BEYALE V. ARIZONA PUB. SERV. CO., 1986-NMCA-071,
105 N.M. 112, 729 P.2d 1366 (Ct. App. 1986)
CASE HISTORY ALERT: see ¶9, ¶14 - affects
1981-NMCA-102
IKE BEYALE, SR., Plaintiff-Appellee
vs.
ARIZONA PUBLIC SERVICE COMPANY, Self-insurer,
Defendant-Appellant
No. 8758
COURT OF APPEALS OF NEW MEXICO
1986-NMCA-071, 105 N.M. 112, 729 P.2d 1366
July 17, 1986, Filed
Appeal from the District Court of San Juan County, Paul S. Onuska, Judge.
Petition for Writ of Certiorari Quashed December 17, 1986
COUNSEL
Byron Caton, TANSEY, ROSEBROUGH, ROBERTS & GERDING, P.C., for Defendant-Appellant.
Bruce P. Moore, Randall S. Roberts, ROBERTS & JOLLEY, P.C., for Plaintiff-Appellee.
OPINION
{*113} MINZNER, Judge.
Facts and Procedural Background
Whether the Trial Court Erred in Refusing to Allow Defendant to Raise the Issue of Notice Pursuant to Section 52-1-29
{*115} {17} Next, defendant contends that the trial court treated it unfairly by refusing to allow it to litigate the issue of notice and then by making findings upon the very issue to which it would not listen. This contention is based on an erroneous premise. The failure to give notice issue went to the March accident, and the trial court made no findings on this issue.
{18} Finally, defendant contends that it had no obligation to raise the notice issue prior to trial. We disagree.
{19} The Rules of Civil Procedure apply to workmen's compensation actions except when the provisions of the Act "directly conflict" with the rules. NMSA 1978, § 52-1-34. The general rules of pleading do not conflict directly with the Act, although pleading is informal in workmen's compensation actions. 3 A. Larson, Law of Workmen's Compensation § 77A.00 (1983). The supreme court has recognized the applicability of the rules governing amendment of pleadings in workmen's compensation actions. See Winter v. Roberson Constr. Co., 70 N.M. 187, 372 P.2d 381 (1962).
{20} Even under a rule allowing liberality in pleadings and liberality in the amendment of pleadings, an amendment should not be allowed if the effect is one of undue surprise or prejudice to the opposing party. Larson, supra, at § 77A.43. The purpose of pleadings is to give the party opponent notice of the claims being made. See Transamerica Ins. Co. v. Sydow, 97 N.M. 51, 636 P.2d 322 (Ct. App. 1981). This purpose would hardly be accomplished by a ruling that the issue of notice need not be "placed in issue" until opening statements.
{21} In New Mexico, the allowance of amendment of pleadings is discretionary with the court, and the key factor in the exercise of discretion is prejudice to the opposing party. Winter; Gallegos. See also Bagwell v. Shady Grove Truck Stop, 104 N.M. 14, 715 P.2d 462 (Ct. App. 1986). Consistent with this, a New Jersey county court addressing a workmen's compensation case had the following to say:
Speaking of the practice to be followed in workmen's compensation proceedings, the then Judge William J. Brennan, Jr., analyzed quite clearly the guiding principles to be applied. The following quotation indicates conclusively that, as to defenses, he considered the prime criterion to be fair notice.
"* * * The petitioner is entitled to fair notice of the defenses he will be called upon to meet at the hearing. Respondent's answer here merely denies that petitioner met with an accident arising out of and in the course of his employment. This hardly sufficed to put the petitioner on notice * * * indeed, petitioner could logically infer from the answer filed that he was not to be confronted with that defense.* * *" Stein v. Felden, 17 N.J. Super. at page 315, 86 A.2d at page 20.
* * * * * *
* * * Upon near-completion of its defense, a party, albeit a party in a workmen's compensation court where niceties of pleadings have never been required, who has proceeded throughout on one issue, will not be permitted to then suddenly present a totally new attack.
Hannigan v. Goldfarb, 55 N.J. Super. 260, 263-63, 150 A.2d 515, 517-18 (1959).
{22} Although the facts in this case, differ, the application of the Hannigan language is clear. Plaintiff was surprised that defendant raised the issue of failure to give notice. He objected to it. The court found that plaintiff would have been prejudiced had the notice issue been litigated. Defendant does not challenge this finding on appeal.
