Lucero v. C. R. Davis Contracting Co.

• Citation: 71 N.M. 11,375 P.2d 327,1962 NMSC 136
• Decision Date: 16 October 1962
• Docket Number: No. 6967,6967
• Parties: Ursinio LUCERO, Claimant, Plaintiff-Appellee, v. C. R. DAVIS CONTRACTING CO., Employer, and Indemnity Insurance Company of North America, Insurer, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 327

375 P.2d 327

71 N.M. 11

Ursinio LUCERO, Claimant, Plaintiff-Appellee, v. C. R. DAVIS CONTRACTING CO., Employer, and Indemnity

Insurance Company of North America, Insurer,

Defendants-Appellants.

No. 6967.

Supreme Court of New Mexico.

Oct. 16, 1962.

McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Albuquerque, for appellants.

Lorenzo A. Chavez, Arturo G. Ortega, Melvin L. Robins, Albuquerque, for appellee.

CASWELL S. NEAL, District Judge.

This is an appeal from an award made by the trial court under the Workmen's Compensation Act (Sec. 59-10-1 et seq., N.M.S.A., 1953) to claimant Lucero against his employer and insurance carrier.

The case was tried before the court without a jury, resulting in a judgment allowing claimant $825.00 as a lump sum representing 5% disability from the date of the accident to the date of judgment; 5% partial permanent disability until further order of the court; medical bills of $1,054.84, and $325.00 attorney's fee.

The trial court's Finding of Fact No. 2 as follows:

'The Claimant sustained a compensable injury suffered by accident arising out of and in the course of his employment while working for C. R. Davis Contracting Co., on the 8th day of July, 1958.'

is challenged by appellants as not sustained by the evidence, in two respects, namely:

1. That the evidence fails to show an 'accident' within the meaning of the act, and

2. That the evidence does not show a causal connection between an accident and claimant's resulting disability.

No other question is presented by the appeal.

A review of the evidence, in the light of certain well-established rules of law, is indicated.

In reviewing evidence on appeal, all disputed facts must be resolved in favor of the appellee and all reasonable inferences drawn from the evidence should be indulged in to support the judgment. The evidence must be viewed most favorable to the judgment. Totah Drilling Co. v. Abraham, 64 N.M. 380, 328 P.2d 1083; Martinez v. Archuleta, 64 N.M. 196, 326 P.2d 1082; Waters v. Blocksom, 57 N.M. 368, 258 P.2d 1135.

The Workmen's Compensation Act is remedial in nature; is given a liberal interpretation by both the trial and reviewing courts; reasonable doubts must be resolved in favor of the employee; its beneficent purposes may not be thwarted by technical refinement or interpretation; as to such cases liberality of construction as to the weight and sufficiency of the evidence is indulged. White v. Valley Land Co., 64 N.M. 9, 322 P.2d 707; Montell v. Orndorff, 67 N.M. 156, 353 P.2d 680; Valencia v. Stearns Roger Mfg. Co. (D.N.M.1954), 124 F.Supp. 670; Wilson v. Rowan Drilling Co., 55 N.M. 81, 227 P.2d 365; Armijo v. Middle Rio Grande Conservancy District, 59 N.M. 231, 282 P.2d 712.

Turning now to the evidence with reference to whether the claimant sustained an 'accident' in the course of his employment.

The undisputed evidence shows that claimant was 39 years of age at the time of the trial, and had quit school in the seventh grade. He engaged in heavy labor cleaning forests, went to the C. C. Camps where he was a truck driver and did heavy labor. He served in the army four years with the Fifth Armoured Division from North Africa to France, Italy and Germany. He had no trouble with his chest or lungs. He then went to a pottery (ceramics) school about a year and nine months. Worked as a rodman for the Highway Department. Worked for a plumbing company doing heavy work such as digging ditches about a year. He then worked two years for a power line contractor digging post holes and dragging a line. He then worked for the City of Albuquerque Water Department, driving a truck, cutting down trees and working on pipe lines. He worked eight years for Allison & Haney Construction, doing heavy construction work. He then went to work for the defendant employer about two weeks before this incident, helping lay pipe, breaking manholes with a sledge hammer and jack hammer. Up to this time he had never had any trouble with his lungs or chest. On the morning of July 8, 1958, he had been laying pipe. In the afternoon he was assigned to the job of sweeping the streets, apparently by hand. A power broom was being used to sweep the streets near by. Claimant testified:

'Q And what was the weather condition that day from the standpoint of dust and sand blowing and things of that nature?

'A Oh, the day was pretty nice but sweeping with that power broom raised a lot of dust.

'Q Raised a lot of dust?

'A Yes, sir.

'Q Was there a heavy concentration of dust in the air?

'A Yes, a lot of dust.

'Q And what happened when you breathed that heavy dust in the air?

'A Well, I felt like something itching in my chest and then I start coughing blood right away.

'Q You started coughing blood?

