{ "id": 2826210, "name": "Arthur MAES, Plaintiff-Appellee, v. JOHN C. CORNELL, INC., and their Insurance Carrier, Defendant-Appellant", "name_abbreviation": "Maes v. John C. Cornell, Inc.", "decision_date": "1974-06-26", "docket_number": "No. 1234", "first_page": "393", "last_page": "399", "citations": [ { "type": "official", "cite": "86 N.M. 393" }, { "type": "parallel", "cite": "524 P.2d 1009" } ], "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": "79 N.M. 109", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2738136 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0109-01" ] }, { "cite": "236 S.W.2d 231", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10197079 ], "opinion_index": 0, "case_paths": [ "/sw2d/236/0231-01" ] }, { "cite": "82 N. M. 424", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5327234 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/82/0424-01" ] }, { "cite": "82 N.M. 72", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326184 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/82/0072-01" ] }, { "cite": "79 N.M. 711", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2740742 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0711-01" ] } ], "analysis": { "cardinality": 738, "char_count": 17705, "ocr_confidence": 0.812, "pagerank": { "raw": 3.1868004368637424e-07, "percentile": 0.8648896132554447 }, "sha256": "38430357f38a193ee97bf32e3f511a849038f5f2a485abd97a3222741cd00be9", "simhash": "1:b8fbd06286544fd5", "word_count": 2864 }, "last_updated": "2023-07-14T22:44:27.328252+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and HERNANDEZ, JJ., concur." ], "parties": [ "Arthur MAES, Plaintiff-Appellee, v. JOHN C. CORNELL, INC., and their Insurance Carrier, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nLOPEZ, Judge.\nIn this workmen\u2019s compensation action, the claimant, a laborer, fell from a scaffold and sustained an injury arising out of \u25a0and in the course of his employment. After holding positions as a doorman and a \u00a1janitor, claimant returned to heavy physical labor. After one week on the job, he sustained another injury and subsequently underwent a laminectomy. Claimant received judgment for 50 percent temporary partial disability until January 10, 1972, permanent total disability thereafter and attorney\u2019s fees. He did not seek reimbursement for medical expenses.\nThe employer appeals the judgment raising the following issues: (1) sufficiency of the evidence; (2) variance between pleadings and proof; (3) sufficiency of the findings of fact to support the conclusions of law; (4) double recovery; and (5) attorney\u2019s fees. We affirm.\nSufficiency of the evidence.\nThe employer challenges the sufficiency of the evidence to support several of the trial court\u2019s findings. The challenged findings relate to causation, extent of disability and the permanence of the total disability.\nThe testimony of Dr. Emmett Altman, one of the claimant\u2019s treating physicians, established that as a medical probability claimant\u2019s \u201cherniated disc syndrome\u201d in the lumbosacral region resulted from the accident of December 10, 1970. The employer claims that Dr. Altman\u2019s opinion was based upon speculation and was, therefore, insufficient. See \u00a7 59-10-13.3(B), N.M.S.A. 1953 (Vol. 9, pt. 1). The contention is that since the claimant did not inform Dr. Altman of an earlier back injury occurring in September, 1970, and since Dr. Altman did not learn of that injury until cross-examination at trial, he could not judge the possible effect of the earlier accident. The employer relies upon the following excerpt from Dr. Altman\u2019s testimony:\n\u201cQ. Doctor, you have no way of knowing, do you, whether or not the injuries such as you say you found in April of 1971 were the result of the sccident [sic] of September 10, 1970, or the accident of December 10, 1970?\n\u201cA. That\u2019s true. I can only say that at the time of my examination he was an injured individual. I couldn\u2019t say which injury caused it.\n\u201cQ. So its [sic] sheer speculation on your part to say whether he was injured on September 10th or the later date of December 10th?\n\u201cA. Yes.\u201d\nThe conclusions of Dr. Altman in the testimony set out above are premised upon the assumption that claimant suffered \u201clumbosacral sprain\u201d in the first accident. The evidence, when viewed most favorably to the trial court\u2019s findings, does not support that assumption. The claimant testified on cross-examination as follows:\n\u201cQ. Do you recall that you were treated by Doctor Gonzales following the . . . [first] accident for \u25a0lumbosacral sprain ?\n\u201cA. Yes, sir, I do.\u201d\nHowever, there is nothing in the record to indicate that the claimant knew where the lumbosacral region of his body was. In fact, claimant indicated a number of times that the first injury was in the mid-dorsal region of his back. He also specifically denied suffering any low back injury in the first accident. Assuming his testimony is contradictory, the conflict was for the trial court to resolve. See Rohrer v. Eidal International, 79 N.M. 711, 449 P.2d 81 (Ct.App.1968).