Lucero v. Los Alamos Constructors

• Court: Court of Appeals of New Mexico
• Writing for the Court: OMAN; SPIESS, C.J., and WOOD
• Citation: Lucero v. Los Alamos Constructors, 450 P.2d 198, 79 N.M. 789, 1969 NMCA 5 (N.M. App. 1969)
• Decision Date: 24 January 1969
• Docket Number: No. 255,255
• Parties: Anselmo M. LUCERO, Plaintiff-Appellant, v. LOS ALAMOS CONSTRUCTORS, INC., Employer, and the Zia Company, Employer, and United States Fidelity and Guarantee Company, Insurer, Defendants-Appellees.

Page 198

450 P.2d 198

79 N.M. 789

Anselmo M. LUCERO, Plaintiff-Appellant, v. LOS ALAMOS CONSTRUCTORS, INC., Employer, and the Zia Company, Employer, and United States Fidelity and Guarantee Company, Insurer Defendants-Appellees.

No. 255.

Court of Appeals of New Mexico.

Jan. 24, 1969.

James E. Thomson, Zinn & Donnell, Santa Fe, for appellant.

Fred C. Hannahs, Sumner G. Buell, Montgomery, Federici, Andrews, Hannahs & Morris, Santa Fe, for appellees.

OPINION

OMAN, Judge.

Plaintiff appeals from a judgment awarding him workmen's compensation benefits on the basis of 30% permanent disability of the body as a whole. His position is that the trial court's finding of fact that he is permanently disabled only to this extent is not supported by substantial evidence.

As part of his case, plaintiff offered the testimony of two medical doctors. One of these doctors gave it as his opinion that plaintiff was 50% permanently disabled, and the other's opinion was that the permanent disability was 75%. Plaintiff contends that the trial court was obliged to enter judgment for him based on at least a 50% permanent disability.

He relies upon the cases of Herrell v. Piner, 78 N.M. 664, 437 P.2d 125 (1968); Ross v. Sayers Well Servicing Company, 76 N.M. 321, 414 P.2d 679 (1966); Ortega v. New Mexico State Highway Department, 77 N.M. 185, 420 P.2d 771 (1966), and Reed v. Fish Engineering Corporation, 76 N.M. 760, 418 P.2d 537 (1966).

Herrell v. Piner, supra, is cited as supported for the often repeated rule that findings must be supported by substantial evidence, and that a judgment based upon findings not so supported must be set aside. There is no question as to the correctness of the rule, but we are of the opinion that it is not applicable here. The questioned finding is so supported.

In workmen's compensation cases, as in other cases, an appellate court, in determining whether or not a finding of the trial court is supported by substantial evidence, considers only that evidence and the reasonable inferences deducible therefrom, which support the finding, and this evidence and these inferences are viewed in their most favorable light to support the finding. Grisham v. Nelms, 71 N.M. 37, 376 P.2d 1 (1962); Lopez v. Schultz & Lindsay Construction Company, 79 N.M. 485, 444 P.2d 996 (Ct.App.1968); Taylor v. McBee, 78 N.M. 503, 433 P.2d 88 (Ct.App.1967).

We shall not endeavor to detail all the evidence which, together with the reasonable inferences deducible therefrom, supports the finding. However, we do call attention to the following:

(1) This case was tried on August 16, 1967. On June 1, 1967, one of the doctors who testified on plaintiff's behalf gave a written report in which he stated:

'The disability of the cervical spine and the lumbo-sacral spine has resulted in a 10% permanent disability of the body as a whole. In all probability this patient will be able to return to his regular duties as a laborer, if he learns to accept his disability and take care of it.'

(2) The entire medical file of plaintiff, as kept by the Los Alamos Medical Center, was received into evidence upon stipulation. This record covered a period of almost twenty years and included references to at least four prior low back injuries and an injury to the shoulders. Both doctors who testified for plaintiff had examined but not treated him for his injuries. They admitted that they had no knowledge of these prior injuries, and that knowledge thereof would have been helpful in evaluating plaintiff's disability. One doctor testified that knowledge of a certain one of these low back injuries would have enabled him to make 'a better evaluation.'

(3) There were discrepancies in the history furnished by plaintiff to these two doctors, as well as in his symptoms which he described and displayed to them. (4) A doctor called by defendants, who was one of the treating doctors, testified that plaintiff had never complained of any low back pain connected with the injuries for which this suit was filed, and, consequently, he had not examined plaintiff's limbo-sacral area. Plaintiff did complain to this doctor about pains in his neck, which he stated seemed to be brought on by damp weather. He also complained of dizziness when he bends over, but stated this was relieved when he straightened up. The doctor made an examination of the cervical area, but related no disability to this area. He evaluated plaintiff's disability as between 5% and 20% of the right wrist, which had been fractured, and between 5% and 20% of the left elbow, because of the fracture of the radial head of that arm.

In addition to the foregoing evidence, the trial court had the opportunity of observing plaintiff and evaluating his testimony, which was contradictory in some respects.

Although none of the doctors evaluated the extent of plaintiff's disability at 30%, this evaluation by the court was well within the range of disability supportable by the evidence. The trial court was not bound to accept the percentage evaluations of any one of the three doctors. Medical testimony, like other expert evidence, is intended to aid but not to conclude the trier of the facts in determining the extent of disability. Seal v. Blackburn Tank Truck Service, 64 N.M. 282, 327 P.2d 797 (1958); Seay v. Lea County Sand and Gravel Company, 60 N.M. 399, 292 P.2d 93 (1956).

The purpose of a medical opinion as to the percentage of disability is to assist the trier of the facts in arriving at a correct determination of the extent of claimant's disability, and a percentage opinion may be disregarded if there is other competent evidence to support the award. Seal v. Blackburn Tank Truck Service, supra. This is of necessity true when more than one expert gives an opinion as to the percentage of disability, and these percentages differ. In this situation, all but one of such percentage opinions must necessarily be rejected, and all may be rejected. If some of these percentage opinions can be rejected by the trier of the facts, then what logical reason can there be for requiring the trier of the facts to accept one but reject the others?

Here, the trial court, as the trier of the facts, rejected all...