{23} Defendant does argue, however, the the prejudice could have been cured by a continuance. This case, however, had been pending for three years. Workmen's {*116} compensation cases are to be advanced on the calendar and decided as promptly as possible. NMSA 1978, § 52-1-35. We have adversely commented on unnecessary delay in workmen's compensation cases in a number of opinions. See, e.g., Sanchez v. Homestake Mining Co., 102 N.M. 473, 697 P.2d 156 (Ct. App. 1985). The grant or denial of a continuance is within the discretion of the trial court, Albuquerque National Bank v. Albuquerque Ranch Estates, Inc., 99 N.M. 95, 654 P.2d 548 (1982), and continuances are not favored. El Paso Electric v. Real Estate Mart, Inc., 98 N.M. 490, 650 P.2d 12 (Ct. App. 1982). Under these circumstances, the trial court was not required to grant an amendment to the pleadings and then grant a continuance to cure the prejudice to plaintiff.
{24} In so ruling, we do not hold that defendants must raise a failure to give notice defense in their answer. Where notice is put in issue informally and plaintiff fails to object, as was apparently the case in Aguilar, or where the evidence relating to the issue is admitted without objection and the court grants an amendment to conform to the evidence under Civ. P. Rule 15(b), the issue may be deemed to have been properly raised. However, neither of these situations is present in this case. Plaintiff objected and, if any evidence on the notice issue was admitted without objection, it was admitted either pursuant to the court's ruling that it would hear evidence on the notice issue and make up its mind later, or it was admitted on other issues as well. See Moya v. Fidelity and Casualty Co. of New York, 75 N.M. 462, 406 P.2d 173 (1965). In neither case may it be said that plaintiff impliedly consented to trial on the notice issue.
{25} The trial court did not abuse its discretion. It correctly refused to allow defendant to litigate the issue of notice when defendant first raised the issue in its opening statement and where plaintiff would have been prejudiced either by its inclusion as an issue in the case or by another continuance. A new trial was not required.
Substantial Evidence
{26} Plaintiff's view that he had suffered an injury while lubricating a machine was supported by his own testimony, as well as by the testimony of others, who said that plaintiff did not complain to them of feeling any pain earlier in the day. When presented with plaintiff's view, the doctor said that the rupture was caused by leaning over and reaching with the tool in hand. In these circumstances, the trial court's decision to believe plaintiff's view must be upheld. See Sanchez v. Homestake Mining Co.
{27} Defendant has relied on the "physical facts" rule, see Ortega v. Koury, 55 N.M. 142, 227 P.2d 941 (1951). For lack of reference to relevant portions of the transcript, we do not address this contention. State v. Reese, 91 N.M. 76, 570 P.2d 614 (Ct. App. 1977).
{28} Defendant also contends that the medical evidence was inadequate to establish the requisite causation under NMSA 1978, Section 52-1-28(B). Defendant's argument proceeds upon a misconstruction of the doctor's testimony. Defendant contends that the doctor never testified that plaintiff's infections caused any disability. Defendant is incorrect.
{29} In his testimony, Dr. Haines described plaintiff's disability as of the last time he saw plaintiff. He was then asked and answered the following:
Q: Dr., again, returning to the present state of disability, do you have an opinion now as to a reasonable medical probability, again, whether or not Mr. Beyale's current disability is the natural and direct result of the rupture that occurred and the resultant treatment?
A: Yes, I believe it is.
Later, Dr. Haines testified that plaintiff's disc space infection contributed to his chronic pain problem and that the infection was caused by an incomplete catheterization, {*117} leading to a urinary tract infection, and inadequate treatment of that, leading to the disc space infection.
{30} Defendant finally contends that, because the rupture could have been caused by anything that increased thoracic pressure, such as coughing, sneezing, straining, exerting, or bending over to work at home, it should not be liable for plaintiff's disability because the event that caused the rupture fortuitously happened at work. This is an "arising out of" issue, see Berry v. J.C. Penney Co., 74 N.M. 484, 394 P.2d 996 (1964), and its resolution depends on the application of substantial evidence rules. Schober v. Mountain Bell Telephone, 96 N.M. 376, 630 P.2d 1231 (Ct. App. 1980).
{31} In this case, as in Schober, there was medical testimony that the rupture was, in fact, caused by plaintiff's work. This evidence meets the test outlined in Berry and Schober and supports the conclusion that plaintiff's accident and injury arose out of his employment.
Conclusion
{32} Plaintiff is awarded $3,000 for the services of his attorney on appeal. The judgment appealed from is affirmed in all respects.
{33} IT IS SO ORDERED.
ALARID, J. and GARCIA, J., concur.