Romero v. General Elec. Corp.
| Decision Date | 08 May 1986 |
| Docket Number | No. 8335,8335 |
| Citation | 104 N.M. 652,725 P.2d 1220,1986 NMCA 48 |
| Parties | Milton ROMERO, Plaintiff-Appellee, v. GENERAL ELECTRIC CORPORATION, Employer; and Electric Mutual Insurance Company, Insurer, Defendants-Appellants. |
| Court | Court of Appeals of New Mexico |
Defendants General Electric Corporation (GE) and Electric Mutual Insurance Company appeal from the judgment of the district court awarding plaintiff Milton Romero (Romero) total and permanent disability workmen's compensation benefits. On appeal, GE raises three issues: 1) whether the statute of limitations is tolled indefinitely for a claimant who, after receiving workmen's compensation, returns to work in pain, subject to medically-imposed restrictions, and needing assistance to do part of his job; 2) whether where a notice defense is raised, the worker must prove that notice of the accident was given (aggravation issue); and 3) whether the rate of workmen's compensation pay for an accident is the rate in effect at the time the worker first became disabled as a result of that accident. We find no error by the trial court and affirm.
FACTS:
Romero was employed by GE as a forklift (Hyster) operator at the time of the accident on June 24, 1981, when he injured his back. There is no dispute that Romero received a work-related back injury in 1981, for which he received compensation benefits from June 1981 to February 1982, when he returned to work. Beginning with the back injury in 1981, and continuing through the filing of this action, the following facts are important to our consideration of this appeal.
Romero suffered injuries to his low back as a result of an accident arising out of, and within the course and scope of his employment with the defendant employer. Romero gave appropriate notice to the defendants of the accident.
As a natural and direct result of the accident and injuries of June 24, 1981, Romero was disabled and received all compensation and related benefits that he was entitled to until February 1, 1982.
Dr. Keith Harvie, an orthopedic surgeon, began treating Romero for his back pain. Dr. Harvie diagnosed a chronic lumbosacral spine sprain. He later diagnosed a possible abnormal disc.
Romero chose to have, and was given, an epidural injection of steroids which considerably improved his back pain.
Romero's back was doing reasonably well. He had no leg pain at that time. He was continuing to have some pain below the belt line in his back. He had done well since having the epidural injection. He was able to straight leg raise to 90 degrees bilaterally.
Romero went on a three-day deer hunting trip in the mountains during which he did not have back problems.
Romero continued to improve. He had some tenderness in his low back, but this was very minimal.
Romero was having minimal discomfort. He was released to return to work as of February 1, 1982. Romero requested to be released to work because of how well he felt.
Because the steroid injection improved Romero's condition considerably, Dr. Harvie did not believe that the pain was significant enough to warrant surgery. Between forty-five and fifty percent of people who have epidural steroid injections do not require further treatment.
Dr. Scott Adler, who examined Romero at the defendants' request in 1985, found nothing to indicate that surgery was necessary in 1981 or in 1982.
Nurse Harty, Dr. Harvie's nurse, indicated that Romero could return to work without any limitations.
Romero earned the same amount, or more money, after his return to work in February 1982 as before the accident in June 1981.
Romero worked overtime on a regular basis immediately after his return to work in February 1982. He would usually work every other Saturday, but would work overtime whenever it was available. Romero would often complain to his foreman that he wasn't given enough overtime.
Romero did not make any complaints of back pain or of inability to do his job to his supervisors before April 1984. Romero did not request or receive help from anyone else in order to do his job. He did everything required of a hyster and scooter operator. His attendance record was very good. Romero's job performance was not affected by his back problems until February or March 1984. He did not begin to complain about his back until March or April 1984. John Gianini, plaintiff's foreman from February 1984 on, was not even aware of Romero's back problem or weight restriction until March or April 1984.
Dr. Adler, based on his examination and findings, found it probable that Romero did not suffer enough pain between 1982 and 1984 to interfere with his job. Until March or April 1984, Romero did not need and did not receive the assistance of a back brace, a cane, medications, physical therapy, or chiropractic treatment.
