{ "id": 1568707, "name": "Santiago S. MAREZ, Plaintiff-Appellee, v. KERR-McGEE NUCLEAR CORPORATION, Defendant-Appellant", "name_abbreviation": "Marez v. Kerr-McGee Nuclear Corp.", "decision_date": "1978-12-19", "docket_number": "No. 3487", "first_page": "9", "last_page": "21", "citations": [ { "type": "official", "cite": "93 N.M. 9" }, { "type": "parallel", "cite": "597 P.2d 1178" }, { "type": "parallel", "cite": "595 P.2d 1204" } ], "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": "82 N.M. 72", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326184 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0072-01" ] }, { "cite": "82 N.M. 486", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326781, 5334502 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0486-02", "/nm/82/0486-01" ] }, { "cite": "82 N.M. 698", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5329894 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0698-01" ] }, { "cite": "79 N.M. 676", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2744768 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0676-01" ] }, { "cite": "71 N.M. 175", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5346436 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/71/0175-01" ] }, { "cite": "74 N.M. 211", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2797437 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0211-01" ] }, { "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": "81 N.M. 140", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370713, 5363539, 5371028, 5364702 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0140-01", "/nm/81/0140-03", "/nm/81/0140-04", "/nm/81/0140-02" ] }, { "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": "45 N.M. 354", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1565158 ], "weight": 4, "year": 1941, "pin_cites": [ { "page": "367" }, { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/nm/45/0354-01" ] }, { "cite": "69 N.M. 464", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2790198 ], "weight": 3, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/69/0464-01" ] }, { "cite": "47 N.M. 279", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1562302 ], "weight": 4, "year": 1943, "pin_cites": [ { "page": "285-86" }, { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/nm/47/0279-01" ] }, { "cite": "91 N.M. 460", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571162 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/91/0460-01" ] }, { "cite": "90 N.M. 782", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869219 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0782-01" ] }, { "cite": "558 P.2d 619", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1976, "opinion_index": 0 }, { "cite": "90 N.M. 7", "category": "reporters:state", "reporter": "N.M.", "year": 1976, "opinion_index": 0 }, { "cite": "90 N.M. 105", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871668 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0105-01" ] }, { "cite": "89 N.M. 472", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2867696 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0472-01" ] }, { "cite": "70 N.M. 332", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2850768 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0332-01" ] }, { "cite": "90 N.M. 124", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2873551 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0124-01" ] }, { "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": "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": "79 N.M. 99", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2749557 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0099-01" ] }, { "cite": "79 N.M. 109", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2738136 ], "weight": 4, "year": 1968, "pin_cites": [ { "page": "111" }, { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/nm/79/0109-01" ] }, { "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. 768", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2768949 ], "weight": 4, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/84/0768-01" ] }, { "cite": "83 N.M. 261", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333804 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0261-01" ] }, { "cite": "84 N.M. 114", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2761893 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0114-01" ] }, { "cite": "87 N.M. 404", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2834454 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0404-01" ] }, { "cite": "78 N.M. 86", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5323819 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/nm/78/0086-01" ] }, { "cite": "81 N.M. 797", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5369357 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0797-01" ] }, { "cite": "86 N.M. 721", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2821610 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/86/0721-01" ] }, { "cite": "561 P.2d 1347", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1977, "opinion_index": 0 }, { "cite": "90 N.M. 254", "category": "reporters:state", "reporter": "N.M.", "weight": 2, "year": 1977, "opinion_index": 0 }, { "cite": "90 N.M. 220", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869120 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0220-01" ] }, { "cite": "74 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2803173 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/74/0789-01" ] }, { "cite": "85 N.M. 254", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772013 ], "weight": 2, "pin_cites": [ { "page": "259" }, { "page": "585" } ], "opinion_index": 1, "case_paths": [ "/nm/85/0254-01" ] }, { "cite": "89 N.M. 282", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2861744 ], "weight": 2, "year": 1976, "opinion_index": 1, "case_paths": [ "/nm/89/0282-01" ] }, { "cite": "145 P. 475", "category": "reporters:state_regional", "reporter": "P.", "year": 1914, "opinion_index": 1 }, { "cite": "19 N.M. 623", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4706646 ], "year": 1914, "opinion_index": 1, "case_paths": [ "/nm/19/0623-01" ] }, { "cite": "47 N.M. 356", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1562255 ], "weight": 3, "year": 1943, "pin_cites": [ { "page": "376" }, { "page": "584" }, { "page": "584" } ], "opinion_index": 1, "case_paths": [ "/nm/47/0356-01" ] }, { "cite": "64 N.M. 282", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5345448 ], "weight": 2, "year": 1958, "opinion_index": 1, "case_paths": [ "/nm/64/0282-01" ] }, { "cite": "395 S.W.2d 29", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10155361 ], "opinion_index": 1, "case_paths": [ "/sw2d/395/0029-01" ] }, { "cite": "315 So.2d 849", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9664210 ], "opinion_index": 1, "case_paths": [ "/so2d/315/0849-01" ] }, { "cite": "85 N.M. 35", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2769916 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/nm/85/0035-01" ] }, { "cite": "82 N.M. 424", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5327234 ], "weight": 2, "pin_cites": [ { "page": "427" }, { "page": "308" } ], "opinion_index": 1, "case_paths": [ "/nm/82/0424-01" ] }, { "cite": "366 A.2d 1116", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8036783 ], "opinion_index": 1, "case_paths": [ "/a2d/366/1116-01" ] }, { "cite": "360 A.2d 144", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8000886 ], "opinion_index": 1, "case_paths": [ "/a2d/360/0144-01" ] }, { "cite": 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App.", "case_ids": [ 2150500 ], "weight": 2, "year": 1977, "opinion_index": 1, "case_paths": [ "/or-app/28/0697-01" ] }, { "cite": "345 So.2d 1000", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9692392 ], "opinion_index": 1, "case_paths": [ "/so2d/345/1000-01" ] }, { "cite": "30 Or.App. 403", "category": "reporters:state", "reporter": "Or. App.", "case_ids": [ 2154178 ], "weight": 2, "year": 1977, "opinion_index": 1, "case_paths": [ "/or-app/30/0403-01" ] }, { "cite": "376 N.E.2d 206", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 1 }, { "cite": "17 Ill.Dec. 207", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1978, "opinion_index": 1 }, { "cite": "71 Ill.2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5448305 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/ill-2d/71/0353-01" ] }, { "cite": "91 N.M. 522", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571113 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/91/0522-01" ] }, { "cite": "88 N.M. 615", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2838672 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/88/0615-01" ] }, { "cite": "90 N.M. 195", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2874306 ], "weight": 2, "year": 1977, "opinion_index": 1, "case_paths": [ "/nm/90/0195-01" ] }, { "cite": "355 So.2d 1355", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9762760 ], "opinion_index": 1, "case_paths": [ "/so2d/355/1355-01" ] }, { "cite": "189 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 1 }, { "cite": "15 N.C.App. 253", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549521 ], "year": 1972, "opinion_index": 1, "case_paths": [ "/nc-app/15/0253-01" ] } ], "analysis": { "cardinality": 1668, "char_count": 43866, "ocr_confidence": 0.783, "pagerank": { "raw": 4.089859148923469e-07, "percentile": 0.9092059035102047 }, "sha256": "c6223aed8a6572f2e7267760d369df166d4988152e59a6b5390e3dc81f0de12f", "simhash": "1:04c8f1761c9f8ff8", "word_count": 7247 }, "last_updated": "2023-07-14T15:53:36.909287+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SUTIN, J., specially concurs.", "HERNANDEZ, J., dissents." ], "parties": [ "Santiago S. MAREZ, Plaintiff-Appellee, v. KERR-McGEE NUCLEAR CORPORATION, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nLOPEZ, Judge.\nDefendant-appellant appeals a judgment in a workmen\u2019s compensation case awarding benefits to plaintiff-appellee. We affirm.\nAppellee was employed by appellant in 1969 to work in appellant\u2019s acid plant. On June 1, 1971, appellee accidently injured his back while working in the course and scope of his employment. However, he continued to work until 1975. At the beginning of that year, appellee transferred to appellant\u2019s rubber shop. In June of 1975, appellee again injured his back. Shortly thereafter, appellee underwent surgery for this back condition. After returning to work in March, 1976, appellee continued to have pain in his lower back. Upon examination by his surgeon, conservative treatment was recommended. On April 11, 1977, while opening and closing a vulcanizer door, appellee again injured his back but continued to work for two more days. On April 14, 1977, appellee failed to appear for work and did not return to appellant\u2019s plant until May 2, 1977. Upon his return, appellant assigned him to less strenuous tasks. Appellee continued to work on these tasks until June 15, 1977. Because of his back pain and the onset of more strenuous work, appellee again ceased working and this action followed.\nAppellant relies upon the following five points for reversal: (1) the finding of total permanent disability is not supported by substantial evidence; (2) the finding that appellee suffered an accidental injury on April 11, 1977, is not supported by substantial evidence; (3) the finding that appellant had actual knowledge of the April 11, 1977 accident is not supported by substantial evidence; (4) the trial court erred in retaining jurisdiction and reserving its decision on the first cause of action; and (5) the award of attorney fees was excessive. We will discuss each point seriatim.\nTotal Permanent Disability\nUnder this point, appellant challenges the trial court\u2019s findings of fact no. 5 which reads as follows:\n\u201cAs a result of the compensable accidental injury sustained by plaintiff, plaintiff 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.\nIt is well settled in New Mexico that the findings of a trial court in a workmen\u2019s compensation case will not be disturbed on appeal if they ar\u00e9 supported by substantial evidence. Gammon v. Ebasco Corporation, 74 N.M. 789, 399 P.2d 279 (1965); Moorhead v. Gray Ranch Co., 90 N.M. 220, 561 P.2d 493 (Ct.App.), cert. denied, 90 N.M. 254, 561 P.2d 1347 (1977). Substantial evidence is relevant evidence which a reasonable mind accepts as adequate to support the conclusion. Shirley v. Venaglia, 86 N.M. 721, 527 P.2d 316 (1974); Cave v. Cave, 81 N.M. 797, 474 P.2d 480 (1970); Tapia v. Panhandle Steel Erectors Company, 78 N.M. 86, 428 P.2d 625 (1967). In deciding whether a finding has substantial support, we must view the evidence, together with all inferences reasonably deducible from such evidence, in the light most favorable to support the finding. Gallegos v. Duke City Lumber Co., Inc., 87 N.M. 404, 534 P.2d 1116 (Ct.App.1975). We will reverse only if convinced that the evidence thus viewed cannot sustain the finding. Furthermore, only favorable evidence will be considered; any unfavorable evidence will not be considered. United Veterans Organization v. New Mexico Property Appraisal Department, 84 N.M. 114, 500 P.2d 199 (Ct.App.1972). We will not weigh the evidence or determine the credibility of witnesses. Platero v. Jones, 83 N.M. 261, 490 P.2d 1234 (Ct.App.1971). The trier of facts is the, sole judge of the credibility of witnesses and the weight to be given their testimony. State ex rel. Reynolds v. Lewis, 84 N.M. 768, 508 P.2d 577 (1973).