Romo v. Raton Coca Cola Co.

• Court: Court of Appeals of New Mexico
• Writing for the Court: SUTIN
• Citation: Romo v. Raton Coca Cola Co., 635 P.2d 320, 96 N.M. 765, 1981 NMCA 120 (N.M. App. 1981)
• Decision Date: 22 October 1981
• Docket Number: No. 5078,5078
• Parties: Felix R. ROMO, Plaintiff-Appellant, v. RATON COCA COLA COMPANY, Employer, and Mountain States Mutual Casualty Company, Insurer, Defendants-Appellees.

Page 320

635 P.2d 320

96 N.M. 765

Felix R. ROMO, Plaintiff-Appellant, v. RATON COCA COLA COMPANY, Employer, and Mountain States Mutual Casualty Company, Insurer Defendants-Appellees.

No. 5078.

Court of Appeals of New Mexico.

Oct. 22, 1981.

James E. Snead, James G. Whitley, Jones, Gallegos, Snead & Wertheim, P. A., Santa Fe, for defendants-appellees.

OPINION

SUTIN, Judge.

This is a workmen's compensation case. Plaintiff appeals from a judgment that awarded plaintiff weekly benefits based upon 20% permanent partial disability. We affirm with a minor modification.

In its decision, the trial court concluded 3. The Plaintiff should be awarded weekly benefits under the Workmen's Compensation Act for a 20% permanent partial disability entitling him to $19.59 per week from March 23, 1976.

The parties treat this conclusion as a finding of fact. Plaintiff argues that, insofar as it is based on physical factors, this finding is supported by substantial evidence. But based upon psychological factors, or a combination of physical and psychological factors, plaintiff claims he suffered total, permanent disability.

Plaintiff sets forth many pages of facts most favorable to his position. We have stated innumerable times that, to determine whether a trial court's findings are sustained by substantial evidence, an appellant must set forth all of the evidence, including that most favorable to appellee. Rarely do we find "all of the evidence" rule complied with.

We repeat again what was said in Perez v. Intern. Minerals & Chemical Corp., 95 N.M. 628, 624 P.2d 1025 (Ct.App.1981). The trial court, not this Court, has the final say about the facts presented by the parties. The facts are determined by what the court sees and hears, from the gestures and other conduct of the testifying witnesses as well as their words. What the court thinks about the facts is all that matters. Rarely should an appeal be taken based upon a lack of substantial evidence to support the findings. We reiterate and emphasize what has been said, to avoid useless appeals in workmen's compensation cases based upon the substantial evidence rule. A workman or employer must convince the trial court, not this Court, that the evidence presented supports the claim or defense. We read from a cold record.

It is unnecessary to recite any of the testimony of plaintiff or that of the medical witnesses. We agree with defendants that plaintiff's credibility was so suspect as to cast considerable doubt as to the cause of his disability with reference to each alleged injury and the extent of his disability; that none of the medical witnesses could apportion the disability of plaintiff between the first and second injuries allegedly sustained by him and that expert medical testimony was contradictory in many important respects.

It has often been said that medical testimony, like other expert testimony, is intended to aid but not to conclude the trier of facts in determining the extent of disability. The trial court may properly reject all percentage opinions and arrive at a different percentage as long as it is supported by substantial evidence. Lucero v. Los Alamos Constructors, Inc., 79 N.M. 789, 450 P.2d 198 (Ct.App.1969).

We affirm the finding that plaintiff suffered a 20% permanent partial disability.

However, the trial court mistakenly fixed the weekly payment at $19.59 per week instead of $20.00, a difference of $0.41. Neither of the parties called this error to the attention of the trial court. The difference of $0.41 per week appears to be de minimus to the employer, but it is not to the workman. By concluding that the error was that of the court and not the parties, plaintiff is entitled to the additional payment without interest. The First Amended Judgment is amended again to increase plaintiff's weekly award from $19.59 to $20.00, effective as of February 18, 1981, the date of entry of the First Amended Judgment.

The next point raised by plaintiff claims error on the part of the district court in not awarding plaintiff temporary total disability benefits in its First Amended Judgment. Plaintiff is mistaken.

On November 29, 1979, an original judgment was entered in this case. A portion of the judgment awarded plaintiff weekly benefits "for temporary total disability for a period of ninety (90) days, beginning March 23, 1976 * * *." Plaintiff appealed. This Court filed a Memorandum Opinion in which the appeal was dismissed and the case remanded to the trial court. It was done because of two inconsistent findings one of total disability and one of 20% disability and this Court was unable to resolve the inconsistency. This cause was remanded to the district court to resolve the inconsistency "as to plaintiff's disability" without taking additional evidence.

On remand, the district court filed a First Amended Decision and First Amended Judgment in which all reference to temporary total disability for a period of 90 days was omitted and plaintiff was awarded 20% permanent partial disability. Since the record discloses substantial evidence to support the trial court's findings, we affirm.

"The district court has only such jurisdiction as the opinion and mandate of the appellate court specifies." Genuine Parts Co. v. Garcia, 92 N.M. 57, 60, 582 P.2d 1270 (1978). Plaintiff argues that "the Memorandum Opinion and mandate did not authorize, even by implication, the district court to remove the award of 90 days total disability benefits from its First Amended Judgment." We disagree. This Court's opinion and mandate which authorized the district court to resolve the inconsistencies "as to plaintiff's disability" was broad enough to include the trial court's deletion of the award of temporary total disability benefits.

Plaintiff also argues that the award of temporary total disability benefits is the law of the case and may not be deleted on subsequent remand proceedings. Reliance is had on Royal Intern. Optical v. Texas State Optical, 92 N.M. 237, 586 P.2d 318 (Ct.App.1978). Plaintiff is mistaken. The "law of the case" doctrine applies when the prior judgment is affirmed on appeal. In the instant case the prior judgment was not affirmed on appeal. It was remanded to the district court to resolve the inconsistency as to plaintiff's disability. The "law of the case" had not been finally determined and the doctrine is not applicable.

Finally, plaintiff complains of attorney fees allowed in the trial of the case. The claim has no merit.

Subsequent to the appeal, plaintiff instituted proceedings in this Court which were resolved in favor of plaintiff. The chronology of events leading up to these proceedings are as follows:

(1) On March 21, 1980, the trial court quashed a writ of execution issued on behalf of plaintiff and stayed execution during the pendency of a prior appeal to this Court. We refused to overturn the order in our August 26, 1981 decision in Cause No. 4629.

(2) On February 18, 1981, the First Amended Judgment was filed.

(3) On March 9, 1981, plaintiff's Notice of Appeal was filed.

(4) On July 8, 1981, plaintiff again filed a motion to vacate the stay of execution.

(5) On August 14, 1981, an erroneous Order was entered by the trial court. It intended to order "that the motion to (vacate) stay (of) execution filed herein by plaintiff be, and it hereby is, denied in its entirety."

(6) On August 17, 1981, plaintiff filed a motion in this Court to review the Order which denied plaintiff's motion to vacate the stay of execution.

(7) On August 24, 1981, this Court entered an Order that each stay of execution heretofore issued by the district court be vacated. The reasons were that plaintiff had received no payment of compensation for about 51/2 years; that regardless of the outcome of this appeal, plaintiff was entitled to payment from March 23, 1976, as per Order of the court, together with an attorney fee, both sums to include payment of interest in the amount fixed by law. Defendants...