Garcia v. Borden, Inc.

853 P.2d 737, 115 N.M. 486

• Court: New Mexico Court of Appeals
• Decided: March 29, 1993
• Docket: 13661
• Status: Published

Opinions

OPINION

DONNELLY, Judge.

Employer and its insurance company appeal a compensation order of the Workers’ Compensation Judge (WCJ) awarding temporary total disability benefits and attorneys’ fees to Worker. We discuss whether: (1) expert testimony was required to establish that Worker’s accident arose from a risk related to his employment; (2) the decision of the WCJ that Worker suffered a disability due to a work-related accident is supported by substantial evidence; (3) it was error to admit rebuttal testimony concerning the cause of Worker’s accident; and (4) the WCJ erred in determining that Worker was temporarily totally disabled. We affirm.

FACTS

Worker was employed as a cheese worker for Employer. His work included, among other things, cleaning pipes and equipment and cooking, processing, and packing cottage cheese. He also was directed to use chlorine to sanitize lines connected to the cheese processing equipment. On March 19, 1991, Worker began work and thereafter began experiencing dizziness while applying sanitation chemicals to the equipment. When the dizziness continued to affect him, Worker decided to go to the employees’ locker room and rest with a wet towel over his head. He testified that when he reached into his locker for a towel he was still experiencing the effects of the chlorine, and that he became dizzy and fell, hitting his lower back on the locker door. When he fell to the floor, he heard a pop and felt a pain in his back; thereafter, he experienced tingling and numbness in his legs. He rested for a while and then returned to work. He was told to continue working and to seek medical treatment the next day. Worker was treated for back pain and was given a medical excuse from work for several weeks. When he was released to return to work, he was told his job as a cheese worker was no longer available. Instead, Employer offered him a job doing clean-up work, earning the same salary. Worker refused this job because he was still physically disabled and the new position required more strenuous activity than he could perform. Thereafter, Worker filed a compensation claim; following a hearing the WCJ awarded him temporary total disability benefits, medical benefits, and attorneys’ fees.

I. RISK INCIDENT TO EMPLOYMENT

Employer denies that Worker suffered a job-related injury or that Worker’s testimony was sufficient to establish that the alleged accident arose out of and in the course of his employment. Employer argues that the WCJ erred in granting an award of compensation because Worker failed to establish by expert testimony that his injury was caused by an accident which arose out of a risk of his employment.

To establish a right to workers’ compensation benefits, Worker must prove that he suffered a compensable injury arising out of and in the course of his employment. NMSA 1978, § 52-l-28(A) (Repl.Pamp.1991). For an injury to “arise out of” the employment, there must be a showing that the injury was caused by a risk to which a worker was subject by reason of his employment, and the employment must contribute something to the hazard which gave rise to the injury. Adamchek v. Gemm Enters., Inc., 96 N.M. 24, 26, 627 P.2d 866, 868 (1981); Gutierrez v. Artesia Pub. Sch., 92 N.M. 112, 115, 583 P.2d 476, 479 (Ct.App.1978).

Worker testified that the dizziness he experienced from chlorine was the cause of his fall. Employer disputed this contention and points to testimony of Worker which indicated that his dizziness resulted from bronchitis, and that Worker also testified that he reinjured his back subsequent to March 19, 1991. Whether Worker’s back injury occurred during his employment and the cause of Worker’s dizziness precipitating his fall were the subject of conflicting testimony. On direct examination, Worker testified that his back injury occurred while working on March 19, 1991. On rebuttal, he testified that chlorine he was using that morning to clean the cheese processing equipment made him dizzy prior to his fall. He stated that his supervisor had given him a paper informing about the chemicals he was required to use. Worker also testified that he had been using chlorine to sanitize equipment for about two weeks prior to his fall, and that chlorine can make you dizzy, “I don’t know if it makes other people dizzy, but it made me dizzy.” Employer contends that lay testimony was insufficient to establish that Worker’s fall was caused by a risk incident to his employment, and that expert testimony was required to show that his exposure to chlorine while at work caused him to become dizzy and fall.

Employer advances two arguments in support of this contention. First, Employer raises a statutory ground; it asserts that Section 52-1-28 requires expert testimony to establish that chlorine actually caused Worker’s dizziness and fall in light of Employer’s express denial that a connection existed between Worker’s accident and a risk of his employment. We disagree with this reading of the statute. Section 52-l-28(B) provides in applicable part: “In all cases where the employer ... den[ies] that an alleged disability is a natural and direct result of the accident, the worker must establish that causal connection as a probability by expert testimony of a health care provider____” We do not interpret the statute as requiring expert medical testimony to establish the cause of Worker’s fall under the circumstances presented here. Instead, we think Employer’s contention regarding the necessity of expert testimony concerning the cause of Worker’s fall more properly is a challenge to the weight of the evidence he presented, not its admissibility. See Hansen v. Skate Ranch, Inc., 97 N.M. 486, 491, 641 P.2d 517, 522 (Ct.App.1982).

