{ "id": 2765891, "name": "Allen BECKWITH, Plaintiff-Appellee, v. CACTUS DRILLING CORPORATION and Liberty Mutual Insurance Company, Defendants-Appellants; Consolidated for Trial with Allen BECKWITH, Plaintiff-Appellee, v. McVAY DRILLING COMPANY and Reliance Insurance Company, Defendants-Appellants", "name_abbreviation": "Beckwith v. Cactus Drilling Corp.", "decision_date": "1972-11-30", "docket_number": "No. 930", "first_page": "565", "last_page": "575", "citations": [ { "type": "official", "cite": "84 N.M. 565" }, { "type": "parallel", "cite": "505 P.2d 1241" } ], "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": "77 N.M. 380", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2807475 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0380-01" ] }, { "cite": "73 N.M. 445", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5319859 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/73/0445-01" ] }, { "cite": "71 N.M. 221", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5347864 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/71/0221-01" ] }, { "cite": "80 N.M. 389", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359995 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0389-01" ] }, { "cite": "82 N.M. 140", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5336119 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0140-01" ] }, { "cite": "84 N.M. 109", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2764389 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0109-01" ] }, { "cite": "61 N.M. 166", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5318558 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/nm/61/0166-01" ] }, { "cite": "83 N.M. 452", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335787 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0452-01" ] }, { "cite": "79 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2744035 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0789-01" ] }, { "cite": "69 N.M. 248", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2791841 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/69/0248-01" ] }, { "cite": "80 N.M. 220", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5354517 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0220-01" ] }, { "cite": "82 N.M. 633", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326812 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0633-01" ] }, { "cite": "44 N.M. 567", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566833 ], "weight": 2, "year": 1940, "opinion_index": 0, "case_paths": [ "/nm/44/0567-01" ] }, { "cite": "79 N.M. 25", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2736605 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0025-01" ] }, { "cite": "81 N.M. 120", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363696 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0120-01" ] }, { "cite": "82 N.M. 720", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5329104 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/82/0720-01" ] }, { "cite": "77 N.M. 297", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802936 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0297-01" ] }, { "cite": "78 N.M. 69", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324474 ], "weight": 6, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0069-01" ] }, { "cite": "73 N.M. 470", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321994 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/73/0470-01" ] }, { "cite": "77 N.M. 408", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2806030 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0408-01" ] }, { "cite": "77 N.M. 380", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2807475 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/nm/77/0380-01" ] }, { "cite": "77 N.M. 428", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2810088 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/nm/77/0428-01" ] }, { "cite": "79 N.M. 179", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2747359 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/79/0179-01" ] }, { "cite": "256 N.E.2d 758", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 1 }, { "cite": "45 Ill.2d 75", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2897157 ], "year": 1970, "opinion_index": 1, "case_paths": [ "/ill-2d/45/0075-01" ] }, { "cite": "179 N.W.2d 466", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10783849 ], "year": 1970, "opinion_index": 1, "case_paths": [ "/nw2d/179/0466-01" ] }, { "cite": "91 Ariz. 229", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 616461 ], "weight": 2, "year": 1962, "opinion_index": 1, "case_paths": [ "/ariz/91/0229-01" ] }, { "cite": "40 A.L.R.2d 520", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1953, "opinion_index": 1 }, { "cite": "76 Ariz. 280", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 653339 ], "weight": 2, "year": 1953, "opinion_index": 1, "case_paths": [ "/ariz/76/0280-01" ] }, { "cite": "76 N.M. 340", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8502217 ], "weight": 