{ "id": 1594901, "name": "Edward DiMATTEO, Plaintiff-Appellee, v. The COUNTY OF DONA ANA, State of New Mexico, By and Through its governing BOARD OF COUNTY COMMISSIONERS; Fireman's Fund, and Rockwood Insurance Company, Defendants-Appellants", "name_abbreviation": "DiMatteo v. County of Dona Ana ex rel. Board of County Commissioners", "decision_date": "1985-10-22", "docket_number": "No. 8068", "first_page": "599", "last_page": "605", "citations": [ { "type": "official", "cite": "104 N.M. 599" }, { "type": "parallel", "cite": "725 P.2d 575" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "90 N.M. 319", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869816 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0319-01" ] }, { "cite": "102 N.M. 333", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580168 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/nm/102/0333-01" ] }, { "cite": "102 N.M. 433", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580030 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/nm/102/0433-01" ] }, { "cite": "67 N.M. 72", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2717056 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/nm/67/0072-01" ] }, { "cite": "79 N.M. 404", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2737559 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0404-01" ] }, { "cite": "38 N.M. 372", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559162 ], "weight": 2, "year": 1934, "opinion_index": 0, "case_paths": [ "/nm/38/0372-01" ] }, { "cite": "37 N.M. 503", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575396 ], "weight": 2, "year": 1933, "opinion_index": 0, "case_paths": [ "/nm/37/0503-01" ] }, { "cite": "73 N.M. 219", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5320020 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/73/0219-01" ] }, { "cite": "97 N.M. 46", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555223 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0046-01" ] }, { "cite": "84 N.M. 565", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2765891 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0565-01" ] }, { "cite": "92 N.M. 635", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557277 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0635-01" ] }, { "cite": "74 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2803173 ], "weight": 3, "year": 1965, "pin_cites": [ { "page": "794" } ], "opinion_index": 0, "case_paths": [ "/nm/74/0789-01" ] }, { "cite": "77 N.M. 213", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2805936 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0213-01" ] }, { "cite": "97 N.M. 753", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555138 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0753-01" ] }, { "cite": "98 N.M. 125", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582444 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/98/0125-01" ] } ], "analysis": { "cardinality": 814, "char_count": 17319, "ocr_confidence": 0.795, "pagerank": { "raw": 1.8725112292779588e-07, "percentile": 0.7264732422623867 }, "sha256": "7dc3be7219840458eaa0b4083bb7ab5628472b7c8044bea423877b06cb4a6062", "simhash": "1:c7f5daaa89eee97b", "word_count": 2776 }, "last_updated": "2023-07-14T22:33:25.530063+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DONNELLY, C.J., and WOOD, J., concur." ], "parties": [ "Edward DiMATTEO, Plaintiff-Appellee, v. The COUNTY OF DONA ANA, State of New Mexico, By and Through its governing BOARD OF COUNTY COMMISSIONERS; Fireman\u2019s Fund, and Rockwood Insurance Company, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nALARID, Judge.\nDefendant Rockwood Insurance Company (Rockwood) appeals from a judgment for plaintiff in this workmen\u2019s compensation case. The judgment awarded the cost of medical services incurred, and to be incurred, as a result of an on-the-job accident, and attorney fees. . Rockwood contends that: (1) there was no finding that the resulting injury \u201carose out\u201d of plaintiff\u2019s employment; (2) there was no finding, nor evidence, that the injury was disabling; (3) there was no medical evidence to establish a causal connection between the accident and subsequent injury; (4) there was no proper finding regarding timely notice to the employer, nor evidence to support a finding of timely notice; (5) the judgment rendered was defective because it did not specify an amount due; (6) there was a lack of evidence as to medical expenses; and (7) the award of attorney fees constituted an abuse of discretion. Issues not briefed are abandoned. State v. Ortiz, 90 N.M. 319, 563 P.2d 113 (Ct.App.1977). We affirm in part, reverse in part, and remand with instructions.