Between June 1982 and March 1984, Romero did not return to see Dr. Harvie. Romero did not see Dr. Harvie during this time because he was feeling alright and only had occasional back pain, which was minor and did not interfere with his job.
Romero did not believe, while he was working full time, that he was disabled or that he might be entitled to both workmen's compensation benefits and a salary.
Romero returned to Dr. Harvie on June 2, 1982, because of a flare-up regarding his back. Up to that point, Romero was having very few problems with his back.
Romero talked to the company doctor, Dr. Frank Jones, at the request of someone from the company. Dr. Jones wrote a letter to Mr. Garcia of GE on June 8, 1982, six days after Romero saw Dr. Harvie, in which he stated that Romero's x-rays did not show any specific abnormalities, that Romero was taking Dolobid which was prescribed by Dr. Harvie on June 2, 1982, and that Romero was not on any other specific treatment program. Dr. Jones stated that Romero's back exam was essentially normal except for voluntary moderate limited range of motion. He referred Romero to Dr. Phillip Martinez, in view of the fact that he could reach no specific diagnosis.
Romero returned to Dr. Harvie for a follow-up visit, at which time Dr. Harvie noted that Romero was considerably improved. Romero did not again see Dr. Harvie until March 1984.
February 1984-the present
Romero's back pain and leg pain became much more frequent and severe in February 1984. The pain progressed to the point that in April of 1984, Romero was no longer able to continue working. Romero has not been able to work since April 26, 1984, his last day at work.
Dr. Harvie's next examination of Romero, after June 1982, was on March 16, 1984. Dr. Harvie noted that Romero's condition was significantly worse since the last examination in June of 1982.
Dr. Harvie testified, in his deposition, that Romero's continued forklift driving, from February 1982 through April 1984, probably aggravated his back condition to the point where it became disabling in April 1984. The surface area outside the GE building on which Romero was required to drive his forklift was very rough. It is known that continued bouncing on a machine such as a forklift can aggravate previously existing back conditions. Romero recalls one specific incident, approximately in February 1984, during which he drove his forklift over a railroad track, making his back particularly painful on that day. He thought, however, that because the pain was in the same place as where he had been having it in the past, that it was a temporary flare-up and that it was not what he considered to be an "accident." He thought nothing of it at the time.
Romero was given a thermogram on April 4, 1984, a myelogram on April 30, 1984, and a chymopapaine injection on May 10, 1984. He has been on medication since March 16, 1984. Romero has also been using a brace and a cane since returning to Dr. Harvie in March of 1984. He has undergone physical therapy since April of 1984.
The treatment that Romero received between March and June of 1984 relieved his symptoms somewhat, but not to the extent where he could return to work. Anticipated future medical treatment includes putting Romero in a body cast in order to determine if fusion would be of benefit to him. If the body cast succeeds in relieving the pain, the fusion may be helpful.
This was Romero's last day of work. He has received no disability benefits since this date.
Romero's workmen's compensation complaint was filed on this date.
The above facts and others will be discussed more fully in our opinion as the specific issues raised in this appeal are considered.
I. WHETHER THE STATUTE OF LIMITATIONS IS TOLLED INDEFINITELY FOR A CLAIMANT, WHO, AFTER RECEIVING WORKMEN'S COMPENSATION, RETURNS TO WORK IN PAIN, SUBJECT TO MEDICALLY-IMPOSED RESTRICTIONS, AND NEEDS ASSISTANCE TO DO PART OF HIS JOB
GE's statement of the issue proceeds on the assumption that Romero knew, or should have known, of his disability at a time which would have made his June 1984 claim untimely under the Workmen's Compensation Act, NMSA 1978 Sections 52-1-1 to -69. See Sec. 52-1-31(A). Romero challenges the assumption and argues that this court must decide whether he knew of a disability which would have triggered the statute of limitations. This question requires that we review the evidence presented at trial to determine whether there was substantial evidence upon which the trial court could find that plaintiff neither knew nor was able to know that he was suffering from a disabling injury. See Lent v. Employment Sec. Com'n of State of New Mexico, 99 N.M. 407, 658 P.2d 1134 (Ct.App.1982).
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