CANTRELL V. W & C CONTRACTING CO., 1991-NMCA-091,
112 N.M. 609, 817 P.2d 1251 (Ct. App. 1991)
LESTER G. CANTRELL, Claimant-Appellant,
vs.
W&C CONTRACTING CO., INC., and UNITED STATES FIDELITY
AND
GUARANTY COMPANY, Respondents-Appellees
COURT OF APPEALS OF NEW MEXICO
1991-NMCA-091, 112 N.M. 609, 817 P.2d 1251
Appeal from the New Mexico Workers'
Compensation Administration; Joseph N. Wiltgen, Workers' Compensation Judge.
Petition for Writ of Certiorari Denied
September 5, 1991
Robert G. Marcotte, Albuquerque, New
Mexico, Attorney for Claimant-Appellant.
Nancy Augustus, Seth Bingham, Miller,
Stratvert, Torgerson & Schlenker, P.A., Albuquerque, New Mexico, Attorneys
for Respondents-Appellees.
Thomas A. Donnelly, Judge. Pamela B.
Minzner, Judge, Rudy S. Apodaca, Judge, concur.
{1} Claimant appeals a
judgment of the workers' compensation judge (WCJ) denying him compensation
benefits because the WCJ determined that claimant's work-related injury
resulted from his intoxication.
{*611} Claimant
raises four issues: (1) whether the failure of W&C Contracting Company and
its insurance carrier, United States Fidelity and Guaranty Company
(respondents) to file a formal answer to claimant's petition, as required by
NMSA 1978, Section
52-5-7(A) (Repl. Pamp. 1987), waived respondents' right to
raise the defense of intoxication; (2) whether the discovery order entered by
the WCJ was contrary to Section 52-5-7(F); (3) whether the WCJ committed
reversible error in refusing to order respondents to provide claimant with
funds with which to hire expert witnesses; and (4) whether substantial evidence
supported the WCJ's finding that claimant was intoxicated at the time of the
accident and that his intoxication was a proximate cause of the accident. We
affirm.
{2} Claimant was employed as
a truck driver for employer, a construction company. On January 18, 1989, while
claimant was working for employer, the four-wheel-drive pickup he was driving
was involved in a single-vehicle accident and veered off the road and rolled
over several times. Police were called to the scene of the accident, and
claimant was charged with driving while intoxicated. Claimant, who suffered
severe physical injuries in the accident, was hospitalized. Soon after arrival
at the hospital he underwent a blood test. Although interpretation of the test
results was disputed, the record contains testimony that claimant's
blood-alcohol content was between 0.25 and 0.40 shortly after the accident.
{3} Claimant filed a workers'
compensation claim and respondents filed a written response denying the claim
and alleging that the accident had occurred while claimant was intoxicated;
thereafter a mediation conference was conducted. The mediator proposed that the
claim be denied on the basis that claimant was intoxicated at the time of the
accident. Claimant rejected the recommended resolution. Thereafter, the matter
was set for formal hearing on April 23, 1990. Respondents were given notice of
the formal hearing, but failed to file a further answer after receiving such
notice. At the formal hearing, claimant alleged that the front suspension of
the truck he was driving malfunctioned when a tie-rod broke, resulting in a
loss of steering control and precipitating the accident. Respondents asserted
that the cause of the accident was due to claimant's intoxication.
{4} Prior to the formal
hearing, claimant filed a motion seeking to obtain an order requiring
respondents to advance funds to permit claimant to employ several expert
witnesses, including an accident reconstruction expert and a blood-alcohol
specialist. At the hearing, claimant's counsel asserted that claimant could not
afford to hire expert witnesses at his own expense and that the funds were
necessary in order to prepare his case. The WCJ denied claimant's request. The
WCJ granted respondents' request to depose ten witnesses proposed to be called
either by claimant or respondents. The discovery order entered February 15,
1990, also provided that claimant could depose any of these witnesses, at
respondents' expense.