3, "year": 1966, "opinion_index": 1, "case_paths": [ "/nm/76/0340-01" ] }, { "cite": "75 N.M. 174", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5377165 ], "weight": 2, "year": 1965, "opinion_index": 1, "case_paths": [ "/nm/75/0174-01" ] }, { "cite": "82 N.M. 140", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5336119 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/nm/82/0140-01" ] }, { "cite": "79 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2744035 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/79/0789-01" ] }, { "cite": "80 N.M. 220", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5354517 ], "weight": 2, "year": 1969, "opinion_index": 1, "case_paths": [ "/nm/80/0220-01" ] }, { "cite": "82 N.M. 633", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326812 ], "weight": 2, "year": 1971, "opinion_index": 1, "case_paths": [ "/nm/82/0633-01" ] }, { "cite": "77 N.M. 297", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802936 ], "weight": 3, "year": 1966, "opinion_index": 1, "case_paths": [ "/nm/77/0297-01" ] }, { "cite": "78 N.M. 69", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324474 ], "weight": 3, "year": 1967, "opinion_index": 1, "case_paths": [ "/nm/78/0069-01" ] } ], "analysis": { "cardinality": 999, "char_count": 32420, "ocr_confidence": 0.71, "pagerank": { "raw": 4.948078853578079e-07, "percentile": 0.9348722647536594 }, "sha256": "d4e2e96e2239f6dd74f12ba8c04bec6f7feb9012d687fb1bedc9153d9d5d3b63", "simhash": "1:bba3224798d7a4d6", "word_count": 5230 }, "last_updated": "2023-07-14T17:55:55.751115+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY, J., concurs.", "SUTIN, J., concurs in part and dissents in part." ], "parties": [ "Allen BECKWITH, Plaintiff-Appellee, v. CACTUS DRILLING CORPORATION and Liberty Mutual Insurance Company, Defendants-Appellants, Consolidated for Trial with Allen BECKWITH, Plaintiff-Appellee, v. McVAY DRILLING COMPANY and Reliance Insurance Company, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nBeckwith suffered two accidents arising out of and in the course of his employment. The respective defendants \u2014 Cactus (Cactus Drilling Corporation and Liberty Mutual Insurance Company) and McVay (McVay Drilling Corporation and Reliance Insurance Company) \u2014 appeal from a judgment in favor of Beckwith. The issues concern: (1) actual knowledge of injury; (2) partial disability; and (3) liability for medical treatment.\nActual knowledge of injury.\nThe trial court found, as to each of the claims, that the respective defendants had actual knowledge, within thirty days, of the accident \u201c * * * and that plaintiff suffered compensable injuries as a result thereof.\u201d Neither Cactus nor McVay challenge the finding as to actual knowledge of the accident; both challenge the finding as to actual knowledge of compensable injury.\nThe problem arises because of evidence of more than one injury in- each accident. Cactus admits knowledge of a compensable injury to Beckwith\u2019s left leg. There is evidence that Beckwith also sustained an injury to his low back in the Cactus accident. Cactus claims it had no notice, within the statutory period, of the low back injury. There is no claim of latent injury.\nThere is evidence that McVay had actual knowledge of a compensable injury to Beckwith\u2019s right leg. There is evidence that Beckwith also sustained an injury to his cervical and thoracic spine in the Mc-Vay accident. McVay claims it had no notice, within the statutory period, of the injury to the spine. Again, there is no claim of latent injury.\nThe record supports the contention of defendants concerning lack of notice, within the statutory period, of the low back and cervical and thoracic spine injuries. The issue is whether notice of those injuries was required under our statutory provisions. Cactus and McVay assert they are not liable for any injury absent notice of that injury. Beckwith contends once the defendants had notice of any compensable injury resulting from the accident involved the notice requirement was satisfied. See Geeslin v. Goodno, Inc., 77 N.M. 408, 423 P.2d 603 (1967).\nOur answer is reached by considering the legislative history of the statute and applying that statute as enacted by the Legislature.\nSection 59-10-13.4, N.M.S.A.1953 (Repl. Vol. 9, pt. 1) was enacted in 1959. The prior statutory provision for notice was repealed by Laws 1959, ch. 67, \u00a7 32. The prior statute, \u00a7 59-10-13, N.M.S.A.1953 (Orig.Vol. 9) and the current statute, \u00a7 59-10-13.4, supra, have similar provisions concerning written notice. Both refer to written notice of \u201caccident\u201d and \u201cinjury.\u201d The trial court made no findings concerning written notice; the appeal is presented as an \u201cactual knowledge\u201d question. We point out the parallel requirements of notice of \u201caccident\u201d and \u201cinjury\u201d where the notice is written because statutory provisions for \u201cactual knowledge\u201d have never required knowledge both of accident and injury.