\nAfter reading the record and applying the foregoing principles, we rule that there is substantial evidence to support the trial court\u2019s finding that appellee is totally and permanently disabled as per \u00a7 59-10-12.18, N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 1, 1974). See Maes v. John C. Cornell, Inc., 86 N.M. 393, 524 P.2d 1009 (Ct.App.1974). In Quintana v. Trotz Construction Company, 79 N.M. 109, 440 P.2d 301 (1968), the Supreme Court stated that the following tests must be met in order for a claimant to be totally disabled: \u201c(1) complete inability \u2018to perform the usual tasks in the work he was performing at the time of his injury\u2019; and (2) absolute inability \u2018to perform any work for which he is fitted by age, education, training, general physical and mental capacity, and previous work experience.\u2019 \u201d Id. at 111, 440 P.2d at 303. We note, in passing, that the court\u2019s finding essentially contains these two tests.\nWith respect to the first of these tests, the testimony of appellee\u2019s doctor, Dr. Allan Wilson, and supervisor establish that appellee is unable to perform the usual tasks required of an employee in appellant\u2019s rubber shop. Thus the first test was met. With respect to the second test, the testimony of various witnesses on direct, cross, redirect and recross examination can be interpreted as containing certain inconsistencies. On direct examination, appellee\u2019s doctor testified that appellee could probably do work which allowed alternative periods of setting and standing. Appellee\u2019s doctor then testified on cross-examination that appellee could do sedentary work and light work with accompanying pain. However, on redirect examination, the doctor modified his previous testimony by stating that, with respect to the above types of work, appellee would have to attempt to do this work before he would be able to give an opinion concerning appellee\u2019s capacity to do the work. Likewise, appellee testified on cross-examination that he did not know whether he could do any other jobs. On redirect examination, he testified that, based on his past work experience and training and because of his injury, he could no longer do that work which he was capable of doing before he was injured. However, on recross examination, appellee stated that there might be portions of work in appellant\u2019s rubber shop and acid plant which he might be able to do.\nBefore analyzing the import of the above testimonies, we note that opinion testimony of a medical expert may be considered as substantial evidence upon which a finding of disability may be made. Roybal v. County of Santa Fe, 79 N.M. 99, 440 P.2d 291 (1968); Ortega v. New Mexico State Highway Department, 77 N.M. 185, 420 P.2d 771 (1966); Casaus v. Levi Strauss & Co., 90 N.M. 558, 566 P.2d 107 (Ct.App.1977). In addition, once causation is established by appropriate medical evidence, the extent of disability may be established by the plaintiff. Garcia v. Genuine Parts Company, 90 N.M. 124, 560 P.2d 545 (Ct.App.), cert. denied, 90 N.M. 254, 561 P.2d 1347 (1977). Whether the second test can be established by the testimony of appellee\u2019s doctor or appellee, therefore, depends upon the effect the above inconsistencies have upon this establishment. With respect to this issue, Tapia v. Panhandle Steel Erectors Company, supra, and Montano v. Saavedra, 70 N.M. 332, 373 P.2d 824 (1962) govern.\nIn the former case, the Supreme Court was faced with certain inconsistencies in plaintiff\u2019s testimony and stated:\nWe are not required to determine whether there are in fact contradictions in Tapia\u2019s testimony. If there are, they only affect the credibility of the witness. It has been firmly established in this jurisdiction that only the trier of the facts may weigh the testimony, determine the credibility of witnesses, reconcile inconsistent or contradictory statements of a witness, and say where the truth lies.\nId. at 89, 428 P.2d at 628; accord, Ortiz v. Mason, 89 N.M. 472, 553 P.2d 1279 (1976); Curtiss v. Aetna Life Insurance Company, 90 N.M. 105, 560 P.2d 169 (Ct.App.), cert. denied, 90 N.M. 7, 558 P.2d 619 (1976). In Montano, a workmen\u2019s compensation case, the medical witness testified on direct examination that the accident was the probable cause of the disability. On cross-examination, he admitted it would be difficult to say with any degree of probability that the accident was the cause of the condition; on redirect, he again stated that the accident was the most probable cause of the disability but was subject to argument. The Supreme Court ruled there was evidence from which the trial court could have found that the accident was the probable cause of the condition. However, it upheld the refusal to so find and held it was the function of the trial court to evaluate all the evidence and determine where the truth lay. See also, Martinez v. Flour Utah, Inc., 90 N.M. 782, 568 P.2d 618 (Ct.App.1977); Moorhead v. Gray Ranch Company, supra.\nApplying the reasoning of these two cases to the case at bar, we rule that the trial court was justified in disregarding that testimony which was inconsistent with a finding that appellee 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. In addition, we hold that appellee\u2019s testimony is substantial evidence to support this finding. Thus the second test for the establishment of total disability was met. In so holding, we point to the language of the Supreme Court in Ideal Basic Industries, Inc. v. Evans, 91 N.M. 460, 575 P.2d 1345 (1978):\nThe determination of the degree of disability in workmen\u2019s cases is generally a matter for the trial court, and absent misapplication of the law or a lack of substantial evidence, an appellate court should not substitute its judgment for that of the trial court.\nId. at 1346. We also note that appellant\u2019s witness, Abraham Mackler, testified that appellee could perform various jobs despite his disability. However, as stated before, the trier of facts is the sole judge of the credibility of witnesses and the weight to be given their testimony. State ex rel. Reynolds v. Lewis, supra. Therefore, the trial court was justified in disregarding this testimony.\nAccidental Injury on April 11, 1977\nUnder this point, appellant contends that the trial court\u2019s findings of fact no. 2 is not supported by the required evidence. This finding reads as follows:\nOn or about the 11th day of April, 1977, plaintiff sustained a compensable accidental injury arising out of and in the course of his employment by the defendant, Kerr-McGee Nuclear Corporation.