CHAFFINS V. JELCO, INC., 1971-NMCA-071,
82 N.M. 666, 486 P.2d 75 (Ct. App. 1971)
THOMAS CHAFFINS, Plaintiff-Appellant,
vs.
JELCO INCORPORATED, a corporation, and INDUSTRIAL
INDEMNITY
INSURANCE COMPANY, Defendants-Appellees
COURT OF APPEALS OF NEW MEXICO
1971-NMCA-071, 82 N.M. 666, 486 P.2d 75
Appeal from the District Court of
Bernalillo County, Swope, Judge
Motion for Rehearing Denied May 25,
1971; Petition for Writ of Certiorari Issued June 18, 1971
William F. Aldridge, HORTON AND ALDRIDGE,
Quincy D. Adams, Adams and Foley, Albuquerque, New Mexico, Attorneys for
Plaintiff-Appellant.
Ray H. Rodey, RODEY, DICKASON, SLOAN,
AKIN & ROBB, Albuquerque, New Mexico, Attorneys for Defendant-Appellees.
HENDLEY, Judge, wrote the opinion.
Waldo Spiess, C.J., Dee C. Blythe, D.J.,
dissenting.
HENDLEY, Judge, Court of Appeals.
{1} Plaintiff filed suit to
set aside a general release of a workmen's compensation claim on the grounds of
a latent injury. The trial court ruled against plaintiff and he appeals.
{3} Plaintiff fell from a 30
foot power pole on July 8, 1968, and subsequently was treated by Drs. Jordan,
Annala, Martinez and Bronitsky. Plaintiff's complaint was of pain and
discomfort in his back. Sixteen years prior to plaintiff's fall from the power
pole, he was injured in an auto accident and part of the iliac bone was removed
leaving a very large scar on his back. Plaintiff signed a release on May 16,
1969, covering future workmen's compensation payments. Dr. Bronitsky saw
plaintiff on July 1, 1969, at which time there was a swelling in the scar area
and a drainage starting in the scar. The sinus was excised and the wound
healed.
{4} Dr. Bronitsky stated that
at the time of his medical examinations prior to plaintiff's signing the
general release, he could see nothing unusual about the scar and when he
discharged plaintiff just prior to plaintiff's signing the release, although
plaintiff was complaining of pain in the back, he assumed it was a residual of
plaintiff's sprain in the fall from the pole and explained to plaintiff that he
eventually expected the pain to disappear completely. Dr. Bronitsky testified
that as a medical probability the draining sinus was caused by the fall from
the power pole.
{5} Defendants' doctor, Dr.
Martinez examined plaintiff on November 5, 1969, and concluded:
"* * * I am at a loss to be able to relate the draining
and infected sinus with an injury which occurred many months before. I would
rather speculate that the best probability is that there is some connection
between the infection and the old scarred area. The ideology {*667}
[etiology] may even be independent of either of these two events. However,
the least likely possibility, in my opinion, is that the fall from the pole was
in any way related to this lesion. * * *"
{6} Plaintiff challenges the
trial court's findings nos. 8 and 9 which read:
"8. The occurrence of the draining sinus suffered by the
plaintiff on or about July 1, 1969, and the contention that his disability was
now increased is merely a claim that the injury proved more serious than at the
time of the settlement than [sic] the plaintiff thought them to be, which fact
was admitted by Dr. Bronitsky and any mistake about the plaintiff's physical
condition at the time he settled was unilateral on the part of the plaintiff
and only as to his future disability.
"9. When plaintiff filed suit to set aside the release
herein on August 15, 1969, he had simply experienced a worsening of his low
back condition as a consequence of an area of earlier injury in his back and
more than likely the draining sinus is completely unrelated to his injury of
July 8, 1968."
{7} Plaintiff contends the
trial court should have adopted his findings which were "* * * to the
effect that the draining sinus condition did not manifest itself prior to the
settlement; that the draining sinus condition was caused by the accident, [fall
from the power pole] and that the condition was not diagnosed by the doctors
who treated Plaintiff, prior to the settlement."
