{ "id": 1571113, "name": "Annie MEDINA, Plaintiff-Appellee, v. WICKED WICK CANDLE CO., Employer, and American Motorists Insurance Co., Insurer, Defendants-Appellants", "name_abbreviation": "Medina v. Wicked Wick Candle Co.", "decision_date": "1977-10-18", "docket_number": "No. 2874", "first_page": "522", "last_page": "526", "citations": [ { "type": "official", "cite": "91 N.M. 522" }, { "type": "parallel", "cite": "577 P.2d 420" } ], "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": "90 N.M. 558", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2870518 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0558-01" ] }, { "cite": "90 N.M. 683", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2868131 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0683-01" ] }, { "cite": "82 N.M. 424", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5327234 ], "weight": 3, "pin_cites": [ { "page": "308" } ], "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, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nm/82/0072-01" ] }, { "cite": "86 N.M. 393", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2826210 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0393-01" ] }, { "cite": "84 N.M. 369", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2769007 ], "weight": 2, "pin_cites": [ { "page": "374" }, { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nm/84/0369-01" ] }, { "cite": "76 N.M. 753", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8504866 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0753-01" ] }, { "cite": "88 N.M. 615", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2838672 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0615-01" ] } ], "analysis": { "cardinality": 606, "char_count": 11729, "ocr_confidence": 0.815, "pagerank": { "raw": 1.4551299604622926e-07, "percentile": 0.6557944111799568 }, "sha256": "2d7a7bd1c187bd510b09cb0f546abbc590e175a56e1e3dd7c5a7387b628bb383", "simhash": "1:8f4bf57a1d478c7f", "word_count": 1926 }, "last_updated": "2023-07-14T15:07:42.064818+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and LOPEZ, JJ., concur." ], "parties": [ "Annie MEDINA, Plaintiff-Appellee, v. WICKED WICK CANDLE CO., Employer, and American Motorists Insurance Co., Insurer, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nDefendants appeal a workmen\u2019s compensation judgment in favor of plaintiff. We reverse.\nThe trial court found the following facts: On April 14,1972, plaintiff, 29 years of age, suffered a work-related injury while attempting to lift two trays of 24 uncut cube candles. On this date she had completed the twelfth grade in the Espa\u00f1ola schools. She had no general or specialized training in any field of endeavor. Since 1959, she worked in employment requiring heavy manual labor, including duties of maid, waitress, janitor, cook and candle wrapper and she did not have sufficient mental training or physical capacity to be eligible for other work.\nSince the accident, plaintiff has worn a back brace, has been unable to bend or lift any object of weight without pain in her spine, and has been unable to sit, stand or drive an automobile for more than a short time without pain and stiffness in her spine.\nOn February 1, 1974, after rehabilitation training, plaintiff began work for the State of New Mexico as a clerk-typist, but was and has been unable to perform her work completely and efficiently because of pain and stiffness in her spine and right leg. (Challenged). Beginning April 14, 1972, plaintiff\u2019s injuries have resulted in total permanent disability. (Challenged).\nPlaintiff\u2019s injury and disability resulting therefrom are permanent and are a natural and direct result of, and proximately caused by, the accident and plaintiff is entitled to the benefits allowed by the Workmen\u2019s Compensation Act.\nPlaintiff is 100% unable to perform the usual tasks in the work she was performing at the time of her injury, and she is further 100% unable to perform any work for which she was then fitted by age, \u2022 education, training, general physical and mental capacity and previous work experience, all of which she would otherwise have been able to do, if said injuries and disability were absent. (Challenged).\nThe trial court concluded that plaintiff\u2019s injury, beginning April 14, 1972, resulted in total permanent disability. (Challenged).\nDefendants contend \u201cThere is no substantial evidence in the record supporting the findings as to total permanent disability.\u201d We agree.\n\u201cTotal disability\u201d is defined in \u00a7 59-10-12.18, N.M.S.A.1953 (Repl.Vol. 9, pt. 1). It provides in pertinent part:\nAs used in the Workmen\u2019s Compensation Act . . ., \u201ctotal disability\u201d means a condition whereby a workman . 