\nFACTS\nOn April 14, 1982, plaintiff, an employee of the Dona Ana County Sheriffs Department, injured himself while inspecting an air-conditioning unit on the roof of the Dona Ana jailhouse. While reaching to loosen a wire around a unit, he felt a burning sensation in his back. The following day, he experienced a great deal of soreness in his back. Five or six days later, he suffered from pain in the back and down the left leg.\nPlaintiff had suffered three previous work-related injuries to his back in February 1973, July 1973, and June 1974. Between 1973 and 1982, he was treated by various physicians and, in 1973, underwent surgery for a ruptured disc. Prior to 1982, he was still experiencing intermittent back pain, and was restricted in his bending and stretching movements.\nDr. Nelson operated on plaintiff in 1973, and saw him until 1983. After April 14, 1982, Dr. Nelson treated plaintiff for his pain in the back and left leg with muscle relaxants and painkillers, and eventually ordered hospitalization for a spinal myelogram in June 1982. The myelogram showed \u201cdeformity\u201d in portions of the lower back region and a possible disc protrusion. After the hospitalization, Dr. Nelson continued him on medication and ordered a nerve stimulation device be used.\nAs of October 1983, Dr. Nelson believed that additional surgery was not indicated, but that recurring pain would be a future reality. In a letter to counsel dated October 7, 1983, Dr. Nelson stated, furthermore, that he felt the April 14 incident was an aggravation of a previous injury, that plaintiff was presently taking anti-inflammatory medication, and that plaintiff would be seen periodically for his pain in the future.\nPlaintiff initially filed a complaint for disability and medical benefits on November 3, 1982. However, at trial, on December 15, 1983, plaintiff withdrew his claim for disability and indicated he was seeking payment only for medical bills incurred after the April 14, 1982 accident. Roekwood refused payment of these bills. It contended that any present problems were the result of the February 1973 accident, which occurred prior to Rockwood\u2019s contract for workmen\u2019s compensation coverage. Rock-wood commenced coverage on August 1, 1981.\nDefendant Fireman\u2019s Fund paid medical benefits to plaintiff prior to August 1, 1981. On that date, Fireman\u2019s Fund terminated its workmen\u2019s compensation coverage for Dona Ana County. The liability of Fireman\u2019s Fund is not at issue under the resolution of this appeal.\nJudgment for plaintiff was entered on September 7, 1984. The terms specified that Roekwood was obligated to pay medical care, physician and hospital costs beginning on April 14, 1982, and that plaintiff was entitled to collect $2,000.00 in attorney fees.\nDISCUSSION\nPlaintiff argues at the outset, that Rock-wood has waived the issues raised in its brief by either failing to request findings or by omissions in the docketing statement. We find, however, that the issues briefed were preserved, and that plaintiff\u2019s contention is without merit.\nI. FINDING AS TO \u201cARISING OUT OF\u201d EMPLOYMENT\nRoekwood argues that there was no finding that any injury subsequent to April 14, 1982 \u201carose out of\u201d plaintiff\u2019s employment and that, absent such a finding, any subsequent injury was not within the scope of the compensation statutes. See Hernandez v. Home Education Livelihood Program, Inc., 98 N.M. 125, 645 P.2d 1381 (Ct.App.1982). The statutes require that an accidental injury arise out of and in the course of the workman\u2019s employment to be compensable. NMSA 1978, \u00a7\u00a7 52-1-9 and -28; Sena v. Continental Casualty Co., 97 N.M. 753, 643 P.2d 622 (Ct.App.1982).\nRockwood\u2019s position is without merit. Finding No. 10 provides:\nOn April 14, 1982, plaintiff suffered an accidental injury while in the course and scope of his employment while inventorying and numbering air conditioners.