Ross v. Sayers Well Servicing Co.

• Decision Date: 23 May 1966
• Docket Number: No. 7697,7697
• Parties: Sidney C. ROSS, Plaintiff-Appellant, v. SAYERS WELL SERVICING COMPANY, INC., Employer, and Pacific Employers Insurance Company, Insurer, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 679

414 P.2d 679

76 N.M. 321

Sidney C. ROSS, Plaintiff-Appellant, v. SAYERS WELL SERVICING COMPANY, INC., Employer, and Pacific Employers Insurance Company, Insurer Defendants-Appellees.

No. 7697.

Supreme Court of New Mexico.

May 23, 1966.

Williams, Johnson & Houston, Hobbs, for appellant.

L. George Schubert, Hobbs, for appellees.

COMPTON, Justice.

Claiming total disability by reason of an accidental injury arising out of and in the course of his employment, the plaintiff has appealed from a judgment dismissing his claim for workmen's compensation.

The court found:

'2. That the plaintiff during the course of his employment, while employed by defendant Sayers Well Servicing Company, Inc., sustained an accidental injury on July 4, 1963, from which he was completely recovered on July 8, 1963, and thereafter was not disabled to any extent.'

Appellant relies for a reversal upon the ground that he now suffers from traumatic neurosis and compensation neurosis resulting from the accidental injury. He argues from this that the court's finding, though well supported as to his physical recovery, lacks support in the evidence as to a psychological condition resulting in his present disability.

The facts are not in dispute and we quote from appellant's statement of facts:

'STATEMENT OF THE FACTS

'Plaintiff suffered an accidental injury while in the employment of defendants on July 4, 1963, when slack was permitted to come into a wire line or cable, and it hit plaintiff in the side of the head, catapulting him 12 feet in the air in a complete flip. He was struck in the jaw and behind the ear. After being helped up and placed on the back end of a pickup truck, he was dizzy, couldn't see, and was 'shaking like a dog.' His fellow employees took him to Dr. Lowery for treatment on July 4, 1963. He was permitted to return to work on July 8, 1963. Plaintiff continued to have dizzy spells and blackouts both off the job and on the job, until defendants' physician, Dr. Lowery, referred plaintiff to Dr. Jack Dunn in Lubbock on July 22, 1964. There, he was given a series of tests and examined by Dr. Dunn, a neurosurgeon, Dr. Smith, a psychiatrist, and Dr. Sheffield, an internist. Plaintiff has continued to have dizzy and blackout spells and has been unable to work since July 22, 1963.

'Plaintiff is 36 years old, has a ninthgrade education and has been working in the oilfields, for approximately 20 years. Plaintiff's mother testified that of her five children, he was the healthiest. He always enjoyed perfect health, and has been a hard worker all of his life since he began working in the fields when nine years old. Prior to this accident, plaintiff has sustained numerous injuries while working for various employers. Plaintiff had lost no time from work because of illness for some ten years prior to this injury. He has never had any prior injury to his head, nor dizzy spells, nor blackout spells until this accident on July 4, 1963. Since this injury, plaintiff's mother has observed his having the blackout spells, and she testified that she could not 'commence to count' the number of spells he has had, and that at some times, he has had as many as two spells in one day.

'Plaintiff's former employer's tool pusher, when asked what kind of a worker plaintiff was, testified: 'He was real good, dependable.' Shortly prior to this injury, plaintiff had completed a two-year contract working for a drilling company overseas. Prior to going overseas, he and his wife were divorced, and his wife was awarded custody of their four children. While overseas, plaintiff was informed that his former wife's husband had molested his two daughters, aged 13 and 14, and he returned to the United States, and the Oklahoma Court awarded custody of all four children to plaintiff. The Court costs, attorney's fees, and transportation expenses in securing custody of his four children amounted to $4,000.00 Upon his return to the United States, plaintiff moved his children from Duncan, Oklahoma, to Hobbs, New Mexico, to secure employment and to get away from his former wife and her husband. Plaintiff worked in Hobbs until his injury. Plaintiff testified that he has a great concern for the welfare of his children since he is unemployed and unable to support them and expresses fear that if his former wife learns of his disability that she and her husband will take the children away from him.'

