Eldridge v. Aztec Well Servicing Co.

735 P.2d 1166, 105 N.M. 660
CourtNew Mexico Court of Appeals
DecidedMarch 12, 1987
Docket9381
StatusPublished
Cited by6 cases

This text of 735 P.2d 1166 (Eldridge v. Aztec Well Servicing Co.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eldridge v. Aztec Well Servicing Co., 735 P.2d 1166, 105 N.M. 660 (N.M. Ct. App. 1987).

Opinion

OPINION

DONNELLY, Chief Judge.

Plaintiff appeals from the trial court’s refusal to award certain hospital and medical costs under the Workmen’s Compensation Act, NMSA 1978, Section 52-1-49. The central issue is whether the employer provided timely medical services to the plaintiff in accordance with the Workmen’s Compensation Act. Other issues raised in the docketing statement but not briefed are deemed abandoned. State v. Dennis F., 104 N.M. 619, 725 P.2d 595 (Ct.App.1986). We affirm the trial court.

Plaintiff was employed as a floorhand on a drilling rig. On August 5, 1985, he was struck in the back while working on the rig floor. He reported the incident to his driller but continued to work the remainder of his shift. The next day he returned to work, performing his duties until he picked up a water cooler to carry to the rig. He said his pain then became too intense to walk or move. Plaintiff did not report the second incident or directly complain of his injury to anyone, but testified that it was readily apparent that he “couldn’t * * * move around.” Plaintiff was told to lie down and rest for the remainder of his shift.

Thereafter, plaintiff did not return to work. On August 6, 1985, he consulted a chiropractor, Dr. David Brimhall, D.C. Plaintiff testified that “within a week” of the accident, he went to his employer’s office to report the work injury. The report, which was introduced as a defendant’s exhibit, is dated August 7, 1985, the day after plaintiff’s visit to Dr. Brimhall. The accident report was prepared by the employer’s safety manager, and it noted that plaintiff’s visit to Dr. Brimhall had been unauthorized. The safety manager instructed plaintiff to see Dr. Joseph H. Sharpe, a company designated doctor. The employer’s insurer paid Dr. Brimhall $500 for plaintiff’s first two visits, but then gave the chiropractor written notice that it would not pay for any further treatment.

Plaintiff was treated for muscle pain by Dr. Sharpe and was then examined by Dr. George H. Peacock, a general surgeon. A CT scan ordered by Dr. Peacock showed no abnormalities, and Dr. Peacock diagnosed plaintiff’s injury as a mechanical back strain. Dr. Peacock testified at trial that plaintiff’s complaint of “almost total incapacitation” was inconsistent with muscle strain. Therefore, Dr. Peacock referred plaintiff to a neurologist, Dr. Pierre Herding, in order to confirm that there was no neurologic damage. The employer’s insurance adjuster arranged an appointment with Dr. Herding, but plaintiff failed to keep the appointment, explaining at trial that he had run out of gas on his way to the examination. Plaintiff admitted, however, that he never attempted to reschedule the appointment. Despite the insurer’s notification to both plaintiff and Dr. Brimhall that it would not pay for further treatment, plaintiff continued to see Dr. Brimhall. Dr. Brimhall referred plaintiff to Dr. Barry Hillmer, a physician in Durango, Colorado. Dr. Hillmer ordered plaintiff hospitalized for both a CT scan and a mylogram test, as well as physical therapy. The cost of this unauthorized medical treatment was $6,519.14.

The trial court denied plaintiff recovery for these additional medical costs, and found that the employer and its insurer “at all times material to this cause of action, furnished or arranged to furnish adequate medical treatment for Plaintiff.” The court further found that plaintiff refused to continue medical treatment with the physicians furnished or recommended by the employers, and instead “chose to receive treatment from physicians and medical practitioners of his own choice after being told that medical services and treatment would be provided and that Defendants] would not pay for the treatment selected by Plaintiff.”

RECORD ON APPEAL

We address initially the threshold problem of an incomplete record on appeal. Plaintiff’s brief advises the court that one of the two tapes of the trial proceedings was destroyed accidentally by the clerk of the district court. Plaintiff further asserts that the parties were unable to agree upon a reconstructed record. Defendants, however, dispute the latter contention, claiming that “[a]t no time has attorney for Plaintiff attempted to reconstruct the record as inferred * *

Although the record is incomplete, both parties have briefed the case on its merits. Neither party contends that the lack of a complete record prevents a meaningful review of the issue on appeal. See State v. Wildenstein, 91 N.M. 550, 577 P.2d 448 (Ct.App.1978); see also State v. Fish, 101 N.M. 329, 681 P.2d 1106 (1984). The above recitation of facts is based on the tape transmitted to this court, and we believe that it provides a record of sufficient completeness to permit us to properly consider and resolve the issue. State v. Herrera, 84 N.M. 46, 499 P.2d 364 (Ct.App.1972). It bears repeating, however, that it is the appellant’s responsibility to provide this court with the record on appeal, and when a record is incomplete, this court assumes that the missing portions would support the trial court’s determination. State v. Padilla, 95 N.M. 86, 619 P.2d 190 (Ct.App.1980).

EMPLOYER’S OBLIGATION TO FURNISH MEDICAL CARE

In New Mexico, an injured workman is precluded from seeking independent medical treatment at the employer’s expense when the employer has indicated a willingness to furnish treatment and actively make such services available. See § 52-1-49; Gregory v. Eastern New Mexico University, 81 N.M. 236, 465 P.2d 515 (Ct.App.1970); see also Montoya v. Anaconda Mining Co., 97 N.M. 1, 635 P.2d 1323 (Ct.App.1981). The “medical services rule,” set forth in Section 52-1-49, is described by Larson in his treatise, 2 A. Larson, Workmen’s Compensation Law, Section 61.12(d) (1986), as follows:

If the employer has sufficient knowledge of the injury to be aware that medical treatment is necessary, he has the affirmative and continuing duty to supply medical treatment that is prompt, in compliance with the statutory prescription on choice of doctors, and adequate; if the employer fails to do so, the claimant may make suitable independent arrangements at the employer’s expense.

The dispute in this case centers on whether the employer acted with sufficient promptness to preserve its right of medical control. Plaintiff claims that Section 52-1-49 requires an employer to furnish medical treatment “as soon as the worker is injured.” Plaintiff relies on the express wording of the statute, which provides in pertinent part:

A.

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Cite This Page — Counsel Stack

Bluebook (online)
735 P.2d 1166, 105 N.M. 660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eldridge-v-aztec-well-servicing-co-nmctapp-1987.