Gallegos v. Duke City Lumber Co., Inc.

534 P.2d 1116, 87 N.M. 404
CourtNew Mexico Court of Appeals
DecidedApril 16, 1975
Docket1593
StatusPublished
Cited by21 cases

This text of 534 P.2d 1116 (Gallegos v. Duke City Lumber Co., Inc.) 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
Gallegos v. Duke City Lumber Co., Inc., 534 P.2d 1116, 87 N.M. 404 (N.M. Ct. App. 1975).

Opinion

OPINION

HENDLEY, Judge.

Defendant appeals a total permanent disability award in favor of plaintiff in a workmen’s compensation action. Section 59-10-12.18, N.M.S.A.1953 (2d Repl.Vol. 9, 1974, pt. 1). Defendant alleges two points for reversal: (1) that there is no substantial evidence in the record to support the finding of total permanent disability and (2) that the award of attorneys’ fees was excessive. We affirm.

(1) Substantial Evidence Defendant centers the main thrust of his attack on the trial court’s finding of fact No. 6 which reads as follows:

“6. The disability sustained by Plaintiff from such injury is a natural and direct result of the accident herein complained of and is total and permanent. Such disability affects Plaintiff’s back, central nervous system and his body as a whole and will require future medical, doctor and hospital, care, treatment and expenses.”

Defendant’s mode of argument is to separate this finding into three elements and then attack each element individually. Thus defendant contends that the trial court found; (a) that plaintiff’s disability was total and permanent, (b) that plaintiff sustained injury to the central nervous system and (c) that plaintiff would need future medical treatment.

Three medical doctors testified in the cause. Defendant’s two doctors denied that plaintiff sustained total permanent disability. The trial court’s findings are in no way based on their testimony. Plaintiff’s expert was Dr. Kosicki. He testified that, in his opinion, plaintiff was totally disabled from doing the work for which he was qualified. He did testify that plaintiff could perform certain light work, e. g. plaintiff could perform the duties of a night-watchman or could do bench work. Dr. Kosicki never said, in so many words, that plaintiff’s central nervous system was injured. He likewise never said that plaintiff would require future hospital treatment. Defendant’s plant manager testified that there were several openings for the position of night-watchman at plaintiff’s previous employment location during the period of time in issue. It is on this basis that defendant urges that the trial court misconceived the seriousness of plaintiff’s disability and erred in finding that it was total and permanent. It is almost needless to say, that the preceding assertions view the record in the light most favorable to the defendant.

Appellate review requires that we view the entire record in the light most favorable to support the trial court’s findings. Adams v. Loffland Brothers Drilling Company, 82 N.M. 72, 475 P.2d 466 (Ct. App.1970). Not only do we view the evidence in this manner, but we must also consider any reasonable inferences that can be drawn therefrom to support the findings and disregard any inferences t.o the contrary. Adams v. Loffland Brothers Drilling Company, supra.

(a) Total Disability

Section 59-10-12.18, supra, provides that:

“ . . . ‘total disability’ 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.”

Dr. Kosicki characterized plaintiff’s condition as being a chronic lumbo-sacral strain, permanent in duration, and from which no improvement could be expected. He testified that plaintiff could do no bending, stooping, stretching, lifting of objects weighing over fifteen to twenty pounds, climbing, squatting, driving for long periods of time or over rough roads, or walking over rough areas. He also indicated that occasional “flare-ups” were to be expected with plaintiff’s condition. There was evidence of several such “flare-ups” during the months following the accident. One occurred when plaintiff bent down to pick up a wrench from the ground and could not thereafter straighten up. Another occurred when plaintiff bent down to pick up a garden hose with the same consequences. Other “flare-ups” occurred when plaintiff was raking the lawn and getting up off the commode. One of these episodes resulted in hospitalization.

Plaintiff, by experience and training, had done heavy, physical labor. He had done farming and plumbing and had been a carrier operator at defendant’s lumber company. He has a seventh grade education. Plaintiff was unable to return to his former employment because its usual tasks involved lifting or pulling of heavy objects. The proscriptions described by Dr. Kosicki would prevent plaintiff from gaining employment for which he is fitted by previous work experience and training.

Defendant makes much of plaintiff’s supposed ability to be a night-watchman at Duke City. Yet defendant ignores certain evidence from which it can be reasonably inferred that plaintiff is wholly unfit for that occupation. Specifically, we refer to evidence that the job of night-watchman at Duke City would mainly involve riding in a pick-up truck over rough roads to the various check-in stations. More importantly, the plant manager testified that it would be possible, should plaintiff become disabled while working, that there would be no one at the plant to help him get back into town or call a doctor. From this testimony taken together with evidence that plaintiff’s condition will flare-up from merely reaching to the ground for an object such as a key ring or getting up off the commode, it can be inferred that plaintiff is wholly unfit to be a night-watchman at Duke City Lumber Company.

The evidence supports the finding that plaintiff is “totally disabled” within the meaning of the Workmen’s Compensation Act.

(b) Nerve Injury

Defendant contends that there is no evidence to support a finding that plaintiff’s central nervous system was injured. This contention either has no merit or no application to the instant case.

First, there was testimony that positive results were obtained during one examination for nerve irritation. Second, the trial court did not find that plaintiff suffered injury to his central nervous system. The trial court did find that plaintiff’s disability affected his central nervous system. To affect is to produce a result on or to influence. There is evidence that plaintiff’s injury causes him pain. The pain is felt via his nervous system. His disability thus affects his nervous system. There is substantial evidence for this finding.

(c) Future Medical Treatment

Defendant contends that since no doctor specifically testified that plaintiff would need more than physical therapy and muscle relaxers in the future, then there is no evidence to support the finding that plaintiff would need doctor and hospital care. Again, defendant does not consider the inferences favorable to the trial court’s finding.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ulibarri v. Gee
748 P.2d 10 (New Mexico Supreme Court, 1987)
Woodson v. Phillips Petroleum Co.
695 P.2d 483 (New Mexico Supreme Court, 1985)
Jennings v. Gabaldon
640 P.2d 522 (New Mexico Court of Appeals, 1982)
Johnsen v. Fryar
630 P.2d 275 (New Mexico Court of Appeals, 1981)
Casillas v. S.W.I.G.
628 P.2d 329 (New Mexico Court of Appeals, 1981)
Romero v. S. S. Kresge Co.
623 P.2d 998 (New Mexico Court of Appeals, 1981)
Fryar v. Johnsen
601 P.2d 718 (New Mexico Supreme Court, 1979)
Lamont v. New Mexico Military Institute
595 P.2d 774 (New Mexico Court of Appeals, 1979)
Gearhart v. Eidson Metal Products
595 P.2d 401 (New Mexico Court of Appeals, 1979)
Marez v. Kerr-McGee Nuclear Corp.
595 P.2d 1204 (New Mexico Court of Appeals, 1978)
Genuine Parts Co. v. Garcia
582 P.2d 1270 (New Mexico Supreme Court, 1978)
Martinez v. Ralph Johnson Rig, Inc.
580 P.2d 485 (New Mexico Court of Appeals, 1978)
Keeth Gas Co., Inc. v. Jackson Creek Cattle Co.
570 P.2d 918 (New Mexico Supreme Court, 1977)
American Tank & Steel Corp. v. Thompson
90 N.W. 513 (New Mexico Supreme Court, 1977)
Medina v. Zia Company
544 P.2d 1180 (New Mexico Court of Appeals, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
534 P.2d 1116, 87 N.M. 404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallegos-v-duke-city-lumber-co-inc-nmctapp-1975.