{
  "id": 5356070,
  "name": "Raymond GOOLSBY, Plaintiff-Appellant, v. PUCCI DISTRIBUTING COMPANY, Employer, and Aetna Casualty and Surety Company, Insuror, Defendants-Appellees",
  "name_abbreviation": "Goolsby v. Pucci Distributing Co.",
  "decision_date": "1969-02-14",
  "docket_number": "No. 247",
  "first_page": "59",
  "last_page": "62",
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      "category": "reporters:state",
      "reporter": "N.M.",
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      "year": 1937,
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    {
      "cite": "76 N.M. 753",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
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      "year": 1966,
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  "last_updated": "2023-07-14T15:41:23.226975+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "SPIESS, C. J., and OMAN, J., concur."
    ],
    "parties": [
      "Raymond GOOLSBY, Plaintiff-Appellant, v. PUCCI DISTRIBUTING COMPANY, Employer, and Aetna Casualty and Surety Company, Insuror, Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Judge.\nThe original judgment recites: \u201cThat the probable duration of Plaintiff\u2019s total disability is six months from date.\u201d Workmen\u2019s compensation was awarded for these six months. Medical benefits and an attorney\u2019s fee were also awarded. Plaintiff filed two motions seeking additional benefits under \u00a7 59-10-25, N.M.S.A.1953 (Repl. Vol. 9, pt. 1, Supp. 1967). His first motion asked for a hearing on the question of whether additional benefits should be awarded. The trial court granted this hearing, but subject to terms. His second motion asked the trial court to award additional benefits on the basis of uncontradicted evidence. The trial court denied this second motion. The appeal challenges the correctness of these rulings.\nSection 59-10-25, supra, reads in part:\n\u201cA. The district court in which any workman has been awarded compensation under the Workmen\u2019s Compensation Act [59-10-1 to 59-10-37] may, upon the application of the employer, workman, or other person bound by the judgment, fix a time and place for hearing upon the issue of claimant\u2019s recovery * * *. And if it shall appear upon such hearing that the disability of the workman has become more aggravated or has increased without the fault of the workman, the court shall order an increase in the amount of compensation allowable as the facts may warrant. * * * \u201d\nThe issue, in proceedings under this section, is a change in the workman\u2019s condition subsequent to the original award. Compare Bartlett v. Shaw, 76 N.M. 753, 418 P.2d 533 (1966); Norvell v. Barnsdall Oil Co., 41 N.M. 421, 70 P.2d 150 (1937). Under this section, the trial court may extend the length of time compensation is to be paid. See Segura v. Jack Adams General Contractor, 64 N.M. 413, 329 P.2d 432 (1958). Plaintiff\u2019s motion sought such an extension.\nDenial of a hearing except on terms.\nPlaintiff\u2019s first motion sought a hearing under \u00a7 59-10-25, supra. He supported this motion by the affidavit of his doctor and the affidavit of his attorney incorporating the report of another doctor. The trial court\u2019s order is as follows:\n\u201cThis matter having come on for hearing in due course, and the Court having examined the affidavits and exhibits, and being further fully advised in the prem-. ises, finds that it is reluctant to in any way modify the Judgment heretofore entered herein and would, in all probability, confirm the same.\u201d\nThe Order then states:\n\u201cTHEREFORE, the Plaintiff will be-heard upon his Motion on Terms, the-same being: That the Plaintiff pay his-own expert\u2019s fee and the fee of the Defendants\u2019 expert, should he be unsuccessful in his Motion. OTHERWISE, the-Plaintiff\u2019s Motion is hereby DENIED.\u201d\nWhile \u00a7 59-10-25, supra, states that the District Court \u201cmay\u201d fix a time and a place for a hearing, it also states that a workman\u2019s application for additional benefits is to be resolved \u201c * * * as the facts may warrant.\u201d The issue is a change in plaintiff\u2019s condition subsequent to the prior award. This factual matter is to be resolved at an evidentiary hearing resulting in new findings and a judgment in accordance with the new findings. See Segura v. Jack Adams General Contractor, supra-Plaintiff was entitled to a hearing on his-motion. Defendants conceded, at oral argument, that no hearing had been held.\nThe trial court\u2019s order stated that plaintiff could have a hearing, but only on terms. Section 59-10-25, supra, does not authorize the trial court to condition the hearing on such terms. If plaintiff is unsuccessful in his motion, it will be his ob-. ligation to pay the fee of any expert witness called by him. If unsuccessful, the trial court may assess against plaintiff, as costs, the fee of an expert witness who testifies for the defense under subpoena. Section 59-10-13.10, N.M.S.A.1953 (Repl.Vol. 9, pt. 1); \u00a7 20-1-4, N.M.S.A.1953 (Supp.1967). However, such a cost is taxed after the hearing, and not as a condition to holding the hearing.