GOOLSBY V. PUCCI DISTRIB. CO., 1969-NMCA-012,
80 N.M. 59, 451 P.2d 308 (Ct. App. 1969)
RAYMOND GOOLSBY, Plaintiff-Appellant,
vs.
PUCCI DISTRIBUTING COMPANY, Employer, and AETNA CASUALTY
AND SURETY COMPANY, Insurer, Defendants-Appellees
COURT OF APPEALS OF NEW MEXICO
1969-NMCA-012, 80 N.M. 59, 451 P.2d 308
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY, REIDY, Judge
THOMAS SCHALL, Esq., SCHALL, SCERESSE
& ADDIS, Albuquerque, New Mexico, Attorneys for Appellant.
IRVING E. MOORE, Esq., Albuquerque, New
Mexico, Attorney for Appellees.
WOOD, Judge, wrote the opinion.
Waldo Spiess, C.J., LaFel E. Oman, J.
{1} The original judgment
recites: "That the probable duration of Plaintiff's total disability is
six months from date." Workmen's compensation was awarded for these six
months. Medical benefits and an attorney's fee were also awarded. Plaintiff
filed two motions seeking additional benefits under § 59-10-25, N.M.S.A. 1953
(Repl. Vol. 9, pt. 1, Supp. 1967). His first motion asked for a hearing on the
question of whether additional benefits should be awarded. The trial court
granted this hearing, but subject to terms. His second motion asked the trial court
to award additional benefits on the basis of uncontradicted evidence. The trial
court denied this second motion. The appeal challenges the correctness of these
rulings.
{2} Section 59-10-25, supra,
reads in part:
"A. The district court in which any workman has been
awarded compensation under the Workmen's Compensation Act [59-10-1 to 59-10-37]
may, upon the application of the employer, workman, or other person bound for
judgment, fix a time and place for hearing upon the issue of claimant's recovery
* * *. And if it shall appear upon such hearing that the disability of the
workman has become more aggravated or has increased without the fault of the
workman, the court shall order an increase in the amount of compensation
allowable as the facts may warrant. * * *"
{3} The issue, in proceedings
under this section, is a change in the workman's condition subsequent to the
original award. Compare Bartlett v. Shaw,
76 N.M. 753,
418 P.2d 533 (1966);
Norvell v. Barnsdall Oil Co.,
41 N.M. 421,
70 P.2d 150 (1937). Under this
section, the trial court may extend the length of time compensation is to be
paid. See Segura v. Jack Adams General Contractor,
64 N.M. 413,
329 P.2d 432
(1958). Plaintiff's motion sought such an extension.
Denial of a hearing except on terms.
{4} Plaintiff's first motion
sought a hearing under § 59-10-25, supra. He supported this motion by the
affidavit of his doctor and the affidavit of his attorney incorporating the
report of another doctor. The trial court's order is as follows:
"This matter having come on for hearing in due course,
and the Court having examined the affidavits and exhibits, and being further
fully advised in the premises, finds that it is reluctant to in any way modify
the Judgment heretofore entered herein and would, in all probability, confirm
the same."
{5} The Order then states:
"THEREFORE, the Plaintiff will be heard upon his Motion
on Terms, the same being: That the Plaintiff pay his own expert's fee and the
fee of the Defendants' expert, should he be unsuccessful in his Motion.
OTHERWISE, the Plaintiff's Motion is hereby DENIED."
{6} While § 59-10-25, supra,
states that the District Court "may" fix a time and a place for a
hearing, it also states that a workman's application for additional benefits is
to be resolved "* * * as the facts may warrant." The issue is a
change in plaintiff's condition subsequent to the prior award. This factual
matter is to be resolved at an evidentiary hearing resulting in new findings
and a judgment in accordance with the new findings. See Segura v. Jack Adams
General Contractor, supra. Plaintiff was entitled to a hearing on his
{*61} motion. Defendants conceded, at oral
argument, that no hearing had been held.
