Rhodes v. Cottle Const. Co.

• Decision Date: 13 December 1960
• Docket Number: No. 6728,6728
• Citation: Rhodes v. Cottle Const. Co., 357 P.2d 672, 68 N.M. 18, 1960 NMSC 130 (N.M. 1960)
• Parties: R. C. RHODES, Plaintiff-Appellant, v. COTTLE CONSTRUCTION COMPANY, employer, and National Fire Insurance Company of Hartford, insurer, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 672

357 P.2d 672

68 N.M. 18

R. C. RHODES, Plaintiff-Appellant, v. COTTLE CONSTRUCTION COMPANY, employer, and National Fire Insurance Company of Hartford, insurer, Defendant-Appellee.

No. 6728.

Supreme Court of New Mexico.

Dec. 13, 1960.

J. T. Morgan, Portales, for appellant.

Hartley, Buzzard & Patton, Clovis, for appellee.

NOBLE, Justice.

The claimant, being dissatisfied with a judgment limiting workman's compensation payments for temporary total disability during the healing period of an injured scheduled member to eighteen months and 25% partial permanent disability to the scheduled member thereafter, and refusal to grant attorneys fees, appeals from a judgment rendered by the court trying the case without a jury.

The facts, so far as pertinent to the decision, are that R. C. Rhodes, the claimant, was 62 years of age at the time of trial, is a carpenter by trade and knows no other trade or means of livelihood. At the time of the accident, May 9, 1957, he was working as a carpenter for Cottle Construction Company, in construction work at Cannon Air Force Base, near Clovis. He received injuries to his right knee, consisting of a sprain, torn ligaments, and broken cartilage, as a result of a fall from a loading platform.

It was stipulated that claimant received a compensable injury, and at the time thereof was earning $100 per week. Claimant was paid $30 per week compensation to May 30, 1958 when the payments were stopped. The reason for terminating the payments being given as the refusal of claimant to accept a $2,500 lump sum settlement and that he had refused to submit to surgical treatment. The recommendation for surgical treatment was, however, later withdrawn and is not in issue.

The trial court found the following facts after finding that claimant was employed as a carpenter by Cottle Construction Company and was earning in excess of $100 per week:

'3. That on May 9, 1957, R. C. Rhodes suffered an injury in the course of his employment.

'4. That injury was to the right knee.

'5. That as a result of the injury to his right knee R. C. Rhodes was temporarily totally disabled for eighteen months.

'6. That the insurer, National Fire Insurance Company of Hartford, paid R. C. Rhodes compensation in the amount of $30 per week from May 9, 1957 to May 29, 1958.

'7. That as a result of the injury R. C. Rhodes is partially permanently disabled in the right leg in the amount of 25%.'

The trial court then made three conclusions of law only, as follows:

'1. That the court has jurisdiction of the parties and subject matter of this action.

'2. That R. C. Rhodes is entitled to recover $699.27 representing five months and ten days temporary disability.

'3. That R. C. Rhodes is entitled to recover 25% of 180 weeks or $1,350, payable at $7.50 per week for 180 weeks.'

The first contention made by appellant is that where a scheduled member has been injured, without other bodily disability, the workman is entitled to compensation for temporary total disability until the injured member has reached its maximum recovery or healing, and partial permanent disability to the scheduled member thereafter.

Section 59-10-18, N.M.S.A.1953 Comp., while repealed by Chapter 67, Laws 1959, was in force at the time of the injury here and is applicable. That section provides for temporary total disability during the healing period:

'* * * the workman shall be entitled to be compensated for the healing period during which he is totally disabled, and if he has suffered a permanent partial disability enumerated in paragraph (b) of this act, he shall receive compensation computed on the basis of degree of permanent partial disability as set forth in said paragraph (b) in addition to the compensation paid him during the healing period while he is totally disabled * * *.'

Appellant urges that temporary total compensation payments are required during the actual, not the anticipated, healing period and until the injured member has reached its maximum recovery, while appellee contends that temporary total compensation payments should cease when the injury has healed to the point where the workman is no longer totally disabled.

Under the statute, the workman is to be paid compensation for temporary total disability 'for the healing period during which he is totally disabled.' We are thus confronted, at this point, with the question as to when the healing period has ended or as to when the workman is no longer totally disabled.

Total disability, within the Workman's Compensation Act, may be said to exist when, considering the age, education, training, general physical and mental capacity and adaptibility of the workman, he is unable by reason of his accidental injury to obtain and retain gainful employment. Seay v. Lea County Sand & Gravel Co., 60 N.M. 399, 292 P.2d 93.

The trial court found the period of total temporary disability to be eighteen months and granted total compensation for that period. To paraphrase appellant's argument, they say that appellant was awarded temporary total compensation for any period during which he was totally disabled. Is that supported by substantial evidence? Appellant testified that he had sought and was refused employment in the carpenter trade when his prospective employer became aware of his physical condition. Two witnesses who were, or had been foreman or superintendents in building construction, testified that in their opinion appellant could not secure employment as a carpenter because of his physical condition resulting from the accidental injury. One of the two doctors testified he did not believe appellant could obtain employment as a carpenter. Both doctors expressed the opinion that at the time of their last examination appellant could perform certain of the duties of a carpenter which could be done without climbing or the use of other than wide trestles. Both doctors testified that appellant's injury had not reached maximum recovery. One doctor testified that the disability to the injured member at the time of the last examination was 50%, the other that it was 60% to the right leg from the hip down. They both testified that they had expected maximum recovery within a period of eighteen months, and that the ultimate partial permanent disability to the scheduled member was expected to be 25%.

The ability to perform certain limited functions of the workman's trade does not necessarily mean that he can obtain or retain gainful employment. A workman may be able to perform certain limited portions of his trade and still, by reason of his accidental injury, be unable to perform other duties generally required of one in his trade and by reason thereof be unable to obtain or retain employment in that trade.

We find no substantial evidence to support the finding that appellant was temporarily totally disabled for only eighteen months. We cannot adopt or sustain findings of the trial court not supported by substantial evidence. Allen v. Allen, 52 N.M. 174, 194 P.2d 270; Silva v. Haake, 56 N.M. 497, 245 P.2d 835. For that reason the cause must be reversed and remanded.

Appellee however, urges that the evidence sustains the contention that appellant failed to exercise the injured leg as vigorously as was recommended or intended by the doctors, and that the failure of the injured member to reach maximum recovery within the expected period was due to failure of appellant to properly exercise his leg and that under Sec. 59-10-20, N.M.S.A.1953 Comp., the trial court was justified in reducing or suspending compensation payments to the percentage of disability appellant would have had if he had followed the recommendations of the doctors. Appellee contends that an analysis of the compensation awarded by the judgment shows that the trial court must have so determined. That portion of the statute urged by appellee as applicable reads:

'If any workman shall persist in any unsanitary or injurious practice which tends to imperil, retard or impair his recovery or increase his disability or shall refuse to submit to such medical or surgical treatment as is reasonably essential to promote his recovery, the court may...