Marez v. Kerr-McGee Nuclear Corp.

• Decision Date: 19 December 1978
• Docket Number: No. 3487,KERR-M,3487
• Citation: Marez v. Kerr-McGee Nuclear Corp., 595 P.2d 1204, 93 N.M. 9 (N.M. App. 1978)
• Parties: Santiago S. MAREZ, Plaintiff-Appellee, v.cGEE NUCLEAR CORPORATION, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1204

595 P.2d 1204

93 N.M. 9

Santiago S. MAREZ, Plaintiff-Appellee, v.KERR-McGEE NUCLEAR CORPORATION, Defendant-Appellant.

No. 3487.

Court of Appeals of New Mexico.

Dec. 19, 1978.

Rehearing Denied Jan. 8, 1979.

For Specially Concurring and Dissenting Opinion, see 597

P.2d 1178.

Lowell E. McKim and George W. Kozeliski, Glascock, McKim & Head, Gallup, for defendant-appellant.

Melvin L. Robins, Albuquerque, for plaintiff-appellee.

OPINION

LOPEZ, Judge.

Defendant-appellant appeals a judgment in a workmen's compensation case awarding benefits to plaintiff-appellee.We affirm.Appellee was employed by appellant in 1969 to work in appellant's acid plant.On June 1, 1971, appellee accidently injured his back while working in the course and scope of his employment.However, he continued to work until 1975.At the beginning of that year, appellee transferred to appellant's rubber shop.In June of 1975, appellee again injured his back.Shortly thereafter, appellee underwent surgery for this back condition.After returning to work in March, 1976, appellee continued to have pain in his lower back.Upon examination by his surgeon, conservative treatment was recommended.On April 11, 1977, while opening and closing a vulcanizer door, appellee again injured his back but continued to work for two more days.On April 14, 1977, appellee failed to appear for work and did not return to appellant's plant until May 2, 1977.Upon his return, appellant assigned him to less strenuous tasks.Appellee continued to work on these tasks until June 15, 1977.Because of his back pain and the onset of more strenuous work, appellee again ceased working and this action followed.

Appellant relies upon the following five points for reversal: (1) the finding of total permanent disability is not supported by substantial evidence; (2) the finding that appellee suffered an accidental injury on April 11, 1977, is not supported by substantial evidence; (3) the finding that appellant had actual knowledge of the April 11, 1977 accident is not supported by substantial evidence; (4)the trial court erred in retaining jurisdiction and reserving its decision on the first cause of action; and (5) the award of attorney fees was excessive.We will discuss each point Seriatim.

Total Permanent Disability

Under this point, appellant challenges the trial court's findings of fact no. 5 which reads as follows:

"As a result of the compensable accidental injury sustained by plaintiff, plaintiff is wholly unable to perform the usual tasks in the work he was performing at the time of his injury, and is wholly unable to perform any work for which he is fitted by age, education, training, general physical and mental capacity, and previous work experience.

It is well settled in New Mexico that the findings of a trial court in a workmen's compensation case will not be disturbed on appeal if they are supported by substantial evidence.Gammon v. Ebasco Corporation, 74 N.M. 789, 399 P.2d 279(1965);Moorhead v. Gray Ranch Co., 90 N.M. 220, 561 P.2d 493(Ct.App.), Cert. denied, 90 N.M. 254, 561 P.2d 1347(1977).Substantial evidence is relevant evidence which a reasonable mind accepts as adequate to support the conclusion.Shirley v. Venaglia, 86 N.M. 721, 527 P.2d 316(1974);Cave v. Cave, 81 N.M. 797, 474 P.2d 480(1970);Tapia v. Panhandle Steel Erectors Company, 78 N.M. 86, 428 P.2d 625(1967).In deciding whether a finding has substantial support, we must view the evidence, together with all inferences reasonably deducible from such evidence, in the light most favorable to support the finding.Gallegos v. Duke City Lumber Co., Inc., 87 N.M. 404, 534 P.2d 1116(Ct.App.1975).We will reverse only if convinced that the evidence thus viewed cannot sustain the finding.Furthermore, only favorable evidence will be considered; any unfavorable evidence will not be considered.United Veterans Organization v. New Mexico Property Appraisal Department, 84 N.M. 114, 500 P.2d 199(Ct.App.1972).We will not weigh the evidence or determine the credibility of witnesses.Platero v. Jones, 83 N.M. 261, 490 P.2d 1234(Ct.App.1971).The trier of facts is the sole judge of the credibility of witnesses and the weight to be given their testimony.State ex rel. Reynolds v. Lewis, 84 N.M. 768, 508 P.2d 577(1973).

