{ "id": 5358273, "name": "Fawn H. MAYFIELD, Plaintiff-Appellant, v. KEETH GAS COMPANY, Inc., Employer and Pan American Fire & Casualty Company, Insurer, Defendants-Appellees", "name_abbreviation": "Mayfield v. Keeth Gas Co.", "decision_date": "1970-03-06", "docket_number": "No. 411", "first_page": "313", "last_page": "317", "citations": [ { "type": "official", "cite": "81 N.M. 313" }, { "type": "parallel", "cite": "466 P.2d 879" } ], "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": "74 N.M. 665", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802257 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0665-01" ] }, { "cite": "71 N.M. 11", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5348871 ], "weight": 3, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/71/0011-01" ] }, { "cite": "80 N.M. 564", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5365285 ], "weight": 4, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0564-01" ] }, { "cite": "76 N.M. 162", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8500934 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0162-01" ] }, { "cite": "68 N.M. 130", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2719443 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/68/0130-01" ] }, { "cite": "76 N.M. 225", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8501379 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0225-01" ] }, { "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": "76 N.M. 623", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8503968 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0623-01" ] }, { "cite": "79 N.M. 590", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2741406 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0590-01" ] } ], "analysis": { "cardinality": 654, "char_count": 13979, "ocr_confidence": 0.686, "pagerank": { "raw": 2.166336412102992e-07, "percentile": 0.77050495994168 }, "sha256": "dc5ac985ff9437348fc7a1aea5256894f50b043d8153ce4b21a6ca27cfb0e000", "simhash": "1:3dc1f3de489cb97b", "word_count": 2276 }, "last_updated": "2023-07-14T14:30:08.757301+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SPIESS, C. J., and HENDLEY, J., concur." ], "parties": [ "Fawn H. MAYFIELD, Plaintiff-Appellant, v. KEETH GAS COMPANY, Inc., Employer and Pan American Fire & Casualty Company, Insurer, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nIn this Workmen\u2019s Compensation case, the employee suffered an on-the-job injury. He died some months later. The evidence before the trial court conflicted as to the causal connection between the accident and death. It was for the trial court to resolve the disagreement. Gallegos v. Kennedy, 79 N.M. 590, 446 P.2d 642 (1968); Torres v. Kennecott Copper Corporation, 76 N.M. 623, 417 P.2d 435 (1966). The trial court did so, finding that neither the accidental injury, the subsequent surgical and medical care, nor the employee\u2019s job and occupation caused, or contributed in any degree to cause, the employee\u2019s death. The widow appeals, contending the \u201conly substantial evidence\u201d is that, as a medical probability, death resulted from the compensable injury. In presenting this contention she raises issues concerning: (1) the burden of proof; (2) whether defendants\u2019 medical evidence was substantial and (3) aggravation of a pre-existing condition^\nThe accidental injury occurred in May. It consisted of a fracture in the right knee and depression of the outside area of the tibia. Corrective surgery was performed.. There was difficulty in getting the employee to perform post-surgery exercises and in making physiotherapy available to him. To help with these problems his hospital stay was extended, lasting fifty-four days. In addition, he was an inpatient at a medical center for nineteen days. Thereafter he was cared for through office-visits to his treating physician. Recovery of use of the right knee was extremely slow, but there was progress.\nAlthough still under his physician\u2019s care the employee was permitted to return to his work as a truck driver. He resumed his work on November 21st. He was found dead, on the employer\u2019s premises, on December 1st, having died sometime after-making two deliveries of gas the previous night.\nBurden of proof.\nThe widow\u2019s primary theory of causation is that her husband developed a circulatory problem due to the inactivity of the right extremity following the accident, that as a result of this circulatory problem an embolism developed in the right leg and that death resulted from a pulmonary embolism.\nThe widow introduced evidence,, through an expert medical witness, in support of her theory. Her expert\u2019s testimony,, if uncontradicted, was sufficient to meet the causation requirement of \u00a7 59-10-13.3, N.M.S.A. 1953 (Repl. Vol. 9, pt. 1).\nHaving introduced this testimony, the widow asserts the burden of proof shifted to the defendants. She does not attempt to define \u201cburden of proof.\u201d If she means the \u201cburden of producing evidence\u201d shifted to the defendants, she is correct. If there had been no other medical evidence as to causation other than that of plaintiff\u2019s expert, a finding of causation would have been required under Ross v. Sayers Well Servicing Company, 76 N.M. 321, 414 P.2d 679 (1966). To avoid such a finding, defendants necessarily had to produce evidence which conflicted with that of plaintiff\u2019s expert. The defendants did so.\nThe burden of proof also refers to the \u201cburden of persuasion.