{ "id": 1594931, "name": "Stella MENDEZ, Plaintiff-Appellant, and Cross-Appellee, v. SOUTHWEST COMMUNITY HEALTH SERVICES, d/b/a Presbyterian Hospital, Defendant-Appellee, and Cross-Appellant", "name_abbreviation": "Mendez v. Southwest Community Health Services", "decision_date": "1986-07-08", "docket_number": "No. 8532", "first_page": "608", "last_page": "614", "citations": [ { "type": "official", "cite": "104 N.M. 608" }, { "type": "parallel", "cite": "725 P.2d 584" } ], "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": "96 N.M. 765", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577415 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/96/0765-01" ] }, { "cite": "102 N.M. 647", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580037 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/102/0647-01" ] }, { "cite": "70 N.M. 187", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2852834 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0187-01" ] }, { "cite": "14 N.M.L.Rev. 483", "category": "journals:journal", "reporter": "N.M. L. Rev.", "year": 1984, "opinion_index": 0 }, { "cite": "78 N.M. 86", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5323819 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0086-01" ] }, { "cite": "100 N.M. 764", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588533 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/nm/100/0764-01" ] }, { "cite": "102 N.M. 473", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580019 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/102/0473-01" ] }, { "cite": "103 N.M. 597", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711276 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/nm/103/0597-01" ] }, { "cite": "98 N.M. 759", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582513 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/nm/98/0759-01" ] }, { "cite": "102 N.M. 428", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580058 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/102/0428-01" ] }, { "cite": "60 N.M. 409", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590389 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/nm/60/0409-01" ] }, { "cite": "76 N.M. 321", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8502088 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0321-01" ] }, { "cite": "90 N.M. 782", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869219 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0782-01" ] }, { "cite": "103 N.M. 148", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711315 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0148-01" ] }, { "cite": "93 N.M. 485", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568654 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/93/0485-01" ] }, { "cite": "88 N.M. 48", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840165 ], "weight": 4, "pin_cites": [ { "page": "51" }, { "page": "1107" } ], "opinion_index": 0, "case_paths": [ "/nm/88/0048-01" ] } ], "analysis": { "cardinality": 900, "char_count": 19734, "ocr_confidence": 0.793, "pagerank": { "raw": 1.0638588911161291e-07, "percentile": 0.5578132161373115 }, "sha256": "d9905a4d5101422b58920101c668df2dde35c09d3809e402685d2552d9292962", "simhash": "1:ee2f58166ac286ff", "word_count": 3158 }, "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 BIVINS, J., concur." ], "parties": [ "Stella MENDEZ, Plaintiff-Appellant, and Cross-Appellee, v. SOUTHWEST COMMUNITY HEALTH SERVICES, d/b/a Presbyterian Hospital, Defendant-Appellee, and Cross-Appellant." ], "opinions": [ { "text": "OPINION\nALARID, Judge.\nThis is a workmen\u2019s compensation case in which the trial court found that plaintiff was totally disabled, but only awarded compensation benefits for a scheduled injury. Plaintiff appeals, contending that she should have been awarded benefits for total disability. Defendant cross-appeals, contending that: (1) there was insufficient evidence of causation; (2) the trial court did not mean to find that plaintiff was totally disabled; (3) there was insufficient evidence of total disability; and (4) there was insufficient evidence that plaintiff\u2019s scheduled injury was fully disabling to the scheduled member. We state the facts and discuss causation and disability. We reverse and remand to the district court.\nFACTS\nPlaintiff is a thirty-two-year-old woman who quit school during high school. She has a graduate-equivalency diploma. She was a housekeeper at defendant hospital doing heavy cleaning. It involved mopping, dusting and washing, which in turn, involved bending, stooping, reaching and twisting. Prior to her job with defendant, plaintiff had been a housekeeper at a nursing home and in a hotel. She had also been a carhop, a counter worker at a fast-food restaurant, a diet aide in a hospital, and a trimmer/inspector at a clothing manufacturer. All the prior jobs involved reaching and carrying.