\nThe prior statute, \u00a7 59-10-13, supra, stated that written notice was not required \u201c * * * where the employer or any superintendent or foreman or other agent in charge of the work in connection with [which] such injury occurred had actual knowledge of the occurrence thereof. * * * \u201d (Our emphasis). Section 59-10M3.4(B), supra, removes the requirement of written notice \u201c * * * where the employer or any superintendent or foreman or other agent in charge of the work in connection with which the accident occurred had actual knowledge of its occurrence.\u201d (Our emphasis). Wilson v. Navajo Freight Lines, Inc., 73 N.M. 470, 389 P.2d 594 (1964) states: (a) \u201coccurrence\u201d in \u00a7 59-10-13.4(B), supra, means the \u201caccident\u201d and (b) the change from \u201cinjury\u201d to \u201caccident\u201d was a significant one. See also Roberson v. Powell, 78 N.M. 69, 428 P.2d 471 (1967).\nSince 1959, our statutory notice provision has not required actual knowledge of injury to avoid the requirement of written notice; only actual knowledge of the accident is required. Dicta in Waymire v. Signal Oil Field Service, Inc., 77 N.M. 297, 422 P.2d 34 (1966) supports this view. See also Collins v. Big Four Paving, Inc., 77 N.M. 380, 423 P.2d 418 (1967).\nNew Mexico appellate decisions have not applied the statute as enacted in 1959. Even while recognizing the change from actual knowledge of injury to actual knowledge of the accident, Roberson v. Powell, supra, states \u201c * * * the knowledge must be of an accident and compensable injury. * * * \u201d Wilson v. Navajo Freight Lines, Inc., supra, impliedly applies the same rule. This court has followed Roberson v. Powell, supra. See Clark v. Duval Corporation, 82 N.M. 720, 487 P.2d 148 (Ct.App.1971); Lyon v. Catron County Commissioners, 81 N.M. 120, 464 P.2d 410 (Ct.App.1969); Smith v. State, 79 N.M. 25, 439 P.2d 242 (Ct.App.1968).\nWe do not attempt to list all of the cases applying the rule stated in Roberson v. Powell, supra, in \u201cactual knowledge\u201d cases. According to Roberson the rule has existed \u25a0since Ogletree v. Jones, 44 N.M. 567, 106 P.2d 302 (1940). Ogletree, an \u201cactual knowledge\u201d case concerned with the sufficiency of notice of injury, states: \u201c * * * the knowledge which the employer must have to excuse a formal notice is of a compensable injury. * * * \u201d (Our emphasis). For this knowledge to exist, the employer must have knowledge of what caused the injury; thus, knowledge of the accident. Ogletree was decided when the statute required actual knowledge of an injury; not of an accident. Although \u25a0Ogletree imposed the requirement of actual knowledge of both an accident and injury, that decision is not authority for continuing a two-fold requirement when the statutory change in 1959 removed the requirement of actual knowledge of injury.\nRoberson v. Powell, supra, and the decisions applying the Roberson rule since the 1959 legislative change, are erroneous for two reasons. The two-fold rule disregards the legislative change, yet \u201c * * * we must presume that the legislature, in enacting a statute, intended to change the law as it had theretofore existed. * * * \u201d\nBettini v. City of Las Cruces, 82 N.M. 633, 485 P.2d 967 (1971). The two-fold rule would add words to \u00a7 59-10-13.4(B), supra. With the added words, the statute would provide that written notice is not required where the employer \u201c * * * in charge of the work in connection with which the accident occurred had actual knowledge of its occurrence and actual knowledge of a compensable injury.\u201d The emphasized words are not part of the statute as enacted by the Legislature. \u201c * * * We are not permitted to read into a statute language which is not there, particularly if it makes sense as written. * * * \u201d State ex rel. Barela v. New Mexico State Bd. of Ed., 80 N.M. 220, 453 P.2d 583 (1969). Section 59-10-13.4(B), supra, makes sense as written.\nWe recognize that the purpose of the notice requirement is: (a) to enable the employer to investigate the accident while the facts are accessible and (b) if necessary, to employ doctors to speed recovery. Waymire v. Signal Oil Field Service, Inc., supra; see Clark v. Duval Corporation, supra; Larson\u2019s Workmen\u2019s Compensation Law, \u00a7 78.20 (1971). Purpose (a) is met when the employer has actual knowledge of the accident. Purpose (b) will not necessarily be met since \u00a7 59-10-13.4(B), supra, does not require the employer to have actual knowledge of an injury. Without such knowledge, the employer may not know of the need for any medical attention. It may be that a dual requirement of. actual knowledge of accident and injury, similar to the written notice requirement, would be an appropriate provision. Yet, the Legislature, by the change enacted in 1959, eliminated the requirement of actual knowledge of injury. If this change defeats the purpose of notice requirements, it is a matter for legislative consideration.\nSince Cactus and McVay had actual knowledge of Beckwith\u2019s two accidents, the notice requirement was satisfied. Thus, defendants\u2019 claim of lack of notice of the low back and spine injuries is without merit.