\nFurther, the form of the order is not commended for further use. The order leaves the impression that the question of change in plaintiff\u2019s condition has been determined on the basis of the documents filed in support of the motion. The documents are in- \u2022 sufficient for a determination of the question of change in condition. This will be shown in our discussion of plaintiff\u2019s second motion.\nDisregard of alleged uncontradicted evidence in denying additional benefits.\nPlaintiff\u2019s second motion sought an award of additional benefits on the basis of evidence which is asserted to be uncontradicted. The \u201cevidence\u201d on which plaintiff relied is the affidavits filed in support of the first motion. The trial court\u2019s order reads:\n\u201cUpon motion of the Plaintiff, the Court being fully advised in the premises, and having read the affidavits referred to in the said motion, finds that the Plaintiff\u2019s disability terminated entirely at the end of the six months provided for in the Court\u2019s original judgment filed herein and therefore the Plaintiff\u2019s motion is DENIED.\u201d\nThe trial court properly refused to award additional benefits on the basis of these affidavits. The attorney\u2019s affidavit incorporates a report of a doctor who examined plaintiff for the defense. This report shows that the doctor\u2019s opinion is based on an examination of plaintiff at a time prior to the original trial. This report recommends continued treatment and reevaluation in a year. However, the report does not, and could not, indicate whether plaintiff\u2019s condition has changed subsequent to the trial.\nThe affidavit of plaintiff\u2019s doctor does refer to a change in plaintiff\u2019s condition subsequent to the trial. It states the doctor\u2019s opinion that plaintiff continued to be totally disabled until a certain date and thereafter that plaintiff continued to be disabled in the amount of 20% of the body as a whole. We do not know in what sense the word \u201cdisability\u201d is used.\nIf the opinion as to total disability and partial disability refers to medical disability it is not a basis for awarding additional benefits. An opinion as to medical disability does not resolve the question of disability under our Workmen\u2019s Compensation law. Disability, at the time of plaintiff\u2019s accidental injury, was defined in-terms of being able to perform the usual' tasks of plaintiff\u2019s work or of being able to perform any work for which he was fitted by age, education, training, physical and mental capacity and experience. Sections 59-10-12.18 and 59-10-12.19, N.M.S.A. 1953 (Repl.Vol. 9, pt. 1, Supp.1967); see Lucero v. Koontz, 69 N.M. 417, 367 P.2d 916 (1962).\nIf the opinion as to disability refers to' disability as defined in \u00a7\u00a7 59-10-12.18 and 59-10-12.19, supra, it does not require a finding of disability. Lucero v. Los Alamos Constructors, Inc. (Ct.App.), 79 N.M. 789, 450 P.2d 198, decided January 24, 1969.\nThe trial court did not err in denying additional benefits on the basis of the documents relied on in the motion. However, the trial court could not determine, on the basis of these documents, that plaintiff\u2019s disability ended six months after entry of the original judgment. The documents simply do not provide a basis for resolving the. question of disability as defined In the Workmen\u2019s Compensation law.\nThe trial court\u2019s order denying additional benefits under \u00a7 59-10-25, supra, on the basis of the supporting documents is affirmed. The finding that plaintiff\u2019s disability ended six months after entry of the original judgment is reversed. The order granting plaintiff a hearing under \u00a7 59 \u2014 10\u2014 25, supra, is affirmed but the terms to that order relating to expert witness fees are set aside.\nThe cause is remanded with instructions to hold a hearing on the motion for additional benefits under \u00a7 59-10-25, supra, and to otherwise proceed in a manner consistent with the views expressed herein.\nIt is so ordered.\nSPIESS, C. J., and OMAN, J., concur.",
        "type": "majority",
        "author": "WOOD, Judge."
      }
    ],
    "attorneys": [
      "Thomas Schall, Schall, Sceresse & Ad-dis, Albuquerque, for plaintiff-appellant.",
      "Irving E. Moore, Albuquerque, for defendants-appellees."
    ],
    "corrections": "",
    "head_matter": "451 P.2d 308\nRaymond GOOLSBY, Plaintiff-Appellant, v. PUCCI DISTRIBUTING COMPANY, Employer, and Aetna Casualty and Surety Company, Insuror, Defendants-Appellees.\nNo. 247.\nCourt of Appeals of New Mexico.\nFeb. 14, 1969.\nThomas Schall, Schall, Sceresse & Ad-dis, Albuquerque, for plaintiff-appellant.\nIrving E. Moore, Albuquerque, for defendants-appellees."
  },
  "file_name": "0059-01",
  "first_page_order": 115,
  "last_page_order": 118
}