{ "id": 5336119, "name": "Charles A. HEDGECOCK, Plaintiff-Appellant, v. R. H. VANDIVER, dba White's Mattress Company, and United States Fidelity and Guaranty Company, Defendants-Appellees", "name_abbreviation": "Hedgecock v. Vandiver", "decision_date": "1970-10-23", "docket_number": "No. 476", "first_page": "140", "last_page": "142", "citations": [ { "type": "official", "cite": "82 N.M. 140" }, { "type": "parallel", "cite": "477 P.2d 316" } ], "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": "78 N.M. 642", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326842 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/78/0642-01" ] }, { "cite": "224 N.W. 365", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "246 Mich. 231", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1747461 ], "opinion_index": 0, "case_paths": [ "/mich/246/0231-01" ] }, { "cite": "143 A.L.R. 672", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "298 N.W. 656", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "230 Iowa 490", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 4391655 ], "opinion_index": 0, "case_paths": [ "/iowa/230/0490-01" ] }, { "cite": "48 N.M. 158", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1560828 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/48/0158-01" ] }, { "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": "52 N.M. 410", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1579485 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/nm/52/0410-01" ] }, { "cite": "77 N.M. 185", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2806383 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0185-01" ] }, { "cite": "81 N.M. 236", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370903 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0236-01" ] }, { "cite": "76 N.M. 340", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8502217 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0340-01" ] }, { "cite": "75 N.M. 50", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5377688 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/75/0050-01" ] } ], "analysis": { "cardinality": 484, "char_count": 7472, "ocr_confidence": 0.692, "pagerank": { "raw": 7.41055284221442e-08, "percentile": 0.4432329838534988 }, "sha256": "9cf487467ff12153849c72b1cbbcf313a861ed0fbae5887048569a45c9fc2c57", "simhash": "1:96a81c6656f79d64", "word_count": 1221 }, "last_updated": "2023-07-14T17:16:32.756560+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "OMAN and WOOD, JJ., concur." ], "parties": [ "Charles A. HEDGECOCK, Plaintiff-Appellant, v. R. H. VANDIVER, dba White\u2019s Mattress Company, and United States Fidelity and Guaranty Company, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nSPIESS, Chief Judge.\nClaimant appeals from a judgment awarding compensation and other benefits provided by the Workmen\u2019s Compensation Act.\nIt is undisputed that claimant suffered an accidental injury arising out of and in the course of his employment by defendant, Vandiver. The injury involved claimant\u2019s left hand, wrist, elbow, arm, shoulder, and muscles of his left side.\nThe claim was presented, tried, and compensation awarded upon the theory of the loss of use of a scheduled member. [\u00a7 59-10-18.4, N.M.S.A.1953 (Pt. 1, Repl. Vol. 9, Supp.1969)].\nThe appeal questions: (1) the amount awarded for medical services; (2) the trial court\u2019s finding relating to duration of the healing period, and (3) the award of attorneys\u2019 fees. We affirm the judgment.\nClaimant was treated for his injuries by a doctor of his own choosing; was hospitalized for a period of time and likewise received other medical services. The cost of these services except a portion thereof, not material to this appeal, was paid under the Medicare provisions of the Social Securities Act (42 U.S.C.A. \u00a7 1395d). The award did not include the amount paid by Medicare.\nClaimant contends that the judgment should have included this amount and argues that the reduction of his claim by the amount paid through Medicare is not authorized by the Workmen\u2019s Compensation Act. Defendants take the position that no liability for the payment of medical services accrued against them because they were not permitted to furnish such services for claimant.\nDefendants\u2019 position has support in the trial court\u2019s finding: \u201cThe Defendants were not permitted to furnish hospital and medical services to the Plaintiff [claimant] under the Workmen\u2019s Compensation Act of New Mexico, the Plaintiff [claimant] electing to provide these services for himself, and the cost thereof was paid by Medicare. * * \u201d\nThe sufficiency of the evidence to support this finding is not directly attacked and it is, therefore, binding upon this court. McAfoos v. Borden Implement Co., 75 N.M. 50, 400 P.2d 470 (1965).\nUpon this finding the trial court declined, and we think correctly so, to include medical expenses which had been paid by Medicare as a part of the award in claimant\u2019s favor. The material portion of the applicable statute, \u00a7 59-10-19.1, subd. A, N.M.S.A.1953 (Pt. 1, Repl.Vol. 9, Supp. 1969) states:\n\u201cAfter injury, and continuing as long as medical or surgical attention is reasonably necessary, not to exceed a period of five [5] years from the date of the workman\u2019s accidental injury, the employer shall furnish all reasonable surgical, medical, osteopathic, chiropractic, dental, optometry and hospital services and medicine, not to exceed the sum of five thousand dollars ($5,000), unless the workman refuses to allow them to be so furnished.