{8} Latent injuries are
recognized under § 59-10-13.3(A)(3), N.M.S.A. 1953 (Repl. Vol. 9, pt. 1).
Linton v. Mauer-Neuer Meat Packers,
71 N.M. 305,
378 P.2d 126 (1963). Where
causation is denied the workmen must establish that causal connection as a
medical probability by expert medical testimony. Section 59-10-13.3(B).
N.M.S.A. 1953 (Repl. Vol. 9, pt. 1). Where two medical experts express contrary
opinions on causation a conflict arises and such conflict must be resolved by
the trier of facts. Gallegos v. Kennedy,
79 N.M. 590,
446 P.2d 642 (1968). If
there is substantial evidence to support the verdict the findings will not be
disturbed. Adams v. Loffland Brothers Drilling Company,
82 N.M. 72,
475 P.2d
466 (Ct. App. 1970).
{9} Viewing the evidence,
together with all reasonable inferences that flow therefrom, we conclude there
is substantial evidence to support the findings that the draining sinus was
unrelated to the fall from the power pole. Here we have two doctors who
testified to contrary conclusions. The court believed Dr. Martinez.
Waldo Spiess, C.J., Dee C. Blythe, D.J., dissenting.
BLYTHE, District Judge, dissenting.
{12} I am compelled to
dissent, for five reasons: (1) Dr. Martinez' report does not furnish a
sufficient basis for a finding of lack of casual connection; (2) the trial
court did not make a clear-cut finding on causation; (3) the trial court's
findings were not separately numbered and stated; (4) the trial court did not
mark plaintiff's requested findings of fact and conclusions of law
"refused", or enter an order to this effect; and (5) it is apparent
that the trial court based its decision, not on lack of causation, but on an
erroneous belief that the general release necessarily covered a
later-discovered injury in the same body area.
{13} Under Mayfield v. Keeth
Gas Company,
81 N.M. 313, 466 P.2d, 879 (Ct. App. 1970), the defendants'
medical evidence on causation in a workmen's compensation case must be
substantial, even though it need not meet the plaintiff's statutory burden,
there causation is denied, to "* * * establish that causal connection as a
medical probability by expert medical testimony." § 59-10-13.3(B),
N.M.S.A. 1953. (Repl. Vol. 9, Part 1). Is the defendants' medical evidence
substantial in this case? The portion of Dr. Martinez' report quoted in
{*668} the majority opinion shows that, at
best, it was sufficient to raise some questions, using such expressions as
"I am at a loss" and "I would rather speculate." It takes a
lot of inference to convert this into an opinion of lack of causation. Further,
the quoted portion is inconsistent within itself and is actually consistent
with plaintiff's contention where it says, "I would rather speculate that
the best probability is that there is some connection between the infection and
the old scarred area."
{14} This is not a case in
which the trial judge saw and heard two medical experts give conflicting
opinions. Dr. Bronitsky testified in person for the plaintiff, and as the
majority opinion concedes, his testimony on causation met the statutory
requirement. Dr. Martinez did not testify in person; his written report was
read into evidence by stipulation, and therein lies one source of our problem.
Had he been testifying in person, his opinion no doubt would have been
elicited, and it might very well have been as interpolated by the majority. But
it should not be the function of this court to remedy the deficiency. Since no
question of "eyeballing" the witnesses to determine his credibility
is involved, we are in as good a position as the trial court to evaluate the
written evidence. Baker v. Shufflebarger & Associates, Inc.,
78 N.M. 642,
436
P.2d 502 (1968).
{15} The plaintiff requested
a finding "That the draining sinus condition was caused by and directly
related to the accident of July 8, 1968." Instead of meeting this request
squarely the trial court's Finding No. 9, as quoted in the majority opinion,
states in part that "* * * more than likely the draining sinus is
completely unrelated to his injury of July 8, 1968." The trial court, when
requested, must find one way or the other on a material fact issue, and failure
to do so constitutes error. Aguayo v. Village of Chama,
79 N.M. 729,
449 P.2d
331 (1969). While there is a line of New Hampshire cases holding that a finding
of a probability that a certain fact exists is equivalent to a finding that it
does exist, e.g., Pulsifer v. Walker, 85 N.H. 434, 159 A. 426, 81 ALR 1052
(1932), the precise question has not been decided in this jurisdiction. Under
the majority opinion a "more than likely" finding meets the minimum
requirements of Rule 52(B), Rules of Civil Procedure, § 21-1-1(52)(B), N.M.S.A.
