{
  "id": 5338238,
  "name": "Apolonio MARTINEZ, Plaintiff-Appellant, v. UNIVERSAL CONSTRUCTORS, INC., Employer, and Mountain States Mutual Casualty Company, Insurer, Defendants-Appellees",
  "name_abbreviation": "Martinez v. Universal Constructors, Inc.",
  "decision_date": "1971-11-12",
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    "judges": [
      "HENDLEY and COWAN, JJ., concur.",
      "SUTIN, J., not. participating."
    ],
    "parties": [
      "Apolonio MARTINEZ, Plaintiff-Appellant, v. UNIVERSAL CONSTRUCTORS, INC., Employer, and Mountain States Mutual Casualty Company, Insurer, Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge.\nIn this workmen\u2019s compensation case, the trial court found that plaintiff \u201c * * has no disability which is a natural and direct result of the accident. * * * \u201d Section 59-10-13.3, N.M.S.A.1953 (Repl.Vol. 9, pt. 1). Plaintiff\u2019s appeal: (1) challenges the sufficiency of the evidence to support this finding and (2) contends this court should weigh the evidence and make our own determination as to disability.\nSufficiency of the evidence.\nPlaintiff claims the uncontroverted medical evidence establishes that plaintiff is disabled, to some extent, as the result of his on-the-job accidental injury. See Ross v. Sayers Well Servicing Company, 76 N.M. 321, 414 P.2d 679 (1966). While there is evidence sufficient to support a finding of disability, plaintiff\u2019s treating physician testified that plaintiff was not disabled. If the treating physician\u2019s testimony was sufficient to support a finding of no disability, then there was a conflict in the evidence and it was the trial court\u2019s function to resolve the conflict. Gallegos v. Kennedy, 79 N.M. 590, 446 P.2d 642 (1968).\nPlaintiff\u2019s argument infers that the treating physician\u2019s testimony did not raise a conflict in the evidence because the treating physician is a general practitioner and his testimony allegedly contradicts the testimony of two medical specialists. The fact that the treating physician was a general practitioner did not prevent him from testifying as an expert. Hamilton v. Doty, 65 N.M. 270, 335 P.2d 1067 (1958); Los Alamos Medical Center v. Coe, 58 N.M. 686, 275 P.2d 175 (1954); compare Irvin v. Rainbo Baking Company, 76 N.M. 213, 413 P.2d 693 (1966).\nPlaintiff contends the treating physician\u2019s testimony is insufficient because he did not appear and testify at the trial; rather, his testimony was by deposition. We find nothing in the rule concerning oral depositions, \u00a7 21-1-1(26), N.M.S. A.1953 (Repl.Vol. 4), which indicates that deposition testimony is to have a lesser effect than testimony presented \u201clive\u201d at trial or which indicates that deposition testimony is insufficient to raise a conflict in , the .. evidence. N.M.U.J.I. 15.3 states that deposition testimony is entitled to the same consideration as any other testimony. See Newman v. Los Angeles Transit Lines, 120 Cal.App.2d 685, 262 P.2d 95 (1953); Belser v. American Trust Co., 125 Cal.App. 344, 13 P.2d 951 (1932).\nNo contention is made that the deposition testimony was not properly before the court. The parties stipulated that the deposition of two doctors \u201c * * * may be used for the trial of this cause in lieu of said doctors appearing personally to testify. * * * \u201d The trial court approved the stipulation.\nWe hold the trial court could properly consider the deposition testimony of the treating physician. This deposition testimony was substantial evidence which supported the trial court\u2019s finding of no disability.\nWeight of the evidence and determination of disability.\nPlaintiff asks us to weigh the evidence and independently determine the issue of disability. This request is based on the rule \u201c * * * that when evidence on an issue is primarily or substantially all documentary, the * * * [appellate court] is as well positioned as the trial court to consider and weigh the evidence and determine the facts disclosed thereby. * * * \u201d Baker v. Shufflebarger & Associates, Inc., 78 N.M. 642, 436 P.2d 502 (1968). Plaintiff claims that all of the evidence of no disability was the deposition testimony of the treating physician; that a medical specialist who testified by deposition and another medical specialist who appeared and testified at trial were of the opinion that plaintiff had some' disability. It is under these circumstances that plaintiff asks us to weigh the evidence. '\nIf we disregard plaintiff\u2019s own testimony and limit consideration of this issue to the testimony of the three doctors, there is considerable doubt that \u201csubstantially all\u201d of the evidence of no disability is to be located in the deposition of the treating physician. The medical witness who appeared and testified at trial was of the opinion that plaintiff had a 10 to 15% disability, but didn\u2019t know whether the disability was due to the injury or plaintiff\u2019s age. Further, this doctor was of the opinion that plaintiff deliberately exaggerated his symptoms.\nAssuming, however, that substantially all of the evidence of no disability is documentary, the appellate court may' review and weigh the evidence, but in doing so it does not exclude the finding of the trial court. Rather, the trial court\u2019s finding is to be included in the weighing and review. Kosmicki v. Aspen Drilling Company, 76 N.M. 234, 414 P.2d 214 (1966).\nThe applicable rule, stated in Valdez v. Salazar, 45 N.M. 1, 107 P.2d 862 (1940) is:\n\u201c * * * Where all or substantially all of the evidence on a material issue is documentary or by deposition, the Supreme Court will examine and weigh it, and will review the record, giving some weight to the findings of the trial judge on such issue, and will not disturb the same upon conflicting evidence unless such findings are manifestly wrong or clearly opposed to the evidence.\u201d\nHere, there is conflicting evidence and the finding by the trial court cannot be categorized as manifestly wrong or clearly opposed to the evidence. Accordingly, the finding of the trial court is not to be disturbed. Kosmicki v. Aspen Drilling Company, supra; Brannon v. Well Units, Inc., 82 N.M. 253, 479 P.2d 533 (Ct.App.1970). The judgment is affirmed.\nIt is so ordered.\nHENDLEY and COWAN, JJ., concur.\nSUTIN, J., not. participating.",
        "type": "majority",
        "author": "WOOD, Chief Judge."
      }
    ],
    "attorneys": [
      "Edwin L. Felter, Santa Fe, for plaintiff-appellant.",
      "M. J. Rodriguez, J. E. Gallegos, Jones, Gallegos, Snead & Wertheim, Santa Fe, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "491 P.2d 171\nApolonio MARTINEZ, Plaintiff-Appellant, v. UNIVERSAL CONSTRUCTORS, INC., Employer, and Mountain States Mutual Casualty Company, Insurer, Defendants-Appellees.\nNo. 717.\nCourt of Appeals of New Mexico.\nNov. 12, 1971.\nEdwin L. Felter, Santa Fe, for plaintiff-appellant.\nM. J. Rodriguez, J. E. Gallegos, Jones, Gallegos, Snead & Wertheim, Santa Fe, for defendant-appellee."
  },
  "file_name": "0283-01",
  "first_page_order": 409,
  "last_page_order": 411
}