{ "id": 8841142, "name": "LIPE v. BRADBURY et al.", "name_abbreviation": "Lipe v. Bradbury", "decision_date": "1945-01-10", "docket_number": "No. 4861", "first_page": "4", "last_page": "12", "citations": [ { "type": "official", "cite": "49 N.M. 4" }, { "type": "parallel", "cite": "154 P.2d 1000" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "47 N.M. 356", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1562255 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/47/0356-01" ] }, { "cite": "46 N.M. 118", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563082 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/46/0118-01" ] }, { "cite": "98 A.L.R. 729", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "67 A.L.R. 785", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "43 N.M. 357", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568291 ], "weight": 2, "pin_cites": [ { "page": "363" }, { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/nm/43/0357-01" ] }, { "cite": "39 N.M. 560", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573440 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/39/0560-01" ] }, { "cite": "100 Colo. 421", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 2817103 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/colo/100/0421-01" ] }, { "cite": "38 N.M. 372", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559162 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/38/0372-01" ] }, { "cite": "45 N.M. 354", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1565158 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/45/0354-01" ] }, { "cite": "46 N.M. 330", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563041 ], "weight": 2, "pin_cites": [ { "page": "1045" } ], "opinion_index": 0, "case_paths": [ "/nm/46/0330-01" ] }, { "cite": "88 Utah 306", "category": "reporters:state", "reporter": "Utah", "case_ids": [ 8871006 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/utah/88/0306-01" ] }, { "cite": "64 P.2d 660", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "179 Okl. 82", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 8891829 ], "opinion_index": 0, "case_paths": [ "/okla/179/0082-01" ] }, { "cite": "149 Or. 49", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2010961 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/or/149/0049-01" ] }, { "cite": "9 P.2d 15", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "155 Okl. 264", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 19249 ], "opinion_index": 0, "case_paths": [ "/okla/155/0264-01" ] }, { "cite": "250 P. 138", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "120 Okl. 37", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 6406385 ], "opinion_index": 0, "case_paths": [ "/okla/120/0037-01" ] }, { "cite": "48 N.M. 185", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1560797 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/48/0185-01" ] }, { "cite": "267 N.W. 751", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 1 }, { "cite": "275 Mich. 616", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1871902 ], "opinion_index": 1, "case_paths": [ "/mich/275/0616-01" ] }, { "cite": "199 S.W. 44", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "178 Ky. 486", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 4457850 ], "opinion_index": 1, "case_paths": [ "/ky/178/0486-01" ] }, { "cite": "126 P.2d 765", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 1 }, { "cite": "13 Wash.2d 673", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 2562141 ], "opinion_index": 1, "case_paths": [ "/wash-2d/13/0673-01" ] }, { "cite": "13 N.J.Misc. 858", "category": "reporters:state", "reporter": "N.J. Misc.", "case_ids": [ 576503 ], "opinion_index": 1, "case_paths": [ "/nj-misc/13/0858-01" ] }, { "cite": "181 A. 704", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 1 }, { "cite": "9 N.E.2d 719", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "298 Mass. 78", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 888012 ], "opinion_index": 1, "case_paths": [ "/mass/298/0078-01" ] }, { "cite": "107 A. 36", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 1 }, { "cite": "93 N.J.L. 250", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 194179 ], "opinion_index": 1, "case_paths": [ "/njl/93/0250-01" ] } ], "analysis": { "cardinality": 981, "char_count": 20337, "ocr_confidence": 0.683, "pagerank": { "raw": 5.985805429614136e-07, "percentile": 0.9540368955873489 }, "sha256": "b542df247affb56e0e88f3a8c9faed40bc4a899cff97981843abd9d7601c32ee", "simhash": "1:3bafa44aba10e3c3", "word_count": 3420 }, "last_updated": "2023-07-14T18:53:24.152648+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SADLER, C. J., and BRICE, J., concur.", "LUJAN, J., did not participate." ], "parties": [ "LIPE v. BRADBURY et al." ], "opinions": [ { "text": "MABRY, Justice.