1953 (Repl. Vol. 4), that "* * * the court shall find the facts * * *
pertinent to the case * * *" The same rule goes on to require in two
places that each finding and conclusion be separately stated, which definitely
was not done in this case. The wisdom of this requirement is well illustrated
here; if each fact and conclusion "pertinent to the case" had been
stated and numbered separately, we would know must more precisely what was
intended, and the true basis of the decision. As it was, the trial court simply
adopted verbatim the defendants' requested findings and conclusions, which
leave a lot to be desired.
{16} Subsection (B)(a)(5) of
the same Rule 52 requires that the trial court mark "Refused" all
requested findings of fact and conclusions of law not included in the court's
decision. Our Supreme Court has held this rule to be sufficiently complied with
where "Refused" was written and initialed on the first page of a
party's requested findings and conclusions, Martinez v. Research Park, Inc.,
75
N.M. 672,
410 P.2d 200 (1965), and where the trial court merely included in its
decision an order that "All requested Findings of Fact and Conclusions of
Law submitted by the parties at variance with this Decision are hereby
denied", Edwards v. Peterson,
61 N.M. 104,
295 P.2d 858 (1956); but in
each case the exception was approved on the ground that no prejudice to the
appellant had been shown. Here the trial court made no attempt to comply with
Rule 52(B)(a)(5), and prejudice did result to the plaintiff because the trial
court did not adopt clear-cut findings and conclusions contrary to those
requested by plaintiff on material issues, and because the basis of the
decision is in doubt. For this reason
{*669}
alone, the case be nullified in effect, at least in this court, and Edwards
v. Peterson and Martinez v. Research Park, Inc., supra, will be impliedly
overruled.
{17} Since the true basis of
the decision is somewhat obscure, I think it is proper to resort to the trial
judge's oral comments at the conclusion of the trial, even though these
comments are not binding and may be superseded by the written decision. Edwards
v. Peterson, supra. They are, in full:
"THE COURT: I will have to dismiss this case. I think
the release was a valid release and releases the claim in question."
{18} This comment is
consistent with the decision, which included detailed findings and conclusions
about the validity and binding effect of the general release. In fact, four of
the conclusions of law are concerned with the release, and only one, the last,
is concerned with the injury now complained of. It does say, "The claim of
plaintiff does not constitute a latent injury." However, this conclusion
is not supported by any findings of fact, even though plaintiff submitted
specific requested findings regarding whether the draining sinus had manifested
itself or was known by either party to exist at the time of the settlement. A
conclusion of law unsupported by specific findings of fact should be
disregarded. Consolidated Placers, Inc. v. Grant,
48 N.M. 340,
151 P.2d 48
(1944).
{19} It is apparent that the
trial court felt itself bound by the release in view of the fact that the
claimed latent injury was in the same general body area (the low back) as the
injury which was known to the parties when they settled. As acknowledged by the
majority opinion, our law recognizes latent injuries in workmen's compensation
cases, and general releases can be set aside where they exist. If the trial
court were fully alerted to this, and the case were remanded for further
findings and conclusions, the result might well be different. Whether or not
the result might be changed, the workman is entitled to that chance. He has put
his settlement of $3500 (plus medical bills) on the line by asking that the
releases be set aside; he might receive less for both injuries on remand.
{20} We are supposed to
construe the Workmen's Compensation Act in favor of the workman. Cromer v. J.
W. Jones Construction Company,
79 N.M. 179,
441 P.2d 219 (Ct. App. 1968). The
majority opinion does not do this.
{21} In my opinion, this
court should hold the defendants' medical evidence insufficient as a matter of
law to overcome the plaintiff's prima facie case on causation, or at least
should remand for further findings on causation and latent injury. The majority
holding otherwise, I must respectfully dissent.