The language of Section 52-1-28(B) indicates that proof of causation by a health care provider is required to establish a connection between a worker’s injury and disability where the employer denies that the disability resulted from a worker’s accident; it does not, however, require expert testimony to establish the cause of the worker’s accident. This aspect of proof may be established by either expert or lay testimony. A court will not read into a statute language that is not contained therein, particularly if the statute makes sense as written. See Perez v. Health & Social Servs., 91 N.M. 334, 336, 573 P.2d 689, 691 (Ct.App.1977), cert, denied, 91 N.M. 491, 576 P.2d 297 (1978).

Second, Employer argues that even if the statute does not mandate the use of expert testimony to establish that Worker’s contact with chlorine caused his dizziness and fall, the connection between Worker’s employment and his claimed injury in the instant case involved facts which were of such a technical nature that expert testimony was required under Section 52-1-28 to prove the claimed fact. Additionally, Employer argues that expert medical testimony is required to be presented where a worker suffers two successive accidents in order to establish the extent of a worker’s disability resulting from each accident, and the causal connection, if any, between the two accidents.

We understand Employer’s arguments here to be that Worker’s resulting dizziness constituted a separate accident apart from the accident which occurred shortly thereafter resulting in his fall in the locker room. Employer argues that Worker failed to present expert medical testimony showing the nexus between the two falls. In advancing these arguments, Employer points out that Worker’s initial testimony indicated that he was not certain why he became dizzy at work. On cross-examination, Employer elicited testimony from Worker indicating that Worker’s dizziness was caused by bronchitis. During Worker’s case in rebuttal, however, he testified that he became dizzy while using chlorine to sanitize the cheese processing equipment. He also testified that he had been working with chlorine at the plant for the previous two weeks and that the chlorine had made him dizzy.

Employer is correct that opinion testimony of lay witnesses is generally confined to matters which are within the common knowledge and experience of an average person. See Young v. Burke, 139 Colo. 305, 338 P.2d 284, 285 (1959) (en banc); see also SCRA 1986, 11-701. However, subject to the trial court’s discretion, testimony concerning the personal perception of a lay witness may be given where the witness’s opinion might be helpful to the fact finder in resolving a material issue. See Russell v. Russell, 101 N.M. 648, 649, 687 P.2d 83, 84 (1984); see also Pavlos v. Albuquerque Nat’l Bank, 82 N.M. 759, 761, 487 P.2d 187, 189 (Ct.App.1971); see generally 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence 11701[02] (1992). Under the record herein, we find no error in the WCJ’s admission of Worker’s testimony. SCRA 11-701 permits a lay witness to state an opinion if the trial court determines that the opinion is “rationally based on the perception of the witness and [is] helpful to a clear understanding of his testimony or the determination of [the] fact[s] in issue.” See Hansen, 97 N.M. at 491, 641 P.2d at 522 (lay witness may testify as to his opinion based on personal perceptions); Jesko v. Stauffer Chem. Co., 89 N.M. 786, 788, 558 P.2d 55, 57 (Ct.App.1976) (testimony of lay witness is admissible under Evidence Rule 701 where the opinion is rationally based on his own perceptions and is helpful in determination of basis for damage); see generally 31A Am.Jur.2d Expert and Opinion Evidence § 31, at 42-43 (1989).

Nor do we believe that the out-of-state statutory authority relied upon by Employer is persuasive regarding this issue. We have reviewed each of the out-of-state eases cited by Employer and conclude that these decisions principally turn upon the issue of whether the claimants presented expert testimony to establish the link between the claimants’ alleged disability and their exposure to certain toxic substances. Additionally, we do not find Tate v. Workmen’s Comp. Appeal Bd., 8 Pa.Cmwlth. 392, 302 A.2d 862 (1973), cited by Employer, applicable to the present case. In Tate the court considered the question of whether a worker’s earlier fall at work caused a subsequent fatal fall away from the work place. On appeal the Pennsylvania court held that there could be no recovery in the absence of a showing that the cause of the second accident, which occurred approximately one month later, was related to a disability which arose from the first accident. The court found there was no conclusive evidence that the first accident was compensable, and that there was no conclusive evidence that the second accident was causally related to the first one. The result reached in Tate is principally fact related and the court noted that the claimants failed to prove that the worker struck his head in the first fall, causing a compensable head injury, and the claimants failed to prove the existing accidental injury was the proximate cause of the worker’s subsequent accident. In contrast, here, the WCJ found, based upon substantial evidence, that Worker proved his claim. We think the evidence supports this result.

