Williams v. City of Gallup

• Decision Date: 17 October 1966
• Docket Number: No. 7865,7865
• Citation: 1966 NMSC 213,77 N.M. 286,421 P.2d 804
• Parties: Carroll WILLIAMS, Plaintiff-Appellee, v. CITY OF GALLUP, New Mexico, an Incorporated municipality, and Mountain States Mutual Casualty Company, a corporation, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 804

421 P.2d 804

77 N.M. 286

Carroll WILLIAMS, Plaintiff-Appellee, v. CITY OF GALLUP, New Mexico, an Incorporated municipality and Mountain States Mutual Casualty Company, a corporation, Defendants-Appellants.

No. 7865.

Supreme Court of New Mexico.

Oct. 17, 1966.

On Motion for Attorney Fees Dec. 5, 1966.

John H. Schuelke, Gallup, for appellants.

Denny & Glascock, Gallup, for appellee.

OPINION

WOOD, Judge, Court of Appeals.

Defendants appeal from a workmen's compensation judgment in favor of plaintiff. The appeal raises three issues: (1) whether the accident arose out of plaintiff's employment, (2) the physician-patient privilege and (3) admission into evidence of two medical bills.

Plaintiff used a three-wheeled motor scooter in his duties as a meter reader for the City of Gallup. On the morning of the accident he started his motor scooter and let it run for five minutes to warm up. During the warm-up period the gears were in neutral and his right foot was on the brake. At this point he 'blacked out'; his next recollection was being in the hospital.

The motor scooter was parked on a ramp, with a downward slope to the west. This ramp had a retaining wall on its northerly edge; the wall was at the southern boundary of the alley. At the western end of the wall the ramp drops 8 to 10 inches to the alley.

The motor scooter was found in an upright position, facing north in the alley which runs east and west. Plaintiff was lying on his left side with his head near a pot hole in the alley and with his legs still in the scooter. The distance from where the scooter was parked on the ramp to where it was found in the alley is 25 to 30 feet.

A co-worker of plaintiff had seen him sitting on the seat of the scooter with his head bent down almost to the floor of the scooter. At the time of this observation the motor of the scooter was not running.

There is conflicting evidence as to whether plaintiff had complained, before the accident, that he got dizzy spells when he stooped over to read meters.

Plaintiff suffered a skull fracture and his condition was diagnosed as post-traumatic epilepsy.

Under § 59--10--13.3, N.M.S.A.1953, the injury must 'arise out of' and 'in the course of' the employment to be compensable. Defendants claim that there is no substantial evidence to support the finding of the trial court that plaintiff's injury arose out of his employment.

For an injury to 'arise out of' the employment, there must be a showing that the injury was caused by a risk to which the plaintiff was subjected by his employment. The employment must contribute something to the hazard of the fall. Compensation has been denied where the risk was common to the public, Martinez v. Fidel, 61 N.M. 6, 293 P.2d 654, and where the risk was personal to the claimant, Berry v. J. C. Penney Co., 74 N.M. 484, 394 P.2d 996; Luvaul v. A. Ray Barker Motor Company, 72 N.M. 447, 384 P.2d 885.

The difficulty is not in defining the test, but in applying it. As stated in Larson's Workmen's Compensation Law § 12.11:

'The basic rule, on which there is now general agreement, is that the effects of such a fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle. The currently controversial question is whether the effects of an idiopathic fall to the level ground or bare floor should be deemed to arise out of the employment.'

In Luvaul, the plaintiff suffered a dizzy spell, fell and suffered a skull fracture when he hit the floor. In denying compensation, the court said:

'Thus, we have a case in which the employee falls, while at work, on an ordinary ground-level, concrete floor, and, in the course of the fall, hits no machinery or other objects, nor does he fall from a platform or roof to the ground. The problem is made more difficult where a pre-existing infirmity may have caused the fall or contributed thereto.

'* * *

'Although it may be difficult to distinguish between a fall from a platform or ladder, or against some object such as a machine, and a fall to the floor, we must recognize the fundamental principle that the employment must contribute something to the hazard of the fall.'

In Christensen v. Dysart, 42 N.M. 107, 76 P.2d 1, the plaintiff slumped into a sitting position on the platform on which he had been stading and fell from the platform to the ground. The trial court found that Christensen died from injuries resulting from the fall. In affirming the award of compensation this court rejected the claim that the injuries did not result from an accident arising out of the development. The court held that if the injuries were due to the fall the employer is liable even though the fall was caused by a pre-existing idiopathic condition.

