Lipe v. Bradbury

• Decision Date: 10 January 1945
• Docket Number: No. 4861.,4861.
• Parties: LIPEv.BRADBURY et al.
• Court: New Mexico Supreme Court

49 N.M. 4

154 P.2d 1000

LIPE

v.BRADBURY et al.

No. 4861.

Supreme Court of New Mexico.

Jan. 10, 1945.

Appeal from District Court, Bernalillo County; Albert R. Kool, Judge.

Proceeding under the Workmen's Compensation Act by Rube Lipe, claimant, opposed by O. G. Bradbury and another, doing business as Bradbury & Marchant, employers, and Western Casualty & Surety Company, insurer. From a judgment for claimant, the employers and insurer appeal.

Affirmed.

On appeal from judgment for compensation claimant, evidence must be viewed in light most favorable to him. 1941 Comp. § 57-901 et seq.

[49 N.M. 1001]

Allen M. Tonkin and George R. Craig, both of Albuquerque, for appellants.

Rodey, Dickason & Sloan and Frank M. Mims, all of Albuquerque, for appellee.

MABRY, Justice.

Claimant-appellee filed suit against defendants-appellants, employers and their insurer, seeking to recover under the New Mexico Workmen's Compensation Act for total and permanent disability resulting from a fractured left wrist. Defendants in their answer set forth that claimant had been paid the statutory compensation for forty-four weeks on account of the injury and denied that claimant was totally and permanently disabled as a result of the injury complained of, or that he was then suffering from any further compensable injury. The case was tried to a jury which returned a verdict of total and permanent disability because of the injury and general bodily disability flowing therefrom as complained of, and judgment was entered granting an additional 506 weeks of compensation together with interest on past due installments and $1200 as attorney fees for the trial below and defendants appeal.

While a number of assignments of error are made and relied upon these may, for convenience, be appropriately grouped under three points for discussion and decision, to-wit: (1) Did the the trial court properly refuse to require claimant to elect whether to submit his case solely upon the question of total and permanent disability or in the alternative upon the question of permanent partial disability? (2) Is the verdict of total and permanent disability supported by substantial evidence? (3) Is claimant entitled to compensation for total and permanent disability in any event?

[1] Claimant's claim to total and permanent disability, as we view the case, does not rest merely upon the fact that he suffered a badly fractured left wrist. He claimed that this severely fractured left wrist which never properly healed and which was left in such bad condition that it caused restlessness, nervousness, substantial loss of weight, loss of sleep and a general debilitated condition, resulted in total and permanent disability. This was, he says, not only because of the loss of the use of his entire left arm, but by reason of the several complications resulting from the injury. Defendants argue that the disability suffered is covered by, and falls under, the schedule which permits compensation for the total loss, or loss of use, of a member, at most, and cannot, under the circumstances, come under the residuary clause of the statute where compensation may be afforded for total and permanent disability. There are few real conflicts in the evidence, and these, of course, will be resolved in favor of the correctness of the verdict.

Claimant is a man sixty-five years of age with a third grade education; he was a cowboy in the early years of his life, then farmed for a period of time, and for the past twenty-five years had followed the trade of carpenter. He has never done, and is not qualified to do, anything but manual labor. While an employee of defendants Bradbury and Marchant in general construction work he fell from a scaffold and suffered thereby an impacted Colles's fracture of his left wrist. This was a fracture of the distal, or lower, end of the radius, the large bone of the forearm. In other words, the end of the large bone of the forearm was broken off just above the wrist, the fracture being an impacted one whereby the long end of the bone above the line of fracture was driven into the short end of the bone below the fracture in an unnatural position, at an angle, in fact, of about fifteen degrees from normal. The wrist was not set; i.e. no attempt was made to reduce the impaction or to correct the angulation, it being put into a cast merely, and for the reason- as claimed and not disputed-that it would not have been good medical practice to attempt to break up such an impacted fracture in a man of claimant's age because of the likelihood that the bones might not unite at all if, under the circumstances, they were pulled apart and a break-up of the impacted fracture

[49 N.M. 1002]

attempted. The injury occurred many months before trial, and all hopes for improvement of the condition must now be abandoned.