\u201d The widow seems to contend that after she presented expert medical testimony as to the cause of death, the defendants had the burden of persuading the trial court that death did not result from a pulmonary embolism. Or, she may be claiming that after she presented her expert medical testimony, the defendants had the burden of persuading the trial court as to what did cause her husband\u2019s death. Whatever her contention concerning the burden of persuasion, it is without merit.\nSection 59-10-13.3(B), supra, states that where, as here, the causal connection is denied, \u201c * * * the workman must establish that causal connection * * *.\u201d The statute places the burden of persuasion upon the widow. The statute did not shift the burden of persuasion once she introduced evidence which would have supported a finding in her favor. Even after the introduction of conflicting evidence, it remained her burden \u201c * * * to convince the trial court of such causal connection as a medical probability. * * * \u201d Torres v. Kennecott Copper Corporation, supra. See also, Gallegos v. Kennedy, supra; Michael v. Bauman, 76 N.M. 225, 413 P.2d 888 (1966). Defendants did not fail to meet a burden of persuasion because they had no such burden to meet.\nWhether defendants\u2019 medical evidence was substantial.\nThree medical witnesses testified there was no connection between the employee\u2019s accident and his death. The widow contends none of this testimony amounted to substantive evidence. If this view is correct, defendants have not produced evidence conflicting with that of plaintiff\u2019s expert and she is entitled to a reversal.\nThe widow\u2019s claim is based on Landers v. Atchison, Topeka & Santa Fe Railway Co., 68 N.M. 130, 359 P.2d 522 (1961). There, the expert\u2019s answer to a hypothetical question should not have been permitted because the expert used certain factors \u201c * * * which were either erroneous or about which he [the expert] had no accurate knowledge or information, * * * \u201d See City of Albuquerque v. Chapman, 76 N.M. 162, 413 P.2d 204 (1966); Dahl v. Turner, 80 N.M. 564, 458 P.2d 816 (Ct.App. 1969).\nThe widow contends the answers of no causation, given by the three medical witnesses, should not have been admitted. She asserts each of these witnesses based his answer on erroneous factors.\nOne of these three witnesses was Dr. Clark. He gave his opinion on the basis of the same hypothetical question answered by the widow\u2019s expert. Dr. Clark was of the opinion that death from a pulmonary embolism was a possibility, but not a probability. See \u00a7 59-10-13.3 (B), supra. He gave reasons for his opinion. See Dahl v. Turner, supra. According to Dr. Clark the incidence of pulmonary embolism is high following an injury but decreases the farther you get away from it. Thus, to him, the lapse of time between injury and death (over six months) was significant. Further, \u201c * * * [t]his man had been active and walking for at least ten days before his death, which again decreases the likelihood of this [pulmonary embolism]. * * * \u201d As a third reason, Dr. Clark pointed out that the employee\u2019s treating physician was a good doctor, and aware of \u201cthis possibility [an embolism],\u201d that the treating physician would be looking for it and Dr. Clark found nothing in the treating physician\u2019s records concerning phlebitis.\nAfter giving his reasons concerning pulmonary embolism, Dr. Clark stated: \u201c * * * So, we are left with the most common cause and the man dying suddenly and this is coronary thrombosis. * * * \u201d Dr. Clark\u2019s opinion as to the cause of death is characterized as \u201cspeculative\u201d; it is asserted that his opinion is not substantial evidence. For two reasons, this attack is without merit.\nFirst, even if Dr. Clark\u2019s opinion as to cause of death is speculative, no benefit results to the widow. It makes no difference if Dr. Clark\u2019s testimony as to cause of death lacks substantiality. Defendants were not required to persuade the trial court as to the cause of death. The widow had the burden of persuading the trial court as to causation. Her theory is that death resulted from a pulmonary embolism. Dr. Clark\u2019s testimony raises a conflict in regard to the widow\u2019s theory of death. No claim is made that Dr. Clark\u2019s reasons are not substantial evidence that death from a pulmonary embolism was no more than a possibility.\nSecond, Dr. Clark\u2019s opinion as to cause of death is not speculative but is substantial evidence. The widow asserts that an examination of Dr. Clark\u2019s testimony \u201c * * * * reveals that his opinion is not based on the analysis of the hypothetical question. * * * \u201d This is incorrect. Dr. Clark based his opinion of \u201cno causal relation\u201d upon the facts in the hypothetical question. A reading of his entire testimony reveals that his opinion of death from a heart attack is based on those facts and his experience as to the most likely cause of death under those facts.\nThe widow also contends that Dr. Clark\u2019s opinion as to cause of death is based on \u201c * * * statistical frequencies, i. e., statistical deductive conclusion founded on the proponent\u2019s opinion of others\u2019 opinions. * * * \u201d This argument is based on the following questions to and answers by Dr. Clark.\n\u201cQ Getting back to your position, you don\u2019t have the facts in this case, so you are relying on statistics? Isn\u2019t that your position?\n\u201cA My position is that no one performed an autopsy so we don\u2019t know what this man died of. And, on the basis of what I can read and what I can think, as I say, that is what I use my mind for. I think the most likely thing is a heart attack.\n\u201cQ And, Statistics enters a great portion of your thinking, is it not?