Worker in the present case testified regarding his reaction to exposure resulting from his use of chlorine which was being used to clean equipment. He also stated that the chlorine caused him to become dizzy, that this dizziness continued, causing his fall a few minutes later in the locker room. We think that Worker’s testimony was sufficient to explain the cause of his fall and that the WCJ could reasonably determine from this evidence that Worker’s fall arose from a risk related to his employment. Although we agree with Employer that the effect of chlorine upon an individual is a matter that may properly be presented by expert testimony, the WCJ did not err in permitting Worker to testify concerning his own personal reaction following his use of chlorine during his work and that his resulting dizziness was the cause of his fall. Cf Olsen v. Winter Park Racquet Club, 142 So.2d 5, 8 (Fla.1962) (chlorine can cause dizziness); Sparacino v. Andover Controls Corp., 227 Ill.App.3d 980, 169 Ill.Dec. 944, 592 N.E.2d 431, 433 (1992) (chlorine is noxious substance and can cause bronchial damage).

Similarly, we think Employer’s reliance on Luvaul v. A. Ray Barker Motor Co., 72 N.M. 447, 384 P.2d 885 (1963), is not dispositive here. In Luvaul the worker presented expert testimony regarding the effects of carbon monoxide fumes on people. Nevertheless, the trial court found that the worker had dizzy spells for many years prior to his injury and that he failed to prove that his fall arose out of his employment or a risk reasonably incident to his employment. Id. at 452, 384 P.2d at 888. The issue there, as here, was whether there was substantial evidence to support the result. In Luvaul our Supreme Court determined that the trial court’s ruling denying the worker’s claim was supported by substantial evidence. We do not read Luvaul as requiring expert testimony to prove the causal connection between a worker’s accident and his or her employment under the circumstances here presented.

II. SUFFICIENCY OF EVIDENCE

Worker testified that prior to his accident he had been using chlorine at the plant for about two weeks. On the morning of March 19, 1991, Worker stated he was using chlorine, that he had been provided with written information by Employer concerning chlorine, and that “it was just bad for you, it starts burning your chest and if it gets on your skin it will burn your skin and started getting me dizzy.” Worker also stated that when he went into the locker room he was still having the same effects from dizziness that he had experienced in the cheese room.

Employer contends that even if Worker is not required to present expert testimony concerning the cause of his dizziness and fall, nevertheless, there was insufficient evidence to support a finding that his accident arose out of a risk incident to his employment, and that the WCJ improperly assumed that Worker’s exposure to chlorine would cause dizziness. Employer also asserts that Worker’s testimony concerning the reason for his fall was contradictory in nature. Our standard of review in workers’ compensation cases is upon the whole record. Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 127-28, 767 P.2d 363, 366-67 (Ct.App.), cert. denied, 109 N.M. 33, 781 P.2d 305 (1988). Under this standard of review, we consider all the evidence, both favorable and unfavorable, presented to the WCJ and determine whether there is substantial evidence to support the result. Id. This review does not, however, allow this Court to weigh the credibility of such testimony. Id.

As shown by the record, the initial testimony of Worker was that he did not know what made him dizzy; however, upon further questioning, he stated that the chlorine made him dizzy. It was for the WCJ to weigh the credibility of Worker’s testimony. Tapia v. Panhandle Steel Erectors Co., 78 N.M. 86, 89, 428 P.2d 625, 628 (1967). Simply because Worker’s testimony was inconsistent or contradictory in part does not require that such testimony be disregarded. The WCJ heard Worker’s testimony, observed his demeanor, and determined that his statement that he was required to use chlorine in cleaning the equipment, that the chlorine caused him to become dizzy and prompted his loss of balance and fall, was credible. Cf. Andrus v. Gas Co., 110 N.M. 593, 596-97, 798 P.2d 194, 197-98 (Ct.App.) (sufficient evidence supported finding that Gas Company’s acts caused homeowner’s carbon monoxide poisoning), cert, denied, 110 N.M. 260, 794 P.2d 734 (1990). Based on this testimony and the reasonable inferences arising therefrom, the WCJ could reasonably find that Worker’s injury arose out of and in the course of his employment and was a risk of his employment. See Ensley v. Grace, 76 N.M. 691, 695, 417 P.2d 885, 887 (1966) (proof that accident arose out of and in the course of the worker’s employment may be established by reasonable inferences drawn from proven facts). Worker’s testimony was sufficient evidence to support the finding.

III. ADMISSION OF REBUTTAL TESTIMONY

Employer also argues that Worker should not have been allowed to testify on rebuttal regarding the fact that on the morning of the accident, he was using chlorine to sanitize cheese processing equipment and the chlorine had made him dizzy.

