{ "id": 1582500, "name": "Lugie SEDILLO, Plaintiff-Appellee, v. LEVI-STRAUSS CORPORATION, Defendant-Appellant; Lugie SEDILLO, Plaintiff-Appellant, v. LEVI-STRAUSS CORPORATION, Defendant-Appellee", "name_abbreviation": "Sedillo v. Levi-Strauss Corp.", "decision_date": "1982-04-08", "docket_number": "Nos. 5438, 5441", "first_page": "52", "last_page": "57", "citations": [ { "type": "official", "cite": "98 N.M. 52" }, { "type": "parallel", "cite": "644 P.2d 1041" } ], "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": "91 N.M. 533", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571184 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0533-01" ] }, { "cite": "293 A.2d 395", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1972, "opinion_index": 0 }, { "cite": "120 N.J.Super. 60", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 340384 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nj-super/120/0060-01" ] }, { "cite": "440 F.2d 908", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 760246 ], "opinion_index": 0, "case_paths": [ "/f2d/440/0908-01" ] }, { "cite": "97 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555105 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0001-01" ] }, { "cite": "90 N.M. 124", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2873551 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/90/0124-01" ] }, { "cite": "83 N.M. 400", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333759 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0400-01" ] }, { "cite": "83 N.M. 38", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5340190 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nm/83/0038-01" ] }, { "cite": "94 N.M. 370", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573115 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nm/94/0370-01" ] }, { "cite": "636 P.2d 320", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "80 N.M. 59", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5356070 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0059-01" ] }, { "cite": "97 N.M. 46", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555223 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/97/0046-01" ] } ], "analysis": { "cardinality": 830, "char_count": 16192, "ocr_confidence": 0.798, "pagerank": { "raw": 2.240164641129861e-07, "percentile": 0.7800472151079079 }, "sha256": "e233ae38014c0289d56c3367134e16284dd679516a51f7c46c41b91953250d6a", "simhash": "1:957bfb27640f17df", "word_count": 2598 }, "last_updated": "2023-07-14T19:13:49.367595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LOPEZ and DONNELLY, JJ., concur." ], "parties": [ "Lugie SEDILLO, Plaintiff-Appellee, v. LEVI-STRAUSS CORPORATION, Defendant-Appellant. Lugie SEDILLO, Plaintiff-Appellant, v. LEVI-STRAUSS CORPORATION, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nWALTERS, Chief Judge.\nBoth parties appealed from portions of the judgment entered below; the appeals have been consolidated for decision.\nPlaintiff Sedillo challenges the rate of disability compensation awarded her, and denial of payment to her doctor for medical services rendered. Defendant appeals the court\u2019s allowance of expert witness fees to plaintiff. We reverse.\nThe parties stipulated at the beginning of trial that plaintiff suffered a work-related injury on March 14, 1979. At the conclusion of the trial, the court allowed plaintiff\u2019s amendment of the pleadings to allege that plaintiff\u2019s disability commenced on June 6, 1980, when she was unable to get out of bed. Defendant\u2019s Exhibit B shows that on that date the defendant company placed her on leave of absence; she never returned to work. We discuss, in order, the date of disability upon which the rate of compensation is to be based; medical benefits payable on plaintiff\u2019s behalf, and defendant\u2019s liability for payment of plaintiff\u2019s expert witness fees.\nI.\nDefendants rely on testimony of one doctor that; in his opinion, if plaintiff worked in pain from March 14, 1979 she was five or ten percent disabled from the date of the accidental injury; and from another doctor that, assuming plaintiff complained of pain from the date of the accident and consequently was shifted to other jobs for her accommodation, he would assume that her disability began at the date of injury and gradually increased until she was forced to stop work. This evidence, they claim, supports the trial court\u2019s award of 10% disability commencing March 14, 1979, and total disability after June 6,1980.