\nClaimant-appellee filed suit against defendants-appellants, employers and their insurer, seeking to recover under the New Mexico Workmen\u2019s Compensation Act for total and permanent disability resulting from a fractured left wrist. Defendants in their answer set forth that claimant had been paid the statutory compensation for forty-four weeks on account of the injury and denied that claimant was totally and permanently disabled as a result of the injury complained of, or that he was then suffering from any further compensable injury. The case was tried to a jury which returned a verdict of total and permanent disability because of the injury and general bodily disability flowing therefrom as complained of, and judgment was entered granting an additional 506 weeks of compensation together with interest on past due installments and $1200 as attorney fees for the trial below and defendants appeal.\nWhile a number of assignments of error are made and relied upon these may, for convenience, be appropriately grouped under three points for discussion and decision, to-wit: (1) Did the the trial court properly refuse to require claimant to elect whether to submit his case solely upon the question of total and permanent disability or in the alternative upon the question of permanent partial disability? (2) Is the verdict of total and permanent disability supported by substantial evidence? (3) Is claimant entitled to compensation for total and permanent disability in any event?\nClaimant\u2019s claim to total and permanent disability, as we view the case, does not rest merely upon the fact that he suffered a badly fractured left wrist. He claimed that this severely fractured left wrist which never properly healed and which was left in such bad condition that it caused restlessness, nervousness, substantial loss of weight, loss of sleep and a general debilitated condition, resulted in total and permanent disability. This was, he says, not only because of the loss of the use of his entire left arm, but by reason of the several complications resulting from the injury. Defendants argue that the disability suffered is covered by, and falls under, the schedule which permits compensation for the total loss, or loss of use, of a member, at most, and cannot, under the circumstances, come under the residuary clause of the statute where compensation may be afforded for total and permanent disability. There are few real conflicts in the evidence, and these, of course, will be resolved in favor of the correctness of the verdict.\nClaimant is a man sixty-five years of age with a third grade education; he was a cowboy in the early years of his life, then farmed for a period of time, and for the .past twenty-five years had followed the trade of carpenter. He has never done, and is not qualified to do, anything but manual labor. While an employee of defendants Bradbury and Marchant in general construction work he fell from a scaffold and suffered thereby an impacted Colles\u2019s fracture of his left wrist. This was a fracture of the distal, or lower, end of the radius, the large bone of the forearm. In other words, the end of the large bone of the forearm was broken off just above the wrist, the fracture being an impacted one whereby the long end of the bone above the line of fracture was driven into the short end of the bone below the fracture in an unnatural position, at an angle, in fact, of about fifteen degrees from normal. The wrist was not set; i.e. no attempt was made to reduce the impaction or to correct the angulation, it being put into a cast merely, and for the reason\u2014 as claimed and not disputed- \u2014 that it would not have been good medical practice to attempt to break up such an impacted fracture in a man of claimant\u2019s age because of the likelihood that the bones might not unite at all if, under the circumstances, they were pulled apart and a break-up of the impacted fracture attempted. The injury occurred many months before trial, and all hopes for improvement of the condition must now be abandoned.\nThe testimony shows that the broken ends of the bones were \u201cjammed together like two sticks\u201d and healed in that position. It is impossible to force the wrist to a normal range of motion because the joint \u201clocks,\u201d due to the angulation of the distal fragment of the radius where it meets the wrist joint; and this condition causes impactment of lateral motion and flexion and spasms o.f the muscles and tendons of the forearm upon both lateral, and forward-backward, motion of the wrist. -The use of the wrist in any kind of manual labor would naturally cause more pain than if it were moved in ordinary and quiet motion when not working ; and the pain resulting from use would extend up through the arm and into claimant\u2019s body and it would affect his entire body. Even some of the unconscious movements in sleep cause pain and nervousness.\nHe has no grip in his left hand and cannot perform substantially any ordinary manual labor in his present condition, which is permanent. The pain and nervousness which result from the condition of the wrist extends over .the entire body and make claimant nervous, weak, and \u201cflighty.