Winter v. Roberson Const. Co.

• Decision Date: 07 June 1962
• Docket Number: No. 7029,7029
• Citation: 372 P.2d 381,1962 NMSC 76,70 N.M. 187,96 A.L.R.2d 933
• Parties: , 96 A.L.R.2d 933 Gordon Norwood WINTER, Claimant, Plaintiff-Appellee, v. ROBERSON CONSTRUCTION COMPANY, Employer, and Pacific Employers Insurance Company, Insurer, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 381

372 P.2d 381

70 N.M. 187, 96 A.L.R.2d 933

Gordon Norwood WINTER, Claimant, Plaintiff-Appellee, v. ROBERSON CONSTRUCTION COMPANY, Employer, and Pacific Employers Insurance Company, Insurer, Defendants-Appellants.

No. 7029.

Supreme Court of New Mexico.

June 7, 1962.

Key, Cohen & May, Albuquerque, for appellants.

Sheehan, Duhigg & Christensen, Albuquerque, for appellee.

COMPTON, Chief Justice.

This is an appeal from a judgment awarding workmen's compensation benefits to Gordon Norwood Winter, appellee herein, for a twenty-five percent (25%) partial permanent disability, based upon findings of the trial court that he suffered injury by accident arising out of and in the course of his employment with appellant, Roberson Construction Company, on or about February 25, 1960. The complaint alleged that the injury consisted of a chipping of a bone in the claimant's right shoulder, but the injury found was a strain of his right arm resulting in a tearing of the tendons in that arm. At the close of the trial, however, a motion by appellee to amend the complaint to conform to the evidence was granted.

The record discloses that Mr. Winter was a construction worker and plasterer about 63 years of age at the time of the alleged injury. He was employed by appellant Roberson Construction Company as a call-back worker or repair man at a weekly wage of at least $100.00. He had been with the company nearly two years. He testified that on or about February 25, 1960 he was injured while using a jack in an attempt to raise the floor of the house in which he was working. Claimant was working in two feet of space under the floor of the house and his testimony as to how the injury occurred is as follows:

'Well, the floor had settled and I was under there with this jack trying to raise it, and as you raise, this way (indicating), it becomes heavier, of course, as you go up it becomes heavier, and we were necessarily required to use a smaller, short handle because of the limited space, and that required quite a bit of strength to raise this up after we got to a certain point, and at times it was impossible to move it with a direct pull, you had to jerk it, and that is when I felt this sudden pain in my shoulder when I made a terrific jerk to get this thing started again.'

The claimant continued to work the rest of that day but the following day, because of severe pain, went to Mr. Barnes, his supervisor, and told him that he would like to go to a doctor as he believed he had twisted his shoulder. Mr. Barnes thereupon gave him a 'Medical Introduction Slip,' dated February 26, 1960, directed to Drs. Sharpe or Harbin, which reads:

'The bearer Gordon Winter is alleged to have been injured on Feb. 23, '60 while in our employ and is being referred to you in pursuance, and subject to the limitations, of the Workmen's Compensation Law. Please report to and obtain instructions from our insurer, Pacific Employers Insurance Co.'

The medical slip was signed 'Roberson Constr. Co.' Also, after the injury he was called in the office of Mr. Roberson's secretary to give a more detailed report of the injury, which report appears to have been misplaced.

The claimant went to Dr. Harbin, a general practitioner on February 27, 1960, stating that his painful arm and shoulder had come about as a result of vigorously using a hand jack while elevating a house. He was examined and put through various motions to ascertain any limitations of motion in the right upper extremity. No objective symptoms were found. Dr. Harbin told claimant that he had a bursitislike condition, gave him diathermy treatment and muscle relaxant medication, and told him to return the following day unless he showed marked improvement. Claimant did not return to Dr. Harbin until May 23rd at which time he complained of recurrence of pain. X-rays were taken. He received treatments on May 23rd and 24th and at that time Dr. Harbin did not think he was disabled, although he told claimant he would have some difficulty with his shoulder at times; his diagnosis was acute fatigue of a muscle group which claimant had used too vigorously; that it was not a permanent condition but could be cured by rest, exercise and simple conservative treatment.

Claimant continued to work for appellant employer from the date of the alleged injury without missing a day and without a decrease in wages, until June 3, 1960 when he was laid off. Subsequent to being laid off he was unable to continue painting and plastering work without severe pain and tried selling real estate. His earnings from June 3, 1960 to January 1, 1961 were $706.88. During this latter period he applied for and received unemployment compensation.