\nWe cannot say that either doctor was mistaken if we accept their opinions as being related to claimant\u2019s medical disability following the 1979 injury. But eligibility under the Workmen\u2019s Compensation Act is concerned with legal disability as statutorily defined, and the court is not bound by medical opinion or medical definitions when determining whether a compensable disability exists. Cardenas v. United Nuclear Homestake Part., 97 N.M. 46, 636 P.2d 317 (Ct.App.1981); Goolsby v. Pucci Distrib. Co., 80 N.M. 59, 451 P.2d 308 (1969). Medical testimony is necessary to establish the causal connection between an accidental injury and a resulting compensable disability, \u00a7 52-1-28 B, N.M.S.A. 1978; it does not resolve the questions of date of commencement or degree of compensable disability. Goolsby, supra.\nWe said, in Cardenas, supra, at 636 P.2d 320:\nThe concept of \u201ccompensable disability\u201d intrinsic to our workmen\u2019s compensation law is that in order to be entitled to an award of compensation benefits a workman must not only suffer a physical impairment, but also be unable to perform work.\nThe pertinent portions of the Act regarding disability are \u00a7\u00a7 52-1-24 and -25, N.M. S.A.1978. They read, respectively:\n\u201c[TJotal disability\u201d means a condition whereby a workman, by reason of an injury arising out of and in the course of, [sic] his employment, is wholly unable to perform the usual tasks in the work he was performing at the time of this 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[,]\nand\n\u201c[P]artial disability\u201d means a condition whereby a workman, by reason of injury arising out of and in the course of his employment, is unable to some percentage-extent to perform the usual tasks in the work he was performing at the time of his injury and is 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.\nChief Justice Easley said in Anaya v. New Mexico Steel Erectors, Inc., 94 N.M. 370, 610 P.2d 1199 (1980), that \u201c[impairment of physical function is not enough to justify an award * * *; there must be some disability, or inability, to perform work.\u201d\nIn this case, no one disputes or doubts that plaintiff suffered almost constant back pain following the March 14, 1979 injury. But the evidence concerning her ability, albeit with pain, to perform the work functions she was doing at the time of the accident was that she continued at \u201chook rope,\u201d \u201ctrim pockets\u201d ( \u2014 two operations for which she was awarded certificates of 100% production before she was injured \u2014 ) and \u201cturn and stack\u201d assignments after the accident. Other than for the payroll period following March 14, 1979, during which plaintiff was sent to the company\u2019s doctors for examination and was off work, there is not an iota of evidence in the record to indicate that plaintiff did less work or put in fewer weekly hours after the accident than before. Indeed, her average weekly pay scale, based upon production, rose from $3,059 per hour for the March 1979 quarter to $4,199 per hour for the June 1980 quarter when she became unable to work. During that entire time she was able to and did perform the work she was doing at the time of the injury as well as work for which she was fitted by her training and experience.\nPlaintiff was not paid any workmen\u2019s compensation benefits at any time. She was not advised by the company doctors, nor was her employer, that she had suffered a compensable injury in March 1979. An uneducated worker is not charged with medical knowledge \u201cwhich apparently transcends that possessed by the attending physician.\u201d Duran v. New Jersey Zinc. Co., 83 N.M. 38, 39, 487 P.2d 1343 (1971). She filed her claim for compensation well with the time limitation after she knew or had reason to know she had suffered a compensable injury when so advised by her own doctor. See Gomez v. Hausman Corp., 83 N.M. 400, 492 P.2d 1263 (Ct.App.1972).\nPlaintiff was not disabled, under the clear language of \u00a7\u00a7 52-1 \u2014 24 and -25, supra, until June 1980.\nII.\nPlaintiff contends it was error to deny her claim for payment of medical services rendered by her personal physician. According to the evidence, Lugie Sedillo was excused from work and sent to the Center for Industrial Medicine when she reported the accident on Wednesday, March 14,1979. X-Ray Associates made x-rays of her back and reported to the Center that Mrs. Sedillo had degenerative disc disease in the lumbosacral area. One of the Center\u2019s doctors recommended moderate duty, no lifting of more than forty pounds, no excessive bending, and no excessive vibrative tool work. Neither the x-ray findings nor the doctor\u2019s recommendations were communicated to the employer or to the plaintiff-employee. In a letter dated two days after the accident, however, the Center wrote the employer that plaintiff had been given a muscle relaxant and was advised to obtain bed-rest, and that she should return to work the following Monday.\nIn September 1979, plaintiff was sent back to the Center for reexamination following complaints of continued back pain. The Center\u2019s report of that visit was made in April 1980 to the employer\u2019s insurance carrier, advising that it had not been paid for that examination and reporting that plaintiff had a \u201cnormal spine.