\u201d\nThis statute clearly imposes an obligation on the part of the employer to furnish all reasonable medical services to the injured employee unless, as stated in the Act, \u201cthe workman refuses to allow them to be so furnished.\u201d Claimant, in not permitting defendants to furnish such services, waived his right to require that the cost of such services be included in the award. See Valdez v. McKee, 76 N.M. 340, 414 P.2d 852 (1966); and Gregory v. Eastern New Mexico University, 81 N.M. 236, 465 P.2d 515 (Ct.App.1970).\nClaimant next contends that the court erred in limiting claimant\u2019s recovery benefits during the \u201chealing time\u201d to 37 weeks, contrary to the evidence. The court found:\n\u201c * * * the Plaintiff [claimant] was totally disabled for a period from November 20th, 1968, to approximately June 27, 1969, a period of 37 weeks, said period being the healing period for Plaintiff\u2019s [claimant\u2019s] injuries.\u201d\nClaimant argues that there is no support in the evidence for this finding. He contends that the undisputed evidence discloses that the healing period extended beyond 37 weeks. We disagree.\nThe applicable statute, \u00a7 59-10-18.4, subd. D, N.M.S.A.1953 (Pt. 1, Repl.Vol. 9, Supp. 1969) in part, provides:\n\u201cIn determining the workmen\u2019s compensation benefits payable to a workman under this subsection for a disability resulting from a scheduled injury, the workman is entitled to be compensated as provided in subsection A of this section during the healing period, if he is in fact totally disabled during that time.\u201d\nThe testimony did show the nature of claimant\u2019s injuries and at the time of trial the doctor had not released him. The doctor testified:\n\u201cA * * * I would say this to the Court, as a statement, this man\u2019s arm isn\u2019t totally well at the present time, and he still has difficulties in his wrist and he will probably require more care.\u201d\nThe doctor also testified:\n\u201cQ And, as of right now, what would \u2014 \u25a0 suppose he doesn\u2019t improve any more from what he is now, what do' you think about the effects of it?\nA I think he has an arm, his only remaining arm, that it is 50% disabled, and this, of course, would impair his earning a living, undoubtedly.\u201d\n\u2022 In accordance with . \u00a7 59-10-18.4, subd. D, supra, in order to establish that the healing period extended beyond 37 weeks, claimant was required to show that he was totally disabled during such extended time. Claimant failed to meet this burden.\nBy his final point, claimant challenges the allowance of attorneys\u2019 fees. He contends that the award of $150.00 as attorneys\u2019 fees is inadequate. The total award to claimant aggregated $644.97, exclusive of the attorneys\u2019 fees. It is well established that the amount of the award of attorneys\u2019 fees in a workmen\u2019s compensation proceedings is discretionary with the trial court and will not be disturbed except for abuse of discretion. Ortega v. N. M. State Highway Department, 77 N.M. 185, 420 P.2d 771 (1966). In Garcia v. J. C. Penney Co., Inc., 52 N.M. 410, 200 P.2d 372 (1948), the court, in considering an attack upon an award of attorneys\u2019 fees, said:\n\u201cThere are many considerations entering into the fixing of attorney fees. Usually, the ability, standing, skill, the amount in controversy, its importance, and the benefits derived, go to the matter of determining fees. Elsea v. Broome Furniture Co., 47 N.M. 356, 143 P.2d 572; Anderson v. Contract Trucking Co., 48 N.M. 158, 146 P.2d 873. See also In re Dehner\u2019s Estate, 230 Iowa 490, 298 N.W. 656, 143 A.L.R. 672 where cases relating to allowance of fees are assembled. The court has the superior knowledge of the matter at hand, and its award, though not supported by direct evidence, will not be disturbed upon review unless it plainly appears from the record that there had been an abuse of discretion. 5 C.J.S., Appeal and Error, \u00a7 1584; Horvath v. Vasvary, 246 Mich. 231, 224 N.W. 365; Anderson v. Contract Trucking Co., supra.\u201d\nWe have considered the record and argument presented by claimant; we are not, however, convinced that the trial court\u2019s determination was outside the bounds of reason, under the circumstances, so as to amount to an abuse of discretion. See Baker v. Shufflebarger & Associates, Inc., 78 N.M. 642, 436 P.2d 502 (1968).\nThe judgment of the trial court should be affirmed.\nIt is so ordered.\nOMAN and WOOD, JJ., concur.", "type": "majority", "author": "SPIESS, Chief Judge." } ], "attorneys": [ "James M. H. Cullender, Roswell, for appellant.", "B. R. Baldock, Sanders, Bruin & Baldock, Roswell, for appellee." ], "corrections": "", "head_matter": "477 P.2d 316\nCharles A. HEDGECOCK, Plaintiff-Appellant, v. R. H. VANDIVER, dba White\u2019s Mattress Company, and United States Fidelity and Guaranty Company, Defendants-Appellees.\nNo. 476.\nCourt of Appeals of New Mexico.\nOct. 23, 1970.\nJames M. H. Cullender, Roswell, for appellant.\nB. R. Baldock, Sanders, Bruin & Baldock, Roswell, for appellee." }, "file_name": "0140-01", "first_page_order": 196, "last_page_order": 198 }