BROWN V. SAFEWAY STORES, INC., 1970-NMCA-132,
82 N.M. 424, 483 P.2d 305 (Ct. App. 1970)
BILLY A. BROWN, as next friend of ROBERT
L. BROWN,
Plaintiff-Appellee,
vs.
SAFEWAY STORES, INC., and THE TRAVELERS INDEMNITY COMPANY,
Defendants-Appellants
COURT OF APPEALS OF NEW MEXICO
1970-NMCA-132, 82 N.M. 424, 483 P.2d 305
APPEAL FROM THE DISTRICT COURT OF SAN
JUAN COUNTY, ZINN, Judge
Rehearing Denied February 4, 1971;
Motion Granted March 5, 1971 Re Attorneys Fee on Rehearing
JAMES L. BROWN and, JOHN R. PHILLIPS,
JR., Farmington, New Mexico, Attorneys for Appellee.
BYRON CATON, White & Canton,
Farmington, New Mexico, Attorney for Appellants.
HENDLEY, Judge, wrote the opinion. WE
CONCUR: Waldo Spiess C.J., LaFel E. Oman J.
{1} Plaintiff was awarded
workmen's compensation benefits for an injury that rendered him totally and
permanently disabled. Defendant raises four points on appeal. Three deal with
the sufficiency of the evidence to support the trial court's findings that (1) the
injury was latent, (2) the disability is total, and (3) the accident and injury
were causally related. The fourth point states that the trial court erred in
starting the period of compensation from the date of the injury since no duty
to pay arises until after the employee gives notice to the employer of the
injury. Swallows v. City of Albuquerque,
59 N.M. 328,
284 P.2d 216 (1955). The
plaintiff concedes the merits of the fourth point.
WAS THERE SUBSTANTIAL EVIDENCE TO SUPPORT THE TRIAL COURT'S
FINDINGS?
{2} In responding to a
challenge to the sufficiency of the evidence to support the trial court's
findings the appellate court
{*426} must
view the evidence and inferences therefrom in the light most favorable to the
party prevailing below. Gruschus v. C. R. Davis Contracting Company,
77 N.M.
614,
426 P.2d 589 (1967).
{3} Applying that rule the
record discloses the following. Plaintiff was employed by defendant on a
part-time basis. The duties of his employment included sacking groceries and
helping unload a grocery truck on one morning each week. One morning in March
of 1968 plaintiff, while lifting a case of canned goods, experienced sudden
pain in his back. He did not feel the injury was serious and continued his work
for the remainder of the morning. That same evening he told his parents of the
injury and assured them that it was not serious. The pain lasted about two days
and then disappeared. Two weeks later plaintiff experienced pain in his left
leg and as the pain lingered and intensified plaintiff sought medical
assistance. The first treating physician diagnosed the problem as a blood clot
in plaintiff's leg. When the treatment for the blood clot did not relieve the
pain plaintiff went to another physician who thought plaintiff had strained a
muscle in his leg. When plaintiff's leg problem again failed to respond to the
treatment, he went to another physician who also suggested that he had strained
a muscle in his leg. Plaintiff was then referred to an orthopedic surgeon who
performed a myelogram and discovered two ruptured discs. It was during the
treatment with the specialist that plaintiff first realized that there might be
a causal connection between the injury at the store and the discomfort he was
experiencing in his leg. The date of this realization was approximately August
9th, or approximately five months after the accident at the store. Plaintiff
had stopped working for defendant on about August 9th. Plaintiff's father gave
defendant notice of the possible claim on the 11th of August. At the trial it
was disclosed that plaintiff's only work experience was as a grocery clerk and
as a planter of cucumbers and potatoes. He was eighteen years old and had
completed high school. He had had no specialized training for any particular
occupation. The orthopedic surgeon testified that plaintiff, because of his
back problems, should avoid any strenuous activity and that such activity might
pose a hazard to plaintiff's health. The doctor also testified that based upon
the medical history, medical examination, treatment and findings, as a medical
probability plaintiff's back injury was caused by the work related accident.
WAS THE INJURY A LATENT INJURY?
{4} The issue of latent
injury has been discussed in several New Mexico decisions including Langley v.
Navajo Freight Lines, Inc.,
70 N.M. 34,
369 P.2d 774 (1962); Rohrer v. Eidal
International,
79 N.M. 711,
449 P.2d 81 (Ct. App. 1968) and Smith v. State,
79
N.M. 25,
439 P.2d 242 (Ct. App. 1968). This line of cases has established the
rule that in the case of a latent injury the workman must give notice but only
after he knew, or should have known by the exercise of reasonable diligence,
that he had incurred a compensable injury by accident arising out of and in the
course of his employment.
