Perea v. Gorby

• Decision Date: 27 March 1980
• Docket Number: No. 4352,4352
• Citation: 1980 NMCA 48,94 N.M. 325,610 P.2d 212
• Parties: Paul PEREA, Jr., Plaintiff-Appellee, v. Al GORBY, d/b/a Jack Wayte Construction Company and American Insurance Company, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 212

610 P.2d 212

94 N.M. 325

Paul PEREA, Jr., Plaintiff-Appellee, v. Al GORBY, d/b/a Jack Wayte Construction Company and American

Insurance Company, Defendants-Appellants.

No. 4352.

Court of Appeals of New Mexico.

March 27, 1980.

Deborah S. Davis, Shaffer, Butt, Thornton & Baehr, P.C., Albuquerque, for defendants-appellants

Jack T. Whorton, Alamogordo, for plaintiff-appellee.

OPINION

SUTIN, Judge.

This is another workmen's compensation case in which the findings of the court are the determinative factor. The court made the following findings and conclusions:

COURT'S AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

1) The plaintiff had full-time employment with the defendant, Al Gorby, d/b/a Jack Wayte Construction Company, and was working on the company's job site at Alamogordo, New Mexico on March 22, 1977. His hourly rate of pay was $3.00 an hour.

2. On March 22, 1977, he suffered a disabling compensable injury to his back during the course of his employment and arising out of his employment.

3. He is presently wholly unable to perform the usual tasks in the work that he was performing at the time of the injury and those tasks which he had performed prior to injury.

4. He is wholly unable to perform any work for which he is fitted by reason of his age, education, training, general physical and mental capacity and previous experience.

5. Paul Perea prior to his injury of March 22, 1977, based upon his age, education, training, general physical and mental capacity and previous work experience could engage in the business or profession of a worker at an ice plant, a cowboy, a welder's assistant, a construction worker, a truck driver, a logger, a log skinner, a heavy equipment operator, a heavy equipment inspector and maintenance man, an ice plant crew supervisor and a small cafe operator.

6. During portions of the six years prior to his injury on March 22, 1977, he worked at Oceanside Ice Plant in all aspects of the operation, except office work.

7. Paul Perea before May 4, 1978, was a good and knowledgeable employee for Oceanside Ice Company, and was trusted by his employer, and needed by Oceanside Ice Company because he spoke both English and Spanish and could supervise men.

8. At the time of his injury on March 22, 1977, while working for defendants, plaintiff Paul Perea was earning $3.00 an hour on a forty hour work week.

9. Defendant paid Paul Perea temporary total disability from March 22, 1977, through November 21, 1977, at the rate of $80.04 per week. Defendants paid reasonable and necessary medical bills on behalf of Paul Perea through November 22, 1977.

10. Paul Perea had a semi lamonectomy in July, 1977, performed by Dr. William Nelson of El Paso, Texas.

11. Following his injury of March, 1977, and operation of July, 1977, Paul Perea engaged in the occupation of operating a cafe in Oro Grande, New Mexico for approximately three months, but because of the injuries suffered he could not continue in that occupation.

12. In March or April of 1978, Paul Perea went to work as a block supervisor at Oceanside Ice Company.

13. The block supervisory position of Paul Perea at Oceanside Ice Company was created especially for him, but was not charitable, and was a function which his employer needed performed regardless of Paul Perea's circumstances.

14. Paul Perea performed the assigned tasks at Oceanside Ice Company as block supervisor from March or April of 1978, until May 4, 1978.

15. The job of block supervisor at Oceanside Ice Company did not entail heavy lifting or repeated bending.

16. Paul Perea's normal and usual tasks as block supervisor at Oceanside Ice Company in 1978 were walking or sitting, overlooking a crew, keeping an eye on machine gauge panels.

17. Paul Perea was earning $600.00 a month in his job at Oceanside Ice Company in 1978.

18. May 4, 1978, Paul Perea in the course of his employment as supervisor at Oceanside Ice Company bent over to show a crew member how to engage a pallet jack and when he straightened up he had intense pain in his back.

19. Defendants deny the alleged disability in Paul Perea was a natural and direct result of the accident of March 22, 1977.

20. Oceanside Ice Company made an employer's report of the incident of May 4, 1978 while working at Oceanside Ice Company and sent Paul Perea to the company doctor who referred him on to an orthopedic surgeon. Paul Perea made a workmen's compensation claim in California for his injury of May 4, 1978, while working at Oceanside Ice Company.

21. At this time, he is unable to obtain and retain gainful employment.

22. His disability, as a reasonable medical probability, is the natural and direct result of the injury occurring on March 22, 1979 (sic).

