Mendez v. Southwest Community Health Services

725 P.2d 584, 104 N.M. 608
CourtNew Mexico Court of Appeals
DecidedSeptember 12, 1986
Docket8532
StatusPublished
Cited by8 cases

This text of 725 P.2d 584 (Mendez v. Southwest Community Health Services) 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
Mendez v. Southwest Community Health Services, 725 P.2d 584, 104 N.M. 608 (N.M. Ct. App. 1986).

Opinion

OPINION

ALARID, Judge.

This is a workmen’s compensation case in which the trial court found that plaintiff was totally disabled, but only awarded compensation benefits for a scheduled injury. Plaintiff appeals, contending that she should have been awarded benefits for total disability. Defendant cross-appeals, contending that: (1) there was insufficient evidence of causation; (2) the trial court did not mean to find that plaintiff was totally disabled; (3) there was insufficient evidence of total disability; and (4) there was insufficient evidence that plaintiff’s scheduled injury was fully disabling to the scheduled member. We state the facts and discuss causation and disability. We reverse and remand to the district court.

FACTS

Plaintiff is a thirty-two-year-old woman who quit school during high school. She has a graduate-equivalency diploma. She was a housekeeper at defendant hospital doing heavy cleaning. It involved mopping, dusting and washing, which in turn, involved bending, stooping, reaching and twisting. Prior to her job with defendant, plaintiff had been a housekeeper at a nursing home and in a hotel. She had also been a carhop, a counter worker at a fast-food restaurant, a diet aide in a hospital, and a trimmer/inspector at a clothing manufacturer. All the prior jobs involved reaching and carrying.

In September, plaintiff slipped and fell while going to her car in defendant’s parking lot. The trial court found defendant negligent, and there is no issue as to defendant’s negligence on appeal. See NMSA 1978, § 52-1-19. Plaintiff fell onto her left side. The fall made her dizzy and her left arm and shoulder hurt. She also had headaches, nausea, and blurred vision. The dizziness, headaches, nausea and blurred vision were attributed to post-traumatic or post-concussive syndrome; such symptoms are frequently seen after head injuries. The post-concussive syndrome had mostly cleared up by November. Plaintiff was treated by a doctor who continued to treat her for neck spasm and pain in the scapula which radiated down the left arm. The doctor explained that the muscle spasm would entrap the nerve causing pain in the back and arm.

This doctor testified that plaintiff had dorsal scapular nerve syndrome and that the syndrome was caused by the accident at work. However, this doctor was unaware that plaintiff had made complaints about pain in her left shoulder at previous times in her life. Other doctors testified that knowledge of the prior shoulder complaints was important in determining what caused plaintiff’s current complaints.

The treating doctor released plaintiff to go back to work at plaintiff’s request. Plaintiff went back to work in January. By her second day at work, plaintiff was again in pain. Although in pain, and missing days from work, plaintiff worked until April. She was still under the care of the same doctor. That doctor recommended that she not go back to her job as a housekeeper. He stated that she should not stretch her neck, shoulder or arm, nor should she reach or carry objects weighing more than ten pounds. He stated that, if she followed his recommendations, her problem would probably clear up in six months to a year from the time of trial. Plaintiff testified that she could not perform any of her prior jobs. While testifying about the job as counterperson in a fast-food restaurant, plaintiff first opined that she could do the job. On reflection, however, she changed her testimony and said that it involved too much reaching and twisting. Plaintiff testified that she had applied for clerical positions. Although she did not currently possess the skills for clerical positions, she felt that she could learn on the job. Plaintiff also applied for, and received, unemployment compensation.

A vocational counselor testified that plaintiff could not perform any of her prior jobs. The vocational counselor also tested plaintiff for aptitude and manipulative ability. Plaintiff does not have the aptitude to be a clerical worker. Her mathematical skills are not very good, and she is not attentive to detail. Academic testing showed plaintiff to have fifth grade skills in some subjects and ninth grade skills in others. Plaintiff’s manipulative ability is below average because she cannot use her left hand. On tests allowing the use of both hands, plaintiff exclusively used her right hand, leading to fatigue and poor performance. On testing of the individual hands, plaintiff scored average to above average with her right hand and extremely below average with her left hand. On some tests, her left-hand score was only in the first or second percentile.

The trial court found:

4. As a result of the accidental injury, Plaintiff is wholly unable to perform the usual task [sic] of the work she was performing at the time of her injury and is wholly unable to perform any work for which she is fitted by age, education, training, general physical and mental capacity, and previous work experience.

The trial court concluded:

2. Plaintiff is wholly unable to perform the usual task [sic] of the work she was performing at the time of the injury and is wholly unable to perform any work for which she is fitted by age, education, training, general physical and mental capacity, and previous work experience.
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7. Plaintiffs disability is confined to her non-dextrous upper left extremity at or near the level of the shoulder. There is no evidence of any separate or distinct impairment to any other body function. This is a scheduled injury.

CAUSATION

Defendant contends that, because the treating physician did not know of prior injuries to plaintiffs shoulder, his testimony on causation was not sufficient evidence upon which the trial court could conclude that the slip and fall at the hospital caused plaintiffs current disability. Defendant relies on Niederstadt v. Ancho Rico Consolidated Mines, 88 N.M. 48, 536 P.2d 1104 (Ct.App.1975). Niederstadt states, “[when] pertinent information existed about which [the doctor] apparently had no knowledge, his opinion cannot serve as the basis for compliance with [NMSA 1978, Section 52-1-28].” Id. at 51, 536 P.2d at 1107.

In this case, plaintiff had three prior complaints about her left shoulder. Four years before the accident at issue, plaintiff was in an automobile accident. The hospital records show that plaintiff complained about pain in her left shoulder, elbow and knee. Plaintiff only remembered hitting her head and being cut and bruised. She did not tell her treating physician that she had complaints about her left shoulder and arm. Another hospital record shows that two years before the accident, plaintiff had complaints of pain in her left shoulder, left scapula, and left upper arm from picking up a linen bag. Plaintiff told her treating physician that this incident caused pain in her lower back. Another hospital record shows that six months before the accident, plaintiff had complaints of a hot, burning sting in her left shoulder blade from reaching to clean a light. Plaintiff's treating physician was completely unaware of this incident.

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Bluebook (online)
725 P.2d 584, 104 N.M. 608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mendez-v-southwest-community-health-services-nmctapp-1986.