Roybal v. Santa Fe County

• Decision Date: 06 May 1968
• Docket Number: No. 8528,8528
• Citation: 440 P.2d 291,1968 NMSC 73,79 N.M. 99
• Parties: Perez ROYBAL, Plaintiff-Appellee, v. COUNTY OF SANTA FE, Employer, and Mountain States Mutual Casualty Company, Insurer, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 291

440 P.2d 291

79 N.M. 99

Perez ROYBAL, Plaintiff-Appellee, v. COUNTY OF SANTA FE, Employer, and Mountain States Mutual Casualty Company, Insurer, Defendants-Appellants.

No. 8528.

Supreme Court of New Mexico.

May 6, 1968.

[79 NM 99] Jones, Gallegos, Snead & Wertheim, Santa Fe, for appellants.

Edwin L. Felter, Santa Fe, for appellee.

OPINION

CARMODY, Justice.

In this workmen's compensation proceeding, the trial court entered an award of total permanent disability, and the defendants appeal. The claimant was the sheriff of Santa Fe County, New Mexico. He took office on January 1, 1963, and served until December 31, 1966. On September 12, 1964, he was seriously injured in a car wreck, suffered in the course of his employment. Following hospitalization and home convalescence, which exceeded four months, he returned to his office on a part-time basis. In May of 1965, he resumed full-time office work, although he was never able to perform all of the tasks which he had rendered prior to the jury. He did, however, supervise investigations by his deputies, hired and fired personnel, managed the budget, did some driving of cars, and applied his knowledge to the business of law enforcement. During the entire period, he was paid full salary as the duly-elected sheriff. The insurer paid him disability benefits for a period of seventeen weeks, and, in addition, furnished substantial medical benefits. Upon the filing of the claim, defendants denied liability, claiming that the disability was not the natural and direct result of the accident. The trial court found that the injuries resulted in total permanent disability and that even though he had continued to draw his salary, his earning capacity had been destroyed, both presently and for the future.

It is of interest to note, although neither of the parties make any objection thereto, that the trial court found that the vehicle which was being driven by the plaintiff was equipped with a seat belt, 'which is a safety device,' but that 'plaintiff did not have his seat belt on.' As a result, the trial court reduced plaintiff's compensation by ten per cent for failure to use a safety device, in accordance with § 59--10--7(A), N.M.S.A.1953.

The defendants' initial attack on the judgment is that the findings of total permanent disability and destruction of future earning capacity are not supported by substantial evidence. The applicable statute now appears as § 59--10--12.18, N.M.S.A.1953 (1967 Pocket Supp.), which reads:

'As used in the Workmen's Compensation Act (59--10--1 to 59--10--37), 'total disability' means a condition whereby a workman, by reason of an injury arising out of, and in the course, of, his employment, is wholly unable to perform the usual tasks in the work he was performing at the time of his injury, and is wholly unable to perform any work for which he is fitted by age, education, training, general physical and mental capacity, and previous work experience.'

The main thrust of defendants' attack on the findings is that opinion testimony, given by a medical expert, should not be considered as substantial evidence upon which a finding of total disability can be predicated. Defendants readily admit that there was medical testimony in this case that the claimant was totally disabled, this having been elicited from the last two expert witnesses.

Ortega v. New Mexico State Highway Department, 77 N.M. 185, 420 P.2d 771 (1966), was a case in which we held that the doctor's opinion testimony was substantial evidence for a finding of 80% partial permanent disability. Defendants urge that the rule in Ortega should not be extended to total disability cases. We are unable to agree, as we see no reason why there should be a different rule in the determination of the two types of disability--total and partial. Merely because the legislature saw fit to define total disability and partial disability in separate sections (§ 59--10--12.18, supra, and § 59--10--12.19, N.M.S.A.1953 (1967 Pocket Supp.)), does not justify a differing measure of proof. Actually, a comparison of the two sections above noted makes it plain that they are substantially identical in verbiage, except that the total disability statute refers to 'wholly unable to perform' and the partial disability states 'is unable to some percentage-extent to perform.' To hold as argued by defendants would be to have two different measures of substantial evidence and thereby cause untold difficulty in the trial of workmen's compensation cases. We do not agree with defendants that the construction announced in Ortega, supra, and which we here approve, allows a medical witness to make the adjudication of total disability. The determination of total disability (and partial, of course) under our law is always for the fact-finder. There being substantial evidence to support the findings attacked by the defendants, we find the point without merit.