\u201d That information, reduced to a writing two months before plaintiff quit work, was again never conveyed to the employer until after plaintiff had left her employment, when the employer had a conference with the Center for Industrial Medicine regarding its failure to provide medical reports on defendant\u2019s employees. Plaintiff never knew of this report before she filed suit for benefits.\nWhen Mrs. Sedillo found she could not get out of bed on June 6,1980, she made an appointment to see her personal physician. On June 16,1980, that doctor completed the disability form provided to plaintiff by her employer, indicating that plaintiff\u2019s \u201cnature of disability\u201d was \u201clow back injury \u2014 severe * * * [intervening words unreadable] on March 1979.\u201d Employer\u2019s nurse told plaintiff \u201cif she felt it had something to do with work, that she should see our company doctor.\u201d When plaintiff replied that she wanted to see her own physician, nothing more was said or done by the nurse or anyone else in defendant\u2019s employ regarding medical treatment.\nWe have outlined the entire substance of the evidence relating to the employer\u2019s obligation to furnish medical attention as provided under \u00a7 52-1-49, N.M.S.A.1978. See Garcia v. Genuine Parts Co., 90 N.M. 124, 560 P.2d 545 (Ct.App.1977).\nDefendants argue that the nurse\u2019s comment quoted above was a June 1980 \u201coffer of services of the company doctor.\u201d They cite Cardenas v. United Nuclear, supra, and Montoya v. Anaconda Mining Co., 97 N.M. 1, 635 P.2d 1323 (Ct.App.1981), as establishing the employer\u2019s \u201cright to select which medical practitioners and hospitals will treat the injured workman.\u201d These and other cases do recognize the clear language of the statute in that regard. Montoya and Garcia, supra, pointed out specific exceptions, however, where (1) the employer, although passively expressing a willingness to furnish medical treatment, fails to do so in fact; and (2) although not actually refusing medical services, the employer fails to make arrangements for them or for necessary emergency treatment.\nThe trial court\u2019s Finding 6 and Conclusion 7, while denying payment to plaintiff for her doctor\u2019s bill because defendant \u201coffered adequate medical attention which was refused by plaintiff,\u201d both acknowledge that plaintiff\u2019s private doctor rendered \u201creasonable and necessary medical attention [to plaintiff] through June of 1981.\u201d Defendants\u2019 medical expert, who examined plaintiff immediately prior to trial, agreed with plaintiff\u2019s private doctor that the March 1979 accident caused the disability manifested in June 1980; that plaintiff\u2019s spinal condition seen by him in April 1981 was \u201cessentially the same\u201d as shown by the March 1979 x-rays; that the 1979 x-ray diagnosis of degenerative disc disease was accurate; and both doctors agreed that only a spinal fusion would bring possible relief to plaintiff.\nDespite this evidence of a physical condition directly related by all medical examiners to the 1979 accident, the employer at no time provided any medical treatment for plaintiff and denied throughout this proceeding that plaintiff was disabled or entitled to compensation benefits under the Act. The 1979 examinations furnished by the employer hardly amounted to. a showing that the employer had \u201cmade provisions for * * * adequate * * * medical facilities and attention\u201d as required by \u00a7 52-1-49, supra. When company doctors ignore diagnostic information and fail to advise either the patient or the patient\u2019s employer of a condition requiring attention, we would be irresponsible were we to hold that this is substantial evidence that the employee was afforded adequate medical services. See Atlantic & Gulf Stevedores, Inc. v. Neuman, 440 F.2d 908 (5th Cir.1971), regarding the employer\u2019s liability for medical services obtained by the workman when the employer\u2019s doctors erroneously diagnosed the workman\u2019s condition and reported his fitness for work; and Benson v. Coca Cola, 120 N.J.Super. 60, 293 A.2d 395 (1972), concerning the propriety of applying \u201chindsight\u201d in evaluating the necessity and reasonableness of the employee\u2019s action in seeking medical attention from her own doctor.\nJust as in Garcia, supra, and Trujillo v. Beaty Elec. Co., Inc., 91 N.M. 533, 577 P.2d 431 (Ct.App.1978), the nurse\u2019s comment to plaintiff in June of 1980 was \u201cno more than a passive willingness\u201d to provide medical aid; it does not rise to the fulfillment of an employer\u2019s statutory duty to provide adequate medical care to a work-injured employee. There is an inherent anomaly in defendant\u2019s position on appeal that they met that statutory obligation while, at the same time, they were denying and continued to deny throughout trial that plaintiff had suffered any work-related accidental injury or compensable disability.