\u201d He was found to be quite nervous and debilitated at the time of his examination a few days before the trial; and this nervousness, loss of weight, suffering, and general debilitation are all the result of the injury to his wrist. One cause of the nervousness may be pressure on the nerve of the wrist from the callous formation thrown out around the fracture, according to the medical testimony. This extreme nervous condition, affecting claimant\u2019s entire body and nervous system, is established by objective findings, and evidence. Claimant had, a few months prior to the injury in question, suffered an injury to his pelvic bone as a result of which one of his legs is somewhat shortened, but the previous injury did not interfere to any appreciable extent with his work as a carpenter.\nDefendants\u2019 contention under Point One is to the effect that claimant should have been required to elect whether, in prosecuting his claim under the Act, he would ask for total and permanent disability, or for permanent and partial disability. Defendants had paid all the compensation which they claimed was owing under any theory and now contend that there was no longer any disability at all for which compensation was recoverable. There is no merit to this point.\nThe complaint and claim for compensation, after setting up the injuries and the circumstances thereof and alleging total and permanent injury to the whole body, asks for \u201ccompensation\u201d on account thereof. We know of no rule which would require an election on the part of a claimant under the Workmen\u2019s Compensation Act as to whether he will seek a finding, or verdict, of total and permanent disability or for something less, at the risk of being allowed no compensation at all if he should guess wrong as to the extent of his injuries.\nThe Act provides that \u201csuch claim shall be informal in character and shall set forth sufficient facts for the determination of the same.\u201d 1941 Comp. Sec. 57-915. The case of Gonzales v. Pecos Valley Packing Co., 48 N.M. 185, 146 P.2d 1017, cited and relied upon by defendants, is not in conflict with what we here hold.\nTechnical precision in pleading is not generally required in Workmen\u2019s Compensation cases. Glasgow v. State Industrial Commission et al., 120 Okl. 37, 250 P. 138; Higginbotham v. Oklahoma Portland Cement Co., 155 Okl. 264, 9 P.2d 15; Miller v. State Industrial Accident Commission of Oregon, 149 Or. 49, 39 P.2d 366; Amerada Petroleum Corp. v. White et al., 179 Okl. 82, 64 P.2d 660; Horton v. Industrial Commission et al., 88 Utah 306, 54 P.2d 249.\n\u201cWorkmen\u2019s compensation statutes are sui generis and create rights, remedies and procedure which are exclusive. They are- in derogation of the common law and are not controlled or affected by the code of procedure in suits at law or actions in equity except as provided therein.\u201d' Hudson v. Herschbach Drilling Company, 46 N.M. 330, 128 P.2d 1044, 1045. And, the Act will be liberally construed in favor of the workman. Stevenson v. Lee Moor Contracting Co., 45 N.M. 354, 115 P.2d 342.\nUnder this point defendants further complain that the trial court should not by an instruction given, and objected to, have permitted the jury to speculate upon whether the injury came under the schedule or the residuary clause. But since we hold that the jury had a right, under the claim presented, to determine the extent of ?the injury and whether it was confined to the member the injury to which must be compensated under the specific schedule, or whether the injury produced total and permanent disability under the residuary clause, as claimed, the instruction complained of is unobjectionable.\nThe question raised under Point Two we also hold to be without merit.\nWithout referring much more fully to the evidence than is shown in the foregoing statement of the case on the question of total and permanent disability, it is enough to say that the verdict is supported by substantial evidence. One of defendants\u2019 own physicians, testifying upon cross examination, conceded that claimant would probably be unable, because of the condition of the wrist and attending pain upon use, to carry on his work in the manner that an ordinary carpenter would; that he could not lift heavy objects, or nail constantly and hit nails with his hammer, although this witness said \u201che might do some light \u2019piddling\u2019 around of some nature.\u201d Another doctor, testifying for claimant, testified that the muscle spasms \u25a0 which result from use of the arm are clearly objective indications of pain which cannot be feigned, and he also testified to the effect that claimant\u2019s severe nervous condition might be traced directly to the injury.\nAnd, it cannot be said that because claimant was able, for awhile after the injury, to do a little light work, invariably attended with painful effects, this would be sufficient to impair the jury\u2019s finding of total and permanent disability. New Mexico State Highway Dept. v. Bible, 38 N.M. 372, 34 P.2d 295; Rio Grande Motor Way v. De Merschman, 100 Colo. 421, 68 P.2d 446. \u201cLight \u2018piddling\u2019 around of some nature\u201d is not calculated to bring any substantial compensation.