Lyon v. Catron County Com'rs

Decision Date31 October 1969
Docket NumberNo. 350,350
Citation81 N.M. 120,1969 NMCA 108,464 P.2d 410
PartiesTolbert J. LYON, Jr., Plaintiff-Appellant, v. CATRON COUNTY COMMISSIONERS, Employer, and Security Insurance Group and the St. Paul Insurance Companies, Insurors, Defendants-Appellees.
CourtCourt of Appeals of New Mexico
J. W. Reynolds, Robertson & Reynolds, Silver City, for appellant
OPINION

SPIESS, Chief Judge.

This appeal is from a judgment denying a claim for workmen's compensation. In general, it is argued that certain of the findings of fact are not supported by substantial evidence and that certain findings of fact requested by claimant and having their basis in undisputed evidence were improperly refused. It is further contended that the conclusions of law flowing from the claimed erroneous findings of fact were improper as was the refusal of conclusions requested by claimant. The findings of fact and conclusions of law upon which error is predicated are as follows:

Findings of Fact:

'8. That at no time during his employment with defendant county did claimant suffer any further or other accident or injury after February 26, 1965, and that the only accident and any resultant injury occurring to plaintiff was February 26, 1965.'

'12. That the claimant had a pre-existing lumbar condition which could have been aggravated by the accident when the cattle guard feel (sic) on the claimant or by any other type of normal activity; that the claimant knew of no occurrence or incident after February 26, 1965, in which he was injured; that he related no history to any doctor of any accident or injury, other than that of February 26, 1965.

'13. That Dr. Minear's opinion that the claimant suffered a rupture sometime in March of 1966 is not related to any accident or incident which arose out of or in the course of his employment, based upon reasonable medical probabilities.'

'11. That at no time after February 26, 1965, did claimant ever give any written notice to defendant employer or Security Insurance Company of any accident or resultant injury; that the defendant employer, and/or the superintendent or foreman, did not have any actual notice of any accident and injury at any time after the incident of February 26, 1965.'

Conclusions of Law:

'3. That the claimant did not suffer any other accident or resultant disability directly arising out of and in the scope of his employment apart from that which occurred on February 26, 1965.'

'6. That the plaintiff did not suffer an accidental injury after February 26, 1965 during the scope and course of his employment which is compensable under the provisions of the New Mexico's workmen compensation act.'

'4. That the plaintiff failed to prove, by reasonable medical probability, that he suffered any disability arising out of any accident occurring in the course of his employment after September 18, 1966, the effective date of defendant Security's insurance policy.'

'5. That plaintiff failed to prove any causal relationship between any accident occurring after February 26, 1965, and any compensable injury.'

'1. That the claimant's claim for disability arising out of an accident on or about February 26, 1965, is barred by the statute of limitations.

'2. That the claimant did not give any written notice to the defendant employer of any accident or resultant disability at any time and that the defendant employer, its foreman and superintendents, did not have any actual knowledge or notice of any accident or disability suffered by the claimant at any time material herein.'

As will appear, the question of whether an accident or 'accidental injury' occurred other than the incident of February 26, 1965, to which the findings make reference, is interwoven with the issue of medical causation. We will consider as one issue the challenge to findings Nos. 8, 12 and 13, and the conclusions of law resulting therefrom, and after resolving this issue consideration will be given to claimant's objection to finding No. 11.

A review of findings of fact of the trial court in workmen's compensation proceedings is subject to the rule that such findings 'shall not be disturbed if supported by substantial evidence.' Gammon v. Ebasco Corporation, 74 N.M. 789, 399 P.2d 279 (1965). It is firmly established that conflicts in evidence must be resolved in favor of the successful party and evidence and inferences to the contrary must be disregarded. Irvin v. Raindo Baking Co., 76 N.M. 213, 413 P.2d 693 (1966). When, however, facts are not in dispute and but one reasonable inference can be drawn therefrom, it is within the province of an appellate court to independently draw its own conclusion and overrule contrary conclusions of the trial court. Whitehurst v. Rainbo Baking Co., 70 N.M. 468, 374 P.2d 849 (1962). See Baca v. Swift & Co., 74 N.M. 211, 392 P.2d 407 (1964). It follows that in these proceedings we are required to affirm the findings and conclusion of the trial court unless the facts are undisputed and the only conclusion that can reasonably be drawn therefrom is contrary to the conclusions drawn by the trial court. Accordingly, the question vital to this appeal is whether material facts essential to sustain an award of compensation are in dispute. We have, accordingly, reviewed the record.

