Trujillo v. Beaty Elec. Co., Inc.

• Citation: 1978 NMCA 21,91 N.M. 533,577 P.2d 431
• Decision Date: 21 February 1978
• Docket Number: No. 3050,3050
• Parties: Roberto M. TRUJILLO, Plaintiff-Appellee, v. BEATY ELECTRIC COMPANY, INC., and the Hartford Insurance Company, Inc., Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 431

577 P.2d 431

91 N.M. 533

Roberto M. TRUJILLO, Plaintiff-Appellee, v. BEATY ELECTRIC COMPANY, INC., and the Hartford Insurance

Company, Inc., Defendants-Appellants.

No. 3050.

Court of Appeals of New Mexico.

Feb. 21, 1978.

Rehearing Denied March 6, 1978.

[91 N.M. 535] Eugene E. Klecan, Klecan & Roach, P. A., Albuquerque, for defendants-appellants.

James C. Thompson, Espanola, Pedro G. Rael, Zamora, Rael & Weinreb, P. A., Santa Fe, for plaintiff-appellee.

OPINION

LOPEZ, Judge.

The defendants appeal a judgment awarding the plaintiff total and permanent disability under the New Mexico Workmen's Compensation Act, § 59-10-1, et seq., N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 1, 1974). The plaintiff cross-appeals the court's judgment denying certain medical expenses, costs, interest, and vocational rehabilitation services. We affirm the trial court's judgment of total and permanent disability, and the court's denial of three of plaintiff's claims. We reverse the trial court's judgment on plaintiff's two remaining claims. The points of the defendants' appeal and the plaintiff's cross-appeal will be discussed seriatim.

Defendants' Point I

The defendants argue that the judgment is in error because of the plaintiff's failure to comply with the mandatory requisites of the Workmen's Compensation Act, § 59-10-13.3(B), N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 1, 1974).

The defendants argue that none of the doctors specifically mentioned the word "disability" using instead "injury" or "accident".

By not using the term "disability" as the term to which a causal connection is sought under the statute, defendants contend that the statutory requirements of § 59-10-13.3(B), supra, have not been fulfilled. We disagree with the defendants. As the New Mexico Supreme Court held in Gammon v. Ebasco Corporation, 74 N.M. 789, 399 P.2d 279 (1965):

"(T)he medical expert need not state his opinion in positive, dogmatic language or in the exact language of the statute. But he must testify in language the sense of which reasonably connotes precisely what the statute categorically requires."

The defendants summarize their arguments by challenging the court's findings of fact nos. 7, 8, 10, and 11 and conclusion of law no. 3, arguing that the court should have adopted their requested findings of fact. The court's finding no. 7 in effect states that as a result of plaintiff's accident on April 10, 1974 and the subsequent aggravation on or about May 23, 1974, the plaintiff suffered a herniated or protruded disc causing him permanent total disability. The court's finding no. 8 connects the injury and resulting disability to the April and May incidents. Findings nos. 10 and 11 found the plaintiff's disability to be permanent.

The rule regarding a review of findings of fact is that the findings will not be disturbed if supported by substantial evidence. Lyon v. Catron County Commissioners, 81 N.M. 120, 464 P.2d 410 (Ct.App.1969), cert. denied, 81 N.M. 140, 464 P.2d 559 (1970); Gammon v. Ebasco Corporation, supra. Further, we must resolve conflicts in favor of the successful party and in support of the judgment. Schrib v. Seidenberg, 80 N.M. 573, 458 P.2d 825 (Ct.App.1969). It follows, therefore, that the trial court's findings of fact and conclusions of law must be affirmed unless undisputed facts come before this Court, the only conclusion of which is contrary to the lower court's conclusion, or unless manifestly wrong or clearly opposed to the evidence. Kosmicki v. Aspen Drilling Company, 76 N.M. 234, 414 P.2d 214 (1966); Lyon v. Catron County Commissioners, supra.

In the instant case, the doctor for the insurance company testified that he thought it within a reasonable medical probability that the surgery at the herniated disc that was removed was a natural and direct result of the accident. Dr. Adler, who was one of plaintiff's expert witnesses, testified that in his opinion, it was a reasonable medical probability that the complaints the patient had at the time he cared for him would be directly related to the sequence of events which began with his injury while at work on April 10, 1974. There was substantial evidence to support the court's findings of fact and conclusions of law. See Lyon v. Catron County Commissioners, supra; Gammon v. Ebasco Corporation, supra; Stuckey v. Furr Food Cafeteria, 72 N.M. 15, 380 P.2d 172 (1963).

Point II

Defendants' Point II again challenges findings of fact nos. 7, 8, 10 and 11 as not being supported by substantial evidence, and conclusion of law no. 2. Under defendants' Point I the evidence was substantial to sustain an award of total and permanent disability benefits under the New Mexico Workmen's Compensation Act, § 59-10-1 et seq., supra.

