Segura v. Jack Adams General Contractor, 6360

• Decision Date: 12 August 1958
• Docket Number: No. 6360,6360
• Citation: 329 P.2d 432,64 N.M. 413,1958 NMSC 101
• Parties: John SEGURA, Claimant-Appellee, v. JACK ADAMS GENERAL CONTRACTOR, Employer, and Fireman's Fund Insurance Company, Insurer, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 432

329 P.2d 432

64 N.M. 413

John SEGURA, Claimant-Appellee, v. JACK ADAMS GENERAL CONTRACTOR, Employer, and Fireman's Fund Insurance Company, Insurer Defendants-Appellants.

No. 6360.

Supreme Court of New Mexico.

Aug. 12, 1958.

Rehearing Denied Sept. 17, 1958.

McAtee, Toulouse & Marchiondo, Albuquerque, for appellants.

Lorenzo A. Chavez, Arturo G. Ortega, Melvin L. Robins, Albuquerque, for appellee.

McGHEE, Justice.

This is an appeal from an order made in a workmen's compensation case directing the payment of medical expenses as well as for compensation beyond the time named in a judgment rendered October 3, 1956.

The jury found the claimant to be totally disabled from a back injury and fixed the duration of the disability from the time of the accident to six months following the making of its findings in answer to special interrogatories, and also recommended that a discogram be made.

On application of the claimant, the lower court on February 13, 1957, directed a discogram be made and that the defendant pay the costs incidental thereto. The discogram was made on February 27, 1957, and disclosed, as found by the trial court, a posterior minimal protusion at the fifth lumbar interspace, and surgery was recommended by the doctor administering the discogram.

On April 3, 1957, the claimant filed a motion for a hearing on the issue of his continued disability and for an order directing the defendants to continue payments of compensation as would be reasonably necessary to care for claimant in connection with his disability, and for his medical expenses.

The defendants responded to the motion denying the court's jurisdiction to proceed further in the action asserting the jury verdict was res judicata on the issue of permanent disability.

At the hearing on the April 3 motion the trial court found the claimant was totally and permanently disabled; that he was entitled to be paid by the defendants such medical expenses as would be reasonably necessary to care for him in connection with his disability, including surgery, as suggested by the doctor, and that the defendants should also pay compensation at the rate of $30 per week from the date they terminated such payments (which was six months after judgment), and until the further order of the court, but not to exceed a total of 550 weeks.

The defendants state their grounds for reversal as follows:

'(1) That the court lacked jurisdiction to enter the order of September 12, 1957; (2) that the special verdict of the jury, when it answered the interrogatories at the time of trial, precluded any further finding as to the issue of permanent disability, either partial or total and (3) that the claimant is precluded from further compensation by the judgment entered on the verdict. These will all be argued under Point One.

'The second point includes the argument that there was not such a change in the claimant's physical condition, between the time of the jury trial and rehearing, to justify the court's award and second, that the court lacked power and authority to order an 'exploratory operation,' based upon the testimony taken at the re-hearing.'

The operation it was proposed the defendant undergo was an exploratory one on his spine to learn what was causing his pain and disability.

The motion was filed under Sec. 59-10-25, N.M.S.A.1953, the material portion of which reads:

'The district court in which any workman has been awarded compensation under the Workmen's Compensation Act (Secs. 57-901-57-931 [59-10-1 ) may upon the application of the employer, workman, or other person bound by the judgment fix a time and place for hearing upon the issue of claimant's recovery and if it shall appear upon such hearing that diminution or termination of disability has taken place, the court shall order diminution or termination of payments of compensation as the facts may warrant. And if it shall appear upon such hearing that the disability of the workman has become more aggravated or has increased without the fault of the workman, the court shall order an increase in the amount of compensation allowable as the facts may warrant. * * *'

The provision for reexamination of a workman when first enacted provided for relief for the employer only when an injured workman's condition had improved or his disability had terminated. It was later amended to put the workman on a par with the employer, so if the disability had become more aggravated or increased without fault on his part the court might order an increase.

From the evidence and the finding it is apparent the claimant was in worse condition at the time of the last hearing than he was at the time of trial. He was able to work for a while after the trial but lost his job and had been unable to procure other work. One medical witness testified if the claimant procured work he would likely realize he could not do the work and quit but that if he did not do so then the employer would probably discover it and let him go.

On the first point made by the defendants we are without a New Mexico case to guide us. The finding and judgment of six months' disability from time of trial is an unusual one.

In view of provisions of the applicable statute the ordinary rules of res judicata cannot apply to a judgment rendered on the merits after trial. In fact, in such a case except for loss of a specific member of the body there is no final judgment as it is generally understood...