\nAppellant\u2019s argument that the trial court erred in finding the occurrence of an accidental injury on this date is based primarily upon two grounds: first, appellant contends that the testimony reveals that appellee\u2019s pain related back to the 1971 accident and continued until the last day of his employment and, second, the testimony shows that the occurrence was only a continuation of painful incidents appellee had previously experienced while working on the vulcanizer can. Therefore, appellant asserts that April 11, 1977, has no major significance. In response, appellee argues that the court\u2019s finding has substantial support in the evidence, as the word \u201caccident\u201d has been interpreted by New Mexico case law. We agree.\nIn Webb v. New Mexico Pub. Co., 47 N.M. 279, 141 P.2d 333 (1943), the Supreme Court, addressing itself to the issue of accidental injury, stated:\nAfter all it is a question of accident or no accident, and the precise second, minute, hour or day that it occurred is but evidence to be considered with the other facts and circumstances of the case in deciding whether the injury was in fact accidental. True, there must be a time when it can be said with certainty that a compensable accidental injury has been inflicted; but the cause, and the coming into existence of the evidence characterizing it as a compensable one, need not be simultaneous events. An injury may be gradual and progressive, and not immediately discoverable; yet certainly and definitely progress to discovery and then to a compensable injury.\nId. at 285-86, 141 P.2d at 337. See also Salazar v. County of Bernalillo, 69 N.M. 464, 368 P.2d 141 (1962). Accidental injury was also defined in Stevenson v. Lee Moor Contracting Co., 45 N.M. 354, 115 P.2d 342 (1941). In that case, the Supreme Court said:\nIt is not necessary that the injury should result momentarily, to be accidental. It may be the result of hours, even a day or longer * * * depending upon the facts of the case.\nId. at 367, 115 P.2d at 350. Therefore, it is apparent that the meaning of \u201caccident\u201d is not limited to sudden injuries, nor is its meaning limited by any time test. Salazar v. County of Bernalillo, supra.\nIn addition, appellee\u2019s doctor, Dr. Allan Wilson, testified that after April 11, 1977, appellee began to experience some pain in his right buttock and leg. Dr. Wilson stated that this pain was new to appellee\u2019s pain syndrome. Furthermore, this witness testified that after the April incident, he found tenderness to palpation in appellee\u2019s left and right sciatic notches and pain going into appellee\u2019s right leg. This was also a new finding. Finally, Dr. Wilson testified that appellee was more symptomatic both by history and on physical examination in June, 1977, than he was in June 1976, and that the April incident could be said to be the cause in this increase in symptoms. Dr. Wilson\u2019s testimony, therefore, establishes that appellee\u2019s weakened back condition was accelerated by the April incident. Such an acceleration is enough to establish an accidental injury. As this court stated in Lyon v. Catron County Commissioners, 81 N.M. 120, 464 P.2d 410 (Ct.App.1969), cert. denied, 81 N.M. 140, 464 P.2d 559 (1970):\nBased upon the reasoning of these cases we take it that a malfunction of the body itself, such as a fracture of the disc or tearing a ligament or blood vessel, caused or accelerated by doing work required or expected in employment is an accidental injury within the meaning and intent of the compensation act. (Emphasis added.)\nId. at 125, 464 P.2d at 415. See also Ortiz v. Ortiz & Torres Dri-Wall Company, 83 N.M. 452, 493 P.2d 418 (Ct.App.1972); 1B A. Larson, Workmen\u2019s Compensation Law, \u00a7 38.00 at 7-9 (1978). Therefore, we hold that the trial court\u2019s findings of fact no. 2 is supported by substantial evidence.\nActual Knowledge of the April 11, 1977 Accident\nAgain appellant attacks one of the trial court\u2019s findings of fact. In this instance, appellant challenges findings of fact no. 6 and contends that it is not supported by substantial evidence. This finding reads:\nThe plaintiff\u2019s superintendents and foreman at Kerr-McGee Nuclear Corporation had actual knowledge of the accidental injury.\nIn order to be entitled to benefits, a claimant' must give written notice to his employer of the accident and injury within the statutory time period. \u00a7 59-10-13.4, N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 1, 1974). However, \u00a7 59-10-13.4B provides that written notice is not required in the following situation:\nNo written notice is required to be given 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.\nIt is well settled in New Mexico that verbal reporting of an accidental injury to an employer or its agent may possibly satisfy the requirement of this section. Baca v. Swift & Company, 74 N.M. 211, 392 P.2d 407 (1964); Lozano v. Archer, 71 N.M. 175, 376 P.2d 963 (1962). However, the fact that a verbal report has been made is not, in itself, determinative of whether the requirement has been satisfied. All of the circumstances of the case must be considered. Gutierrez v. Wellborn Paint Manufacturing Company, 79 N.M. 676, 448 P.2d 477 (Ct.App.1968). The record indicates that when appellee returned to appellant\u2019s plant on May 2, 1977, he spoke to his superintendents and mentioned specifically that opening and closing the vulcanizer door, along with the required bending and climbing, was bothering him too much. Appellee also testified that he thinks he told these superintendents at this meeting that this was the reason he had to take off from work. In response to this information, appellee\u2019s superintendents attempted to shelter him from strenuous activity and provide him with lighter work for the time being.\nUnder the particular facts of this case, it is difficult to distinguish and separate the injury fi ,m the accident that caused it, i. e. the injury, the compression of the nerves going into the leg from the lower back by the L4-5 vertebrae, was the accident. In this situation, appellee gave the best notice he could. He described to his superintendents the activities which caused the acceleration of his weakened back condition and which gave him additional pain. By giving him lighter work, his supervisors understood the meaning of this notice. Under these circumstances, we rule that appellee\u2019s verbal report gave appellee\u2019s superintendents and foreman actual knowledge of the April 11, 1977 accidental injury and that, therefore, the court\u2019s findings of fact no. 6 is supported by substantial evidence.