Medina v. Zia Co.

• Decision Date: 25 November 1975
• Docket Number: No. 1897,1897
• Citation: 88 N.M. 615,544 P.2d 1180,1975 NMCA 137
• Parties: Frank MEDINA, Plaintiff-Appellant, v. The ZIA COMPANY, Employer and United States Fidelity and Guaranty Company, Insurer, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 1180

544 P.2d 1180

88 N.M. 615

Frank MEDINA, Plaintiff-Appellant, v. The ZIA COMPANY, Employer and United States Fidelity and Guaranty Company, Insurer, Defendants-Appellees.

No. 1897.

Court of Appeals of New Mexico.

Nov. 25, 1975.

Rehearing Denied Dec. 9, 1975.

Certiorari Denied Jan. 15, 1976.

Patrick A. Casey, Bachicha, Corlett & Casey, P.A., Santa Fe, for plaintiff-appellant

John B. Pound, Montgomery, Federici, Andrews, Hannahs & Buell, Santa Fe, for defendants-appellees.

OPINION

SUTIN, Judge.

Plaintiff appeals an adverse judgment in a workman's compensation case growing out of a hernia injury. We affirm.

A. The trial court applied the proper legal test.

Plaintiff contends the district court failed to apply the proper legal test of total and partial disability under §§ 59--10--12.18 and 59--10--12.19, N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 1).

These sections read as follows:

Total disability.--As used in the Workmen's Compensation Act (59--10--1 to 59--10--37), 'total disability' means a condition whereby a workman, by reason of an injury arising out of, and in the course of, his employment, 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.

Partial disability.--As used in the Workmen's Compensation Act (59--10--1 to 59--10--37), 'partial disability' means a condition whereby a workman, by reason of injury arising out of and in the course of his employment, is unable to some percentage-extent to perform the usual tasks in the work he was performing at the time of his injury and is unable to some percentage-extent to perform any work for which he is fitted by age, education, training, general physical and mental capacity and previous work experience.

The definition of total and partial disability under these sections contain two tests: (1) the workman must be totally or partially unable to perform the work he was doing at the time of the injury, AND, (2) the workman is wholly or partially unable to perform ANY work for which he is fitted. Quintana v. Trotz Construction Company, 79 N.M. 109, 440 P.2d 301 (1968).

The trial court's findings, based upon substantial evidence, show: (1) plaintiff was partially unable to perform the work he was doing at the time of the injury due to the fact that plaintiff could no longer lift heavy objects, AND, (2) plaintiff was wholly able to perform the existing work, available to him at The Zia Company, his employer, for which he was fitted and qualified. Based upon this finding, the trial court denied plaintiff workmen's compensation.

The question for decision is: If a workman is partially unable to perform the work he was doing at the time of injury because of weight lifting limitations, but is totally able to perform work for which he is fitted and does not return to work, is the workman entitled to compensation?

This question is a matter of first impression. We answer the question as 'No', for two reasons:

First, it is now established that the primary test for disability is the capacity to perform work. Adams v. Loffland Brothers Drilling Company, 82 N.M. 72, 475 P.2d 466 (Ct.App.1970). For a history of the 'disability' sections of the Workmen's Compensation Act, see Quintana v. Trotz Construction Company, supra. Here, Justice Moise wrote:

Without any evident purpose to in any way alter the desirable objectives of workmen's compensation insurance, the 1963 amendment of the 1959 definition changed the primary test of disability from wage-earning ability to capacity to perform work as delineated in the statute. (Emphasis added). (79 N.M. at 111, 440 P.2d at 303).

Under the doctrine of 'capacity to perform work', we are not concerned with the physical injury itself. In this case it is a satisfactorily repaired hernia. Under the second test set forth in the beginning of this opinion, plaintiff must establish that the injury totally or partially prevented him from doing ANY work for which he was fitted. Plaintiff did not comply with this test when he was fit to do the work, but, instead, he leaves his work, goes home, and does not return to work.

Second, the tests stated in the disability statutes are divided by the word 'and'. Quintana v. Trotz Construction Company, supra, states: '. . . it is quite evident that the legislature adopted as the tests for total disability, (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." Compare Willcox v. United Nuclear Homestake Sapin Co., 83 N.M. 73, 488 P.2d 123 (Ct.App. 1971) where the claimant could perform under both tests, and Gallegos v. Duke City Lumber Co., Inc., 87 N.M. 404, 534 P.2d 1116 (Ct.App. 1975) where the claimant could perform under neither test. Plaintiff must establish that he was totally or partially unable to perform the work he was doing at the time of the injury. In addition thereto, he must establish that he was totally or partially unable to perform ANY work for which he was fitted. Plaintiff did not establish both tests.

Plaintiff earned about $114 per week at the time of the injury. Although he suffered some physical handicap from the injury, he was wholly able to perform the work for which he was fitted after recovery from the hernia operation, and at the same wage.

B. The trial court's findings were sustained by substantial evidence.

Plaintiff contends that the two crucial findings of the trial court are not sustained by sufficient evidence. The trial court found:

4. The Plaintiff is presently able to perform his usual and customary duties as a manual laborer, . . . not involving the lifting of heavy objects, all of which he is fitted for by age, education, training, previous work experience and physical condition.

5. There is available to Plaintiff, existing work of the nature and type for which the Plaintiff is fitted to perform by reason of his education, training and previous work experience and physical condition.

Plaintiff, 64 years of age, was employed by The Zia Company on a seasonal basis for over 17 years. He worked in the spring and summer months and terminated his employment in the autumn and fall season when gardening and manual labor needs of his employer slackened.

On April 23, 1973, the time of the accident, plaintiff was educated through the sixth grade, and was experienced in doing work as a manual laborer, general farm laborer, gardening, watering, tree pruning, maintaining yards and lawns and similar tasks.

On April 25, 1973, plaintiff returned to work with The Zia Company and performed light duty work on lawns until September 24, 1973, when he entered the hospital to undergo corrective surgery to repair his hernia. He was discharged September 30, 1973. His hernia was repaired and healed in a satisfactory manner. He was advised not to lift anything over 25 pounds. After plaintiff was thus medically advised, he was also assigned light work on lawns. He worked a full eight-hour day satisfactorily. He was discharged from further medical treatment on October 29, 1973. No future medical...