\nIt is not necessary to determine whether total and permanent disability as contemplated by the statute may arise from the inability of the workman to engage in his usual occupation, as distinguished from any occupation whatever for remuneration for profit. A like point was also noticed, but not decided, by this court in two previous decisions. New Mexico State Highway Dept. v. Bible, supra, and Bubany v. New York Life Ins. Co., 39 N.M. 560, 51 P.2d 864. It is unnecessary to here decide that narrower question for the reason that there is evidence to support the general verdict, as well as the special finding, of total and permanent disability from substantially engaging in any occupation whatever for remuneration or'profit. The jury answered \u201cyes\u201d to the claimant\u2019s special interrogatory No. 1 which was:\n\u201cDo you find from the evidence that the Plaintiff has suffered the total loss of use of his left arm as a result of the injury on May 26, 1942, and that in addition to such loss of use he suffers such pain, nervousness, sleeplessness, weakness, debilitation and loss of weight from the condition of his left arm as a result of said injury that his whole body is affected thereby to the extent that he is totally and permanently disabled from performing any work for which he is fitted?\u201d\nIt becomes a jury question, of course, unless the trial court could say as \u00e1 matter of law that claimant is not totally and permanently disabled within the contemplation of the statute. Bubany v. New York Life Ins. Co., supra.\nThe evidence is sufficiently substantial to support a verdict of total and permanent disability; a disability which would make claimant unable to perform substantially any manual labor, i. e., for all practical purposes, disabled from competing for remunerative employment in any general field of endeavor in which he could engage. See Bubany v. New York Life Ins. Co., supra; Rio Grande Motor Way, Inc., v. De Merschman, supra; Horovitz Injury and Death Under Workmen\u2019s Compensation Laws (1944), page 281; Vol. 2 Schneider\u2019s Workmen\u2019s Compensation Law, 2nd Ed., Section 400. Not only could he perform no \u201cheavy labor, such as had been his occupation in the past\u201d\u2019 (Robinson v. Mittry Bros., 43 N.M. 357, 363, 94 P.2d 99, 102), but, viewing the evidence in a light most favorable to him, as we must, he could only do some \u201clight piddling around of some nature\u201d as regards any kind of ordinary manual labor, the only work for which he was fitted. See annotations in 67 A.L.R. 785 and 98 A.L.R. 729 for exhaustive treatment of the question of what amounts to total incapacity within Workmen\u2019s Compensation Acts.\nUnder Point 3 we have a question closely related to that one of substantial evidence, already discussed, that of whether claimant, even though he be totally and permanently disabled in the particular manner here shown, should, nevertheless, be confined to compensation only for loss of the use of the arm. Defendants\u2019 contention seems to be that since the actual, or direct, injury was suffered by an arm that at most the schedule fixing compensation for loss of use of that member (treating it, if total and permanent, as if it were a loss by severance) is the measure of recovery. However, whether total loss of use of the member would, under the statute, be equivalent to loss by severance is a question we do not decide. The basic error in defendants\u2019 argument under this point is that it fails to distinguish between the actual physical injury directly suffered by the particular member and the general bodily disability resulting therefrom.\nDefendants contend that under the doctrine announced by this court in Gonzales v. Pecos Valley Packing Co., supra, the claimant\u2019s compensation should be limited to that provided by the schedule for the injured member only. Defendants misap-praise our holding in the Gonzales case. There claimant\u2019s arm had been severed and there was no showing, as here, of such general impairment to the rest of the body by reason of the particular injury, except as to some over-all impairment of performance such as would naturally follow in any case from the loss of such a member. We there recognized the difference and distinguished the circumstances from that shown in the case of Mathews v. New Mexico Light & Power Co., 46 N.M. 118, 122 P.2d 410, where there was impairment to the claimant\u2019s whole body as the result of the injury to his leg, and where he was held to be entitled to compensation for total and permanent disability.\nDefendants concede that if it were a question, say, of infection or of tuberculosis, resulting from injury to and loss of a member that a different and distinguishable case would arise. We are unable to agree with the contention that only infection or tuberculosis affecting the whole body would take an injury such as this out of the specific schedule for compensation.