\nIn so ruling, we note that appellant\u2019s superintendents testified that appellee made no mention to them on May 2, 1977, of the April 11 activities or of his reason for leaving work. In addition, we note appellee\u2019s immediate supervisor testified that he had no record of appellee working with the vulcanizer on April 11. We repeat, the trier of facts is the sole judge of the credibility of witnesses and the weight to be given their testimony. State ex rel. Reynolds v. Lewis, supra. Therefore, the judge was free to take the evidence that seemed reasonable and truthful and make a finding based on that evidence. As long as the finding is based on substantial evidence, it will not be disturbed on appeal. Gammon v. Ebasco Corporation, supra; Moorhead v. Gray Ranch Co., supra.\nRetention of Jurisdiction on the First Cause of Action\nAppellant argues that the trial court erred in retaining jurisdiction and reserving its decision on the first cause of action. We affirm the court\u2019s retention of jurisdiction with the following comments. Appellee\u2019s complaint contains two causes of action. One relates to an injury in 1971; the second, upon which final judgment was entered, relates to an injury sustained on or about April 11,1977. Appellant\u2019s argument that the trial court committed error is based upon several contentions. We will respond specifically to only one. Appellant contends that the 1971 claim is barred by \u00a7 59-10-13.6, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1, 1974). Inherent in this contention is the argument that the trial court should have dismissed this claim pursuant to \u00a7 59-10-13.6. The trial court did not choose to so act; instead the court, in its Judgment, chose to act pursuant to Rule 54(b)(1) of the New Mexico Rules of Civil Procedure. Section 21-l-l(54)(b)(1), N.M.S.A.1953 (Repl.Vol. 4, Supp.1975). Rule 54(b)(1) states:\nJudgment upon multiple claims. Except as provided in Rule 54(bX2), when more than one [1] claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may enter a final judgment as to one [1] or more but fewer than all of the claims only upon an express determination that there is no just reason for delay.\nThe trial court\u2019s Judgment contains the required determination. Therefore, it has retained jurisdiction over the 1971 injury. Thus, the effect of the court\u2019s use of Rule 54(b)(1) is that its judgment is a final order only with respect to the 1977 claim. Under these circumstances, our review is limited to the 1977 claim. See Quintana v. Quintana, 82 N.M. 698, 487 P.2d 126 (1971); Pacheco v. Pacheco, 82 N.M. 486, 484 P.2d 328 (1971). Only when a final order with respect to the 1971 claim is appealed can the question of the propriety of the court\u2019s present retention of jurisdiction be appropriately considered. Appellant\u2019s other contentions on this point are at this time without merit. They are based on no legal authority and establish no reasonable basis for a ruling that the trial court\u2019s present, legitimate exercise of Rule 54(b)(1) is error.\nAttorney Fees\nAppellant argues that the trial court\u2019s award of attorney fees in the sum of $11,958.52 plus tax is excessive. Section 59-10-23D, N.M.S.A.1953 (2d Repl.Vol. 9, 1974) governs the award of such fees and reads in part as follows:\n[T]he trial court in determining and fixing a reasonable fee must take into consideration:\n(1) The sum, if any offered by the employer\n(a) before the workman\u2019s attorney was employed; and\n(b) after the attorney\u2019s employment but before court proceedings were commenced; and\n(c) in writing thirty [30] days or more prior to the trial by the court of the cause; and\n(2) The present value of the award made in the workman\u2019s favor.\nTo support its argument, appellant contends (1) that consideration must be given to the amount of work performed by the claimant\u2019s attorney, (2) that attorney fees should not be based on a percentage of the award made in the claimant\u2019s favor, and (3) that the possibility of a reduction in compensation benefits based upon a reduced degree of disability after the original trial should be considered. In making these contentions, appellant does concede, however, that the result obtained for the claimant by his attorney should be considered.\nWith respect to appellant\u2019s first contention, we note that \u00a7 59-10-23D does not include, among those considerations for determining a reasonable fee, the amount of work expended by a claimant\u2019s attorney. In addition, we have indicated in prior decisions that this factor is not determinative. Gallegos v. Duke City Lumber Co., Inc., supra; Maes v. John C. Cornell, Inc., supra. However, even if the amount of effort expended were determinative, the facts of the present case indicate that the amount and caliber of work done by appellee\u2019s attorney is such .that the present award is not excessive. That appellee\u2019s attorney expended much effort on his client\u2019s case is apparent by the complaint filed in this suit alleging two causes of action, the motion for a protective order against allowing a mental examination of appellee, the interrogatories filed, and the one pre-deposition conference and the seven depositions attended by appellee\u2019s attorney. In addition, at trial there were many complex issues involved covering questions such as the definition of \u201caccident,\u201d the degree of disability, notice of accident and substantial evidence questions.\nAs to appellant\u2019s second contention, we note that the right to attorney fees rests in the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. Gallegos v. Duke City Lumber Co., Inc., supra; Adams v. Loffland Brothers Drilling Company, 82 N.M. 72, 475 P.2d 466 (Ct.App.1970). Therefore, we cannot say as a matter of law that the trial court abused its discretion merely because its award was based on a percentage figure. See Gallegos v. Duke City Lumber Co., Inc., supra, where an award based on 15% of the total recovery was held not to be an abuse of discretion despite the fact that the trial was brief and involved only simple issues.\nWith respect to appellant\u2019s last contention, we rule that the possibility of a future reduction in benefits cannot be a feasible consideration in the award of attorney fees since such a possibility cannot always be anticipated. In promulgating \u00a7 59 \u2014 10-23D, the Legislature did not include such a possibility. Until the Legislature establishes guidelines to provide for this possibility, we choose not to utilize appellant\u2019s last contention as a basis for ruling that the trial court\u2019s award was excessive. Therefore, we hold that the award of attorney fees in the present case was not an abuse of discretion nor a violation of \u00a7 59-10-23D.