{5} On March 23, 1990,
claimant filed a motion seeking to quash the discovery order. A motion hearing
was held on April 16, 1990, and claimant again requested that respondents be
required to pay the costs of several expert witnesses which he sought to
obtain. Claimant also objected to the sufficiency of the discovery order,
arguing that although it authorized respondents to depose certain witnesses, it
failed to include a specific finding that good cause existed to permit the
depositions to be taken of the witnesses named in the order. At the conclusion
of the hearing on claimant's motion, the WCJ denied the motion to quash
discovery and denied claimant's request that respondents pay the cost of the
unnamed expert witnesses sought to be obtained by claimant. The WCJ, however,
stated that claimant would be entitled to deposition costs to obtain the
testimony of necessary witnesses, if good cause exists, but "not the preparation
costs and the evaluation =612 and analysis-[since] that should already [have
been] done."
{6} Claimant's petition for
workers' compensation benefits was filed on September 8, 1989. While the case
was in the informal mediation stage, respondents filed a written response
alleging, among other things, that claimant's injury was caused by his
intoxication at the time of the accident and the claim was barred pursuant to
NMSA 1978, Section
52-1-11 (Repl. Pamp. 1987). Respondents prevailed at the
mediation conference, and claimant rejected the mediator's recommended
resolution denying the claim. Thereafter, the WCJ sent a notice of formal
hearing to the parties on December 6, 1989.
{7} The WCJ issued a notice
of formal hearing instructing respondents to file a formal answer to the claim
within twenty days and warning that failure to do so "may result in entry
of a default compensation order."
See 52-5-7(A) (if no timely
answer is filed by a party after notice of the formal hearing, the WCJ may, if
appropriate, grant the relief sought against that party). Respondents failed to
file an additional answer or response following the issuance of the recommended
resolution by the WCJ. The record indicates, however, that respondents' prior
written response on September 28, 1990, denied the claim and raised the defense
of intoxication pursuant to Section 52-1-11. At the formal hearing claimant did
not raise the issue of respondents' failure to additionally answer or respond
to his petition, and the parties proceeded to present testimony and evidence.
{8} On appeal claimant, for
the first time, asserts that respondents' failure to file a formal answer
constituted a waiver of their defense of intoxication. Since this issue was not
raised at the formal hearing, we determine that the contention has not been
properly preserved for appellate review.
See Woolwine v. Furr's, Inc.,
106 N.M. 492,
745 P.2d 717 (Ct. App. 1987). Moreover, the written response
previously filed by respondents in the proceeding below specifically denied
claimant's claim and gave notice of their intent to rely upon the defense of
intoxication. Under these circumstances, we find claimant's contention without
merit.
II. Propriety of Discovery Order
{9} Claimant asserts that the
February 15, 1990, discovery order entered by the WCJ is contrary to the
provisions set forth in Section 52-5-7(F) and constitutes reversible error.
Claimant's attack upon the discovery order involves two grounds: (a) the
discovery order was improper because of the lack of specific findings of good
cause authorizing the taking of depositions requested by respondents, and (b)
the discovery order issued by the WCJ was filed without providing claimant an
opportunity to examine or object to the form of the order.
{10} Section 52-5-7(F)
provides:
The testimony of any witness may be taken by deposition or
interrogatories according to the rules of civil procedure for the district
courts and may be taken before any hearing officer or any person authorized to
take testimony, but discovery procedure shall be conducted only upon the
hearing officer's findings that good cause exists. The cost and expense of any
discovery procedure allowed by the hearing officer shall be paid by the
employer, and in no event shall an unsuccessful claimant be responsible for the
cost and expense of any discovery procedure. No costs shall be charged, taxed
or collected by the hearing officer except fees for witnesses who testify under
subpoena. The witnesses shall be allowed the same fee for attendance and
mileage as is fixed by the law in civil actions except that the hearing officer
may assess against the employer the fees allowed any expert witness, as
provided in Section 38-6-4 NMSA 1978, whose examination of the claimant, report
or hearing attendance the hearing officer deems necessary for resolution of
matters at issue. {*613} [Emphasis
added.]
{12} Claimant argues that the
failure of the discovery order to explicitly contain a finding of good cause
for the taking of the depositions specified therein and entry of the order
prior to examination by claimant's counsel was reversible error. We agree that
counsel is entitled to a reasonable opportunity to examine an order or judgment
prior to its entry and to make suggestions or objections.