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. [Emphasis added]\nThis definition provides for a two-pronged test, both of which must be proved by plaintiff at the time of trial: (1) She must prove that she was totally unable to perform the work she was doing at the time of the injury. This test was proven. (2) And she must prove that she was totally unable to perform ANY work for which she was fitted by age, education, training, general physical and mental capacity and previous work experience. Plaintiff did not prove the second test. The fact that plaintiff was totally disabled to be a clerk-typist at the time of the injury on April 14, 1972, does not continue as total disability once she has returned to full-time employment as a clerk-typist. The second test means that plaintiff must be totally disabled to be a clerk-typist at the time of trial.\nThis two-pronged test was established in Medina v. Zia Company, 88 N.M. 615, 544 P.2d 1180 (Ct.App.1975). Plaintiff avoided any mention of Medina and failed to attack Medina or explain its inapplicability. In Medina, plaintiff, after recovery from a hernia operation, did not return to his employment to do light work for which he was fitted. Plaintiff was denied any compensation. In the instant case, plaintiff retrained herself as a secretary and entered into gainful employment with the State while partially disabled. Plaintiff is entitled to compensation benefits, not on the basis of total disability, but on the basis of partial disability.\nUnder the second test, the phrase \u201ctotally unable to perform ANY work\u201d means \u201ctotally unable to perform ALL work\u201d, i. e., plaintiff can do \u201cNO work\u201d for which she is fitted. To be totally disabled, a workman must be totally incapable of engaging in any gainful occupation, business or profession based upon the workman\u2019s age, education, training, general physical and mental capacity and previous work experience.\nThis case is controlled by Bartlett v. Shaw, 76 N.M. 753, 418 P.2d 533 (1966). A workman, who was a repairman of heavy equipment in the oil fields, became totally disabled. Through self-education and on-the-job training, he became a salesman in an auto parts store. The Supreme Court held that the workman, while a salesman, was no longer totally disabled and it was not error for the trial court to reduce his compensation benefits to 20% of the total. The workman was partially disabled to the extent of 80% after he engaged in post-injury employment as a salesman. .\nFrom April 14, 1972 to February 1, 1974, there is medical testimony that plaintiff was totally disabled. She is entitled to compensation benefits during this period of time based upon total disability.\nFrom February 1, 1974 to the time of trial, plaintiff was gainfully employed as a clerk-typist. She wore a back brace, suffered pain and stiffness in the spine and left leg, had problems of sitting longer than 45 minutes during her working hours, and she was unable to completely and efficiently perform her work. Nevertheless, plaintiff was acceptable to her employer. She had approximately a 20% reduction in productivity from what she could normally do, if she had not been injured. \u201cProductivity\u201d is not synonymous with \u201cdisability\u201d. \u201cThe word \u2018disability\u2019 simply means \u2018disablement\u2019 resulting from an accidental injury.\u201d Witcher v. Capitan Drilling Company, 84 N.M. 369, 374, 503 P.2d 652, 657 (Ct.App.1972) (Sutin, J., concurring). There is sufficient medical and other testimony in the trial of this case for the trial court to determine the extent of plaintiff\u2019s partial disability.\nPlaintiff contends that she \u201cretrained\u201d herself to perform the duties of a secretary and this fact did not disqualify her from acquiring total and permanent disability benefits. Reliance is had on Maes v. John C. Cornell, Inc., 86 N.M. 393, 524 P.2d 1009 (Ct.App.1974). Maes held that a disabled \u201cgrease monkey\u201d who engaged in post-injury employment as a doorman and janitor for the State of New Mexico, was entitled to recover compensation for total disability. The opinion relied on Adams v. Loffland Brothers Drilling Company, 82 N.M. 72, 475 P.2d 466 (Ct.App.1970) and Brown v. Safeway Stores, Inc., 82 N.M. 424, 483 P.2d 305 (Ct.App.1970).\nIn Adams, \u201cPlaintiff would return to work and, after a brief time, a few days to two months, his back pain would become so severe that he was either hospitalized or returned to bed rest.\u201d [82 N.M. at 74, 475 P.2d at 468]. Plaintiff was totally unable to perform any gainful employment.\nIn Brown, there was no suggestion that plaintiff was employable for any job. \u201cAlthough it might be imaginable that plaintiff might be employed at something, there is nothing in the record that would support such a finding.