The thrust of defendants' argument under Point II is that pain is not a disability factor and no compensation should be allowed. The defendants cite Blancett v. Homestake-Sapin Partners, 73 N.M. 47, 385 P.2d 568 (1963) and Gomez v. Hausman Corporation, 83 N.M. 400, 492 P.2d 1263 (Ct.App.1971), cert. denied, 83 N.M. 395, 492 P.2d 1258 (1972). However, those cases do not apply to the facts in the instant case. The defendants are asking us to weigh the evidence, and that we cannot do. We have reviewed the evidence and find substantial evidence to support the court's conclusion no. 2. Garcia v. Genuine Parts Co., 90 N.M. 124, 560 P.2d 545 (Ct.App.1977), cert. denied, 90 N.M. 254, 561 P.2d 1347 (1977).

Point III

The defendants argue that the causal relationship testimony was based on an incomplete or an inaccurate history without an adequate foundation; thus the court's findings nos. 4 through 8, 10, and 11 were erroneous. Defendants argue that a doctor cannot testify to facts of a particular accident based on the history related to him by his patient. The defendants support this argument by saying that plaintiff never mentioned an earlier Nevada accident to the doctors who testified for him; pointing to contradictions and omissions in an expert opinion. Dr. Adler considered the possibility of the old injury and concluded that it would not affect his opinion as to causation of plaintiff's disability. Defendants' reference to this old injury from which plaintiff was healed was not necessary to the history relating to this disability. The trial court was the trier of facts. As this Court said in Martinez v. Fluor Utah, Inc., 90 N.M. 782, 568 P.2d 618 (Ct.App.1977), quoting from Montano v. Saavedra, 70 N.M. 332, 373 P.2d 824 (1962):

"It is for the trier of the facts to weigh the testimony, determine the credibility of the witnesses, and, to reconcile inconsistent statements and say where the truth lies . . . .

"True enough, there was testimony of the medical expert from which the trial court might have found otherwise. Nevertheless, it was for the trial court, as the fact finder, to evaluate all the evidence and determine where the truth lay . . . ."

It was the duty of that court to hear the evidence, weigh it for credibility and make a decision. Ortega v. New Mexico State Highway Department, 77 N.M. 185, 420 P.2d 771 (1966).

Point IV

Defendants contend that the court erred in going outside the complaint; arguing that there is lack of substantial evidence to support the court's findings nos. 5 through 8 and conclusion no. 3, treating the May 24th accident or incident as a legal aggravation, when the complaint solely treated the May 24th incident as being caused by the April 10th accident.

A review of Dr. Altman's and Dr. Adler's testimony permits us to conclude there was substantial evidence to support the court's finding of aggravation as both doctors knew of the incident of May 24th and took it into account in forming their opinions as to disability. The defendants' argument under this point has no merit.

Cross-Appeal of Plaintiff

The plaintiff argues that the trial court erred in refusing to award medical expenses incurred by him because the employer had not offered nor made provision to pay claimant's medical expenses for this work-related accident pursuant to § 59-10-19.1, N.M.S.A. 1953 (Interim Supp., 1976-77).

The court's findings state that the surgery performed on the plaintiff was necessary as a result of his accident-related injuries. The court's finding no. 14 states, in effect, that the employer had complied with § 59-10-19.1, supra, of the Workmen's Compensation Act relating to provisions for medical attention. The court then concluded the medical expenses incurred by plaintiff on his own were not recoverable. Section 59-10-19.1, supra.

Plaintiff challenges finding no. 14 and conclusions nos. 7, 8, and 9. Although plaintiff testified that his employer told him to file an accident report so the company's insurance could pay his medical expenses, his employer testified that neither he nor the insurance company sent plaintiff to Dr. Miller. Plaintiff did not see a doctor until after the incident of May 24, 1974, at which time he visited Dr. Brighton in Santa Fe once; went to a chiropractor, Dr. Rodriguez; and finally went to Dr. Miller at the request of his attorney on June 7, 1974. In fact, he did not even fill out the accident report until June 10, 1974, at which time his employer learned of his previous visits to the doctors.

The trial court's statement that the plaintiff stopped going to the company's suggested doctor, "without requesting any substitution of doctors and undertook on his own to seek other medical services" is not supported by the evidence. In fact, there is no evidence that his employer or the insurer offered any medical treatment at all, except in the most vague and general terms.

The question raised by this issue is one of law: whether the employer's remark to the plaintiff about getting his medical bills paid and the insurer's payments to Drs. Rodriguez and Miller were sufficient to meet both the statutory requirement that the employer pay all reasonably necessary medical expenses, and the provision that, if the...