See SCRA 1986,
1-058(C). However, we determine that any error stemming from the WCJ's failure
to allow claimant an opportunity to review or to comment on the form of the
discovery order, and any failure of the WCJ to specify in the order that good
cause existed for the taking of the depositions in question, was rendered
harmless when the WCJ, on April 16, 1990, held a full hearing on claimant's
motion to quash the discovery order, reviewed each of claimant's objections to
the order, including those asserted on appeal, determined that the discovery
authorized in the order was proper, and reaffirmed such order.
III. Costs for Expert Witnesses Fees
{13} Claimant also contends
that the WCJ improperly denied his request that respondents be required to
financially assist him in retaining expert witnesses on his behalf. Prior to
the final hearing, claimant requested that respondents be required to advance
the costs for employing an accident reconstruction witness to testify that the
vehicle claimant was driving at the time of the accident was defective and that
the defect, not his alleged intoxication, was the proximate cause of the
accident. Claimant also requested funds to hire a toxicologist, in order to
testify regarding blood-alcohol level and its ramifications, and a medical
doctor, so that an independent medical examination could be performed upon
claimant in order to rebut testimony of respondents' medical expert that
claimant had recovered from his injuries. Claimant did not, however, provide
the WCJ with the names of any proposed expert witnesses until the hearing on
the motion to quash the original discovery order. At that hearing he provided
the name of a toxicologist whom he wished to develop as a witness. Claimant did
not identify by name or indicate the qualifications of his proposed accident
reconstruction witness or medical expert, and did not indicate to the WCJ that
expert witnesses were in fact available and willing to testify in the manner
sought by claimant. The record of the motions hearing suggests that expert
witnesses had been requested only in general terms.
The statutory requirement necessitating a finding that there
is "good cause" for undertaking discovery and that the evidence
sought to be obtained "will probably be material" cannot properly be
entered in general, without identifying the specific discovery sought or
individuals or entities to be deposed, and a determination by the court that
the specific discovery or deposition requested will probably be material to the
cause.
Soliz v. Bright Star Enters., 104 N.M. at 204, 718
P.2d at 1352.
{14} The WCJ denied
claimant's request for assessing costs and expenses. During both pre-discovery
order motion hearings, the WCJ also ruled that respondents were not responsible
for the cost of preparing any expert witness for a proposed deposition.
{15} The general rule on
assessing the cost of medical witness fees and other expenses is that
"like attorneys' fees, other fees and expenses must be borne by the
parties themselves, in the absence of a statute shifting the incidence of such
expenses." 3 A. Larson,
Workmen's Compensation Law {*614} 83.20, at 15-1366 to -1367 (1989).
Under Section 52-5-7(F), New Mexico, however, by statute, expressly permits
certain costs or expenses incurred by a claimant to be assessed against the
employer.
{16} NMSA 1978, Section
38-6-4(B) (Repl. Pamp. 1987), referred to in Section 52-5-7(F), also provides
in pertinent part:
The payment of a reasonable fee, to be taxed as costs, in
addition to the per diem and mileage as provided for in Subsection A of this
section, for any witness who qualifies as an expert and who testifies in the
cause in person or by deposition. The additional compensation shall include a
reasonable fee to compensate the witness for the time required in preparation
or investigation prior to the giving of the witness's testimony.
{17} In enacting Section
52-5-7(F), we think it is clear that the legislature intended to require that
the claimant's employer pay the costs and expenses incurred by him or her in
deposing any witness, including his or her own experts, if the WCJ determines
that good cause exists for the taking of the depositions. The words "cost
and expense" as used in Section 52-5-7 have been interpreted to include
the actual costs of taking a deposition, such as stenographer and reporter
fees.
See Maschio v. Kaiser Steel Corp., 100 N.M. 455,
672 P.2d 284 (Ct.
App. 1983). Similarly, we think it is clear that the words "cost and
expense" also permit the WCJ to allow a reasonable fee charged by an
expert witness in necessarily reviewing records or otherwise preparing to
testify by deposition.