\nBased upon the foregoing, the judgment of the trial court is affirmed and the appellee is awarded $2,000.00 attorney fees on this appeal.\nIT IS SO ORDERED.\nSUTIN, J., specially concurs.\nHERNANDEZ, J., dissents.", "type": "majority", "author": "LOPEZ, Judge." }, { "text": "SUTIN, Judge\n(specially concurring).\nI specially concur.\nThe purpose of this concurrence is to set the guidelines for proving total or partial disability of a workman. Seldom does a workmen\u2019s compensation case appealed to this Court reflect a clear establishment of these results.\nSection 52-1-24, N.M.S.A. 1978 reads:\nAs used in the Workmen\u2019s Compensation Act, \u201ctotal disability\u201d 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. [Emphasis added.]\nSection 52-1-24 defines \u201cpartial disability\u201d in identical language, except for the substitution of \u201csome percentage-extent\u201d for the word \u201cwholly.\u201d\nIt is imperative that the \u201cage, education, training, general physical and mental capacity and previous work experience\u2019\u2019 of a workman be proven. This proof encompasses a life history. Each fact must be delineated by competent evidence. This information must be established by a workman and made available to a medical expert and to an expert vocational analyst when both experts appear to testify. Expert witnesses should be requested to obtain the life history from the workman. The vocational analyst obtains this information in the ordinary course of his study of the problem, but generally lacks competence to express an opinion on the medical aspects of \u201cgeneral physical and mental capacity.\u201d The medical expert seldom obtains a life history of each factor involved. I am not satisfied with a disability rating by a medical expert. A workman may be 40% disabled medically, but totally disabled when coupled with the workman\u2019s education and experience. See, Mabe v. North Carolina Granite Corporation, 15 N.C.App. 253, 189 S.E.2d 804 (1972).\nAfter the various factors have been proven, the workman and the experts should be asked:\nIn your opinion, based upon (your) (the) age, education, training, general physical and mental capacity and previous work experience (are you) (is the workman) wholly unable to perform the usual tasks in the work (you) (he) was performing at the time of (vour) (his) injury?\nIn your opinion, based on those facts, (are you) (is the workman) wholly unable to now perform any work for which (you) (he) is fitted? [Emphasis added.]\nThe same questions can be asked on partial disability, and the percent of partial disability. To be totally or partially disabled both prongs must be answered affirmatively.\nThe life history of plaintiff follows:\nAt the time of trial, December 30, 1977, plaintiff was 32 years of age, with a wife and four children, living in a mobilehome and unemployed. In 1964, at the age of 18 years, he was graduated from Grants High School, Grants, New Mexico. While in high school, he worked as a shoeshine boy in a barber shop. After graduation, he was employed in the molding plant of Mount Taylor Mill Works at Milan, New Mexico. Thereafter, he was drafted into the United States Army and was discharged in 1968. He was then employed by United Nuclear as a \u201ctop-lander,\u201d one who drove an ore truck and delivered materials. In 1969, when the mine closed, plaintiff began his employment with Kerr McGee as a laborer, lifting heavy sacks of ammonium sulphate. A month and a half later, he was promoted to second class operator in the boiler room of the acid plant. This consisted of opening and closing valves, taking samples of water, treating the water with different chemicals and lifting materials for use in water.\nPlaintiff was promoted to first class in the acid plant, and in 1971, while opening a valve in the boiler room, he was injured. He jerked to keep from burning his face and twisted his back, the forerunner of his future disability. He told his boss, continued working and saw a doctor or two.\nIn 1975, he was transferred from the acid plant to the rubber plant. This consisted of heavy lifting, climbing in and out of leech \u25a0tanks, applying rubber to pipes, lifting pipes and pump bowls and vulcanizing them. It required bending, lifting and squatting. In June and July of 1975, the annual \u201cturn-around\u201d of the plant took place. The mill was shut down and all necessary repairs were to be made. While repairing a conveyor belt, plaintiff and another laborer lifted a 400 pound portable vulcanizer and plaintiff\u2019s back injury was aggravated, resulting in much pain and limping. On returning from a trip to California, plaintiff was attended by a chiropractor for 10 days without relief. He returned to work for three days but had to quit. He was again attended by the chiropractor and Dr. Allan Wilson in Albuquerque who suggested surgery. In August 1975, a laminectomy was performed.\nIn March 1976, seven months later, plaintiff returned to work. In April, his back pain returned. After notifying his employer he was sent to the company\u2019s doctor and was off work until May 2, 1976. The company doctor referred plaintiff to an Albuquerque doctor who suggested further surgery to perform a fusion atop the laminectomy. The company doctor did not recommend it. Plaintiff sought to do lighter work along with his pain and disability but nothing was available. He continued to work until June 16, 1977, but he was compelled to quit because he could not perform his duties.\nAt the time of trial, plaintiff had pain \u201clike the stretching or pulling of the nerve.\u201d He attended the New Mexico State Branch College in Grants, New Mexico for one semester under the G. I. Bill and studied mathematics, speech, psychology and english. Since June of 1977 he was unable to work at all. Thereafter, under Dr. Wilson\u2019s recommendation, he lay down and lifted his leg toward his chest, two or three times a day for about two hours every day, to relieve the pain in his back.\nAn injured employee is \u201ctotally disabled\u201d if he is unable to pursue any gainful employment without experiencing substantial pain. Rachal v. Highlands Ins. Co., 355 So.2d 1355 (La.App.1978).\nThe foregoing evidence of plaintiff\u2019s age, education, training, general physical and mental capacity and previous work experience constituted sufficient evidence for the trial court to find that plaintiff was totally disabled at the time of the injury and at the time of trial.\nTo rebut plaintiff\u2019s total disability, defendant produced as a witness, Abraham Mackler, a vocational analyst, a well qualified expert to determine vocational disability. See, Getz v. Equitable Life Assur. Soc. of U. S., 90 N.M. 195, 561 P.2d 468 (1977), an action on an insurance policy, in which Mackler testified.