Reynolds v. Ruidoso Racing Ass'n, Inc.

• Decision Date: 16 August 1961
• Docket Number: No. 6791,6791
• Citation: 1961 NMSC 116,365 P.2d 671,69 N.M. 248
• Parties: Allen REYNOLDS, Claimant, Plaintiff-Appellant, v. RUIDOSO RACING ASSOCIATION, INC., a Corporation, Employer, and Fidelity and Casualty Company of New York, a Corporation, Insurer, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 671

365 P.2d 671

69 N.M. 248

Allen REYNOLDS, Claimant, Plaintiff-Appellant, v. RUIDOSO RACING ASSOCIATION, INC., a Corporation, Employer and Fidelity and Casualty Company of New York, a Corporation, Insurer Defendants-Appellees.

No. 6791.

Supreme Court of New Mexico.

Aug. 16, 1961.

Rehearing Denied Nov. 8, 1961.

James M. H. Cullender, Thomas B. Forbis, Roswell, for appellant.

Atwood & Malone, R. D. Mann, Roswell, for appellee.

MOISE, Justice.

This is an appeal by a workmen's compensation claimant from a judgment, granting total disability payments against his employer and the employer's insurer, of $30 per week from August 7, 1958, to December 7, 1958, and 10% permanent disability payments, or $3 per week, from December 8, 1958, for 532 weeks, 4 days, plus $300 attorney fees.

The facts are briefly as follows: On August 7, 1958, while claimant was employed by the employer, Ruidoso Racing Association, Inc., as a part time veterinarian and 'pickup man,' at the race track operated by it, he was on a horse when a rider called upon him for assistance. When claimant started after this rider, his horse suddenly turned and went forward whereupon claimant felt sudden pain in his back. He immediately notified the general manager of the employer corporation, was taken to the hospital, and has never returned to work.

It appears that claimant has spent most of his life on ranches and in ranch and related work. On August 7, 1958, as a 'pickup man' it was his duty to ride a horse furnished by his employer and to pick up horses on the back side of the track. He had been employed as veterinarian assistant for about a month, and had been given additional work as 'pickup man' three days before the date of his injury.

Claimant had done various kinds of hard work before coming to work for this employer, including horseback riding, riding in a jeep, pulling sucker rod from a well, loading bales of straw, and general ranch work.

Prior to August 7, 1958, claimant had suffered at least two fractured vertebrae which had healed satisfactorily. However, he did continue to have back pains. On August 7, when the horse started to run as already noted, claimant suffered a minimal compression fracture of T-9 vertebrae in his spine. Also, subsequent to August 7, 1958, while stepping off a curb he suffered another compression fracture of L-2 vertebrae. This occurred on May 11, 1959.

On August 7, 1958, claimant was seen by a Dr. Horton, who placed him in the hospital, took x-rays of his back, and when Dr. Horton considered him able to travel he was referred to a Dr. Leonard, an orthopedic surgeon in El Paso, Texas. It appears that the healing process of the fractured T-9 vertebrae proceeded uneventfully and that on December 7, 1959, he would have been able to return to work, except that Dr. Leonard discovered that claimant was suffering from a disease known as osteoporosis, or unusually porous and fragile bones. Dr. Leonard testified that in his opinion this condition was probably caused by rheumatoid spondylitis from which claimant was suffering. He also testified that a Dr. Craig, to whom claimant had been referred, did not agree that this was the cause and that he described the ailment as being of unknown cause. Dr. Leonard further testified that with the osteoporosis present claimant was 100% disabled and this condition would continue until the cause was determined and it was then satisfactorily treated, unless it should correct itself, and this he could not forecast. He estimated 10% disability resulting from the injury of August 7, 1958. Dr. Horton testified that in his opinion the fracture of the vertebrae on August 7, 1958, did not cause the total disability but contributed to it, and would have the effect of aggravating a pre-existing condition.

The court made the following findings of fact:

'13. Plaintiff suffered temporary total disability of the body as a whole by reason of the accidental injury of August 7, 1958, from the date of injury to December 7, 1958.

'14. Plaintiff suffered ten per cent permanent partial disability of the body as a whole by reason of the injury of August 7, 1958, from December 7, 1958, to the time of trial.

'15. Plaintiff could have returned to his regular work as pickup man and veterinary assistant for defendant Ruidoso Racing Association on December 7, 1958, had it not been for the soft bone condition of plaintiff.

'16. The Court further finds that this soft bone condition of the plaintiff is caused by the disease of osteoporosis, the cause of which, to this individual, is unknown according to the medical findings.