\nPartial disability.\nThe trial court found that Beck-with had a 15% partial permanent disability by reason of the accidental injury to his back. Cactus asserts there is no evidence to support this finding. Cactus does not contend there is an absence of evidence that a disability existed or that the disability was caused by the accident. The claim is directed to the amount of the disability \u2014the 15%.\nWe need not review the evidence in detail. A doctor testified that as a result of the various injuries, Beckwith had a 50% disability to the body as a whole. Apportioning the disability to the various injuries, the doctor attributed a 10% disability to the low back injury and 5% disability to the aggravation of the pre-existing low back problem. See Reynolds v. Ruidoso Racing Association Inc., 69 N.M. 248, 365 P.2d 671 (1961). This medical evidence, together with evidence that Beckwith had never been bothered with his low back prior to the Cactus accident and evidence of the limitation on his ability to work due to his low back condition subsequent to the accident, is substantial evidence to support the finding. Lucero v. Los Alamos Constructors, Inc., 79 N.M. 789, 450 P.2d 198 (Ct.App.1969).\nLiability for medical treatment.\nA preliminary matter under this point is a suggestion that this issue, raised by Cactus, has been waived because certain findings were not argued in the brief in chief.\nThe statement of proceedings challenges findings 6, 7, 28, 29, 30 and 31 and conclusion of law 5, which is based on the challenged findings. The challenged findings involve medical expenses for which Cactus was held liable. The point in the brief which argues the question of liability expressly mentions findings 6 and 7, but does not expressly mention the other challenged findings.\nThe suggestion of waiver is based on the provision of \u00a7 21-2-1(15) (16) (b), N.M.S. A.1953 (Repl.Vol. 4) which states:\n\u201cStatement of the grounds for challenging any finding must be set forth in the argument and not in the statement of proceedings.\u201d\nFindings 6 and 7 go to the basis of Cactus\u2019 medical liability under \u00a7 59-10-19.1, N.M.S.A.1953 (Repl.Vol. 9, pt. 1). The amendment to that section appearing in the 1971 pocket supplement is not applicable, having been enacted subsequent to the date of the accident and injuries involved in this issue. These findings refer to the reasonableness and adequacy of the medical treatment provided by Cactus.\nFindings 28 through 31 charge Cactus with a portion of the medical expenses incurred in the treatment of Beckwith. These expenses are identified by relating them to physicians named in the findings.\nCactus argues, in its brief, that there is no basis for liability on its part (findings 6 and 7) and, therefore, it cannot be liable for the medical expenses of specified doctors. These are the doctors identified in findings 28 through 31. The brief clearly argues all of the challenged findings.\nThe suggestion of waiver is based solely on the fact that findings 28 through 31 are not specifically named in the argument in the brief. This is a hypertechnicality. We decline to apply the concept of waiver on such a basis. Compare Ortiz v. Ortiz & Torres Dri-Wall Company, 83 N.M. 452, 493 P.2d 418 (Ct.App.1972).\nBeckwith\u2019s accident, while employed by Cactus, occurred December 25, 1969. Cactus supplied and paid for medical treatment through March 26, 1970. There is no issue concerning the treatment provided during this period of time.\nFrom March 26, 1970 until October, 1970, Cactus continued to provide and pay for medical treatment. Beckwith became dissatisfied with the treatment provided and asked Cactus\u2019 insurance adjuster for a change of doctor. This request was declined. Thereafter, Beckwith placed himself under the care of Dr. Palmer. Informed of this, the adjuster declined approval of treatment by Dr. Palmer and refused to pay Dr. Palmer\u2019s charges. The testimony is conflicting as to whether, in these conversations, the adjuster affirmatively offered continued care by the physicians provided by Cactus. This conflict is not material. There is no evidence that Beckwith sought further care from the doctors provided by Cactus after his conversations with the adjuster.\nSome request or demand must have been made upon Cactus to provide treatment. Dudley v. Ferguson Trucking Company, 61 N.M. 166, 297 P.2d 313 (1956). Cactus may not be held liable for the cost of medical services if Beckwith did not permit Cactus to furnish them. Wuenschel v. New Mexico Broadcasting Corp., 84 N.M. 109, 500 P.2d 194 (Ct.App.1972); Hedgecock v. Vandiver, 82 N.M. 140, 477 P.2d 316 (Ct.App.1970).\nThe trial court did not find Cactus liable for medical services on the basis that medical services were sought but not provided. Liability was found on the basis that the services provided from March 26, 1970 until October, 1970, were \u201c * * * not adequate and reasonable medical treatment * * *\u201d '(j\u00fcmhug #6), and the treatment by Dr. Palmer, from October, 1970 to date of trial, took place \" * * * after defendants failed and refused to provide adequate medical treatment * * *\u201d (finding #7).