\nHaving failed to offer or provide medical services, the limitation of \u00a7 52-1-49 B is not applicable to this plaintiff. Defendants are liable for the medical services which plaintiff obtained for herself from her own doctor until notified on January 15, 1981 by defendants\u2019 counsel that \u201cany further medical treatment\u201d not authorized by the company would have to be at her own expense.\nIII.\nAlthough plaintiff called four expert witnesses, none of them were subpoenaed to appear. The trial court allowed assessment of the cost of expert witness fees against defendants in the total amount of $750. Defendants contend that \u00a7 52 \u2014 1\u201435, N.M.S. A.1978, providing that \u201c[n]o costs shall be charged, taxed or collected by the clerk except for witnesses who testify under subpoena\u201d prohibits assessment of witness fees against them. Plaintiffs, on the other hand, point to \u00a7 38-6-4 B, N.M.S.A.1978, authorizing a $750 expert witness fee in the discretion of the district court if a witness qualifies as an expert and testifies in person or by deposition. This section imposes no requirement that the expert witness appear under subpoena. She also relies on N.M.R. Civ.P. 54(d), N.M.S.A.1978, which allows costs \u201cas of course to the prevailing party.\u201d Rule 54(d) contains language preceding that upon which plaintiff depends, however, permitting assessment of costs against the losing party \u201c[ejxcept when express provision therefor is made either in a statute or in these rules [of civil procedure].\u201d\nSection 52-1-34, N.M.S.A.1978, provides that the Rules of Civil Procedure shall apply to compensation claims \u201cexcept where provisions of the Workmen\u2019s Compensation Act directly conflict * * * in which case the provisions of the Workmen\u2019s Compensation Act shall govern.\u201d\nSection 52-1-35, supra, directly conflicts with Rule 54(d) in that it requires witnesses in a workman\u2019s compensation case to be subpoenaed before those costs may be taxed, and Rule 54(d) does not. Subsection B of \u00a7 52-1-35 refers to the amount to be allowed to \u201c[t]hese [subpoenaed] witnesses\u201d as \u201cthe same fee * * * as is fixed by law in other civil actions; provided, however, the court may assess * * * the fees allowed any medical witness whose * * * trial attendance is ordered by the court, as provided in Section 59-10-20.1, New Mexico Statutes Annotated, 1953 Compilation.\u201d There was no \u00a7 59-10-20.1 at the time this statute was written, nor does it appear there ever was such a section enacted. Even so, two of plaintiff\u2019s experts were not medical witnesses and the attendance of none of them was ordered by the court. But if we ignore the reference in \u00a7 52-1-35 B to a non-existent procedural statute, the purported allowance of a fee for medical witnesses different from or more than the amount allowed other witnesses would still seem to require that the medical witness be under order of the court to appear in order to permit taxation of costs in an amount different from that allowed for subpoenaed non-expert witnesses. A subpoena is nothing more nor less than an order of the court to appear and testify.\nThe Workmen\u2019s Compensation Act containing an express prerequisite for the payment of witness fees directly in conflict with Rule 54(d), and imposing a requirement not found in the statutes which relates to the amount which may be allowed for medical witnesses, \u00a7 38-6-4 B, supra, we hold it was error for the trial court to tax expert witness fees against defendants.\nThe judgment below is reversed. Plaintiff shall be awarded total disability benefits at the rate in effect on June 6, 1980, and costs for services rendered by her personal physician until January 15, 1981. She shall be liable for her own expert witness fees.\nPlaintiff is awarded a fee of $2,000 for services of her attorneys on appeal.\nIT IS SO ORDERED.\nLOPEZ and DONNELLY, JJ., concur.", "type": "majority", "author": "WALTERS, Chief Judge." } ], "attorneys": [ "Roger V. Eaton, Branch, Perkal & Associates, P. A., Albuquerque, for Lugie Sedillo.", "Carlos G. Martinez, Shaffer, Butt, Thornton & Baehr, P. C., Albuquerque, for Levi Strauss Corp." ], "corrections": "", "head_matter": "644 P.2d 1041\nLugie SEDILLO, Plaintiff-Appellee, v. LEVI-STRAUSS CORPORATION, Defendant-Appellant. Lugie SEDILLO, Plaintiff-Appellant, v. LEVI-STRAUSS CORPORATION, Defendant-Appellee.\nNos. 5438, 5441.\nCourt of Appeals of New Mexico.\nApril 8, 1982.\nCertiorari Denied May 11, 1982.\nRoger V. Eaton, Branch, Perkal & Associates, P. A., Albuquerque, for Lugie Sedillo.\nCarlos G. Martinez, Shaffer, Butt, Thornton & Baehr, P. C., Albuquerque, for Levi Strauss Corp." }, "file_name": "0052-01", "first_page_order": 90, "last_page_order": 95 }