\nSince the trial court was justified in believing that the earlier injury was mid-dorsal, it could have concluded that it had no relation to the \u201cherniated disc syndrome,\u201d which Dr. Altman described.\nThe employer next challenges the sufficiency of the evidence to support the trial court\u2019s two findings of disability. It argues that the finding of a disability of 50 percent until January 10, 1972, was arbitrary. However, Dr. Altman testified to a percentage disability as follows:\n\u201cQ.' Now, he told you that he had been \u25a0 incapacitated for doing heavy type work since this accident; is that right ?\n\u201cA. That\u2019s right.\nDid you have an opinion as to his partial disability function at that time? :Q.\nI felt that at that time that he had 30 percent permanent impairment of function to the body as a whole of the low back, and in view of the fact that he couldn\u2019t do the labor that he had done all his life and it was \u2014 and was doing all light labor, he had fifty percent disability. A.\n\u201cQ. That would be fifty percent disability as far as workmen\u2019s compensation is concerned; is that right?\n\u201cA. Yes.\n\u201cTHE COURT: This was in April of \u201971?\n\u201cA. No, January, sir.\n\u201cTHE COURT: January of 1972.\u201d\nThe employer attacks the sufficiency of this statement to support the trial court\u2019s finding in two ways. First he points out that the 50 percent disability finding for the thirteen month period after the accident was based upon the existence of the \u201cherniated disc syndrome\u201d described by Dr. Altman. He argues that this syndrome was not even diagnosed until the end of the thirteen month period and that the earlier diagnosis made in April of 1971 was merely low back sprain.\nDr. Altman testified concerning his conclusions upon the January examination as follows: \u201c . . . this sprain had gone bn to the point where this was now irritating the nerve root and he was having a herniated disc syndrome. . . . \u201d This and other testimony in the record indicates the progressive nature of the disease. Given these facts we think the trial court was justified in considering the \u201clow back Sprain\u201d as a component of the \u201cherniated disc syndrome.\u201d\nAlthough the employer admits for the purposes of argument on this point that the claimant could not perform the, \u201c * * * usual tasks in the work he was performing at the time of his injury * * he argues secondly that there is no evidence that claimant was, \u201c * * * unable to some percentage-extent to perform any work for which he is fitted by age, education, training, general physical and mental capacity and previous work experience.\u201d Section 59 \u2014 10\u201412.19, N.M.S.A. 1953 (Vol. 9, pt. 1, Supp.1973).\nClaimant worked as a doorman and a janitor for the State of New Mexico after the accident in question. Before the accident claimant worked as a \u201cgrease monkey.\u201d There is no showing in the record whether this occupation involved heavy physical labor. The claim is that there was no evidence establishing that claimant could not \u201cto some percentage-extent\u201d perform the tasks in the occupations mentioned above.\nA similar claim is made with respect to the finding of total disability, which is defined in \u00a7 59-10-12.18, N.M.S.A.1953 (Vol. 9, pt. 1, Supp.1973), as follows:\n\u201cTotal disability. \u2014 As used in the Workmen\u2019s Compensation Act [59-10-1 to 59-10-37], \u2018total disability\u2019 means a condition whereby a workman, by reason of an injury arising out of, and in the course of, his employment, is wholly unable to perform the usual tasks in the work he was performing at the time of his injury, and is wholly unable to perform any work for which he is fitted by age, education, training, general physical and mental capacity, and previous work experience.\u201d\nSince claimant is obviously not wholly unable to be a janitor or a doorman, and since the record is silent on whether he could be a \u201cgrease monkey,\u201d the employer claims that the finding of total disability is unsupported. Also, the employer points out that the claimant completed a three month electronics course. It contends that electronics assembly, therefore, is work for which the claimant is fitted by training.\nIt is established by substantial evidence that the claimant is fitted for heavy, physical labor. There is substantial evidence that he cannot perform that type of work. Both of the employer\u2019s contentions concerning extent of disability turn on the question of whether the occupations alluded to above are work for which the claimant is fitted under the statute.\nThe employer seems to contend that any post-injury employment is necessarily work for which a claimant is fitted. It would follow that the fact of post-injury employment would disqualify the claimant from receiving total disability. With this proposition we disagree. We do not think that the reemployment efforts of a claimant should, in effect, penalize him. See Adams v. Loffland Brothers Drilling Company, 82 N.M. 72, 475 P.2d 466 (Ct.App.1970).