'17. Plaintiff's injury of August 7, 1958, was caused by the sudden turning and going forward of the horse upon which plaintiff was riding and such action on the part of the horse was expected and looked for since the horse had done the same thing on previous occasions while plaintiff was riding him.

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'19. That the plaintiff suffered an injury while engaged on his job as 'pickup' man, arising out of and in the course of his employment; and while riding a mount furnished him by the manager of the said defendant corporation on the morning of the 7th day of August, 1958.

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'22. The Court further finds, as a fact, that plaintiff is, at this time totally and permanently disabled from doing gainful and useful work that he is capable of perfoming.

'23. The Court further finds that his permanent disability from doing gainful useful work was not the result of the injury of August 7, 1958, but that he had been totally and permanently disabled prior to that date from doing the type of work he was doing because he was suffering from osteoporosis, the cause of which to this individual is unknown.'

While complaining of certain of these findings and of the court's failure to make other findings requested by him, claimant's appeal is principally based on the fact that the court allowed him only 10% disability while finding him totally disabled. He asserts that under the facts he is entitled to total and permanent disability payments.

As we read the findings, quoted supra, they are to the effect that claimant was totally and permanently disabled prior to the injury of August 7, 1958, but nevertheless, on that date he suffered an injury arising out of and in the course of his employment which caused total temporary disability from that date to December 7, 1958 and 10% permanent partial disability thereafter to the time of trial. We perceive in these findings an inconsistency which it is our duty to resolve if possible. Hogan v. City of Hot Springs, 58 N.M. 220, 269 P.2d 1102.

From an examination of the evidence it seems clear that claimant, because of his bone condition, probably shouldn't have been working, and might be described as being totally disabled medically. However, the fact remains that he was employed and had been performing his duties as an assistant veterinarian for approximately one month and in addition the duties of a 'pickup man' for the three days before August 7, 1958. Accordingly, regardless of what his condition indicated to the doctors he was not so disabled as to be unable to work, and was not actually totally disabled. Lee Moor Contracting Co. v. Industrial Commission of Arizona, 61 Ariz. 52, 143 P.2d 888. The situation is comparable to that present in Ruiz v. Hedges, 69 N.M. 75, 364 P.2d 136, where we held that a man could not have been totally and permanently disabled where at all times for more than two years after the claimed accident he had been employed in the same or similar position as he occupied when injured.

The following language quoted from the case of Keller v. Anderson Sand & Gravel Co., 292 Mich. 625, 291 N.W. 32, 33, is particularly relevant:

'There is testimony indicating it would have been impossible for plaintiff to have worked if he had had any such condition as that complained of. But the fact remains he did the hardest kind of physical labor, made no complaint that the work was too hard for him, and, though it is contended that spondylolisthesis is congenital, nevertheless it seems to be established that it may result from traumatic causes. Based upon the facts, this case presents the picture of a man who, prior to the accident, was able to do any and all types of work, and thereafter the symptoms of which he now complains developed and progressed to a point where it became impossible for him to do the type of work which he had previously been able to do.'

We note the cases of Christensen v. Dysart, 42 N.M. 107, 76 P.2d 1; Webb v. New Mexico Pub. Co., 47 N.M. 279, 141 P.2d 333, 148 A.L.R. 1002; Elsea v. Broome Furniture Co., 47 N.M. 356, 143 P.2d 572; and Gilbert v. E. B. Law & Son, Inc., 60 N.M. 101, 287 P.2d 992, in all of which the claimants suffered injuries in the course of their employment which would not have incapacitated them absent a pre-existing condition.

In Christensen v. Dysart, supra, the deceased workman fell from a platform on which he was working as a carpenter. Some six weeks to two months earlier he had consulted a physician who disagnosed his trouble as coronary thrombosis, and advised him to stay in bed until he could get further medical advice. Employer took the position that the workman died of heart disease and not from injuries sustained in the fall as found by the court. We there concluded the proper rule to be that if a workman falls and an injury results, the employer is liable even though a pre-existing idiopathic condition caused the fall.

The case of Elsea v. Broome Furniture Co., Inc., supra, is even more helpful. In that case the claimant had suffered several accidents while employed by the defendant. We quote the following pertinent language from that case:

'Notwithstanding claimant may have been suffering from some other ailment at the time, the injury relied upon is compensable if it was the immediate cause of disability. Robinson v. Mittry Bros. [43 N.M. 357, 94...