Mathews v. N.M. Light & Power Co.

• Decision Date: 07 February 1942
• Docket Number: No. 4652.,4652.
• Citation: 122 P.2d 410,46 N.M. 118
• Parties: MATHEWSv.NEW MEXICO LIGHT & POWER CO. et al.
• Court: New Mexico Supreme Court

46 N.M. 118

122 P.2d 410

MATHEWS

v.NEW MEXICO LIGHT & POWER CO. et al.

No. 4652.

Supreme Court of New Mexico.

Feb. 7, 1942.

Appeal from District Court, Lincoln County; Numa C. Frenger, Judge.

Proceeding by Arthur Mathews against New Mexico Light & Power Company and Pioneer Mutual Compensation Company for an award of compensation under the Workmen's Compensation Act. During the pendency of the appeal plaintiff died and Mrs. Arthur J. Mathews, as administratrix of the estate of Arthur Mathews, deceased, was substituted as party plaintiff. From a judgment for the plaintiff, defendants appeal.

Affirmed.

In compensation proceeding, the appellant is bound by the trial court's findings of fact where there is no challenge to the evidence in support thereof. Comp.St.Supp.1938, § 156-117(a, b).

Neal & Girand, of Hobbs, for appellants.

John E. Hall, of Carrizozo, for appellee.

MABRY, Justice.

There is involved in this appeal the question of what compensation should be allowed a workman, under our Workmen's Compensation Act, for loss of use of a leg, when the loss is attended by bone infection, pain and suffering which renders workman permanently and totally disabled from doing or performing the only kind of manual labor he is qualified to do and perform, “or any type of work that involves manual labor or the walking or standing on his feet.”

During the pendency of this appeal, appellee, Arthur Mathews, died and his widow, under the name of “Mrs. Arthur J. Mathews, administratrix,” was upon motion substituted as party appellee. Therefore, for convenience in reference and identification, the word “workman” will be used in the opinion when referring to the deceased.

The workman, claimant below, a man 65 years of age, suffered a leg injury while in the employ of appellants, resulting in the complete loss of use of the left leg below the knee, though not in its severance. The workman set up in his claim against appellants that he received the injury to his leg and as a result that he was totally and permanently disabled, and asked for compensation upon the basis of $18 per week for the maximum period of 551 weeks allowed under the act for total and permanent disability. No question is raised by appellants as to the extent or circumstances of the injury to the leg which rendered the limb entirely useless, but they contend that liability is limited to the schedule amount provided in cases of “loss of” a limb as by severance, which is payment for 120 weeks only.

Appellants thus take the position that under the circumstances of this case and in view of our statute, the loss of the use of a leg is equivalent to the loss thereof by severance and that the schedule for compensation for such loss is exclusive, notwithstanding claimant may have, in addition, suffered thereby total and permanent disability.

[1] We first examine the statutes and the findings of the court in an effort to determine the answer. It is conceded that appellants, in view of the record, are bound by the court's findings. The point that the evidence may not support the findings is not challenged. Much of the disagreement arises from contrary interpretation placed by the parties upon the court's findings as well as upon the statute applicable.

The pertinent provisions of the Workmen's Compensation Act, Chap. 92, Laws of 1937, Sec. 156-117, 1938 Supplement to N.M.Comp.Laws of 1929, provide:

“156-117. Compensations-How Computed and Amount. No compensation shall be due or payable under this act for any injury which does not result in either the temporary disability of the workman lasting for more than seven days or in his permanent disability or permanent injury, as herein described, or death, but for any such injury for which compensation is payable under this act, the employer shall in all proper cases, as herein provided, pay to the injured workman, or to some person authorized by the court to receive the same, for the use and benefit of the beneficiaries entitled thereto, compensation at regular intervals of no more than sixteen days apart, in accordance with the following schedule, less proper deduction on account of default in failure to give notice of such injury as required in section 6(7) (156-113) hereof;

“(a) For total disability the workman shall receive sixty per centum of his earnings, not to exceed a maximum compensation of eighteen ($18.00) dollars per week, nor to be less than a minimum compensation of ten ($10.00) dollars per week, during the period of such disability but in no event to exceed a period of five hundred fifty (550) weeks; Provided, however, that where the earnings are less than ten dollars per week then the compensation to be paid such workman shall be the full amount of such weekly earnings. ***

“(b) For disability partial in character but permanent in quality, such compensation shall be measured by the extent of such disability. In the following cases the compensation shall be sixty per cent of the earnings of such workman, subject to the limitations of this act, as to the maximum and minimum payments as provided in paragraph (a) of this section. For the loss of: ***

“One leg at or near hip joint as to preclude the use of an artificial limb, 180 weeks

“One leg at or above the knee where stump remains sufficient to permit the use of an artificial limb, 130 weeks

“One leg between knee and ankle, 120 weeks. ***

“Disability Through Infections

“When by reason of infection or other cause not due to neglect or misconduct of the injured workman he is actually disabled longer than the time specified in the foregoing schedule from earning wages, compensation shall be paid such workman for such loss of wages within the limits otherwise provided.

“Paralysis

“For the purpose of this schedule, permanent and complete paralysis of any member as the proximate result of an accidental injury shall be deemed equivalent to the loss thereof.

“The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or any two thereof in the absence of conclusive proof to the contrary, shall constitute total disability, permanent in character; Provided, that the employer shall not be liable for compensation for total disability if the loss of one arm, foot, leg, or eye occurred prior to such accident but in that event compensation shall be paid only in accordance with the schedule herein for partial disabilities, but the definitions of total disability contained in this paragraph shall not be exclusive of other cases of total disability.

“In all other cases in this class, or where the usefulness of a member of any physical function is permanently impaired, the compensation shall bear such relation to the amounts stated in the above schedule as the disabilities bear to those produced by injuries named in the schedule.”

The court made the following findings:

“That at the time of the trial of this action, said leg was tender near the anterior middle section, and that pressure on said leg produced pain.”

“That claimant is unable to walk without the aid of a cane and that after walking as much as one or two blocks the said leg pains him, and he is unable to proceed further without stopping and resting his limb.”

“That as late as October, 1939, approximately 15 months after the date of the injury, a further operation was performed on said leg by one Dr. Miller of Clovis, New Mexico, and that infection remained in said leg and continued to drain at infrequent intervals up to and within 60 days prior to the date of this action.”

“That plaintiff or claimant is permanently totally disabled from doing or performing the only work he is qualified to do, to wit: that of a mine foreman, or any type of work that involves manual labor or the walking or standing on his feet.”

“That the plaintiff or claimant is permanently totally disabled within the meaning of the Workmens' Compensation Act.”

[2][3] Appellants make mention of a finding by the court to the effect that the workman sustained no injury to the remainder of his body and his bodily functions other than that of the leg are not “impaired.” While clearer language could have...