\nIn September, plaintiff slipped and fell while going to her car in defendant\u2019s parking lot. The trial court found defendant negligent, and there is no issue as to defendant\u2019s negligence on appeal. See NMSA 1978, \u00a7 52-1-19. Plaintiff fell onto her left side. The fall made her dizzy and her left arm and shoulder hurt. She also had headaches, nausea, and blurred vision. The dizziness, headaches, nausea and blurred vision were attributed to post-traumatic or post-concussive syndrome; such symptoms are frequently seen after head injuries. The post-concussive syndrome had mostly cleared up by November. Plaintiff was treated by a doctor who continued to treat her for neck spasm and pain in the scapula which radiated down the left arm. The doctor explained that the muscle spasm would entrap the nerve causing pain in the back and arm.\nThis doctor testified that plaintiff had dorsal scapular nerve syndrome and that the syndrome was caused by the accident at work. However, this doctor was unaware that plaintiff had made complaints about pain in her left shoulder at previous times in her life. Other doctors testified that knowledge of the prior shoulder complaints was important in determining what caused plaintiff\u2019s current complaints.\nThe treating doctor released plaintiff to go back to work at plaintiff\u2019s request. Plaintiff went back to work in January. By her second day at work, plaintiff was again in pain. Although in pain, and missing days from work, plaintiff worked until April. She was still under the care of the same doctor. That doctor recommended that she not go back to her job as a housekeeper. He stated that she should not stretch her neck, shoulder or arm, nor should she reach or carry objects weighing more than ten pounds. He stated that, if she followed his recommendations, her problem would probably clear up in six months to a year from the time of trial. Plaintiff testified that she could not perform any of her prior jobs. While testifying about the job as counterperson in a fast-food restaurant, plaintiff first opined that she could do the job. On reflection, however, she changed her testimony and said that it involved too much reaching and twisting. Plaintiff testified that she had applied for clerical positions. Although she did not currently possess the skills for clerical positions, she felt that she could learn on the job. Plaintiff also applied for, and received, unemployment compensation.\nA vocational counselor testified that plaintiff could not perform any of her prior jobs. The vocational counselor also tested plaintiff for aptitude and manipulative ability. Plaintiff does not have the aptitude to be a clerical worker. Her mathematical skills are not very good, and she is not attentive to detail. Academic testing showed plaintiff to have fifth grade skills in some subjects and ninth grade skills in others. Plaintiff\u2019s manipulative ability is below average because she cannot use her left hand. On tests allowing the use of both hands, plaintiff exclusively used her right hand, leading to fatigue and poor performance. On testing of the individual hands, plaintiff scored average to above average with her right hand and extremely below average with her left hand. On some tests, her left-hand score was only in the first or second percentile.\nThe trial court found:\n4. As a result of the accidental injury, Plaintiff is wholly unable to perform the usual task [sic] of the work she was performing at the time of her injury and is wholly unable to perform any work for which she is fitted by age, education, training, general physical and mental capacity, and previous work experience.\nThe trial court concluded:\n2. Plaintiff is wholly unable to perform the usual task [sic] of the work she was performing at the time of the injury and is wholly unable to perform any work for which she is fitted by age, education, training, general physical and mental capacity, and previous work experience.\nif * ijt * Sf! Jjs\n7. Plaintiffs disability is confined to her non-dextrous upper left extremity at or near the level of the shoulder. There is no evidence of any separate or distinct impairment to any other body function. This is a scheduled injury.\nCAUSATION\nDefendant contends that, because the treating physician did not know of prior injuries to plaintiffs shoulder, his testimony on causation was not sufficient evidence upon which the trial court could conclude that the slip and fall at the hospital caused plaintiffs current disability. Defendant relies on Niederstadt v. Ancho Rico Consolidated Mines, 88 N.M. 48, 536 P.2d 1104 (Ct.App.1975). Niederstadt states, \u201c[when] pertinent information existed about which [the doctor] apparently had no knowledge, his opinion cannot serve as the basis for compliance with [NMSA 1978, Section 52-1-28].