23. This disability began and has continued without interruption since March 22, 1977.

24. Compensation was paid at $80.04 each week by the defendants to plaintiff from April 5, 1977 to November 21, 1977 and that it is agreed by the parties that these payments were made and were in the correct amount.

25. It was necessary for the plaintiff to employ counsel in the prosecution of his action and that reasonable attorney's fees (including taxes) are $4,000.00 and that the attorney advanced in behalf of the plaintiff the amount of $567.01 and that these fees and expenditures were reasonable in the necessary prosecution of the action.

CONCLUSION OF LAW

1) The plaintiff is totally disabled as defined by Sec. 52-1-24, NMSA, 1978 Comp.

2. Paul Perea's compensation rate for total disability benefits is $80.04 per week.

3. Judgment should be entered by the plaintiff against the defendants for the payment of compensation for total disability as set forth in Sec. 52-1-41, NMSA, 1978 Comp., which the parties have agreed and the Court has found is in the amount of $80.04 a week from November 22, 1977.

4. Defendant should be ordered to pay all medical expenses and related benefits as set out in Sec. 52-1-49, NMSA, 1978 Comp.

5. The plaintiff should be awarded his reasonable attorney's fees in the amount of $4,567.01.

6. Judgment should be entered accordingly.

Based upon this decision, the court ordered plaintiff to have judgment against defendants in the amount of a lump sum for payments due and unpaid for total disability from November 21, 1977, when temporary total disability payments ceased, to May (sic) 11, 1979, the time of trial, and judgment for such continued payments thereafter. Defendants appeal from this judgment. We affirm.

Defendants challenged Finding No. 22 and Conclusion No. 3 only.

A. Factual Findings 11, 12 and 14 do support Conclusion 3.

Defendants' first point is that the following findings of fact do not support Conclusion of Law No. 3:

11. Following his injury of March, 1977, and operation of July, 1977, Paul Perea engaged in the occupation of operating a cafe in Oro Grande, New Mexico for approximately three months, but because of the injuries suffered he could not continue in that occupation.

12. In March or April of 1978, Paul Perea went to work as a block supervisor at Oceanside Ice Company.

14. Paul Perea performed the assigned tasks at Oceanside Ice Company as block supervisor from March or April 1978, until May 4, 1978.

Based upon these findings, defendants argue that judgment should not be entered against defendant for total disability. Defendants contend that "At best, Paul Perea is entitled to compensation for a partial disability for the period between November 22, 1977, and May 4, 1978." We disagree.

The unchallenged findings of fact established that at the time of trial plaintiff was totally disabled and unable to obtain and retain gainful employment, and under Finding No. 23, "This disability began and has continued without interruption since March 22, 1977." Under these findings, judgment must be entered for total disability.

Ordinarily, we would hold that plaintiff was partially disabled between "March or April, 1978, and May 4, 1978," a period of a month or two. Medina v. Wicked Wick Candle Co., 91 N.M. 522, 577 P.2d 420 (Ct.App.1977). Even so, the difference in amount between payments of $80.04 per week for total disability for a month or two, and payments for partial disability to be awarded, would be trivial. A remand for this purpose would be unwarranted.

Plaintiff is also entitled to 6% interest on the amount of compensation due and owing on July 20, 1979, the date of judgment, to the date of payment. Medina, supra.

Conclusion of Law No. 3 is supported by the findings.

B. Defendants admitted that plaintiff's disability was a natural and direct result of the March 22, 1977 accident.

Defendants claim that "Plaintiff has not made any showing that as a medical probability his disability was a natural and direct result of his March 22, 1977, accident."

Section 52-1-28(B), N.M.S.A.1978 reads in pertinent part:

In all cases where the defendants deny that an alleged disability is a natural and direct result of the accident, the workman must establish that causal connection as a medical probability by expert medical testimony. * * * It is established law that "This statute makes it encumbent upon the claimant to present one or more medical experts to testify that in his or their opinion there is a medical probability of causal connection between the accident alleged and the disability claimed." Renfro v. San Juan Hospital, Inc., 75 N.M. 235, 238, 403 P.2d 681, 683 (1965). Where there is conflicting medical testimony, the trial court's determination of causal connection will be affirmed. Torres v. Kennecott Copper Corporation, 76 N.M. 623, 417 P.2d 435 (1966); Yates v. Matthews, 71 N.M. 451, 379 P.2d 441 (1963).

"From the time of the enactment of this section, due to poor performance in the courtroom, a chronic illness has overrun the decisions in New Mexico." Trujillo v. Beaty Elec. Co., Inc., 91 N.M. 533, 540, 577 P.2d 431, 438 (Ct.App.1978), Sutin, J., specially concurring. All of the cases pro and...