\nMackler spent two days interviewing plaintiff and secured information of the age, education, trainirig, general physical and mental capacity and previous work experience. However, he admitted he was not qualified to judge plaintiff from a medical point of view. He was asked a hypothetical question to render an opinion as to what kind of job plaintiff could do. He testified to a list of twenty-six. One pertinent question was asked:\nQ. In any event based upon this listing of jobs that you gave, there\u2019s twenty-six of them, most of these he could do immediately, is that correct?\nA. He could do it right now based on your hypothetical.\nThis question and answer did not comply with \u00a7 52-1-25 that defines partial disability. It did not establish a percentage-extent of disability at the time of trial, and it did not establish a \u201cpercentage-extent to perform the usual tasks in the work he was performing at the time of his injury.\u201d This is the two prong test, both of which are essential to recovery of workmen\u2019s compensation benefits. Medina v. Zia Company, 88 N.M. 615, 544 P.2d 1180 (Ct.App.1975); Medina v. Wicked Wick Candle Co., 91 N.M. 522, 577 P.2d 420 (Ct.App.1977). Furthermore, Mackler\u2019s opinion did not include plaintiff\u2019s nerve-racking pain as a disabling factor in the performance of work, nor that such work was actually available.\nDefendants usually rely on my Medina opinions. Before doing so, they must discern the facts in each case. In Zia Company, the employer offered plaintiff work that he was fitted to do, wholly able to perform, and at the same wage, but plaintiff left his work, went home and did not return. In Wicked Wick Candle, at the time of trial, plaintiff had full-time employment as a clerk typist. Neither case discussed a workman\u2019s ability to perform outside work, sedentary or otherwise. To attempt to make the two prong test applicable here on partial disability is an attempt to pole vault without a pole.\nI should like to state my interpretation of the following language in the definition of disability.\n. and is wholly unable to perform any work for which he is fitted . . .\nA misconception exists on the meaning of this phrase. Lawyers believe that read strictly as stated, an injured workman employed as an electrical engineer, plant foreman supervisor, department head or second class operator in a boiler room of an acid plant is not totally disabled if he has the capacity to perform ANY WORK. These words are given the broadest meaning, such as performing janitorial services, working as a filling station attendant, driving a truck on smooth highways, raking leaves for the city, selling pencils, and 25 other sedentary jobs. Affirmative answers by expert witnesses to questions put to them is considered to be sufficient to establish partial disability. This testimony is insufficient. These tasks are far removed from the workman\u2019s usual tasks, his physical and mental capacities, the risks involved and the unavailability of employment. They are not jobs \u201cfor which he -is fitted.\u201d\nThe phrase \u201cany work for which he is fitted\u201d must be reasonably interpreted and liberally construed. Otherwise a man must be a helpless invalid or physical or mental basket case to be entitled to benefits. Total disability does not mean that a workman must be a helpless invalid. E. R. Moore Co. v. Industrial Com\u2019n, 71 Ill.2d 353, 17 Ill.Dec. 207, 376 N.E.2d 206 (1978); Wilson v. Weyerhaeuser Co., 30 Or.App. 403, 567 P.2d 567 (1977). \u201cAny work\u201d means a workman\u2019s ordinary employment, or such other employment, if any, approximating the same livelihood the workman might be expected to follow in view of his circumstances and capabilities. An injured workman is totally disabled if he cannot perform the same or similar work to that performed before the accident without unusual difficulty or danger. A skilled worker, although he may be able to obtain other types of skilled work, is totally disabled if he cannot perform a substantial portion of the work incident to his special occupation. By reason of the work-caused disability, the employee is placed at a disadvantage in securing employment in the labor market. Thomas v. Holland, 345 So.2d 1000 (La.App.1977). See, Thompson v. Argonaut Ins. Co., 28 Or.App. 697, 560 P.2d 684 (1977). Select Ins. Co. v. Boucher, 551 S.W.2d 67, 76 (Tex.Civ.App.1977) says:\nThe term \u201ctotal incapacity\u201d does not imply an absolute disability to perform any kind of labor. A person disqualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment is considered totally disabled. The term implies disability to perform the usual tasks of a workman and not merely the usual tasks of any particular trade or occupation. .\nTo conclude that an electrical engineer is partially disabled because he is capable of raking leaves or performing janitorial services destroys the spirit of the Workmen\u2019s Compensation Act. He has no other skills or training to draw upon. Each case must be considered on its peculiar facts for the reasons that what may be totally disabling to one workman would be only slightly disabling to another of a different age, background and experience. A workman 60 years of age with a fifth grade education doing hard labor may be totally disabled, whereas a young man with a football career may not be.\nA total disability award must not be an inducement to malingering. A workman should have the burden of proving that reasonable efforts were made to obtain work within work capabilities and failed to obtain work; that similar work was unavailable. A workman should search for employment and mention the different places where application was made to determine whether employers would undertake the risks of a disabled workman. To answer one newspaper advertisement and apply directly to one employer is not sufficient, Oliver v. Wyandotte Ind. Corporation, 360 A.2d 144 (Me.1976), but where applications for work are made with fourteen employers, of course, the efforts made were sufficient. Bowen v. Maplewood Packing Co., 366 A.2d 1116 (Me.1976).\nThe employer also has a duty to prove not only what the jobs might be, but more importantly, that such jobs be comparable or similar to the workman\u2019s skills and training and that these jobs were reasonably available to a person in the workman\u2019s position. This burden requires the employer to search for comparable available employment and assist the workman in obtaining work to support his family. \u201cIt 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 Brown v. Safeway Stores, Inc., 82 N.M. 424, 427, 483 P.2d 305, 308 (Ct.App.1970). To justify this burden, the employer can, as this employer does, engage a private investigator to put the injured workman under surveillance. If a workman dawdles, the employer can test total disability every six months.