\u201d Id. at 51, 536 P.2d at 1107.\nIn this case, plaintiff had three prior complaints about her left shoulder. Four years before the accident at issue, plaintiff was in an automobile accident. The hospital records show that plaintiff complained about pain in her left shoulder, elbow and knee. Plaintiff only remembered hitting her head and being cut and bruised. She did not tell her treating physician that she had complaints about her left shoulder and arm. Another hospital record shows that two years before the accident, plaintiff had complaints of pain in her left shoulder, left scapula, and left upper arm from picking up a linen bag. Plaintiff told her treating physician that this incident caused pain in her lower back. Another hospital record shows that six months before the accident, plaintiff had complaints of a hot, burning sting in her left shoulder blade from reaching to clean a light. Plaintiff's treating physician was completely unaware of this incident.\nDefendant states, \u201cA medical opinion which is based on erroneous information about historically undisputed prior injuries should not be given any more weight than an opinion which is offered without the benefit of any such information at all, as in Niederstadt.\u201d The opinion in Niederstadt on this issue has not been followed in any reported case and has been distinguished in the three cases that have cited it. See Fryar v. Johnsen, 93 N.M. 485, 601 P.2d 718 (1979); Sanchez v. Molycorp, Inc., 103 N.M. 148, 703 P.2d 925 (Ct.App.1985); Martinez v. Fluor Utah, Inc., 90 N.M. 782, 568 P.2d 618 (Ct.App.1977). We, too, distinguish it here.\nIn Niederstadt, two doctors testified. One had the benefit of a prior doctor\u2019s report of a preexisting injury. In light of the prior doctor\u2019s report, this doctor testified that plaintiff\u2019s only disability was the one that was preexisting. The other doctor did not know about the prior doctor\u2019s report and did not know about the preexisting injury. His testimony on causation was disregarded because of his lack of knowledge of the preexisting injury.\nSection 52-1-28 requires expert medical testimony when causation is denied. This rule undoubtedly reflects a legislative judgment that neither lay testimony nor the \u201cvast reservoir of human experience\u201d is sufficient to attribute cause to a disability. Compare Ross v. Sayers Well Servicing Co., 76 N.M. 321, 414 P.2d 679 (1966), with Teal v. Potash Co. of America, 60 N.M. 409, 292 P.2d 99 (1956).\nIn Niederstadt, a medical expert testified to a lack of causation \u201cin light of\u201d the report of a preexisting condition. In this case, there was no such expert testimony. Rather, defendant would have us conclude that, because there were prior injuries to plaintiff\u2019s shoulder, a medical expert would consider them pertinent and would base his opinion on them. Our arriving at such a conclusion, in the absence of expert medical testimony, would violate the policy of the rule set forth in Section 52-1-28. Specifically, we would have to say that, without all knowledge of prior injuries to the same place on the body, no medical expert could render an opinion on causation. The record fails to contain any expert medical opinion supporting this contention of defendant.\nMoreover, given the testimony in this case, we believe that this case provides a peculiarly appropriate opportunity in which to limit the Niederstadt rule. The limitation we announce is that Niederstadt will only be applicable when, as in Niederstadt, there is uncontradicted testimony of a medical expert that the information on pri- or injuries is pertinent. The treating physician in this case explained that everyone who has fallen on his shoulder will have pain for a few days. If the pain is gone in a few days, it should not cause later problems. Thus, when this doctor is taking a history, he does not care about insignificant pain lasting only a few days.\nThe undisputed, historically accurate medical records upon which defendant relies only show that plaintiff complained of pain on the day the records were created. There was no evidence of the sort of significant pain that the doctor deemed important for purposes of diagnosis. Accordingly, there was no absence of evidence on the issue of causation. If the doctor was lacking factual information, it was not \u201cpertinent\u201d as is required by Niederstadt.