The appeal turns on the testimony of medical experts. Dr. Jerome H. Smith, called by the claimant, testified that the claimant's disability was a combination of traumatic neurosis and a compensation neurosis resulting from the injury. We quote the pertinent part of his testimony:

'Q Doctor, in you(r) opinion, is the traumatic and compensation neurosis like you found Mr. Ross to have. The result the injury described to a medical probability?

A Yes sir.

Q The injury that he sustained, I suppose that is synonymous with the word trauma, if I am not, then correct me on it--he got hit on the head. Can you state that that injury or that trauma causes his disability that he may have had when you examined him as a reasonable medical certainty, Doctor, or as a medical possibility, as a phychiatric possibility?

A I think it would be the reasonable medical certainty. In other words, you can't have a traumatic neurosis or compensation neurosis without having something to develop and precipitate the traumatic neurosis or precipitate something to develop or give someone motivation compensation.

Q And you say it is a combination of compensation neurosis and traumatic neurosis?

A Yes sir.

Q Now would you explain what you mean by traumatic neurosis, in a layman's language?

A Well, one who is subjected to repeated injury on the job as they get older they're naturally going to get more fearful of being hurt and everytime they are hurt they are more reluctant to go back into the job.

Q Then actually just a minor injury of no physical impairment to his body as far as doing work and everything is concerned can trigger this off and the two combined can cause him to have blackouts that he has testified he has?

A Yes, it certainly can.

Q Just a small injury?

A It can be a small injury or it can be a large--'

Dr. Smith was unable to fix any definite time it would require the claimant to recover from his present disability.

Dr. Donald M. Lowery, called by the employer, testified as follows:

'Q Do you have an opinion, Doctor, whether or not he is now physically able to obtain employment and retain it?

A If Mr. Ross is still having blackout spells from this standpoint, I doubt that he would be employable from a physical standpoint as far as his ability to work, there is no reason which would prevent him from doing it. There is no heart trouble, no lung trouble or difficulties with arms or legs. Physically he seems in good health; emotionally and and mentally is something else.

Q That would include also, would it not, Doctor no organic neurological injury?

A No neurological organic injury, by that we mean hemorrhage.

Q Then outside of the psychiatric field it is your opinion he is completely recovered from concussion?

A As far as the organic is concerned, yes.

Q And able to work as good as he was before the accident; that would be a necessary conclusion?

A Yes.

Q Would you say that in your opinion that there is a medical probability that his injury relates to the blackouts spells, Doctor?

A There is a possibility and let me elaborate. If you take four or five individuals and put them under similar circumstances then all four or five of the individuals may react the same or they may react differently. As a rule the individuals who are well adjusted will be able to tolerate the trauma better than an individual who is already having difficulty as far as his adaption to society is concerned (;) an individual who is tense, who is anxious, who is already under considerable emotional strain would apt to develop psychiac (sic) difficulties more easily than someone who is well adjusted. Here again as an example during the war, individuals who developed shell shock quite often were those individuals who were already having difficulty with maladjustment; not always but usually and in this instance I say it is a possibility because I don't know what Mr. Ross' psychiac (sic) status was prior to the injury, if he was a well adjusted individual with no compensation, then an injury such as this nature would leave a question in my mind as to whether or not the injury of this extent could have precipitated such an episode. If he was already having considerable difficulty emotionally, then possibly it could have precipitated the difficulty that he is having now.

Q You use the word possible, but is it a reasonable medical probability from your training and experience that he is now disabled from the trauma or the injury?

A I can't say that it is a probability because I don't know what Mr. Ross was like before.

Q You can't say then that it is a reasonable medical probability that he is disabled then?

A No. If the man has lost an arm or a leg, if he has seen something real terrifying happen to him, then the possibility of him developing a traumatic neurosis would be increased. The amount of pressure it takes for an individual to develop psychiac (sic) difficulty varies with the individual adjustment. He is, as I mentioned before, if he is well adjusted individual, then it takes more psychiac (sic) trauma.'

Obviously, the trial court in making finding No. 2 was of the opinion that there was a conflict in the testimony of the medical experts. We fail to see any conflict in their testimony. Dr. Lowery stated clearly that he was unable to express an opinion as to whether the claimant's disability was due to psychiatric problems arising from his injury because he did not know the claimant's background. This left Dr. Smith's testimony uncontroverted. It is conclusively established that disability resulting from...