{7} The trial court's order
stated that plaintiff could have a hearing, but only on terms. Section
59-10-25, supra, does not authorize the trial court to condition the hearing on
such terms. If plaintiff is unsuccessful in his motion, it will be his
obligation to pay the fee of any expert witness called by him. If unsuccessful,
the trial court may assess against plaintiff, as costs, the fee of an expert
witness who testifies for the defense under subpoena. Section 59-10-13.10,
N.M.S.A. 1953 (Repl. Vol. 9, pt. 1); § 20-1-4, N.M.S.A. 1953 (Suppl. 1967).
However, such a cost is taxed after the hearing, and not as a condition to
holding the hearing.
{8} Further, the form of the
order is not commended for further use. The order leaves the impression that
the question of change in plaintiff's condition has been determined on the
basis of the documents filed in support of the motion. The documents are
insufficient for a determination of the question of change in condition. This
will be shown in our discussion of plaintiff's second motion.
Disregard of alleged uncontradicted evidence in denying
additional benefits.
{9} Plaintiff's second motion
sought an award of additional benefits on the basis of evidence which is
asserted to be uncontradicted. The "evidence" on which plaintiff
relied is the affidavits filed in support of the first motion. The trial
court's order reads:
"Upon motion of the Plaintiff, the Court being fully
advised in the premises, and having read the affidavits referred to in the said
motion, finds that the Plaintiff's disability terminated entirely at the end of
the six months provided for in the Court's original judgment filed herein and
therefore the Plaintiff's motion is DENIED."
{10} The trial court properly
refused to award additional benefits on the basis of these affidavits. The
attorney's affidavit incorporates a report of a doctor who examined plaintiff
for the defense. This report shows that the doctor's opinion is based on an
examination of plaintiff at a time prior to the original trial. This report
recommends continued treatment and re-evaluation in a year. However, the report
does not, and could not, indicate whether plaintiff's condition has changed
subsequent to the trial.
{11} The affidavit of
plaintiff's doctor does refer to a change in plaintiff's condition subsequent
to the trial. It states the doctor's opinion that plaintiff continued to be
totally disabled until a certain date and thereafter that plaintiff continued
to be disabled in the amount of 20% of the body as a whole. We do not know in
what sense the word "disability" is used.
{12} If the opinion as to
total disability and partial disability refers to medical disability it is not
a basis for awarding additional benefits. An opinion as to medical disability
does not resolve the question of disability under our Workmen's Compensation
law. Disability, at the time of plaintiff's accidental injury, was defined in
terms of being able to perform the usual tasks of plaintiff's work or of being
able to perform any work for which he was fitted by age, education, training,
physical and mental capacity and experience. Sections 59-10-12.18 and
59-10-12.19, N.M.S.A. 1953 (Repl. Vol. 9, pt. 1, Supp. 1967); see Lucero v.
Koontz,
69 N.M. 417,
367 P.2d 916 (1962).
{13} If the opinion as to
disability refers to disability as defined in §§ 59-10-12.18 and 59-10-12.19,
supra, it does not require a finding of disability. Lucero v. Los Alamos
Constructors, Inc., (Ct. App.),
79 N.M. 789,
450 P.2d 198, decided January 24,
1969.
{14} The trial court did not
err in denying additional benefits on the basis of the documents relied on in
the motion. However, the trial court could not determine, on the basis of these
documents, that plaintiff's disability ended six months after entry of the
original judgment. The documents simply do not provide a basis for resolving
{*62} the question of disability as defined in
the Workmen's Compensation law.
{15} The trial court's order
denying additional benefits under § 59-10-25, supra, on the basis of the
supporting documents is affirmed. The finding that plaintiff's disability ended
six months after entry of the original judgment is reversed. The order granting
plaintiff a hearing under § 59-10-25, supra, is affirmed but the terms to that
order relating to expert witness fees are set aside.
{16} The cause is remanded
with instructions to hold a hearing on the motion for additional benefits under
§ 59-10-25 supra, and to otherwise proceed in a manner consistent with the
views expressed herein.
Waldo Spiess, C.J., LaFel E. Oman, J.