\nDISABILITY\nWhen a finding conflicts with a conclusion or judgment, the finding will prevail as long as it is supported by substantial evidence. Roybal v. Chavez Concrete & Excavation Contractors, Inc., 102 N.M. 428, 696 P.2d 1021 (Ct.App.1985). The court below both found and concluded that plaintiff was totally disabled. However, it also both concluded and entered judgment for a scheduled injury. Thus, pursuant to Roybal, the judgment should be reversed and remanded for a new judgment which conforms to the finding of total disability unless one of defendant\u2019s arguments seeking to avoid this result has merit.\nDefendant has two arguments which seek to avoid this result. First, defendant contends that some of the trial court\u2019s oral comments show that it misunderstood the applicable law on this issue and really meant to find only a scheduled injury. Second, defendant presents five reasons why a finding of total disability is unsupported by substantial evidence.\nThe trial court said that it intended to find a scheduled injury to the shoulder and that plaintiff was \u201ctotally disabled within the framework of that injury.\u201d The court said that it was so finding because the law did not permit a finding of total disability unless two or more parts of plaintiff\u2019s body are disabled. The trial court was mistaken.\nIf the trial court was of the opinion that it could not find total disability arising out of a scheduled injury, it was wrong. Hise Construction v. Candelaria, 98 N.M. 759, 652 P.2d 1210 (1982), specifically allows benefits for total disability when the total disability results from the loss of or injury to a scheduled member. The only time there must be an injury to two or more body parts (or a separate and distinct injury, to use the legal language) is when a worker is seeking benefits for partial disability under NMSA 1978, Section 52-1-42. Hise. To the extent that the court\u2019s oral comments show this misunderstanding, the comments favor the plaintiff. One can interpret the court\u2019s comments as stating that, but for the court\u2019s belief that it could not award total disability benefits without finding two injuries, it would have awarded total disability benefits.\nDefendant relies on the court\u2019s statement that it intended to find a scheduled injury and total disability within that framework. Defendant construes this language to mean that the court found that plaintiff was entitled to 100% of the scheduled benefits under NMSA 1978, Section 52-1-43(A), rather than a portion of the scheduled benefits under Section 52-1-43(B). However, as we have pointed out, the trial court entered written findings of a total disability. A trial court\u2019s oral comments may not provide the basis for reversing a written finding. Ledbetter v. Webb, 103 N.M. 597, 711 P.2d 874 (1985). Moreover, even if we considered the oral comments, they can be interpreted equally favorable to plaintiff.\nDefendant\u2019s second argument presents five reasons why the court\u2019s finding of total disability was not supported by substantial evidence: (1) plaintiff admitted that she could probably do one of the jobs she held before the fall; (2) plaintiff said she could do clerical work; (3) plaintiff\u2019s vocational expert said that plaintiff could work at two jobs for which she was fitted; (4)plaintiff\u2019s receipt of unemployment compensation bars an award of disability as a matter of law; and (5) plaintiff\u2019s evidence was not such evidence as a reasonable mind would accept as adequate to support a conclusion.\nWith the exception of defendant\u2019s fourth reason, all of defendant\u2019s arguments are attacks on the weight of the evidence. Cases which hold that this court does not weigh the evidence are abundant. See Sanchez v. Homestake Mining Co., 102 N.M. 473, 697 P.2d 156 (Ct.App.1985), and cases cited therein. We discuss defendant\u2019s arguments seriatim.\nWhen asked whether she could perform counter work at a fast-food restaurant, plaintiff first acknowledged that she could. Then, upon being reminded by her attorney that such work involved reaching and twisting, plaintiff opined that she could not do that work. Defendant \u201csubmits that Mendez\u2019 original admission stands.\u201d No authority is cited for this proposition. See In re Adoption of Doe, 100 N.M. 764, 676 P.2d 1329 (1984). In any event, plaintiff\u2019s change in testimony, at most, raises an inconsistency in the evidence, which is for the trial court to resolve. See Tapia v. Panhandle Steel Erectors Co., 78 N.M. 86, 428 P.2d 625 (1967).\nPlaintiff testified that she wanted to do clerical work. Her vocational counselor opined that she was not fitted by aptitude to do such work. Defendant, citing W. Foote and T. Word, The Role of the Vocational Expert In Worker\u2019s Compensation Cases, 14 N.M.L.Rev. 483 (1984), \u201csubmits that [the vocational counselor\u2019s] testimony cannot supercede the implicit contrary judgment of Mendez herself.