\nFinding No. 14 provides:\nPlaintiff has incurred and reasonably will incur medical expenses due to the symptomatic problems with his lower back exacerbated by the incident of April 14, 1982.\n\u201cArise out of\u201d relates to cause. Hernandez. \u201cExacerbated by\u201d is, under the facts, equivalent to \u201ccause of\u201d the injury. The findings, taken together, include the necessary prerequisites for coverage under the statutes.\nMoreover, the letter of Dr. Nelson wherein he states that \u201cthe incident related [of April 14, 1982] is a sufficient reason to consider this [pain] an aggravation of a previous injury\u201d provides substantial evidence that problems resulted from the incident.\nII. ABSENCE OF EVIDENCE, AND FINDING OF DISABILITY\nRockwood also appears to contend that because there was no evidence, nor finding, as to disability, plaintiff was precluded from an award for medical expenses. However, disability was not at issue here because of plaintiff\u2019s relinquishment of that claim. An award of medical expenses is properly made despite the absence of a finding of disability. Mirabal v. Robert E. McKee, General Contractor, Inc., 77 N.M. 213, 421 P.2d 127 (1966). Rockwood\u2019s contention is erroneous.\nIII. MEDICAL EVIDENCE OF CONNECTION BETWEEN ACCIDENT AND INJURY\nRockwood argues there was no testimony that, as a medical probability, the injury subsequent to April 14, 1982 resulted from the incident of April 14, 1982. Such medical testimony is necessary to establish disability, which is not at issue here. Mirabal. Rockwood, nevertheless, overlooks the letter opinion of Dr. Nelson. That the opinion does not track the exact language of Section 52-1-28(B), is not fatal. Dr. Nelson\u2019s statement, referred to earlier, \u201creasonably connotes precisely what the statute categorically requires.\u201d Gammon v. Ebasco Corp., 74 N.M. 789, 794, 399 P.2d 279 (1965). The statement is sufficient to link the injury with the accident. Id.\nIV.EVIDENCE AND FINDING OF NOTICE\nRockwood challenges the sufficiency of Finding No. 11, and argues that there was no evidence to establish that plaintiff, in writing, notified his employer of the injury and accident within thirty days after their occurrence, as mandated by NMSA 1978, Section 52-1-29. Finding No. 11 states:\nPlaintiff notified Robert Wesel, personnel Director for defendant employer within thirty (30) days of the injury.\nRockwood correctly points out that notice of both the injury and accident within thirty days after their occurrence is a requirement if written notice is relied on. Herndon v. Albuquerque Public Schools, 92 N.M. 635, 593 P.2d 470 (Ct.App.1978). The finding, however, goes to actual, rather than written, notice.\nSection 52-1-29(B) further provides, however, that no written notice is required where the employer had \u201cactual knowledge\u201d of the occurrence of the accident. See Beckwith v. Cactus Drilling Corp., 84 N.M. 565, 505 P.2d 1241 (Ct.App.1972). Robert Wesel, the personnel director in charge of compensation claims, testified that plaintiff notified him, in April, \u201cshortly after the occurrence\u201d of the injury, which plaintiff briefly described, and of the manner in which the accident took place. The requirements of Section 52-1-29(B) were met. See Herndon.\nRockwood does not dispute the existence of this transaction. Rockwood cites this testimony in its brief, but seeks, rather, to elaborate upon ambiguities present in the written report of injury submitted by plaintiff as to the date of injury. Given Wesel\u2019s testimony, we are unconcerned with the written report. There was actual notice, which was timely.\nV. UNCERTAINTY OF JUDGMENT AND LACK OF EVIDENCE OF MEDICAL EXPENSES\nRockwood attacks the uncertainty of the judgment in terms of the amount and nature of liability specified therein. The judgment provides:\nIT IS THEREFORE, ORDERED, ADJUDGED AND DECREE [sic] that Rock-wood Insurance Company was the insurance carrier on April 14, 1982, and the medical care, physician, hospital and medication costs beginning April 14,1982 are the obligation of Rockwood Insurance Company.\nIT IS FURTHER ORDERED that Fireman\u2019s Fund Insurance Company was the workmen\u2019s compensation carrier for the County of Dona Ana, State of New Mexico until August 1, 1981, and ceased coverage thereafter.