On September 9, 1960, claimant went to Dr. Waldo Hanns, an orthopedic physician, complaining of pain in and about the right shoulder, relating to him the injury and the history of pain since its occurrence. Dr. Hanns treated claimant for several weeks and again in January, 1961. He found no objective symptoms. The diagnosis by Dr. Hanns was bicepital tendonitis, subdeltoid bursistis, or supersplenius tendonitis. The X-rays taken by Dr. Hanns, as well as those taken by Dr. Harbin, were consistent with the diagnosis. Dr. Harbin defined tendonitis as 'an inflamatory process which is an acute process brought on by infection or trauma . . .' Dr. Hanns testified that tendonitis is not always symptomatic; that it is seen in people who give no history of trauma with the onset of their difficulty, but that since claimant dates his onset of symptoms with the injury he believes that the trauma or strain was the precipitating factor here, and that it is both probable and possible that his onset of symptoms dated from the traumativ motions he had described. Dr. Hanns considered the claimant totally disabled for heavy work, and disabled to a lesser degree for lighter activities.

The court found that the appellants had actual knowledge of a compensable injury; that the claimant suffered injury by accident arising out of and in the course of his employment on February 25, 1960; that the injury was suffered while jacking up the floor of a house when he strained his right arm resulting in a tearing of the tendons in his arm which has resulted in pain at all times to a greater or lesser degree; and that as a result thereof he has a 25% partial permanent disability. Appellants contend that the findings are not supported by substantial evidence. This court is committed to the rule so often reiterated that it will not weigh the evidence, but will examine it to determine if the findings are supported by substantial evidence and, if so, they are conclusive and will not be set aside on appeal. Brown v. Martinez, 68 N.M. 271, 361 P.2d 152; Davis v. Hartley, 69 N.M. 91, 364 P.2d 349.

Appellants make much of the uncertainty in the claimant's testimony as to whether the alleged injury took place on February 23rd or 25th, 1960, and as to whether it occurred in a house on Shoshone Street or a house on Piermont Street. There is no evidence, however, that claimant was neither employed by appellants on both of these dates nor engaged in the performance of his duties at either of these houses. Nor was it disputed that he reported an injury to his foreman on February 26, 1960 and obtained written permission for medical attention for an alleged injury while in appellants' employ, or that he was called into appellant employer's office within 30 days from the alleged injury to give a detailed report thereof.

We find no merit in the contention that appellants had no actual knowledge of an alleged compensable injury--an injury arising out of and in the course of employment--in the face of the issuance of its medical order. The verbal communications between claimant and the employer's foreman, resulting in the issuance of the order, would lead to a strong inference that they amounted to more than the mere casual conversations which took place in the cases of Ogletree v. Jones, 44 N.M. 567, 106 P.2d 302 and Bolton v. Murdock, 62 N.M. 211, 307 P.2d 794, relied upon by appellants, and this inference must be considered in the light most favorable to appellee and resolved in his favor. Maryland Casualty Co. v. Jolly, 67 N.M. 101, 353 P.2d 1013; Davis v. Hartley, supra. The findings as to notice based on actual knowledge were supported by uncontradicted evidence and we fail to see how the trial court could have reached any other conclusion.

With respect to appellants' attacks on the findings of the trial court with respect to whether claimant actually suffered an injury by accident, and as to the causal connection between the alleged injury suffered and the resulting disability, appellants rely heavily on the fact that the medical testimony was based entirely on subjective symptoms and not on objective findings which, they assert, amounts to surmise and speculation. That this reasoning is erroneous is borne out in Waller v. Shell Oil, Co., 60 N.M. 484, 292 P.2d 782, wherein the claimant received an award of compensation for partial permanent disability when medical diagnoses of disabilit were based entirely on subjective symptoms.

In this case, there was conflict in the medical testimony, but whether there was an accident, whether it arose out of and in the course of the employment and whether it resulted in disability to the claimant were for the trier of the facts to determine, it being the sole judge of the weight of the evidence and the credibility of the witnesses. Dowaliby v. Fleming, 69 N.M. 60, 364 P.2d 126; Gilbert v. E. B. Law & Son, Inc., 60 N.M. 101, 287 P.2d 992. If the trial court gave more weight to the testimony of claimant than to that of appellants, or to the testimony of an orthopedic physician than to that of a general practicioner, the appellants' complaint on that score will avail them nothing here since we find that the testimony relating to the injury and to the medical probability of...