{
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  "name": "Jennie BERTELLE, Plaintiff-Appellant, v. CITY OF GALLUP and Mountain States Mutual Casualty Company, Defendants-Appellees",
  "name_abbreviation": "Bertelle v. City of Gallup",
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  "casebody": {
    "judges": [
      "WOOD and HENDLEY, JJ., concur."
    ],
    "parties": [
      "Jennie BERTELLE, Plaintiff-Appellant, v. CITY OF GALLUP and Mountain States Mutual Casualty Company, Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nOMAN, Judge.\nPlaintiff brought suit under the New Mexico Workmen\u2019s Compensation Act for the death of her husband. She is now before us on appeal from a summary judgment entered by the district court in favor of defendants. We affirm.\nThe death occurred on March 7, 1969, as the result of a myocardial infarction. Plaintiff\u2019s contention was that this infarction was caused or precipitated by work performed by decedent on March 1, 1969, in the -course of his employment by the City of' Gallup. Defendants denied the death was the natural- and direct result of an accidental injury arising out of and in the course of decedent\u2019s employment. Thus, the burden was on plaintiff to prove the infarction and consequent death were direct results of decedent\u2019s employment on March 1, and she was required to establish this causal connection as a medical probability by expert medical testimony. Section 59-10-13.3(B), N.M.S.A. 1953 (Repl. 9, pt. 1),- Gallegos v. Kennedy, 79 N.M. 590, 446 P.2d 642 (1968); Weston v. Carper Drilling Company, 77 N.M. 220, 421 P.2d 435 (1966); Torres v. Kennecott Copper Corporation, 76 N.M. 623, 417 P.2d 435 (1966); Yates v. Matthews, 71 N.M. 451, 379 P.2d 441 (1963); Montano v. Saavedra, 70 N.M. 332, 373 P.2d 824 (1962); Lyon v. Catron County Commissioners, 81 N.M. 120, 464 P.2d 410 (Ct.App.1969).\nAlthough the medical testimony need not be in the exact language of the statute [\u00a7 59-10-13.3(B), supra], the medical opinion as to the requisite causal connection must be in language \u201c * * * the sense of which reasonably connotes precisely what the statute categorically requires. * * * \u201d Gammon v. Ebasco Corporation, 74 N.M. 789, 399 P.2d 279 (1965) ; Lyon v. Catron County Commissioners, supra.\nDefendants\u2019 motion for summary judgment was predicated upon the pleadings, which were not verified, and the depositions of plaintiff, her son, and the treating medical doctor, who had been decedent\u2019s doctor since 1965, when decedent also suffered a myocardial infarction.\nPlaintiff argues that the doctor \u201c * * * testified one way on direct examination and differently on cross-examination and it cannot be said on reading his entire testimony that it established the impossibility as a matter of law of showing this causal connection.\u201d\nPlaintiff had been told by decedent the general nature of the work he had performed on March 1, and of the fact that he had strained himself in the performance of this work. She related this information to the doctor, as well as describing for him her observations of decedent\u2019s activities and condition between March 1 and March 4, when decedent consulted the doctor.\nUpon the basis of this information furnished the doctor by plaintiff, his knowledge of decedent\u2019s health and work history, and his examinations, observations and treatment of decedent between March 4 and March 7, the doctor gave his opinion, upon direct examination, that there was no causal connection as a medical probability between the myocardial infarction which caused the death and decedent\u2019s activities on March 1, 1967. The doctor did testify that these activities could possibly have contributed to the subsequent infarction, but he would go no farther in his opinion concerning any causal connection between decedent\u2019s activities, and the strain he suffered as a result thereof, and the death on March 7.\nOn cross-examination the doctor was asked some questions as to the relative likelihood of a causal connection between an infarction and physical inactivity as opposed to the causal connection between an infarction and rather strenuous physical activity, such as decedent performed on March 1. The doctor gave it as his opinion that an infarction would more likely result from exertion than from sleeping or slight physical activity. However, this falls far short of raising a genuine issue of fact on the causal connection as a medical probability between the infarction and decedent\u2019s work activities, or the strain he sustained in the performance thereof. This opinion of the doctor expressed on cross-examination was at most consistent with his prior testimony of a possible causal connection between the work activities, the infarction and resulting death. Our statute expressly provides that \u201c * * * [n]o award of compensation shall be based on speculation or on expert testimony that as a medical possibility the causal connection exists.\u201d Section 59-10-13.3 (B), supra.\nWe disagree with plaintiff\u2019s assertion that the doctor testified differently on cross-examination. There is no inconsistency in this testimony. In the light of the questions asked of him on cross-examination, any directly responsive answers thereto by him would not have been inconsistent with his prior testimony given on direct examination.\nAs to plaintiff\u2019s argument that the doctor\u2019s testimony did not establish the impossibility as a matter of law of showing a causal relationship as a medical probability, we answer that it was not the burden of the movants to show there was no possibility of securing medical opinion evidence to the effect that there existed the probable causal connection required by our statute.\nThe burden was on the defendants as movants to show by creditable evidence that there was no genuine issue of fact, and that they were entitled to judgment as a matter of law. This they did. Once they had made a prima facie showing to this effect, the plaintiff, as the opposing party, then had the burden of producing sufficient evidence to the contrary to show that defendants were not entitled as a matter of law to judgment, and that a genuine issue of fact did exist which would justify a trial thereon. Cessna Finance Corp. v. Mesilla Valley Flying Serv., 81 N.M. 10, 462 P.2d 144 (1969); Burden v. Colonial Homes, Inc., 79 N.M. 170, 441 P.2d 210 (1968); Cervantes v. Forbis, 73 N.M. 445, 389 P.2d 210 (1964); Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 331 P.2d 531 (1958); Rekart v. Safeway Stores, Inc., 81 N.M. 491, 468 P.2d 892 (Ct.App.1970); Taylor v. Alston, 79 N.M. 643, 447 P.2d 523 (Ct.App.1968). Plaintiff failed to meet this burden.\nThe summary judgment should be affirmed.\nIt is so ordered.\nWOOD and HENDLEY, JJ., concur.",
        "type": "majority",
        "author": "OMAN, Judge."
      }
    ],
    "attorneys": [
      "John E. Perry, Gallup, for plaintiff-appellant.",
      "James A. Parker, Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, for defendants-appellees."
    ],
    "corrections": "",
    "head_matter": "473 P.2d 369\nJennie BERTELLE, Plaintiff-Appellant, v. CITY OF GALLUP and Mountain States Mutual Casualty Company, Defendants-Appellees.\nNo. 492.\nCourt of Appeals of New Mexico.\nJuly 24, 1970.\nJohn E. Perry, Gallup, for plaintiff-appellant.\nJames A. Parker, Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, for defendants-appellees."
  },
  "file_name": "0755-01",
  "first_page_order": 801,
  "last_page_order": 803
}