\nFindings 28, 29 and 30 charge Cactus \u25a0 with liability for a portion of the medical expenses incurred while Beckwith was under Dr. Palmer\u2019s care. Liability for these charges depends upon whether the treatment provided by Cactus was unreasonable or inadequate. Finding 31 is in a different category and will be discussed subsequently. The question of \u201creasonableness\u201d arises under Paragraph A of \u00a7 59-10-19.1, supra. The question of \u201cadequacy\u201d arises under Paragraph D of the same section.\nCactus\u2019 doctor released Beckwith to return to work about March 27, 1970. Beck-with\u2019s leg continued to bother him and he experienced pain in his low back. He reported this to the treating physician who was seeing him about once a month. The treating physician referred him to Dr. Dalton. Dr. Dalton\u2019s examination was August 17, 1970. Dr. Dalton made a written report as to recommended treatment. This report referred to the possibility that at some future time veins in Beckwith\u2019s leg might have to be stripped.\nBeckwith wanted a change from the doctors provided by Cactus because the treating physician \u201c * * * was doing no more than just talking to me. * * * He wasn\u2019t doing anything for the pain.\u201d Beckwith went to the physician of his choice, Dr. Palmer, on October 16, 1970. Beckwith complained of low back pain on this visit. His leg was examined and a course of treatment was undertaken by Dr. Palmer. This treatment continued until Beckwith had his accident while employed by McVay, December 3, 1970.\nUntil the McVay accident, according to Beckwith, he did not seem to be getting any better under Dr. Palmer\u2019s care.\nDr. Palmer reviewed Dr. Dalton\u2019s report of August, 1970. This report dealt with Beckwith\u2019s leg problem. Dr. Palmer testified :\" \u201c * * * I would agree essentially with his [Dalton\u2019s] findings at that time [August, 1970].\u201d As to Dr. Palmer\u2019s findings in October, 1970: \u201cMy findings were essentially the same when I saw him somewhat later. * * *\u201d Dr. Palmer had a few additional findings and prescribed some additional medication. He explained these in terms of progression of Beck-with\u2019s leg problem from August to October, 1970. Dr. Palmer was of the opinion that Beckwith \u201c * * * will very probably need a surgical stripping of his left lower leg * * * but this should be postponed as long as possible. * * * \u201d\nAfter October 16, 1970, Dr. Palmer saw Beckwith twice more in October, once in December prior to the McVay accident, and regularly after December 11, 1970, up into March, 1971. Dr. Palmer testified there were no complaints and no objective findings as to the low back during this period of time. \u201cReally, my first indication of back problem * * * \u201d was March 31, 1971.\nAfter the McVay accident, Beckwith was hospitalized and treated for injuries received in both accidents. This treatment included the vein stripping operation referred to by both Dr. Dalton and Dr. Palmer. There was also treatment for the low back.\nAssuming, but not deciding, that lay testimony can be properly considered concerning the reasonableness or adequacy of medical treatment [see Morris v. Rogers, 80 N.M. 389, 456 P.2d 863 (1969); Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962); Cervantes v. Forbis, 73 N.M. 445, 389 P.2d 210 (1964)], Beckwith\u2019s testimony does not support a finding of unreasonable or inadequate treatment by doctors provided by Cactus. Beckwith admitted that he did not seem to get better under Dr. Palmer\u2019s care.\nNor does the medical testimony support the trial court\u2019s findings. Dr. Palmer agreed with the treatment recommended for Beckwith\u2019s leg by Dr. Dalton as of the time Dr. Dalton\u2019s recommendation was made. Changes in the leg condition and new medication provided by Dr. Palmer were attributed to progression of the leg problem. This progression occurred during a time period for which there is no evidence that doctors provided by Cactus had an opportunity to provide treatment. The same is true for the treatment of the leg after the McVay accident. There is no evidence that doctors provided by Cactus had an opportunity to provide that treatment.\nAs to the low back condition, there is no evidence that the low back was complained about or treated by Cactus\u2019 doctors from shortly after Beckwith\u2019s return to work until October, 1970. The complaint of low back pain on October 16, 1970, was to Dr. Palmer, not to doctors provided by Cactus. Dr. Palmer did not characterize the low back as a problem until March, 1971.\nThe findings of unreasonable and inadequate treatment by doctors provided by Cactus are not supported by substantial evidence. Findings 28, 29 and 30, and the portion of conclusion of law 5 based on those findings, are erroneous to the extent they charge Cactus with medical costs incurred in connection with Dr. Palmer\u2019s treatment and treatment provided by physicians to whom Dr. Palmer referred Beck-with.