{5} In resolving this
question of "reasonableness" we not only have plaintiff's testimony
that he did not realize the connection between his leg problem and the
industrial accident until August 9th but we have medical testimony that it is
not uncommon for a patient suffering a leg problem like plaintiff's to fail to
connect the leg pain with a back injury. It would be difficult to rule as a
matter of law that plaintiff was unreasonable in failing to connect the leg
problem to the back injury when several experienced doctors failed to make the
connection while treating plaintiff. Indeed, the evidence suggests that the
only person who reasonably should make the connection between the two is an
orthopedic surgeon. We must conclude that there was substantial evidence to support
the finding. See Sanchez v. City of Albuquerque,
{*427}
75 N.M. 137,
401 P.2d 583 (1965).
WAS THE CAUSAL RELATION ESTABLISHED?
{6} As noted earlier a
medical expert testified that the back injury was caused by the industrial
accident. Defendant challenges the competency of this opinion because he feels
the foundation for this opinion differed from the facts revealed at trial.
During defendant's cross-examination of this medical witness, defendant asked
if the doctor's opinion would differ if he knew that plaintiff had been lifting
weights during 1968. The medical witness was also asked if his opinion would
differ if he knew that plaintiff had continued to work up until the time the
orthopedic surgeon had discovered the disc problem. To each of these suggestions
the doctor responded that he would be interested in such facts but did not
suggest that his medical opinion would be any different. We feel this attack on
the competency of the opinion did not go far enough to destroy the opinion and
therefore the attack only amounted to an attack on credibility which is for the
trial court to resolve. The appellate courts in New Mexico do not weigh
conflicting evidence or credibility of witnesses. Gallegos v. Wilkerson,
79
N.M. 549,
445 P.2d 970 (1968). We conclude that there was substantial evidence
to support the trial court's finding.
WAS THE PLAINTIFF TOTALLY DISABLED?
{7} There is no suggestion
that plaintiff was employable for any job for which he was suited by age,
education, training, and general physical and mental capacity. There is
evidence, as noted above, that plaintiff was eighteen years old, had a high
school education, was trained to plant cucumbers and potatoes, and suffered
from an injured back. Although it might be imaginable that plaintiff might be
employed at something, there is nothing in the record that would support such a
finding.
{8} Defendant states:
"The claimant has the duty of showing that he was disabled from doing any
work for which he was fitted by age, education, training and previous
experience." We agree that the proof of the disability is on the
plaintiff, but after plaintiff has introduced evidence as to his age,
education, training, and general physical and mental capacity, the burden of
coming forward is on the defendant. It is much easier for the defendant to
prove the employability of the plaintiff for a particular job than for
plaintiff to try to prove the universal negative of not being employable at any
work. If the defendant chooses to stand on the evidence introduced by plaintiff
and not rebut the evidence, he may run a great risk since the issue may become
one of substantial evidence, which is not a question of quantity, but presence.
Compare Adams v. Loffland Brothers Drilling Company,
82 N.M. 72,
475 P.2d 466
(1970).
{9} In the present case there
is substantial evidence to support the finding of total disability and this
evidence is not overcome by the fact that the plaintiff is presently a
university student. Defendant has cited no authority suggesting that being a student
is being employed and we have found none.
{10} The award of
compensation is affirmed with an additional award to plaintiff of $1,250.00 for
the services of his attorneys in this appeal. Section 59-10-23(D), N.M.S.A.
1953 (Repl. Vol. 9, pt. 1). The case is remanded for correction of the judgment
so that the period for compensation will begin on August 11, 1968 rather than
March 18, 1968.
{12} Defendant filed a Motion
for Rehearing and plaintiff answered. Defendant's Motion
{*428}
for Rehearing was denied. Plaintiff now calls our attention for failure to
award attorneys fees on the Motion for Rehearing pursuant to Kendrick v. Gackle
Drilling Company,
71 N.M. 113,
376 P.2d 176 (1962).
{13} We have considered
plaintiff's Motion for Award of Attorneys, Fees, and being sufficiently advised
in the premises,
{14} It is ordered that
plaintiff be and is hereby awarded an additional sum of $250.00 as and for his
attorneys fees on said Motion for Rehearing; said attorneys fees to be in
addition to any other attorney fees which were heretofore awarded on the
appeal.