\u201d We find no support for this contention in the article. Again, this contention is answered by the principle that it is for the trial court to weigh and judge the testimony and find the facts. It is entirely reasonable for the trial court to have given more weight to the vocational counselor\u2019s objective assessment of plaintiff\u2019s abilities than to plaintiff\u2019s possibly exaggerated assessment of her own abilities.\nDefendant contends that the vocational counselor listed two jobs in which plaintiff could work, even with her stated limitations. These jobs were telephone operator and cashier-hostess in a restaurant. However, defendant does not accurately portray the testimony. Regarding the telephone operator job, the witness said that she was referring to a job at an answering service. Plaintiff was tested for this job; she could only accurately take four of six messages. Reviewing the test results, the witness said that plaintiff did not have a high level of potential for success at this occupation. Regarding the cashier-hostess job, the witness said that such a position was not listed in the Dictionary of Occupational Titles, the book from which she worked, which listed common occupations. Because of the qualifications the witness put on her testimony, the trial court could properly give it little weight.\nDefendant contends that plaintiff\u2019s receipt of unemployment compensation benefits should bar her receipt of total disability benefits as a matter of law. Again, the authorities cited do not stand for the proposition urged. 2 A. Larson, The Law of Workmen\u2019s Compensation, Section 57.65 (1983) and 4 A. Larson, The Law of Workmen\u2019s Compensation, Section 97.20 (1984), points out that due to the special definition of disability in workmen\u2019s compensation statutes, there is no inconsistency in representing that one is able to work, as is necessary to obtain unemployment benefits, while still claiming disability for purposes of workmen\u2019s compensation\nbenefits. Moreover, the states which preclude double recovery in this situation have done so by statute. The New Mexico Legislature has not seen fit to adopt such a statute. Winter v. Roberson Construction Co., 70 N.M. 187, 372 P.2d 381 (1962).\nFinally, defendant contends that plaintiff\u2019s testimony is not such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Gutierrez v. City of Gallup, 102 N.M. 647, 699 P.2d 120 (Ct.App.1984). Defendant makes this contention in light of evidence that plaintiff suffered another slip and fall in a department store in April on the last day she worked. Plaintiff claimed to have injured her right side in this fall. She coincidentally had an appointment with her treating physician on that day. He referred her to another doctor. The other doctor testified that he observed no limitation in either of plaintiff\u2019s upper extremities, expressly including the left, and that both were normal. Defendant contends that plaintiff chose this doctor and that, because he was selected for treatment unrelated to the industrial accident, his observations are the most unreproachable in the case. Again, this is an argument directed to witness credibility and the weight of the evidence. See Sanchez. Accordingly, we find it unpersuasive.\nCONCLUSION\nIn light of our disposition, we need not reach defendant\u2019s issue concerning a partial disability to a scheduled member. The judgment is reversed with instructions for the trial court to enter, on remand, judgment consistent with the finding of total disability.\nPlaintiff is awarded $2,500 for the services of her attorney in successfully prosecuting her own appeal, which removed the scheduled injury limitation, and in defending against defendant\u2019s appeal. Romo v. Raton Coca Cola Co., 96 N.M. 765, 635 P.2d 320 (Ct.App.1981), and cases cited therein.\nIT IS SO ORDERED.\nDONNELLY, C.J., and BIVINS, J., concur.", "type": "majority", "author": "ALARID, Judge." } ], "attorneys": [ "David A. Archuleta, Albuquerque, for plaintiff-appellant and cross-appellee.", "Jason W. Kent, Poole, Tinnin & Martin, P.C., Albuquerque, for defendant-appellee and cross-appellant." ], "corrections": "", "head_matter": "725 P.2d 584\nStella MENDEZ, Plaintiff-Appellant, and Cross-Appellee, v. SOUTHWEST COMMUNITY HEALTH SERVICES, d/b/a Presbyterian Hospital, Defendant-Appellee, and Cross-Appellant.\nNo. 8532.\nCourt of Appeals of New Mexico.\nJuly 8, 1986.\nCertiorari Quashed Sept. 12, 1986.\nDavid A. Archuleta, Albuquerque, for plaintiff-appellant and cross-appellee.\nJason W. Kent, Poole, Tinnin & Martin, P.C., Albuquerque, for defendant-appellee and cross-appellant." }, "file_name": "0608-01", "first_page_order": 642, "last_page_order": 648 }