It is undisputed that claimant, Tolbert J. Lyon, Jr., was employed by Catron County in the capacity of a foreman of one of the highway districts of the county. Lyon had been employed by the county for some seven years prior to the occurrence upon which his claim is based. His duties were supervisory as well as actually performing work essential to the maintenance of the county roads, which included installation of cattle guards and culverts, hauling gravel, operating a shovel, grader and trucks. Claimant's supervisor, and the person in charge of the work in Lyon's district at material times, was Ellsworth Tipton, a member of the Board of County Commissioners of the county.

During the month of February, 1965, claimant sustained injury to his back while undertaking to load a portion of a cattle guard upon the bed of a truck. As to this injury, claimant said:

'I had a little back trouble from the time the cattle guard fell on me until today. I still have it.'

This particular injury was reported to Tipton, who undertook unsuccessfully to have claimant examined and treated by a medical doctor. No claim was made, nor compensation paid claimant on account of the cattle guard incident. We note here that St. Paul Insurance Companies, a named defendant at the time the claim was filed, insured Catron County through February of 1965. Thereafter, and during the occurrences hereinafter mentioned, compensation insurance was carried by the county with appellee, Security Insurance Group. A summary judgment, from which no appeal was taken, was entered dismissing St. Paul Insurance Companies as a party to these proceedings.

From time to time following the accident of February, 1965, claimant suffered attacks of back pain. He did, however, perform his regular duties until March 18, 1966. During the first part of March, 1966, as a result of heavy snows and personnel changes, claimant ran the grader 'pretty steady' until March 18th. With respect to the grader operation and its effect upon claimant, he testified:

'Q. Now how does this grader affect a person who is running it?

A. Well, you go along pretty smooth in the snow. On these mountains (sic) roads a lot of times you can't see the rocks and the stumps, you go along pretty good until you hit a stump or something then it will carry you sideways and jerk you around and throw you up, anybody who has run one will tell you that in the snow.

Q. In other words it jerks you about quite a bit?

A. Yes, a lot.

Q. Now, go back and tell me about the time that you were running this grader by yourself, more or less, when was that?

A. That was in March. The last week in March that I worked. The last day was the 18th so it would be the week before. I ran it steady that week. We went to Earl's and about the time we got the road open and got back, the road was full again and we had to go open it again. I was running a lot of hours and a long ways.

Q. Tell me about how your back was at this time?

A. Well the last week that I worked it got so bad I decided if I couldn't work anymore, it hurt so bad, I thought if I took off a while it would quit, that I would get over it if I didn't do nothing, but it did never quit.

Q. Now tell about this pain and how it affected you?

A. Well my leg went dead and I had a pain all the time in my right side and under my arm all the way down, my leg was dead. I could lay down a while and it would help, prop my feet up, but it finally got to where it didn't even help--that didn't help at all, so I had to do something.

Q. Now, can you recall when the pain got so intense that you just couldn't work any longer?

A. It would be a week before the 18th, it would be what. The 18th is when I decided I just couldn't put up with it. I couldn't do nothing. I would have to stop; the last trip coming in was on the 18th of March, coming from Earl Gilson's, and I had to stop four or five times and lay down and rest a while. I was afraid I was going to loose control of the grader.'

Claimant consulted an orthopedic surgeon who diagnosed his trouble as a ruptured L5--S1 disc, for which he was operated. The doctor testified: 'Now, I went ahead and did a myelogram which demonstrated the ruptured disc which he was operated on for that and fused at one level.'

The following medical testimony is material:

'Q. Did you form an opinion as to the cause of Mr. Lyon's ruptured disc?

A. Well, all I know is that he said, in March, the pain was so severe, March, '66 that he had to quit working. And, sometimes, discs rupture...

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