\nFinding 31 is to the effect that Dr. Breck examined and treated Beckwith for injuries received in both the Cactus and McVay accidents; that the examination and treatment were reasonably necessary; that Dr. Breck\u2019s charges were reasonable. The finding charges Cactus with one-half of Dr. Breck\u2019s bill. There is no evidence that Cactus was ever requested to provide the services provided by Dr. Breck. See Dudley v. Ferguson Trucking Company, supra. There is no evidence, nor is there a finding as there was in connection with Dr. Palmer\u2019s treatment, that Dr. Breck\u2019s services came about because the treatment by Cactus\u2019 doctors was unreasonable or inadequate. The evidence is that Beckwith\u2019s attorney sent Beckwith to Dr. Breck. Compare Wuenschel v. New Mexico Broadcasting Corporation, supra. There is nothing in the record providing a basis for holding Cactus liable for Dr. Breck\u2019s bill under \u00a7 59-10-19.1, supra.\nFinding 31, and the portion of conclusion 5 based on that finding, are erroneous to the extent they charge Cactus with medical costs that Beckwith incurred with Dr. Breck.\nThe awards of compensation are affirmed. The award of medical expenses against Cactus, for charges incurred under Dr. Palmer\u2019s treatment, for charges by physicians to whom Dr. Palmer referred Beckwith, and for the charges of Dr. Breck, is reversed.\nBeckwith is awarded $1200.00 for the services of his attorney in defending the compensation award on appeal. $700.-00 is to be paid by Cactus Drilling Corporation and Liberty Mutual Insurance Company; $500.00 is to be paid by McVay Drilling Corporation and Reliance Insurance Company.\nThe cause is remanded for further proceedings consistent with this opinion.\nIt is so ordered.\nHENDLEY, J., concurs.\nSUTIN, J., concurs in part and dissents in part.", "type": "majority", "author": "WOOD, Chief Judge." }, { "text": "SUTIN, Judge\n(concurring in part, and dissenting in part).\nI concur in part and dissent in part. I concur in affirmance of awards of compensation, and dissent on the denial of certain medical expense to Beckwith.\nA. Cactus and Liberty Mutual\n(1) Sufficiency of Statutory Notice\nCactus and Liberty Mutual claim that compensation is barred because of insufficiency of notice under \u00a7 59-10-13.4, N.M. S.A.1953 (Repl.Vol. 9, pt. 1). They admit receipt of written notice that plaintiff sustained compensable injury to his left leg, but contend that they had no notice within the statutory period of an injury to his low back, not connected in any way to the leg injury.\nThese defendants challenge the sufficiency of the following finding of fact:\n4. The defendants had actual knowledge, within 30 days, of the accident of December 25, 1969, and that plaintiff suffered compensable injuries as a result thereof.\nSection 59-10-13.4, supra, provides in part:\nA. Any workman claiming to be entitled to compensation from any employer shall give notice in writing to his employer of the accident and of the injury within thirty [30] days after their occurrence; * * *.\nB. No written notice is required to be given where the employer * * * in connection with which the accident occurred had actual knowledge of its occurrence. [Emphasis added]\nThere are two lines of authority under subsection B on the sufficiency of notice based upon \u201cactual knowledge\u201d of defendants.\n(1) Written notice is not required where an employer has actual knowledge of the occurrence of the accident. Waymire v. Signal Oil Field Service, Inc., 77 N.M. 297, 422 P.2d 34 (1966); Collins v. Big Four Paving, Inc., 77 N.M. 380, 423 P.2d 418 (1967).\n2. Written notice is not required where an employer has actual knowledge of the occurrence of the accident \u201cand a compensable injury.\u201d Roberson v. Powell, 78 N.M. 69, 428 P.2d 471 (1967). Roberson does not require actual knowledge of \u201ceach specific compensable injury.\u201d Actual knowledge of \u201ca compensable injury\u201d is sufficient. Defendants admit actual knowledge as well as written notice of \u201ca compensable injury\u201d to the leg.\nFinding No. 4, supra, is sufficient notice under either rule.\nSome discussion of the two rules is necessary to arrive at a fixed principle of law because notice under \u00a7 59-10-13.4, supra, is a mandatory requirement and a condition precedent to recovery of workmen\u2019s compensation. Geeslin v. Goodno, Inc., 75 N.M. 174, 402 P.2d 156 (1965).\nSection 59-10-13.4, supra, was enacted in 1959. Ch. 67, \u00a7 8, 1959. This Act repealed \u00a7 59-10-13, N.M.S.A.1953 (Vol. 9), the former statute, which stated in part:\nProvided, that no such written notice shall be requisite where the employer * * * in connection with [which] such injury occurred had actual knowledge of the occurrence thereof. [Emphasis added]\nThe 1959 Act substituted the phrase \u201cin connection with which the accident occurred,\u201d for the previous phrase \u201cin connection with which such injury occurred.