There is nothing to the contrary in Baca v. Swift & Co., 74 N.M. 211, 392 P.2d 407 (1964); Snead v. Adams Construction Co., 72 N.M. 94, 380 P.2d 836 (1963); Ruiz v. Hedges, 69 N.M. 75, 364 P.2d 136 (1961); or Rhodes v. Cottle Construction Co., 68 N.M. 18, 357 P.2d 672 (1960). These cases involved entirely different circumstances, each lacking that element of substantial evidence necessary to sustain a verdict.

Defendants next challenge the ruling of the trial court, arguing that, even if the findings are correct, the wrong standard was applied in measuring disability. It is here seriously urged that the trial court failed to consider the claimant's abated disability by reason of medical treatment. In addition to the above facts, we observe that the sheriff developed and anxiety reaction, a type of psycho-neurosis. He was placed under the care of a psychiatrist and on two occasions hospitalized for several days. He was put under medication and was released as feeling better, but told he must remain on medication. It is apparent the failure of the plaintiff to take the medicine resulted in the second period of hospitalization. The trial was held shortly thereafter, and at that tiem plaintiff's disabling symptoms were under control. Defendants question the total permanent disability determination on the basis that the abatement of the anxiety reaction was sufficient to reduce plaintiff's disability to less than total, but that the trial court failed to give it adequate consideration.

It is true that if the psychoneurosis had been the only basis of disability, there might be some merit to the argument; but here, plaintiff's disability consisted of injury to his head, brain, back, ribs, spinal cord, nervous system, and mentality. The court's finding to this effect is not challenged, and when it is considered together with the court's finding that plaintiff's earning capacity and ability had been destroyed to such an extent that he would be unable to obtain or retain gainful employment as a peace officer, or in any other economic field in which he otherwise would have been able to perform, then it is obvious the court did not feel medical abatement of the symptoms did anything toward reducing the disability from less than total. The award was based upon permanent injuries, not the outward manifestation, or lack thereof, of the symptoms resulting from the injuries. Having found total disability, it was not necessary for the trial court to make a negative finding with respect to the symptoms alone. In any event, the denial of defendants' requested findings directed to this issue is regarded as a finding against them. Herrera v. C & R Paving Company, 73 N.M. 237, 387 P.2d 339 (1963); Coseboom v. Marshall Trust, 67 N.M. 405, 356 P.2d 117 (1960); and Farrar v. Hood, 56 N.M. 724, 249 P.2d 759 (1952). The finding of total permanent disability is supported by substantial evidence; that the outward manifestations of the anxiety reaction could be controlled by medication does not alter the fact that plaintiff still was unable to perform any type of work such as he had formerly been able to do, or which, by reason of his age, mental condition, training and experience, he would have been able to do.

It should be obvious that, because of the brain damage and sensory loss over the entire right side of the plaintiff's body, he was unemployable in any field of endeavor in which he had had experience. In Quintana v. Trotz Construction Co., 79 N.M. 109, 440 P.2d 301, decided March 4, 1968, we said:

'* * * under our statute if he can no longer do the work he was doing when injured, and cannot do the only work for which he is qualified, he is 'legally' totally disabled. Compare Reynolds v. Ruidoso Racing Ass'n, Inc., 69 N.M. 248, 365 P.2d 671 (1961). * * *' Finally, defendants argue that should we find there was no error in awarding total permanent disability, a credit should be ordered for each week after the accident that the employer paid claimant his regular salary as sheriff. The thrust of defendants' contention is that if the wages were not being earned, they must be considered as having been paid in lieu of compensation, for otherwise they would be a gratuity.

The issue presented is one of first impression in New Mexico. We reiterate our holding above--total permanent disability was proper by reason of the destruction of claimant's capacity to perform work. Quintana v. Trotz Construction Co., supra.

There is a divergence of opinion concerning the allowance of credits. See Annots. at 119 A.L.R. 920 (1939); 175 A.L.R. 725 (1948), supplemented in 84 A.L.R.2d 1108 (1962). We are of the opinion that the allowance of credit is dependent on the employer's intention, and that in determining intention, 'wages' and 'compensation' are to be considered in accordance with the following usage of those terms:

'* * * 'Compensation' of an employee in the form of wages or salary for services performed, does not have the same meaning as the word 'compensation' in the Workmen's...