Urioste v. Sideris

764 P.2d 504, 107 N.M. 733
CourtNew Mexico Court of Appeals
DecidedOctober 20, 1988
Docket10403
StatusPublished
Cited by5 cases

This text of 764 P.2d 504 (Urioste v. Sideris) 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
Urioste v. Sideris, 764 P.2d 504, 107 N.M. 733 (N.M. Ct. App. 1988).

Opinion

OPINION

DONNELLY, Chief Judge.

Employer, Mark Sideris d/b/a/ Buffalo Builders, appeals from the decision of a hearing officer of the Workers’ Compensation Division awarding disability benefits and finding claimant, Phillip Urioste, temporarily totally disabled as a result of two accidents: one occurring while claimant was working for Sideris and the other occurring while claimant was working for a subsequent employer, Furr’s, Inc. We answer two of employer’s claims summarily and discuss (1) whether the initial accident arose out of claimant’s employment; (2) whether there is substantial evidence to support the finding that claimant was disabled during his employment; (3) whether the hearing officer erred in allocating liability; and (4) whether the hearing officer erred in awarding attorney fees. We affirm.

Claimant was employed by Sideris during the summer of 1986 as a laborer. On August 18, 1986, claimant was working with another employee of Sideris installing insulation in a building being remodeled. Two plumbers, not employed by Sideris, were installing a bathtub at the same location. The plumbers requested claimant to help them lift the bathtub. While rendering this assistance, claimant injured his back. Although claimant worked the remainder of that day, the next morning he experienced severe lower back pain and went to a hospital emergency room for treatment. The doctor prescribed medication and advised claimant to rest.

Claimant testified that after seeing the doctor, he spoke to Sideris, informed him of the injury, and requested a wage advance to pay for medication prescribed by his physician. Thereafter, claimant missed three days of work. When he returned to work, claimant was told that he and the other laborers would only be needed on the project for the remainder of the week.

After claimant was laid off, he was hired by Furr’s. He worked first in a delicatessen section and later was assigned to prepare signs and graphics. During his employment with Furr’s, claimant complained of back pain to his supervisor. On October 4, 1986, claimant further injured his back while erecting a sign. Claimant was unable to return to work and filed a worker’s compensation claim against Sideris on March 10, 1987; on April 3, 1987, he filed an amended claim joining Furr’s in the same action.

I. ISSUES ANSWERED SUMMARILY

(a) The parties do not dispute that the applicable standard of review of an appeal from the decision of a hearing officer in a worker’s compensation action is governed by the whole record standard of review. Thus, we apply the whole record standard of review. Tallman v. ABF, N.M. (Ct.App. 1988). See also Strickland v. Coca-Cola, 107 N.M. 500, 760 P.2d 793 (Ct.App.1988).

(b) Sideris argues that the hearing officer erred in finding that he had actual knowledge of the accidental injury sustained by claimant on August 18, 1986, and that the evidence was insufficient to support the challenged finding. A claimant is not required to give written notice of an accident where the employer or any superintendent or foreman or other agent in charge of the work in connection with which the accident occurred had actual knowledge of its occurrence. NMSA 1978, § 52-l-29(B) (Repl.Pamp.1987). The determination of whether the employer had actual knowledge is made from a consideration of the totality of the facts and circumstances. Powers v. Riccobene Masonry Constr., Inc., 97 N.M. 20, 636 P.2d 291 (Ct.App.1980); Rohrer v. Eidal Int’l, 79 N.M. 711, 449 P.2d 81 (Ct.App.1968).

The record indicates a conflict in the testimony concerning whether claimant orally notified Sideris that he injured his back while lifting a bathtub at the construction site. Claimant testified that he told Sideris of the circumstances of his injury. He also testified that he gave Sideris a note from his doctor requesting that he be excused from work for several days because of his back injury. This testimony was corroborated by another workman. Sideris acknowledged that he was informed that claimant had injured his back, but testified that he did not know the cause of the injury. He also testified that he did not recall discussing claimant’s need for a prescription, nor did he recall seeing a note from claimant’s doctor.

Where the testimony is conflicting, the issue on appeal is not whether there is evidence to support a contrary result, but rather whether the evidence supports the findings of the trier of fact. Hernandez v. Mead Foods, Inc., 104 N.M. 67, 716 P.2d 645 (Ct.App.1986); Bagwell v. Shady Grove Truck Stop, 104 N.M. 14, 715 P.2d 462 (Ct.App.1986). The whole record supports the finding of the hearing officer as to this issue.

II. ARISING OUT OF THE EMPLOYMENT

The hearing officer found that claimant’s August 18,1986 injury arose out of and in the course of his employment with Sideris. The language “in the course of employment” refers to the time, place, and circumstances under which the accident occurred. Velkovitz v. Penasco Indep. School Dist., 96 N.M. 577, 633 P.2d 685 (1981). A worker’s injury arises out of his employment if the injury is caused by a risk to which the Worker has been subjected arising from his employment. Barton v. Las Cositas, 102 N.M. 312, 694 P.2d 1377 (Ct.App.1984). For an injury to arise out of the employment, it must be apparent to a rational mind, upon consideration of all the circumstances, that there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. Gutierrez v. Artesia Pub. Schools, 92 N.M. 112, 583 P.2d 476 (Ct.App.1978) (quoting In re McNicol, 215 Mass. 497, 102 N.E. 697 (1913)). The question of whether a worker’s injury arises out of his employment is a question to be determined by the trier of fact. See id. Where the historical facts of the case are undisputed, however, the question of whether the accident arose out of the employment is a question of law. Edens v. New Mexico Health & Social Servs. Dep’t, 89 N.M. 60, 547 P.2d 65 (1976).

Sideris argues that the dispositive facts of this case are undisputed. Our review of the record indicates that while some of the historical facts are undisputed, other key evidence is conflicting. Sideris points to evidence that indicates claimant was working for Sideris installing insulation, that the plumbers were not employed by Sideris, and that claimant’s act of assisting the plumbers did not constitute a specifically assigned job duty.

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Bluebook (online)
764 P.2d 504, 107 N.M. 733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/urioste-v-sideris-nmctapp-1988.