After reading the record and applying the foregoing principles, we rule that there is substantial evidence to support the trial court's finding that appellee is totally and permanently disabled as per § 59-10-12.18,N.M.S.A. 1953(2d Repl.Vol. 9, pt. 1, 1974).SeeMaes v. John C. Cornell, Inc., 86 N.M. 393, 524 P.2d 1009(Ct.App.1974).In Quintana v. Trotz Construction Company, 79 N.M. 109, 440 P.2d 301(1968), the Supreme Court stated that the following tests must be met in order for a claimant to be totally disabled: "(1) complete inability 'to perform the usual tasks in the work he was performing at the time of his injury'; and (2) absolute inability 'to perform any work for which he is fitted by age, education, training, general physical and mental capacity, and previous work experience.' "Id. at 111, 440 P.2d at 303.We note, in passing, that the court's finding essentially contains these two tests.

With respect to the first of these tests, the testimony of appellee's doctor, Dr. Allan Wilson, and supervisor establish that appellee is unable to perform the usual tasks required of an employee in appellant's rubber shop.Thus the first test was met.With respect to the second test, the testimony of various witnesses on direct, cross, redirect and recross examination can be interpreted as containing certain inconsistencies.On direct examination, appellee's doctor testified that appellee could probably do work which allowed alternative periods of setting and standing.Appellee's doctor then testified on cross- examination that appellee could do sedentary work and light work with accompanying pain.However, on redirect examination, the doctor modified his previous testimony by stating that, with respect to the above types of work, appellee would have to attempt to do this work before he would be able to give an opinion concerning appellee's capacity to do the work.Likewise, appellee testified on cross-examination that he did not know whether he could do any other jobs.On redirect examination, he testified that, based on his past work experience and training and because of his injury, he could no longer do that work which he was capable of doing before he was injured.However, on recross examination, appellee stated that there might be portions of work in appellant's rubber shop and acid plant which he might be able to do.

Before analyzing the import of the above testimonies, we note that opinion testimony of a medical expert may be considered as substantial evidence upon which a finding of disability may be made.Roybal v. County of Santa Fe, 79 N.M. 99, 440 P.2d 291(1968);Ortega v. New Mexico State Highway Department, 77 N.M. 185, 420 P.2d 771(1966);Casaus v. Levi Strauss & Co., 90 N.M. 558, 566 P.2d 107(Ct.App.1977).In addition, once causation is established by appropriate medical evidence, the extent of disability may be established by the plaintiff.Garcia v. Genuine Parts Company, 90 N.M. 124, 560 P.2d 545(Ct.App.), Cert. denied, 90 N.M. 254, 561 P.2d 1347(1977).Whether the second test can be established by the testimony of appellee's doctor or appellee, therefore, depends upon the effect the above inconsistencies have upon this establishment.With respect to this issue, Tapia v. Panhandle Steel Erectors Company, supra, andMontano v. Saavedra, 70 N.M. 332, 373 P.2d 824(1962) govern.

In the former case, the Supreme Court was faced with certain inconsistencies in plaintiff's testimony and stated:

We are not required to determine whether there are in fact contradictions in Tapia's testimony.If there are, they only affect the credibility of the witness.It has been firmly established in this jurisdiction that only the trier of the facts may weigh the testimony, determine the credibility of witnesses, reconcile inconsistent or contradictory statements of a witness, and say where the truth lies.

Id. at 89, 428 P.2d at 628;Accord, Ortiz v. Mason, 89 N.M. 472, 553 P.2d 1279(1976);Curtiss v. Aetna Life Insurance Company, 90 N.M. 105, 560 P.2d 169(Ct.App.), Cert. denied, 90 N.M. 7, 558 P.2d 619(1976).In Montano, a workmen's compensation case, the medical witness testified on direct examination that the accident was the probable cause of the disability.On cross-examination, he admitted it would be difficult to say with any degree of probability that the accident was the cause of the condition; on redirect, he again stated that the accident was the most probable cause of the disability but was subject to argument.The Supreme Court ruled there was evidence from which the trial court could have found that the accident was the probable cause of the condition.However, it upheld the refusal to so find and held it was the function of the trial court to evaluate all the evidence and determine where the truth lay.See also, Martinez v. Flour Utah, Inc., 90 N.M. 782, 568 P.2d 618(Ct.App.1977);Moorhead v. Gray Ranch Company, supra.

Applying the reasoning of these two cases to the case at bar, we rule that the trial court was justified in disregarding that testimony which was inconsistent with a finding that appellee is wholly unable to perform any work for which he is fitted by age, education, training, general physical and mental capacity, and previous work experience.In addition, we hold that appellee's testimony is substantial evidence to support this finding.Thus the second test for the establishment of total disability was met.In so holding, we point to the language of the Supreme Court in Ideal Basic Industries, Inc. v. Evans, 91 N.M. 460, 575 P.2d 1345(1978):

The determination of the degree of disability in workmen's cases is generally a...