\u201d [Emphasis added] It was clearly the intent of the legislature to make actual knowledge of the \u201caccident\u201d sufficient notice to the employer. With actual knowledge of the \u201caccident,\u201d the burden shifted to the employer to investigate the accident, to investigate the facts while they were assessible to determine whether a compensable injury occurred, and, if necessary, to employ a doctor to speed recovery. Collins and Waymire, supra. This analysis follows the language of the 1959 Act.\nIt is obvious that the primary purpose of statutory notice, whether written or actual, is to alert the employer to the occurrence of an accident. Upon notice of the accident, the employer has the right to select the physician or surgeon to care for injured employees. Valdez v. McKee, 76 N.M. 340, 414 P.2d 852 (1966). This physician or surgeon will examine the employee to determine whether compensable injuries have occurred.\nUnder \u201cwritten notice,\u201d an employee is not burdened with notifying the employer of every compensable injury sustained. He may not know. Under \u00a7 59-10 \u2014 13.-4(A), supra, he is required to give notice only of \u201cthe injury\u201d for which he seeks compensation. The employer\u2019s physician or surgeon will determine the extent of \u201cthe injury\u201d and whether other compensable injuries occurred.\nWhere the employer has \u201cactual notice\u201d of an accident, he must determine whether an injury occurred because, \u201cafter injury,\u201d it is mandatory that the employer \u201cfurnish all reasonable surgical, medical * * * and hospital services and medicine.\u201d Section 59-10-19.1(A), N.M.S.A.1953 (Repl. Vol. 9, pt. 1, Supp.1971). Hedgecock v. Vandiver, 82 N.M. 140, 477 P.2d 316 (Ct.App.1970).\nThe medical benefits provided for \u201cinjury\u201d under \u00a7 59-10-19.1, supra, cannot be limited by the notice provisions of \u201cthe injury\u201d under \u00a7 59-10-13.4, supra. Compare Valdez v. McKee, supra.\nTo follow the Roberson rule, supra, requires reading into subsection B, supra, the following additional emphasized words:\nNo written notice is required to be given where the employer * * * in connection with which the accident occurred had actual knowledge of its occurrence [and actual knowledge of a compensable injury.]\nThe question is: Can an appellate court read language into subsection B to further protect the employer? The answer is \u201cno.\u201d There are at least four reasons.\n(a) An express repeal of a statute takes all force away from it because it is totally destroyed. Where the new statute enacted is in plain and explicit language, the legislature means what it says. Gustafson v. Rajkovich, 76 Ariz. 280, 263 P.2d 540, 40 A.L.R.2d 520 (1953); Woolsey v. Lassen, 91 Ariz. 229, 371 P.2d 587 (1962). The repealed act \u201cis operationally deemed to have never existed.\u201d Garrison v. Garrison, 179 N.W.2d 466 (Iowa 1970); Certain Taxpayers v. Sheahen, 45 Ill.2d 75, 256 N.E.2d 758 (1970). In the instant case, the legislature substituted the word \u201caccident\u201d for \u201cinjury,\u201d and actual knowledge of the \u201caccident\u201d is a sufficient compliance with subsection B.\nRoberson, supra, relies upon \u00a7 59-10-13, supra, which was repealed. Collins and Waymire, supra, do not.\n(b) We must presume that the legislature, in enacting \u00a7 59-10-13.4, supra, intended to change the law as it had theretofore existed. Bettini v. City of Las Cruces, 82 N.M. 633, 485 P.2d 967 (1971).\n(c) \u201cWe are not permitted to read into a statute language which is not there, particularly if it makes sense as written.\u201d State ex rel. Barela v. New Mexico State Bd. of Ed., 80 N.M. 220, 453 P.2d 583 (1969).\n(d) \u201cWritten notice\u201d under subsection A is a general provision which is controlled by the special provision set forth in subsection B for \u201cactual notice.\u201d Cromer v. J. W. Jones Construction Company, 79 N.M. 179, 441 P.2d 219 (Ct.App.1968).\nWe do not believe that the words \u201cand actual knowledge of a compensable injury\u201d can be added to \u00a7 59-10-13.4(B), supra.\n(2) Sufficiency of Finding on Partial Disability\nThe trial court found:\n11. By reason of the accidental injury to his back arising out of and in the course of his employment on December 25, 1969, the plaintiff had on March 29, 1971, and will continue to have a 15% partial permanent disability to perform the usual tasks he was performing on December 25, 1969, and to perform any work for which he is fitted.\nDefendants claim there is no evidence to sustain the finding.\nUnattacked findings of the trial court show that \u201cAs a medical probability, plaintiff is suffering permanent disability to his left leg and low back as a result of injuries thereto,\u201d and \u201cthere is a causal connection between the injuries to his left leg and low back and the accident of December 25, 1969.\u201d The only issue is whether there is sufficient evidence to support a finding of 15% partial permanent disability.