In this case, the only medical testimony admitted into evidence was that the injuries (the skull fracture and posttraumatic epilepsy) were caused by the fall.

The Luvaul and Christensen decisions do not conflict. In Luvaul there was a level floor. In Christensen there was a platform. The use of the platform in Christensen contributed to the risk of the fall, and the decision is consistent with our test for 'arising out of' the employment. Here, the use of the motor scooter on the ramp contributed something to the hazard of the fall and meets the 'arising out of' test.

Plaintiff claimed the physician-patient privilege to prevent Dr. Leroy Miller from testifying. This claimed privilege is based on § 20--1--12(d), N.M.S.A.1953, the applicable portion of which reads:

'* * * nor shall any doctor or nurse employed by a workmen's compensation claimant be examined relating to a workmen's compensation claim without the consent of his patient as to any communication made by his patient with reference to any physical or supposed physical disease or injury or any knowledge obtained by personal examination of such patient * * *.'

Citing numerous cases, both for and against, VIII Wigmore on Evidence, McNaughton Rev.1961, § 2389 states:

'(2) The party's own voluntary testimony, on trial, to his physical condition in issue, should be a waiver of the privilege for the testimony of a physician who has been consulted about the same physical condition in issue * * *'

Our statute on voluntary testimony is more restrictive. Section 20--1--12(f), N.M.S.A.1953, reads:

'If a person offer himself as a witness and voluntarily testify with reference to the communications specified in this act (section), that is to be deemed a consent to the examination of the person to whom the communications were made as above provided.'

Thus, for voluntary testimony to be deemed a consent to examining Dr. Miller as a witness, plaintiff must have testified concerning communications made by him to Dr. Miller.

Plaintiff had two seizures following the fall at which he suffered his skull fracture. He was hospitalized in Gallup after each of these seizures. After the second hospitalization, Dr. Keney, the local doctor, sent him to Dr. Miller in Albuquerque. Dr. Miller's bill was introduced into evidence through Dr. Keney's testimony. This bill showed that Dr. Miller gave plaintiff a neurological examination and performed a lumbar puncture during the time plaintiff was in St. Joseph's Hospital.

On direct examination, plaintiff testified that when released from the Gallup hospital after the second seizure, he went to St. Joseph's Hospital in Albuquerque where he was hospitalized for three days, that while there he was treated by Dr. Miller (no other doctor is mentioned), that prior to this hospitalization he was not taking medicine, that after the hospitalization he was taking Dilantin, and while taking Dilantin he has not had any problem. Also on direct examination the bill of St. Joseph's Hospital was admitted into evidence on plaintiff's offer. This bill shows while in that hospital he had treatment consisting of chest and skull X-rays and an e.e.g., that he was given drugs and that the hospital laboratory was used on his behalf.

Plaintiff claims that the above testimony was not testimony as to communications with Dr. Miller. He relies on Phelps Dodge Corporation v. Guerrero, 273 F. 415 (9th Cir. 1921), where it was held that testimony that does not recite the communication does not waive the privilege.

We reject such a narrow view of the meaning of communication. While communication includes the verbal communication of the patient to the physician, it also includes the information or knowledge gained by observation and personal examination of the patient. Howard v. Porter, 240 Iowa 153, 35 N.W.2d 837. The information obtained through observation or examination of the patient includes all inferences and conclusions drawn therefrom. Sher v. De Haven, 91 U.S.App.D.C. 257, 199 F.2d 777, 36 A.L.R.2d 937 (1952). There is communication by exhibiting the body or any part thereof to the physician for his opinion, examination or diagnosis. Metropolitan Life Ins. Co. v. McKim, 54 Ohio App. 66, 6 N.E.2d 9.

The communications privileged under § 20--1--12(d), N.M.S.A.1953, includes information or knowledge obtained by the physician by observation or examination of the patient or any part of his body. The privilege also extends to inferences and conclusions drawn from such observation or examination.

If the patient testifies with reference to these communications, then under § 20--1--12(f), N.M.S.A.1953, the physician may be examined concerning these communications

Plaintiff voluntarily testified to the hospitalization, the treatment by Dr. Miller while in the hospital and the Dilantin. In addition, he voluntarily introduced the hospital bill showing the treatment received while there. There are divergent views as to the effect of this testimony. The different views are as follows:

(1) The testimony is to be deemed a consent to examination of Dr. Miller and the exclusion of Dr. Miller's...