{18} In the discovery order
in this case, the WCJ permitted the depositions to be taken of a number of
witnesses, including several expert witnesses sought to be retained by
respondents. The discovery order authorized both sides to depose these witnesses,
and assigned the cost of any such depositions to respondents. The order further
stated: "Claimant has failed to show good cause for assessing costs and
expenses against Respondents for his preparation of evidence and testimonies
relative to blood alcohol test experts, and independent medical examination,
and an accident reconstructionist[.]"
{19} Section 52-5-7(F)
conditions the allowance of costs of discovery upon a finding by the WCJ that
"good cause exists" for such discovery. Determination of whether a
predicate showing of "good cause" has been established requires
substantiation that the evidence sought to be obtained will probably be
material to the issues in the cause and is not vague or speculative in nature.
See
Soliz v. Bright Star Enters., 104 N.M. at 204, 718 P.2d at 1352 ("A
finding of good cause or materiality cannot be made in the abstract.");
see
also Hales v. Van Cleave, 78 N.M. 181,
429 P.2d 379 (Ct. App. 1967)
(assessment of costs lies within discretion of trial court and reviewing court
will not interfere except where there is a showing of abuse). From the facts
before us we cannot conclude that the WCJ erred in denying claimant's request
that respondents be required to pay the cost of deposing unnamed expert
witnesses, when the general tenor of the testimony was speculative in nature,
and the identity of two of the three proposed witnesses was not disclosed to
the WCJ. At no time did claimant's counsel indicate that he had contacted
specific witnesses or that witnesses were available to testify as outlined by
counsel. A request for discovery may properly be denied if the request is
speculative or if such discovery would amount to a mere fishing expedition.
See,
e.g.,
Blake v. Blake, 102 N.M. 354,
695 P.2d 838 (Ct. App. 1985).
See
also Soliz v. Bright Star Enters.
IV. Sufficiency of Evidence
{20} Claimant's final issue
on appeal challenges the sufficiency of the evidence to support the finding of
the WCJ that claimant's intoxication at the time of the accident caused his
injuries.
{*615} {21} We review this contention under the whole record
standard of review set forth in Tallman v. ABF (Arkansas Best Freight),
108 N.M. 124, 767 P.2d 363 (Ct. App. 1988). The record reveals that claimant
underwent a blood test for alcohol shortly after the accident. Janelle
Schilz-Winbray, a medical technician at the San Juan Regional Medical Center,
testified about the test procedure and quality control measures utilized in
testing claimant's blood-alcohol level. She testified that the blood sample in
this case was drawn by a phlebotomist and delivered to the laboratory by a
technician. She testified that she personally tested the sample. The first test
revealed that the alcohol content of the sample was too high to be measured
without dilution. She then diluted the serum and ran a second test. After
performing calculations to account for the dilution, she determined that
claimant's serum alcohol content was 0.42. According to a deposition admitted
at the hearing, a blood serum level of 0.42 is equivalent to a blood-alcohol
concentration of approximately 0.35.
{22} In addition to the
results of the blood test, the record contains other substantial evidence to
support the WCJ's determination that claimant was intoxicated at the time of
the accident. Claimant, who acknowledged that he is an alcoholic, testified
that he had drunk "a couple of beers" before the accident. The
officer who investigated the accident testified that he found open cans
containing fresh beer inside and outside the truck, that the cab of the truck
smelled of alcohol, and that after the accident he observed that claimant had a
strong odor of alcohol, slurred speech, and bloodshot eyes.
{23} The officer also
testified, based on his investigation of the tire tracks of the vehicle
involved in the accident, that claimant's truck left the roadway for no
apparent reason, and that the straight tracks indicated that there was nothing
wrong with the vehicle's front-end suspension. In addition, the service manager
of a local Ford dealership testified that after examining photographs taken of
the vehicle at the accident scene, there was nothing to suggest that a broken
tie-rod had caused the accident. From these facts the WCJ could reasonably
determine that claimant was intoxicated at the time of the accident and that
his intoxication was the proximate cause of his injuries. In sum, our review of
the transcript and proceedings discloses that substantial evidence supports the
decision of the WCJ.
{24} For the foregoing
reasons, the judgment of the WCJ is affirmed. Respondents' request for oral
argument is denied. No costs or attorney's fees are awarded.