\nIT IS FURTHER ORDERED that Plaintiff is entitled to recover attorney\u2019s fees for the preparation and presentation of his case in the amount of $2,000.00 from Rockwood Insurance Company.\nRockwood first contends that any judgment must set a certain dollar amount on accrued medical costs incurred by the plaintiff, and limit Rockwood\u2019s obligation to medical costs related to the April 14, 1982 accident.\nRockwood further contends, however, that there is no evidence to support the finding that plaintiff incurred medical expenses as a result of the April 14 incident because of the absence of medical bills in evidence, and the failure to present evidence as to the reasonableness of any charges and the necessity of any medical services.\nAt trial, plaintiff testified that he incurred, as a result of the April 14 accident, \u201cabout\u201d $1,500.00 in doctor bills and \u201cabout\u201d $600.00 in drugstore bills. This testimony is insufficient to sustain an award. Medical treatment for which payment is sought in a compensation case must be shown to be reasonably necessary. NMSA 1978, \u00a7 52-1-49(A); Cardenas v. United Nuclear Homestake Partners, 97 N.M. 46, 636 P.2d 317 (Ct.App.1981). A bill for medical services rendered is prima facie proof of reasonableness. Scott v. Transwestern Tankers, Inc., 73 N.M. 219, 387 P.2d 327 (1963). No bills were introduced in support of the amounts to which plaintiff testified and there is no testimony as to reasonableness. However, despite Rockwell\u2019s assertions to the contrary, four bills were introduced into evidence, as Defendant\u2019s Exhibit R3, which show expenses incurred after the April 14 incident. One bill shows the cost of a prescription drug prescribed by Dr. Nelson; a second bill shows the cost of instruction associated with use of the nerve stimulation device ordered by Dr. Nelson; a third bill shows the cost of rental of the stimulation device; and a fourth bill shows the cost of the myelogram performed after the April 14 incident. These bills were in evidence; they were prima facie proof of reasonableness. Scott. The bills in evidence totaled $526.52. Plaintiff is entitled to recover this amount.\nDefendant is correct, however, that the judgment is uncertain and defective in this regard. NMSA 1978, Section 52-1-38(A), provides that in a workmen\u2019s compensation case \u201cjudgments shall be against the defendants and each of them for the amount then due, and shall also contain an order * * * for the payment to the workman * * * the further amounts he is entitled to receive.\u201d (Emphasis added.) The statute plainly mandates that a quantifiable sum be specified for medical expenses proved at trial. The judgment must be corrected to reflect the sum due.\nThe troubling question we must answer is whether plaintiff should have been allowed to present additional evidence, which he offered post-trial, to establish medical expenses in excess of $526.52 allegedly incurred at the time of trial but not proved at trial. A review of the post-trial proceedings is necessary in order to answer this question.\nTrial on the merits ended on December 15, 1983. On June 1, 1984, the court submitted a letter decision to counsel which tracked the language of the later findings and conclusions and judgment. The court instructed counsel to submit findings and conclusions if they so desired. On June 6, 1984, Rockwood filed proposed findings and conclusions, and also filed a \u201cMotion For Preservation of the Record\u201d wherein it requested a hearing to preserve the record on the issues of (1) the absence of evidence of medical bills; (2) the lack of expert testimony on causal connection between the accident and injury; (3) the lack of notice to Rockwood; and (4) the basis for the award of attorney fees.\nA hearing was held on this motion on June 27, 1984. Rockwood never attempted to present additional evidence at this hearing, but used the hearing to argue the points raised in its motion. However, on the day of the hearing, Rockwood received from plaintiff additional medical bills not introduced at trial. Plaintiffs counsel stated to the court that he \u201cdid not expect\u201d the amount of medicals to become an issue, but that Roekwood\u2019s motion created the issue. Rockwood objected to the introduction of the bills at the hearing, viewing their introduction as \u201cin effect another re-opening\u201d of the case.