\nIn Brown v. Safeway Stores, Inc., 82 N. M. 424, 483 P.2d 305 (Ct.App.1970), we stated:\n\u201c * * * [A]fter plaintiff has introduced evidence as to his age, education, training, and general physical and mental capacity, the burden of coming forward is on the defendant. It is much easier for the defendant to prove the employability of the plaintiff for a particular job than for plaintiff to try to prove the universal negative of not being employable at any work. * * * \u201d\nKeeping this principle in mind, we will review the record to determine whether the employer has made a showing, as a matter 1 of law, that the plaintiff is fitted for one of the occupations mentioned. Concerning the occupation of \u201cgrease monkey,\u201d we have mentioned that the record fails to disclose whether it involves lifting, bending or other hard physical labor which the claimant could not perform. As to this occupation, the trial court would have been justified in concluding that the employer failed to meet his burden of proof.\nClaimant worked as a doorman for the state legislature and since doormen were apparently needed only for the legislative session, we think the trial court could have concluded that these services are limited in quantity and dependability.\nThe record would support the conclusion that plaintiff did not in fact perform the tasks usually associated with that occupation. The testimony was that he did \u201clight work\u201d and that the most strenuous task he performed was washing windows. Furthermore, the record indicates that claimant was hired and later fired for political reasons. The trial court could have con-. eluded that services which are dependent upon the changing political situation are undependable.\nFinally, there is some testimony that claimant suffered pain in performing his tasks in both of these occupations. In Adams v. Loffland Brothers Drilling Company, supra, we held that the trial court was justified in considering this factor in determining the effect of post-injury employment on a claim for total disability.\nIn Brown v. Safeway Stores, Inc., supra, we stated:\n\u201cIn the present case there is substantial evidence to support the finding of total disability and this evidence is not overcome by the fact that the plaintiff is presently a university student. Defendant has cited no authority suggesting that being a student is being employed and we have found none.\u201d\nThis case is similar with respect to claimant\u2019s three month course in electronics assembly. The record, if anything, supports the conclusion that there was no market for anyone with such limited training. Indeed, there is authority for the proposition that post-injury training should not be allowed to reduce an award. See 2 Larson\u2019s, Workmen\u2019s Compensation Law, \u00a7 57.33 (7th Ed. 1970). The employer did not prove, as a matter of law, that claimant\u2019s post-injury work history was inconsistent with the court\u2019s findings.\nThe employer finally argues that there is insufficient evidence to support the trial court\u2019s finding that the disability was permanent. Dr. Altman testified as follows:\n\u201cTHE COURT: I take it then your opinion is that absent the benefits of surgery his disability was permanent?\n\u201cA. Yes sir.\u201d\nThe employer attacks the sufficiency of this statement to support the finding since claimant underwent surgery. However, there is testimony in the record that supports the conclusion that even with surgery the claimant would probably not be able to go back to heavy, physical labor. Furthermore, there was the following testimony of Dr. Altman concerning permanence:\n\u201cQ. Do you think, under the condition that you found him with your examination of January 10th, 1972, that he would be able to go back with this back and shovel gravel?\n\u201cA. I certainly would not have recommended it. I wouldn\u2019t believe that he could ever do it.\u201d\nThere was sufficient evidence to support all the challenged findings.\nVariance.\nThe claimant in his complaint sought compensation for \u201ctemporary total disability\u201d and \u201cpermanent partial disability.\u201d The trial court awarded judgment for temporary partial disability and permanent total disability. Claimant never amended his complaint to include a request for either of the latter. The employer does not dispute the variance between the temporary total disability plead and the temporary partial disability awarded. See Texas Employers\u2019 Ins. Ass\u2019n v. Moyer, 236 S.W.2d 231 (Tex.Civ.App.1951).- The employer does contend that the award for permanent total disability fatally varied from the permanent partial disability plead.\nThe question here is not how a new issue can be raised but of whether a new issue was raised at all.