\nAs we appraise the Mathews and \u25a0Gonzales cases it is this: Where the injury is confined to a scheduled member and there is no impairment of any other part of the body because of such injury, \u2022compensation is limited to that provided by the statute; this is true even though other \u25a0considerations such as age, lack -of training, or other conditions peculiar to the' individual make a case where the injury.to the member may result, in the particular case, to some, if not total and permanent, disability. But, where general bodily impairment and disability is shown, as here, then compensation is allowable 'for such total and permanent disability notwithstanding the cause of th'e disability may be traced to a particular injury of a specific member for the' loss (or loss' of use) of which scheduled compensation is provided. We have here a clear jury finding as to how the disability arose and of what it \u25a0consists.\nDefendants make the erroneous contention that the trial court should not have permitted the jury to consider these questions of general unfitness for work, sleeplessness, loss of weight, debility and nervousness when attempting to use the hand (and even when resting it from use), all \u25a0claimed to be the result of the severe arm injury.\n\u25a0 They complain also that much of this evidence results from the claimant\u2019s own statement as to how, and under what conditions, he suffered to the extent that he could perform substantially no manual labor. But we cannot see how this testimony could impeach, or impair, the verdict if the testimony given be admissible and \u25a0 the jury believes it. Moreover, we cannot escape notice of other and additional testimony, that, of the doctors, based upon objective, as well as subjective, findings that the condition complained of could, and possibly did, result specifically from the particular and unusual wrist injury. Medic\u00e1l testimony, we know, need' not be based upon positive - evidence but may rest upon reasonable inferences, \u00f3r opini\u00f3n. Elsea v. Broome Furn. Co., 47 N.M. 356, 143 P.2d 572.\n' 'We are not unmindful of the opportunities afforded workmen to unfairly claim, and establish, disability above and beyond that suffered by the injured member itself, under such circumstances as this case presents; but opportunities for claiming and securing more than that to which one is legally entitled is, unfortunately, not confined to this class of litigation. Such opportunities exist' generally' where the facts are in dispute and courts and juries are called upon to resolve the truth. But no reason appears why a claimant under this Act should be subjected to any different test upon the question of proof, than any other litigant. The triers of fact must, in this, as in all cases, bear their fair share of responsibility for determining the truth.\nLikewise, we see no reason for saying that, while in cases of general infection or tuberculosis \u2014 because these present conditions more readily, and certainly, ascertainable as facts \u2014 injury to the particular scheduled member may result in such general disability as will justify compensation therefor, while illness or disability resulting from conditions such as are here found to exist, although uncommon in experience and generally not to be expected, .may not so result.\nThe cases cited and relied upon by defendants in their excellent and exhaustive briefs are to be distinguished as involving situations where the disability could, in our opinion, be said to extend only to the particular member.\nAll assignments are without merit and the judgment should be affirmed. And, an additional attorney fee of $400 is hereby fixed and allowed for and on account of this appeal.\nAnd it is so ordered.\nSADLER, C. J., and BRICE, J., concur.\nLUJAN, J., did not participate.", "type": "majority", "author": "MABRY, Justice." }, { "text": "BICKLEY, Justice\n(concurring specially).\nI concur. Whether the cause of the-nervousness and other symptoms extending; to portions of the body other than the member receiving the direct injury could be relieved by amputation of a portion of the-forearm, and whether it would be a duty on. the part of the workman to submit to such, an operation in order to reduce the compensation, if the operation were not serious, and critical, is a question not presented by this record. This court can act only on the-facts before it, not upon the uncertain possibilities of the fwture. See Simpson v. New Jersey Stone & Tile Co., 93 N.J.L. 250, 107 A. 36, and Shepard\u2019s Citations thereto.\nAs to the duty of an injured workman: to submit to proper medical and surgical-treatment including operations, even to the: extent of some amputations, see Burns\u201d Case, 298 Mass. 78, 9 N.E.2d 719; Robinson v. Jackson, 181 A. 704, 13 N.J.Misc. 858; In re Hudson, 13 Wash.2d 673, 126 P.2d 765; Louisville & N. R. Co. v. Kerrick, 178 Ky. 486, 199 S.W. 44; Kolbas v. American Boston Mining Co., 275 Mich. 616, 267 N.W. 751.", "type": "concurrence", "author": "BICKLEY, Justice" } ], "attorneys": [ "Allen M. Tonkin and George R. Craig, both of Albuquerque, for appellants.", "Rodey, Dickason & Sloan and Frank M. Mims, all of Albuquerque, for appellee." ], "corrections": "", "head_matter": "154 P.2d 1000\nLIPE v. BRADBURY et al.\nNo. 4861.\nSupreme Court of New Mexico.\nJan. 10, 1945.\nAllen M. Tonkin and George R. Craig, both of Albuquerque, for appellants.\nRodey, Dickason & Sloan and Frank M. Mims, all of Albuquerque, for appellee." }, "file_name": "0004-01", "first_page_order": 26, "last_page_order": 34 }