\n\u201cA I try to be logical. This entails using statistics when you try to be logical. That is what you are doing, weighing probabilities, weighing statistics. I think this is what logic is and I am trying to be logical for you.\u201d\nDr. Clark did consider statistics in arriving at his opinion as to cause of death. But what statistics? That coronary arteriosclerosis accounts for at least sixty to eighty percent of the sudden cardiac deaths. This is the \u201ccommon cause\u201d to which Dr. Clark referred after ruling out death from a pulmonary embolism. According to the widow\u2019s expert, this percentage figure \u201c * * * is a well known fact and need not be established. * * * \u201d This testimony is evidence that the statistical figure is not speculative. We cannot hold as a matter of law that in considering the statistical figure, Dr. Clark considered an erroneous factor because there is nothing in the record indicating the use of the statistical figure was erroneous. Dahl v. Turner, supra; compare Landers v. Atchison, Topeka & Santa Fe Railway Co., supra.\nThe widow also attacks Dr. Clark\u2019s testimony on the basis that the doctor agreed his testimony was based on speculation. This is a misreading of the record. He testified that he had spent his lifetime figuring out the most likely cause of death but could not say why a heart attack occurs. The doctor\u2019s speculation was to the \u201cwhy\u201d of a heart attack, not that a heart attack had occurred.\nSince Dr. Clark\u2019s testimony was substantial and conflicted with the testimony of the widow\u2019s expert, we need not consider the attacks on the other two witnesses.\nAggravation of a pre-existing condition.\nThe widow\u2019s secondary theory of causation is based on Dr. Clark\u2019s testimony. At the time of his accident in May, the employee had arteriosclerosis and was considered obese by medical standards. Arteriosclerosis and obesity make a person \u201cmore cardiac.\u201d There is evidence that fifteen days after the accident the employee had gained twenty-five pounds; that he had a total weight gain of thirty-five to forty pounds between the accident and his death. Dr. Clark testified as a medical probability that this additional weight, \u201cto some degree,\u201d contributed to or precipitated the heart attack from which, in Dr. Clark\u2019s opinion, the employee died.\nThe widow contends the foregoing is evidence that the weight gain between the accident and death aggravated a preexisting condition. We agree, but what caused the weight gain? The doctor testified that a person gains weight because the intake of calories is greater than the amount of calories used. The doctor also testified there were many variables; that he didn\u2019t have sufficient facts on which to relate the weight gain in this case either to the accident or the subsequent immobilization of the employee. The doctor testified he didn\u2019t know why the employee gained the additional weight. Specifically, the doctor refused to connect the weight gain to the accident or the treatment; his testimony is not evidence that the weight gain was caused by the accident or by the ensuing treatment.\nThe widow asserts that evidence connecting the weight gain to the accident or treatment is not required. She claims she has proved an 'aggravation of a preexisting condition by a combination of two items. One is Dr. Clark\u2019s testimony that, as a medical probability, the weight gain contributed to the heart attack. Two is the fact that the weight gain did occur after the accident and during the treatment. She relies on Lucero v. C. R. Davis Contracting Co., 71 N.M. 11, 375 P.2d 327 (1962). In that case the employee began spitting blood after suddenly breathing dust laden air. There was an aggravation of a pre-existing lung condition. Lucero held that a causal connection had been established between the accident and the disability.\nLucero, supra, is distinguishable on three grounds. First, the medical testimony in Lucero was that, under the circumstances of the case, the breathing of the dust laden air was \u201c \u2018 * * * a more likely triggering mechanism than any other one of the many causes.\u2019 \u201d There is no comparable testimony in this case. Second, Lucero\u2019s accident occurred in 1958. Section 59 \u2014 10-13.3(B), supra, with its requirement that causal connection be established as a medical probability, was enacted in 1959. Section 59-10-13.3(B), supra, did not apply to the Lucero decision. Third, the Lucero statement, of \u201c * * * liberality of construction as to the weight and sufficiency of the evidence * * * \u201d, was overruled in Mascarenas v. Kennedy, 74 N.M. 665, 397 P.2d 312 (1964).\nBecause the widow failed to prove by expert medical testimony that the weight gain was caused or resulted from the employee\u2019s accident and treatment, she failed to prove that the accident or treatment aggravated a pre-existing condition. Section 59-10-13.3(B), supra.\nThe judgment denying compensation is affirmed.\nIt is so ordered.\nSPIESS, C. J., and HENDLEY, J., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Merrill L. Norton, Lovington, for appellant.", "N. Randolph Reese, Hobbs, for appellees." ], "corrections": "", "head_matter": "466 P.2d 879\nFawn H. MAYFIELD, Plaintiff-Appellant, v. KEETH GAS COMPANY, Inc., Employer and Pan American Fire & Casualty Company, Insurer, Defendants-Appellees.\nNo. 411.\nCourt of Appeals of New Mexico.\nMarch 6, 1970.\nMerrill L. Norton, Lovington, for appellant.\nN. Randolph Reese, Hobbs, for appellees." }, "file_name": "0313-01", "first_page_order": 359, "last_page_order": 363 }