\nTotal and partial disability are defined separately in the Workmen\u2019s Compensation Act. See \u00a7\u00a7 59-10-12.18 and 59-10-12.19, supra. But they differ only in that \u00a7 59-10-12.18, supra, uses the phrase \u201c * * * is wholly unable to perform * * *,\u201d where \u00a7 59-10-12.19, supra, says \u201c * * * is unable to some percentage-extent to perform * * In effect these two statutes establish a continuum from zero to total disability through all percentages of partial disability. Partial and total disability are therefore not two separate concepts or issues but two segments of one disability continuum. No new issue was raised.\nSufficiency of the findings to support the conclusions of disability.\nThe Court in Quintana v. Trotz Construction Company, 79 N.M. 109, 440 P.2d 301 (1968), summarized the history of the definition of total disability. Before 1959 the standard was ability to \u201cobtain and retain gainful employment.\u201d The 1959 law changed the test to \u201cwage earning ability.\u201d The 1963 amendment, which enunciates the present test, changed the test to \u201c * * * capacity to perform work as delineated in the statute, [\u00a7 59-10-12.18, supra].\u201d Quintana v. Trotz Construction Company, supra. The court\u2019s findings with respect to disability are couched in part in terms of the pre-1959 test. The court found that the claimant was unable to \u201cgain and retain\u201d work as delineated in the statute.\nThe employer indicates that the findings show that the trial court used the wrong legal standard. Assuming that to be the case, the employer does not contend that the pre-1959 standard contained a less rigorous burden of proof than that embodied in the present test. The court in Quintana stated that there was no, \u201c * * * evident purpose to in any way alter the desirable objectives of workmen\u2019s compensation insurance * * in the \u20181963 amendment.\nWe feel that to accept the employer\u2019s contention would be to require that the trial courts use the \u201cmagic words\u201d of the statutes in making their findings of disability. There is no need for such a requirement. Language which conveys the impression that the statutory conditions are present is sufficient.\nDouble recovery.\nThe plaintiff testified that he was receiving permanent total disability payments at the time of trial from Lamoreux Construction Company, his employer at the time he received a l\u00e1ter back injury in October, 1972. The employer involved in the present litigation contends that to allow permanent recovery here for the same injury would allow a double recovery.\nSection 59-10-18.8(D), N.M.S.A. 1953 (Vol. 9, pt. 1, Supp.1973), states:\n\u201c * * * the compensation benefits payable by reason of disability caused by accidental injury shall be reduced by the compensation benefits paid or payable on account of any prior injury suffered by the workman if compensation benefits in both instances are for injury to the same member or function, * * * and if the compensation benefits payable on account of the subsequent injury would, in whole or in part, duplicate the benefits paid or payable on account of such prior injury.\u201d [Emphasis added]\nBy its terms, this section does not apply to the situation in the instant case because the payments for which a credit is sought result from a subsequent not a prior accident.\nThe employer argues that \u00a7 59\u201410\u201418.8(D), supra, is written to cover the more normal situation where payments are made for the prior injury and further compensation is sought for the subsequent injury. The employer states that the statute manifests a, \u201c . . . clear [legislative] intention that a workman not be compensated for injury to the same member of function twice. . . . \u201d\nWe do not read \u00a7 59-10-18.8 (D), supra, so narrowly. It is not merely a device for preventing a double recovery. It is an affirmative allocation of the burden in a successive injuries situation. That burden falls squarely upon the employer at the time of the prior injury. The fact that the subsequent employer has made some payments can be of no aid to this employer.\nAttorney\u2019s fees.\nThe employer claims the award of $3,440.00 for attorney\u2019s fees was an abuse of discretion. The thrust of the argument is that the case required so little effort by the claimant\u2019s attorney that the fee was excessive. This argument ignores the very substantial results achieved on behalf of the claimant. There was no abuse of discretion.\nThe claimant is awarded $750.00 for attorney\u2019s fees in connection with this appeal. The judgment is affirmed.\nIt is so ordered.\nHENDLEY and HERNANDEZ, JJ., concur.", "type": "majority", "author": "LOPEZ, Judge." } ], "attorneys": [ "Joseph A. Sommer, Sommer, Lawler & Scheuer, Santa Fe, for defendant-appellant.", "John F. Quinn, Standley, Witt & Quinn, Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "524 P.2d 1009\nArthur MAES, Plaintiff-Appellee, v. JOHN C. CORNELL, INC., and their Insurance Carrier, Defendant-Appellant.\nNo. 1234.\nCourt of Appeals of New Mexico.\nJune 26, 1974.\nJoseph A. Sommer, Sommer, Lawler & Scheuer, Santa Fe, for defendant-appellant.\nJohn F. Quinn, Standley, Witt & Quinn, Santa Fe, for plaintiff-appellee." }, "file_name": "0393-01", "first_page_order": 423, "last_page_order": 429 }