The testimony shows that the broken ends of the bones were “jammed together like two sticks” and healed in that position. It is impossible to force the wrist to a normal range of motion because the joint “locks,” due to the angulation of the distal fragment of the radius where it meets the wrist joint; and this condition causes impactment of lateral motion and flexion and spasms of the muscles and tendons of the forearm upon both lateral, and forward-backward, motion of the wrist. The use of the wrist in any kind of manual labor would naturally cause more pain than if it were moved in ordinary and quiet motion when not working; and the pain resulting from use would extend up through the arm and into claimant's body and it would affect his entire body. Even some of the unconscious movements in sleep cause pain and nervousness.

He has no grip in his left hand and cannot perform substantially any ordinary manual labor in his present condition, which is permanent. The pain and nervousness which result from the condition of the wrist extends over the entire body and make claimant nervous, weak, and “flighty.” He was found to be quite nervous and debilitated at the time of his examination a few days before the trial; and this nervousness, loss of weight, suffering, and general debilitation are all the result of the injury to his wrist. One cause of the nervousness may be pressure on the nerve of the wrist from the callous formation thrown out around the fracture, according to the medical testimony. This extreme nervous condition, affecting claimant's entire body and nervous system, is established by objective findings, and evidence. Claimant had, a few months prior to the injury in question, suffered an injury to his pelvic bone as a result of which one of his legs is somewhat shortened, but the previous injury did not interfere to any appreciable extent with his work as a carpenter.

[2] Defendants' contention under Point One is to the effect that claimant should have been required to elect whether, in prosecuting his claim under the Act, he would ask for total and permanent disability, or for permanent and partial disability. Defendants had paid all the compensation which they claimed was owing under any theory and now contend that there was no longer any disability at all for which compensation was recoverable. There is no merit to this point.

The complaint and claim for compensation, after setting up the injuries and the circumstances thereof and alleging total and permanent injury to the whole body, asks for “compensation” on account thereof. We know of no rule which would require an election on the part of a claimant under the Workmen's Compensation Act as to whether he will seek a finding, or verdict, of total and permanent disability or for something less, at the risk of being allowed no compensation at all if he should guess wrong as to the extent of his injuries.

The Act provides that “such claim shall be informal in character and shall set forth sufficient facts for the determination of the same.” 1941 Comp. Sec. 57-915. The case of Gonzales v. Pecos Valley Packing Co., 48 N.M. 185, 146 P.2d 1017, cited and relied upon by defendants, is not in conflict with what we here hold.

[3] Technical precision in pleading is not generally required in Workmen's Compensation cases. Glasgow v. State Industrial Commission et al., 120 Okl. 37, 250 P. 138; Higginbotham v. Oklahoma Portland Cement Co., 155 Okl. 264, 9 P.2d 15; Miller v. State Industrial Accident Commission of Oregon, 149 Or. 49, 39 P.2d 366; Amerada Petroleum Corp. v. White et al., 179 Okl. 82, 64 P.2d 660; Horton v. Industrial Commission et al., 88 Utah 306, 54 P.2d 249.

[4][5] “Workmen's compensation statutes are sui generis and create rights, remedies and procedure which are exclusive. They are in derogation of the common law and are not controlled or affected by the code of procedure in suits at law or actions in equity except as provided therein.” Hudson v. Herschbach Drilling Company, 46 N.M. 330, 128 P.2d 1044, 1045. And, the Act will be liberally construed in favor of the workman. Stevenson v. Lee Moor Contracting Co., 45 N.M. 354, 115 P.2d 342.

[6] Under this point defendants further complain that the trial court should not by an instruction given, and objected to, have permitted the jury to speculate upon whether the injury came under the schedule or the residuary clause. But since we hold that the jury had a right, under the claim

[49 N.M. 1003]

presented, to determine the extent of the injury and whether it was confined to the member the injury to which must be compensated under the specific schedule, or whether the injury produced total and permanent disability under the residuary clause, as claimed, the instruction complained of is unobjectionable.

The question raised under Point Two we also hold to be without merit.

Without referring much more fully to the evidence than is shown in the foregoing statement of the case on the question of total and permanent disability, it is enough to say that the verdict is supported by substantial evidence. One of defendants' own...