.); see also Perez v. International Minerals & Chem. Corp., 95 N.M. 628, 624 P.2d 1025 (Ct.App.1981).

In the present case plaintiff presented evidence that he remained 100% unable to perform his former work as a long-distance truck driver, that he could not perform certain functions as a laborer, that he was significantly limited in his ability to lift, bend, and walk any extended distances, and that his range of motion was restricted. It was uncontradicted that degeneration in plaintiff's right hip was progressive and may ultimately require an operation to replace his right hip.

Defendant argues that, although plaintiff's physical condition has changed, other evidence in the record supports the trial court's findings determining that his disability has not changed. Defendant contends that the evidence concerning whether plaintiff has suffered any increase in the percentage of disability is conflicting; that, among other evidence, Dr. Richard White, an orthopedic surgeon, testified that plaintiff's hip replacement achieved an excellent result and that there has been no change in the restrictions placed on plaintiff at the original trial; that Dr. Garry L. Singer also testified that there has been no change in plaintiff's ability to return to work and that although he is unable to work as a long-distance truck driver, he is nevertheless able to perform light, sedentary work.

On appeal where a challenge is raised concerning the sufficiency of the evidence to support the findings adopted by the trial court, our scope of review is limited to determining whether there is substantial evidence to support the trial court's findings. Lyon v. Catron County Comm'rs, 81 N.M. 120, 464 P.2d 410 (Ct.App.1969). In conducting this review, all disputed issues of fact are resolved in favor of the successful party, together with all reasonable inferences arising therefrom. Lopez v. Smith's Management Corp., 106 N.M. 416, 744 P.2d 544 (Ct.App.1986). In evaluating the sufficiency of the evidence on appeal, the question is not whether there is evidence to support an alternative result, but whether the trial court's result is supported by substantial evidence. Bagwell v. Shady Grove Truck Stop, 104 N.M. 14, 715 P.2d 462 (Ct.App.1986). This court will not reweigh the evidence even though evidence is presented which may have supported a different result. Id.

Applying the above rules to the record before us, we cannot say that the record does not support the findings of the trial court determining that although there has been a change in some of the physical functions which the plaintiff has been able to perform since the prior trial in this case, there has been no change in the plaintiff's percent of disability. Therefore, we hold that substantial evidence supports the trial court's findings of no increase in disability.

In analyzing plaintiff's contention that he is totally permanently disabled, however, we note what appears to be an inadvertent discrepancy in the findings of fact and conclusions of law entered by the trial court, which is carried forward in the judgment of the trial court. The judgment entered by the trial court on May 13, 1987, awarded benefits based on its finding that plaintiff was 60% permanently partially disabled due to injuries sustained to his low back. Following the hearing on plaintiff's motion to increase his disability benefits, the trial court adopted both a finding of fact and conclusion of law determining that although plaintiff had "a change in some of the physical functions" which he is able to perform since his former trial in this case, "there has been no change in the [p]laintiff's percent of disability," and that "[p]laintiff is presently, and has been since the time of this trial, 60% temporarily partially disabled, except for the period of convalescence following hip replacement, February 6, 1986 to May 20, 1986, in which [p]laintiff was 100% disabled." (Emphasis added.) On appeal, both plaintiff and defendant agree that the reference to "temporarily" rather than "permanently" was inadvertent.

We affirm the trial court's denial of increase in disability and remand for correction of the trial court's findings of fact, conclusions of law and judgment concerning the permanency of plaintiff's disability.

II. VOCATIONAL REHABILITATION BENEFITS

Next, plaintiff argues that the trial court...