\nA review of the medical testimony supports the finding. A physician testified that Beckwith had 10% permanent disability to the body as a whole due to the injury to his lower back, and 5% additional due to the aggravation of the pre-existing low back problem. There was other medical testimony to support the finding. The trial court is not bound solely by expert testimony. \u201cMedical testimony, like other expert evidence, is intended to aid but not to conclude the trier of the facts in determining the extent of disability.\u201d Lucero v. Los Alamos Constructors, Inc., 79 N.M. 789, 450 P.2d 198 (Ct.App.1969).\nThere was sufficient evidence to support the finding of 15% partial permanent disability.\n(3) Sufficiency of Findings on Medical Treatment\nDefendants attack two findings of fact on medical treatment. They are:\n6. From March 26, 1970, until October of 1970, defendants provided and paid for medical treatment to the plaintiff which was not adequate and reasonable medical treatment for the injuries arising out of the accident on December 25, 1969.\n7. From October, 1970, to date after defendants failed and refused to provide adequate medical treatment for plaintiff, Dr. Graham Palmer furnished and prescribed to plaintiff medical treatment, hospital services and medication which were adequate and reasonably necessary for plaintiff\u2019s injuries arising out of the accident on December 25, 1969, for which defendants have not paid directly or reimbursed plaintiff. [Emphasis added]\nIt is not necessary to determine whether findings Nos. 6 and 7 are erroneous because any claimed error is cured by findings Nos. 28, 29, 30 and 31. These findings granted Beckwith recovery for medical treatment and hospitalization by four doctors from October, 1970, to date. Defendants contend they are not obligated to pay these additional expenses. In the Statement of Proceedings, these findings were \u201cChallenged \u2014 Point III.\u201d Under Point III of the brief in chief, defendants limited argument to findings Nos. 6 and 7, supra. No mention was made of findings Nos. 28, 29, 30 and 31.\nThe pertinent Supreme Court Rule \u00a7 21-2-1(15) (16) (b), N.M.S.A.1953 (Repl. Vol. 4) states in part:\nStatement of the grounds for challenging any finding must be set forth in the argtiment and not in the Statement of Proceedings. [Emphasis added]\nThis provision is mandatory- The defendants waived all challenges made in the Statement of Proceedings because they failed to argue findings Nos. 28, 29, 30 and 31 in the brief in chief. These findings, therefore, were not properly challenged or directly attacked. They are binding upon this court. Hedgecock v. Vandiver, supra. They constitute facts upon which this case rests in this court. Baca v. Gutierrez, 77 N.M. 428, 423 P.2d 617 (1967). These findings are sufficient to cast on defendants the obligation to pay for medical treatment and hospitalization from October, 1970, to date of trial.\nI dissent from that portion of the majority opinion which denies certain medical expense. As long as this court condones noncompliance with rules of appellate procedure, the rules will have a useless life.\nB. McVay and Reliance\n(1) Sufficiency of Notice\nMcVay and Reliance also claim they did not have notice as required by statute of a compensable injury to Beckwith\u2019s cervical or thoracic spine, by accident suffered on December 3, 1970.\nThe trial court found:\n17. The defendants had actual knowledge, within 30 days, of the accident of December 3, 1970, and that the plaintiff suffered compensable injuries as a result thereof.\nThese defendants challenged this finding. On December 29, 1970, within the 30 day period, Beckwith gave defendants written notice' of the accident which occurred on December 3, 1970, together with notice that he suffered a compensable injury to his right leg and to his eyes. No mention was made of any injury to his spine.\nFor the reasons set forth under \u201cSufficiency of Notice\u201d in Cactus and Liberty Mutual, I find no error.\nIn my opinion, Beckwith is entitled to additional attorney fees for this appeal at least in the sum of $1500.00. We should begin to recognize the value of services in 1972.", "type": "concurring-in-part-and-dissenting-in-part", "author": "SUTIN, Judge" } ], "attorneys": [ "Sam Laughlin, Jr., R. E. Richards, Gir- and & Richards, P.A., Hobbs, for Cactus Drilling Corp. and Liberty Mutual Ins. Co.", "Dewie B. Leach, Hobbs, for McVay Drilling Co. and Reliance Ins. Co.", "Warren F. Reynolds, Easley & Reynolds, Hobbs, for plaintiff-appellee." ], "corrections": "", "head_matter": "505 P.2d 1241\nAllen BECKWITH, Plaintiff-Appellee, v. CACTUS DRILLING CORPORATION and Liberty Mutual Insurance Company, Defendants-Appellants, Consolidated for Trial with Allen BECKWITH, Plaintiff-Appellee, v. McVAY DRILLING COMPANY and Reliance Insurance Company, Defendants-Appellants.\nNo. 930.\nCourt of Appeals of New Mexico.\nNov. 30, 1972.\nRehearing Denied Dec. 22, 1972.\nCertiorari Denied Jan. 26, 1973.\nSam Laughlin, Jr., R. E. Richards, Gir- and & Richards, P.A., Hobbs, for Cactus Drilling Corp. and Liberty Mutual Ins. Co.\nDewie B. Leach, Hobbs, for McVay Drilling Co. and Reliance Ins. Co.\nWarren F. Reynolds, Easley & Reynolds, Hobbs, for plaintiff-appellee." }, "file_name": "0565-01", "first_page_order": 721, "last_page_order": 731 }