The admission of rebuttal testimony is within the WCJ’s discretion. See El Paso Elec. Co. v. Real Estate Mart, Inc., 98 N.M. 570, 573, 651 P.2d 105, 108 (Ct.App.), certs. denied, 98 N.M. 478, 649 P.2d 1391, and 98 N.M. 590, 651 P.2d 636 (1982). Absent a showing of abuse, the trial court’s ruling permitting the introduction of rebuttal evidence will not be reversed on appeal. See Carle v. McChord Credit Union, 65 Wash.App. 93, 827 P.2d 1070, 1081 (1992); see also El Paso Elec. Co., 98 N.M. at 573, 651 P.2d at 108. Employer contends that Worker’s rebuttal testimony was simply an attempt to introduce new evidence unrelated to Employer’s casein-chief. We disagree. During cross-examination, Employer elicited testimony relating to the cause of Worker’s dizziness, and indicated it was solely due to his bronchitis. On rebuttal, Worker testified regarding the fact that chlorine was used in the plant for cleaning purposes and that its use made him dizzy. We find no abuse of discretion in the WCJ’s ruling allowing Worker to testify during rebuttal regarding the use of 'chemicals in the plant and their effect upon Worker leading to his accident.

IV. AWARD OF DISABILITY

Finally, Employer argues that Worker was not entitled to temporary total disability benefits because he was offered work at his pre-injury wage before he reached maximum medical improvement. NMSA 1978, Section 52-1-25.1(B) (Repl.Pamp.1991), states that “[i]f, prior to the date of maximum medical improvement, an injured worker’s health care provider releases the worker to return to work and the employer offers work at the worker’s pre-injury wage, the worker is not entitled to temporary total disability benefits.” Here, Employer claims that because it offered work at his pre-injury wage, Worker was not entitled to disability benefits. Worker responds that the work offered was more strenuous and entailed more lifting than his pre-injury work; thus, he was justified in declining such position. Worker also notes that Employer did not offer any other position to him.

In construing a statute, this Court seeks to ascertain and give effect to the intent of the legislature. Giant Indus. Ariz., Inc. v. Taxation & Revenue Dep’t, 110 N.M. 442, 445, 796 P.2d 1188, 1141 (Ct.App.1990). When the legislature revised the Workers’ Compensation Act in 1987, it declared its policy and intent “to be that every person who suffers a compensable injury ... should be provided with the opportunity to return to gainful employment as soon as possible with minimal dependence on compensation awards.” NMSA 1978, § 52-l-26(A) (Repl.Pamp. 1991).

The purpose of temporary total disability benefits is to provide compensation to a worker who is unable to perform his job duties until such time as he attains maximum medical improvement; that is, when further recovery from or lasting improvement to an injury can no longer be reasonably anticipated. See § 52-l-25.1(A). These benefits are temporary, and once a worker reaches maximum medical improvement, a percentage of permanent disability can be determined. See § 52-1-26. If a worker can return to work and earn the same wage he was earning prior to his injury, there is no reason for him to receive temporary disability benefits.

We think it is implicit in the language of Section 52-1-26 that the legislature intended that where a worker is given a release to return to work, the release anticipates that the worker return to the type of work he was doing prior to the accident or work which he or she is otherwise physically capable of performing. Cf. Sanchez v. Molycorp, Inc., 113 N.M. 375, 379-80, 826 P.2d 971, 975-76 (Ct.App.1992). If the work involves duties which are more strenuous than those involved in his prior work assignment, as in this case, and Worker’s back remains injured, the new duties must involve work he is capable of performing. We do not read the statute to mean that Employer can offer any work that has the same pre-injury wage, and thereby make Worker ineligible to receive disability benefits, even though Worker is unable to perform the work. Such interpretation would produce a result contrary to the general purpose of the Act. Cf. Gonzales v. Lovington Pub. Sch., 109 N.M. 365, 370, 785 P.2d 276, 281 (Ct.App.1989) (court will not interpret statute in manner that produces absurd result), cert, denied, 109 N.M. 262, 784 P.2d 1005 (1990).

We think it is clear that if Employer reassigns Worker to different duties following a release to return to work, it must be work that Worker is capable of performing. Here, there was evidence that the new job position offered to Worker was more strenuous and entailed more lifting, standing, climbing, and bending than that involved in Worker’s pre-injury job. Evidence was also presented that Worker could not perform such work. There was no evidence that when Worker was released the physician who issued the release considered any other work assignment than that which Worker had performed at the time of his initial injury. The decision of the WCJ determining that Worker was entitled to total temporary disability benefits even though he was offered work at this pre-injury wage is supported by substantial evidence.

CONCLUSION

The order awarding compensation benefits is affirmed. Worker is awarded $1,500 for the services of his attorney on appeal.

IT IS SO ORDERED.

MINZNER, C.J., concurs. HARTZ, J., dissents.