'A Yes, sir.

'Q And did you cough a little blood or a lot of blood?

'A No, a lot of blood.

'Q And what did you do then?

'A And then I run to my foreman and he took me down to the Doctor's Hospital.'

This in the court's opinion fully supports the court's finding an 'accident' within the meaning of the Workmen's Compensation Act.

The sudden breathing of heavy dust-laden air, caused by the nearby operation of a power broom sweeping the streets, which when taken into his lungs caused a coughing spell and a resulting sudden hemorrhage, is sufficient to establish a 'mishap' or 'fortuitous happening.' It can be said to produce an 'unintended,' 'unexpected,' and 'unlooked for' result, requiring the court to characterize the event as accidental. Teal v. Potash Company of America, 60 N.M. 409, 292 P.2d 99.

This evidence is sufficient to sustain a finding of accidental injury in the course of employment within many decisions of this court. Christensen v. Dysart, 42 N.M. 107, 76 P.2d 1; Stevenson v. Lee Moor Contracting Co., 45 N.M. 354, 115 P.2d 342; Webb v. New Mexico Pub. Co., 47 N.M. 279, 141 P.2d 333, 148 A.L.R. 1002; Clower v. Grossman, 55 N.M. 546, 237 P.2d 353; Barton v. Skelly Oil Co., 47 N.M. 127, 138 P.2d 263; Henderson v. Texas-New Mexico Pipe Line Co., 46 N.M. 458, 131 P.2d 269; Gilbert v. E. B. Law & Son, Inc., 60 N.M. 101, 287 P.2d 992.

The undisputed evidence in the case shows that the claimant in his early life suffered from tuberculosis resulting in a Ghon tubercle, which is defined as 'primary lesion in juvenile pulmonary tuberculosis.' Blastick's New Gould Medical Dictionary, 1st ed. 'The primary lesion in tuberculosis of the lung in children.' Dorland's Medical Dictionary, 23d ed.

This fact, however, does not preclude claimant from compensation, even though one without such a condition would not have been so adversely affected from breathing a sudden heavy concentration of dust. The aggravation by accident of a pre-existing condition, whether the result of a disease or a congenital weakness, is nevertheless compensable. Christensen v. Dysart, supra; Elsea v. Broome Furniture Co., 47 N.M. 356, 143 P.2d 572; Gilbert v. E. B. Law & Son, Inc., supra; Seay v. Lea County Sand and Gravel Co., 60 N.M. 399, 292 P.2d 93; Reynolds v. Ruidoso Racing Association, Inc., 69 N.M. 248, 365 P.2d 671.

When claimant was admitted to the hospital he was given a bronchoscopy, which is an insertion, under local anesthesia, of a lighted tube for the internal examination of the windpipe and major branches. The doctor found a little clot of blood in the right lower lobe, bronchial tube, and some blood issuing from the right middle lobe. Sputum was taken for microscopic examination and he was discharged about 4 p. m. with antibotics after the streaking of blood stopped. He was readmitted to the hospital in a few days because the pathologist reported the sputum contained cells which were felt to be characteristic of cancer. A bronchogram was performed, which is a dilation of the bronchial tubes, which was interpreted as indicating a possible tubular bronchiectasis, which is a spindley dilation of some of the tube in the right lobe of the lung, and a Ghon tubercle by the right hilus. A Ghon tubercle was described by the doctor as a healed scar caused by childhood tuberculosis. On July 28th a right thoractomy was performed and a mass compatible with a Ghon tubercle was removed from the rear of the left lobe without requiring suture of the lung tissue. It could be removed without producing significant bleeding. The remaining areas were checked without encountering probable pathology. The operation was performed expecting a malignant tumor, which was not found. The operation was performed as a calculated risk, and deemed necessary under the circumstances. The incision was made from the back. The claimant had had no previous bleeding prior to the hemorrhage on July 8th, although he had had some pain in the right armpit and stomach when he had worked shortly before with a pneumatic drill.

The doctor testified:

'Q And in view of the history, is it your opinion that excluding other possibilities, which are mere possibilities, that this was or was very well the triggering factor that led to the spitting of blood?

'A Well, any irritant causing or making worse acute bronchitis could cause the spitting of blood.

'Q Well, in view of the history in this case, doctor, the incidence of having breathed heavy dust, is that the thing that you point to in this case as the triggering factor?

'A Well, I think it is very important to state that in any of these cases one has no way of saying what was the actual cause. One can only say what could well be a cause.

* * *

* * *

'Q And that this mass scarring contracture or focal mass or emphysema was prior, was an old condition and it was prior to his employment with C. R. Davis on May 8th, 1958, some sixty days earlier.

'A Yes. I have never seen a lesion of this character where the antecedent x-rays were available and where the antecedent x-rays failed to show it present for at least a year.

'Q Yes. Well, now, doctor, this history of pain in the chest, pain in the stomach and then finally the spitting of blood, could that...