\n\u201cWholly unable to perform any work for which he is fitted\u201d means:\n1. unable to perform comparable or similar work to that which he performed before the accident occurred;\n2. suitable to his skills, experience and training as a workman during his lifetime career;\n3. for which employment is not presently or readily available in a stable labor market.\nIn the instant case, plaintiff was totally disabled.\nThe secondary purpose of this concurrence is to determine the reasonableness of an attorney\u2019s fee awarded a workman. Section 52-l-54(D), N.M.S.A. 1978, provides that \u201cthe compensation to be paid the attorney for the claimant shall be fixed by the court trying the same ... in such amount as the court may deem reasonable and proper . provided, however, that the trial court in determining and fixing a reasonable fee must take into consideration ... (2) the present value of the award made in the workman\u2019s favor.\u201d [Emphasis added.]\nA contingency fee award is not acceptable as a standard for fixing the reasonable attorney fee. Trujillo v. Tanuz, 85 N.M. 35, 508 P.2d 1332 (Ct.App.1973); Baghramain v. MFA Mutual Insurance Company, 315 So.2d 849 (La.App.1975); Salmon v. Salmon, 395 S.W.2d 29 (Tex.1965).\nThe amount of recovery, being the present value of the award, is only a factor to be considered in determining the amount of the fee to be allowed the claimant\u2019s attorney. Trujillo, supra; Seal v. Blackburn Tank Truck Service, 64 N.M. 282, 327 P.2d 797 (1958).\nIn workmen\u2019s compensation cases, Elsea v. Broome Furniture Co., 47 N.M. 356, 376, 143 P.2d 572, 584 (1943) says:\n. Many considerations enter into the matter of fixing attorney fees, not the least important of which are: the ability, standing, skill and experience of the attorney; the nature and character of the controversy; the amount involved, the importance of the litigation and the benefits derived therefrom. [See Williams v. Dockwiller, 19 N.M. 623, 145 P. 475 (1914).] We observed also in the case last cited that the trial court which fixes the fee supposedly has a superior knowledge of the actual services rendered and the charges usually prevailing in the particular locality for such services ....\nElsea was adopted as the rule in Michelson v. Michelson, 89 N.M. 282, 551 P.2d 638 (1976), a divorce case in which an award of an attorney fee of $26,000.00 was upheld where the wife\u2019s attorney submitted a time card showing approximately 400 hours spent in preparation for trial and where the trial consumed two full days.\nElse a and Michelson stand for the proposition that \u201cThe reasons which would call for a disturbance of the amount so fixed by a trial court must be very persuasive.\u201d [47 N.M. at 376, 143 P.2d at 584.]\nNeither the Workmen\u2019s Compensation Act nor judicial rule requires proof by expert witnesses or documentary evidence to establish the reasonableness of an attorney fee. \u201cThe award is for an amount the trial court deems \u2018reasonable and proper.\u2019 \u201d Salazar v. Kaiser Steel Corporation, 85 N.M. 254, 259, 511 P.2d 580, 585 (Ct.App.1973). The amount deemed \u201creasonable and proper\u201d varies from district judge to district judge. A review of New Mexico cases discloses vast variations. 5B West\u2019s New Mexico Digest, Workmen\u2019s Compensation, Section 1983 (1966) and 1978 Supplement.\nTo me, a reasonable attorney fee should not depend upon the idiosyncratic attitudes of a district judge or an appellate court. It should be based upon the considerations set forth in Else a, supra. We do not disturb the amount awarded unless the amount is so large that it is shocking; that the district judge acted beyond the bounds of reason. Compared with the inadequate awards heretofore given, the amount awarded in the instant case appears to be atop a mountain. To me, it was reasonable.", "type": "concurrence", "author": "SUTIN, Judge" }, { "text": "HERNANDEZ, Judge\n(dissenting).\nI respectfully dissent.\nThere is substantial evidence in the record that the plaintiff is wholly unable to perform the usual tasks in the work he was performing at the time of his injury. However, the evidence presented by the plaintiff that he is wholly unable to perform any work for which he is fitted by age, \u00e9ducation, training, general physical and mental capacity, and previous work experience, is unsubstantial. The record shows that the plaintiff was 32 years old, of average to above average intelligence, highly motivated and hard working. He was a high school graduate who had some additional training in the army as an automobile mechanic. At the time of trial he was taking courses in English, mathematics and psychology at the branch college of New Mexico State University at Grants. Dr. Wilson, one of the doctors who had operated on him in 1975 and had continued to treat him, testified that the plaintiff could do sedentary work but that he could not give a percentage figure as to the degree of plaintiff\u2019s disability, however, \u201cI would guesstimate that it would probably be somewhere in the area of forty percent at this point.\u201d The plaintiff testified that he did not know what he could do. The plaintiff failed to carry the burden of proof as to this element.\nDefendant\u2019s fourth point of error is well taken. Any claim that the plaintiff might have arising out of the accident in 1971 is barred by the limitation period. See Section 59-10-13.6 of the act. The trial court should have ruled that the claim was barred as a matter of law and dismissed it.\nDefendant\u2019s fifth point of error is also well taken. Considering the issues, the proceedings, etc., it is my opinion that the trial court abused its discretion in awarding attorney\u2019s fees on a percentage basis and in the amount that it did.", "type": "dissent", "author": "HERNANDEZ, Judge" } ], "attorneys": [ "Lowell E. McKim and George W. Kozeliski, Glascock, McKim & Head, Gallup, for defendant-appellant.", "Melvin L. Robins, Albuquerque, for plaintiff-appellee." ], "corrections": "", "head_matter": "595 P.2d 1204\n597 P.2d 1178\nSantiago S. MAREZ, Plaintiff-Appellee, v. KERR-McGEE NUCLEAR CORPORATION, Defendant-Appellant.\nNo. 3487.\nCourt of Appeals of New Mexico.\nDec. 19, 1978.\nRehearing Denied Jan. 8, 1979.\nLowell E. McKim and George W. Kozeliski, Glascock, McKim & Head, Gallup, for defendant-appellant.\nMelvin L. Robins, Albuquerque, for plaintiff-appellee." }, "file_name": "0009-01", "first_page_order": 55, "last_page_order": 67 }