{ "id": 2786974, "name": "Pablo LUCERO, Claimant, Plaintiff-Appellee, v. Jasper KOONTZ, Employer, and Century Indemnity Company, Insurer, Defendants-Appellants", "name_abbreviation": "Lucero v. Koontz", "decision_date": "1962-01-05", "docket_number": "No. 6856", "first_page": "417", "last_page": "419", "citations": [ { "type": "official", "cite": "69 N.M. 417" }, { "type": "parallel", "cite": "367 P.2d 916" } ], "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": "68 N.M. 18", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2718343 ], "weight": 2, "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nm/68/0018-01" ] }, { "cite": "61 N.M. 431", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5318778 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/61/0431-01" ] }, { "cite": "49 N.M. 4", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841142 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/49/0004-01" ] }, { "cite": "60 N.M. 166", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590422 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/60/0166-01" ] } ], "analysis": { "cardinality": 308, "char_count": 4175, "ocr_confidence": 0.676, "pagerank": { "raw": 9.662170294177528e-08, "percentile": 0.5284055170784088 }, "sha256": "6f1428de84c75082eac6641a67fbde8e106e5c6aafc775ba32357c680d373e48", "simhash": "1:ae8d4867948ddb2a", "word_count": 689 }, "last_updated": "2023-07-14T20:59:48.755337+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "COMPTON, C. J., and CHAVEZ, J., concur.", "MOISE and NOBLE, JJ., not participating." ], "parties": [ "Pablo LUCERO, Claimant, Plaintiff-Appellee, v. Jasper KOONTZ, Employer, and Century Indemnity Company, Insurer, Defendants-Appellants." ], "opinions": [ { "text": "CARMODY, Justice.\nAppellants sought to decrease or terminate appellee\u2019s total permanent compensation, which had been awarded by a jury verdict some two years previously.\nThe only testimony submitted to the court on the motion was that of a doctor, who testified that appellee\u2019s back \u201cimpairment\u201d was from fifteen to twenty per cent. The doctor consistently stated that he was referring to medical impairment, not disability. Following the doctor\u2019s testimony, appellants rested and, on motion of appellee, the court denied the application to decrease or terminate the amount of compensation.\nThe sole ground on appeal is the claimed error that the court denied the motion without hearing appellee-claimant\u2019s evidence, appellants apparently contending that the medical testimony was sufficient to shift the burden of proof to the claimant.\nThe evidence is plain that appellee was unable to perform the type of work which he had been performing at the time of his injury. It is also clear that appellee was able to do so-called \u201clight\u201d work. Is this a sufficient showing to warrant the trial court in denying relief at the time that it did, or should the court have required appellee to \u201cgo forward\u201d with his proof? We believe the trial court was correct.\nThe evidence of fifteen to twenty per cent medical impairment, standing alone, is not substantial evidence as to what was the disability of the workman. In order to be free from total disability, a workman must be physically able to do the work required of him in his regular employment. See, Hanks v. Walker, 1955, 60 N.M. 166, 288 P.2d 699.\nThere was also testimony from the doctor that appellee was improved over his previous condition, but this testimony referred to appellee\u2019s ability to do lighter jobs, and did not relate to his ability to return to his former work. See, Lipe v. Bradbury, 1945, 49 N.M. 4, 154 P.2d 1000; and Smith v. Spence & Son Drilling Co., 1956, 61 N.M. 431, 301 P.2d 723. Actually, the doctor testified that he did not believe that appellee could perform the type of work that he formerly did. In Rhodes v. Cottle Construction Co., 1960, 68 N.M. 18, 357 P.2d 672, 674, we said:\n\u201cThe ability to perform certain limited functions of the workman\u2019s trade does not necessarily mean that he can obtain or retain gainful employment. \u00c1 workman may be able to perform certain limited portions of his trade and still, by reason of his accidental injury, be unable to perform other duties generally required of one in his trade and by reason thereof be unable to obtain or retain employment in that trade.\u201d\nFrom our examination of the very brief record, we are convinced that appellants failed to show, by substantial evidence, that there was a diminution of appellee\u2019s disability. The ruling of the trial court was not, as contended by appellants, a weighing of the evidence, but was merely a determination that there was no substantial evidence to support the petition. It would have been contrary to the proof to determine, from the evidence offered, that appellee could perform the duties generally required in his trade, and there was no proof that he would be able to obtain or retain employment. Also, the record is silent as to appellee\u2019s educational background, training or experience. Thus, the court would have had no basis upon which it could determine if appellee could obtain some other type of employment, assuming he was not completely disabled.\nAppellee seeks an award for attorney\u2019s fees for this appeal, and the same will be allowed. However, in view of the relatively simple problem briefed and presented, the fee will be fixed at $500.00.\nThe decision of the district court will be affirmed. It is so ordered.\nCOMPTON, C. J., and CHAVEZ, J., concur.\nMOISE and NOBLE, JJ., not participating.", "type": "majority", "author": "CARMODY, Justice." } ], "attorneys": [ "Lorenzo A. Chavez, Arturo G. Ortega, Melvin L. Robins, Albuquerque, for appellee.", "Modrall, Seymour, Sperling, Roehl & Harris, Burns H. Errebo, Frank Allen, Jr., Albuquerque, for appellants." ], "corrections": "", "head_matter": "367 P.2d 916\nPablo LUCERO, Claimant, Plaintiff-Appellee, v. Jasper KOONTZ, Employer, and Century Indemnity Company, Insurer, Defendants-Appellants.\nNo. 6856.\nSupreme Court of New Mexico.\nJan. 5, 1962.\nLorenzo A. Chavez, Arturo G. Ortega, Melvin L. Robins, Albuquerque, for appellee.\nModrall, Seymour, Sperling, Roehl & Harris, Burns H. Errebo, Frank Allen, Jr., Albuquerque, for appellants." }, "file_name": "0417-01", "first_page_order": 449, "last_page_order": 451 }