\nThe court did not receive the additional evidence because it saw no necessity in doing so. It was of the opinion that such evidence did not have to be introduced at the trial. In its view, only proof of a compensable injury was required. The court took the position that plaintiff properly should submit his accrued expenses for payment to Rockwood. Another court hearing was only required on the amount and necessity of these expenses if Rock-wood were to deny payment.\nThe trial court\u2019s reasoning was incorrect. Plaintiff sought the recovery of medical expenses. He had the burden of proof (persuasion) that the medical expenses were reasonably necessary. Section 52-1-49(A); Scott. Worker\u2019s compensation claims, including medical expenses, are to be resolved at trial. NMSA 1978, \u00a7 52-1-35(A). A trial is a judicial investigation and determination of the issues between the parties. Board of County Com\u2019rs of Quay County v. Wasson, 37 N.M. 503, 24 P.2d 1098 (1933). See New Mexico State Highway Department v. Bible, 38 N.M. 372, 34 P.2d 295 (1934). Our compensation statute does not authorize the \u201cprove at any time\u201d reasoning of the trial court.\nWe recognize that a court may reopen the evidence in a case at its discretion. Foreman v. Myers, 79 N.M. 404, 444 P.2d 589 (1968). Even if we were to treat plaintiff\u2019s attempt to introduce the medical bills as a motion to re-open, and if we were to treat the court\u2019s decision not to receive the bills as a denial of that motion, there would have been no abuse of discretion on the part of the court. Plaintiff's counsel never demonstrated that the additional bills could not have been presented at the time of trial. He admitted, in fact, that the amount of the expenses was simply not deemed relevant at trial. On this basis, the refusal to receive the medical bills, as evidence, was not error. See Latta v. Harvey, 67 N.M. 72, 352 P.2d 649 (1960).\nVI. ATTORNEY FEES\nThe trial court award of $2,000.00 as attorney fees was based, as the court noted, on the file, depositions, and the evidence at trial. Because the judgment must be corrected, to limit the liability under the judgment, we will not consider the propriety of the present award. Instead, we direct the trial court to recompute the amount of attorney fees based on the corrected judgment. The trial court is to make findings on attorney fees under the guidelines expressed in Board of Education of the Espanola Municipal Schools v. Quintana, 102 N.M. 433, 697 P.2d 116 (1985), and Woodson v. Phillips Petroleum Co., 102 N.M. 333, 695 P.2d 483 (1985).\nCONCLUSION\nThe case is remanded with instructions that a new judgment be entered which, first, orders Rockwood to pay plaintiff $526.52 as accrued medical expenses, such amount representing the total of the four bills in evidence. Second, the judgment must be corrected to specify that Rock-wood is only obligated for future medical expenses related to the accident of April 14,1982. Third, the award of attorney fees is to be recomputed.\nPlaintiff is awarded $1,500.00 for attorney fees on appeal.\nIT IS SO ORDERED.\nDONNELLY, C.J., and WOOD, J., concur.", "type": "majority", "author": "ALARID, Judge." } ], "attorneys": [ "Lawrence M. Pickett, Gordon Berman, Pickett, Bates & Holmes, Las Cruces, for plaintiff-appellee.", "Michael Burns, Daniel J. Acosta, Campbell, Reeves & Chavez, P.A., Las Cruces, for defendant-appellant Rockwood Ins. Co.", "Larry Ramirez, Weinbrenner, Richards, Paulowsky & Sandenaw, P.A., Las Cruces, for defendant-appellant Fireman\u2019s Fund." ], "corrections": "", "head_matter": "725 P.2d 575\nEdward DiMATTEO, Plaintiff-Appellee, v. The COUNTY OF DONA ANA, State of New Mexico, By and Through its governing BOARD OF COUNTY COMMISSIONERS; Fireman\u2019s Fund, and Rockwood Insurance Company, Defendants-Appellants.\nNo. 8068.\nCourt of Appeals of New Mexico.\nOct. 22, 1985.\nCertiorari Quashed Sept. 8, 1986.\nLawrence M. Pickett, Gordon Berman, Pickett, Bates & Holmes, Las Cruces, for plaintiff-appellee.\nMichael Burns, Daniel J. Acosta, Campbell, Reeves & Chavez, P.A., Las Cruces, for defendant-appellant Rockwood Ins. Co.\nLarry Ramirez, Weinbrenner, Richards, Paulowsky & Sandenaw, P.A., Las Cruces, for defendant-appellant Fireman\u2019s Fund." }, "file_name": "0599-01", "first_page_order": 633, "last_page_order": 639 }