\u201d [82 N.M. at 427, 483 P.2d at 308]. Again, plaintiff was totally unable to perform any gainful employment.\nIn Maes, if plaintiff were able to continue in his employment, he was not totally disabled. He may have been partially disabled. Reliance on Maes does not support plaintiff\u2019s contention.\nThe fact that plaintiff \u201cretrained\u201d herself to become a secretary is commendable, but it does not translate partial disability into total disability. \u201cTraining\u201d is included in the second test of total disability. The reason for including the element of \u201ctraining\u201d is to encourage a workman to seek other employment and to work despite disability that results from an accidental injury. The Workmen\u2019s Compensation Act does not condone the conduct of those employees who desire to sleep as Rip Van Winkle did in the fable of the 19th century. In addition to compensation received for gainful employment, plaintiff is also entitled to compensation benefits for partial disability.\nWe also note that plaintiff was injured on April 14,1972, over five years ago. She was paid compensation up to June 12, 1972. The complaint was filed May 11, 1973. The date of trial and entry of judgment do not appear of record, but a bill of costs was filed on January 12, 1977. The delay in the trial of this case, without any reasons appearing of record, was inexcusable, especially in a case of this nature when plaintiff was disabled and paid compensation up to June 12, 1972 and then terminated. A disabled workman should not suffer almost five years of delay in a determination of his rights to compensation benefits. We emphasize that \u201cWhen a workmen\u2019s compensation claim is at issue, the judge of the district court shall advance the cause on the court\u2019s calendar and dispose of the case as promptly as possible. The trial shall be conducted in a summary manner as far as possible.\u201d Section 59-10-13.10, N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 1).\nUnder this law, attorneys for opposing parties have a duty, after the complaint and answer are filed, to undertake discovery procedures within a reasonable time, and thereafter, call to the attention of the district court that the compensation claim is at issue. The district court must then dispose of this case as promptly as possible. The case should not be placed on a trailing docket time after time. We have no sympathy for opposing attorneys who let a case sleep in their files, Weiss v. Hanes Manufacturing Company, 90 N.M. 683, 568 P.2d 209 (Ct.App.1977) and attorneys for claimant cannot complain of a comparatively low attorney fee in the trial court where the cause of delay is placed on the claimant\u2019s attorney. Casaus v. Levi Strauss & Co., 90 N.M. 558, 566 P.2d 107 (Ct.App.1977).\nWe hold that plaintiff was totally disabled from April 14, 1972 to February 1, 1974, and partially disabled from February 1, 1974 to the date of judgment in the trial court. Plaintiff is entitled to compensation benefits as provided by law for partial disability.\nThis cause is remanded to the trial court to vacate its judgment, determine the percentage of plaintiff\u2019s partial disability at the time of trial, hold a hearing as soon as possible to determine whether plaintiff\u2019s partial disability has increased or decreased as provided in \u00a7 59-10-25(A), N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1), and enter a judgment based thereon.\nDue to the inexcusable delay in this case, and within the discretion of the trial court, the amount of compensation payments due for total disability from April 14, 1972 to February 1, 1974 may be computed and interest thereon may be added at the rate of 6% per annum from the date of the judgment entered below to the date of payment. Section 50-6-3, N.M.S.A.1953 (Repl. Vol. 8, pt. 1).\nPlaintiff is denied any attorney fees on this appeal. Defendants shall recover the costs of this appeal. *\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Stephen M. Williams, Shaffer, Butt, Jones, Thornton & Dines, P.C., Albuquerque, for defendants-appellants.", "Pedro G. Rael, Zamora, Rael & Weinreb, P. A., Jere C. Corlett, Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "577 P.2d 420\nAnnie MEDINA, Plaintiff-Appellee, v. WICKED WICK CANDLE CO., Employer, and American Motorists Insurance Co., Insurer, Defendants-Appellants.\nNo. 2874.\nCourt of Appeals of New Mexico.\nOct. 18, 1977.\nWrit of Certiorari Denied Nov. 14, 1977.\nStephen M. Williams, Shaffer, Butt, Jones, Thornton & Dines, P.C., Albuquerque, for defendants-appellants.\nPedro G. Rael, Zamora, Rael & Weinreb, P. A., Jere C. Corlett, Santa Fe, for plaintiff-appellee." }, "file_name": "0522-01", "first_page_order": 558, "last_page_order": 562 }