Mares v. City of Clovis
| Decision Date | 27 December 1968 |
| Docket Number | No. 214,214 |
| Citation | 449 P.2d 667,1968 NMCA 102,79 N.M. 759 |
| Parties | John MARES, Plaintiff-Appellant, v. CITY OF CLOVIS, Employer, and Safeco Insurance Company of America, Insurer, Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
Plaintiff's workmen's compensation claim was dismissed: he appeals. Plaintiff was accidentally injured in the course of his employment on September 28, 1966. Compensation was paid until March 22, 1967, at which time the benefits were terminated. Plaintiff sought compensation for disability subsequent to March 22, 1967. The trial court found that subsequent to termination of compensation:
'* * * plaintiff has not suffered, and is not now suffering, any disability which is a natural or direct result of said accident, * * *.' (Emphasis added.)
The issue is whether the finding is supported by substantial evidence.
On appeal, we consider only that evidence and the reasonable inferences therefrom which support the finding. Lopez v. Schultz & Lindsay Construction Company, 79 N.M. 485, 444 P.2d 996 (Ct.App.1968).
Our review of the evidence, however, covers two periods of time--(1) disability as of 'now' or present disability, and (2) disability from termination of compensation up to the date of the trial court finding. See Ryder v. Sandlin, 70 N.M. 377, 374 P.2d 133 (1962); compare Gerrard v. Harvey & Newman Drilling Co., 59 N.M. 262, 282 P.2d 1105 (1955).
Present disability.
The trial court found that plaintiff does not 'now' suffer any disability which is a natural and direct result of the accident. In attacking this finding plaintiff points to medical testimony which, if believed by the trial court, would support a finding of disability. However, another medical witness testified that plaintiff was able to do the work he was doing at the time of the accident. This medical witness found no objective evidence for plaintiff's complaints of pain and was of the opinion that plaintiff's subjective responses were exaggerated. This testimony, if believed, is substantial evidence in support of the finding that plaintiff is not 'now' disabled.
There is a conflict in the evidence concerning plaintiff's present disability. The credibility of the witnesses and the weight to be given their testimony are to be determined by the trial court and not by the appellate court. Lopez v. Schultz & Lindsay Construction Company, supra. The trial court resolved the conflict by finding that plaintiff is not presently disabled. It did not err in so finding. Romero v. Zia Company, 76 N.M. 686, 417 P.2d 881 (1966); Torres v. Kennecott Copper Corporation, 76 N.M. 623, 417 P.2d 435 (1966).
Disability from termination of compensation to date of trial court finding.
The trial court found that since the termination of compensation, plaintiff has not suffered any disability which is a natural and direct result of the accident.
The testimony of three medical witnesses would support a finding that plaintiff has been disabled subsequent to termination of compensation.
One medical witness testified that plaintiff did not suffer a disability as of the date of his examination. The testimony of this one witness, however, does not cover the entire period of time under consideration. This testimony raises a conflict in the evidence concerning disability as of September 7, 1967. The witness expressed no opinion as to plaintiff's disability prior to that date.
From September 7, 1967 to the date of the trial court's finding...
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Chavira v. Gaylord Broadcasting Co., 4473
...of the witnesses and the weight to be given their testimony is for the trier of the facts and not for the appellate court. Mares v. City of Clovis, supra. Yet, if causal connection between the accident and the disability is established as an uncontradicted medical probability, that evidence......
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Escobedo v. Agriculture Products Co., Inc.
...deposition was material to the issue of plaintiff's disability for the time subsequent to the prior deposition. Mares v. City of Clovis, 79 N.M. 759, 449 P.2d 667 (Ct.App. 1968). There is nothing indicating how this material evidence could be presented at trial through hearsay telephone con......
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...the period in question; it did not go to whether disability did or did not exist during this period. Compare, Mares v. City of Clovis, 79 N.M. 759, 449 P.2d 667 (Ct.App.1968). Other testimony of Dr. Hollinger was to the effect that plaintiff was continuously disabled to some extent after th......
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