LUJAN V. CIRCLE K CORP., 1980-NMCA-107,
94 N.M. 719, 616 P.2d 432 (Ct. App. 1980)
SARAH A. LUJAN, Plaintiff-Appellee,
vs.
CIRCLE K CORPORATION, Employer and NEW HAMPSHIRE INSURANCE
COMPANY, Insurer, Defendants-Appellants.
COURT OF APPEALS OF NEW MEXICO
1980-NMCA-107, 94 N.M. 719, 616 P.2d 432
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY, FRANCHINI, Judge.
CHARLES G. BERRY, MARCHIONDO & BERRY,
Albuquerque, New Mexico, Attorneys for Appellee.
JERRALD J. ROEHL, RONALD W. HENKEL,
JERRALD J. ROEHL & ASSOCIATES, Albuquerque, New Mexico, Attorneys for
Appellants.
Sutin, J., wrote the opinion. WE CONCUR:
Joe W. Wood, C.J., Leila Andrews, J.
{1} This is a workmen's
compensation case. The parties stipulated that plaintiff was totally disabled
from March 31, 1977, the date of injury, to January 9, 1979, by reason of an
injury that occurred within the course and scope of her employment. Judgment
was entered that total disability continued to the time of trial "and
shall continue for an indefinite period of time." The court ordered
defendants to pay plaintiff compensation from January 9, 1979, to the time of
trial and continue to make such payments until the further order of the court;
"That this matter shall be brought before the Court for reconsideration of
this matter not later than six months from the date hereof," November 28,
1979.
{2} Defendants appeal. We
affirm on the judgment for compensation and reverse on the assessment of costs.
{3} Defendants challenged
finding of fact No. 4. It reads:
The plaintiff has established by expert medical testimony
that as a reasonable medical probability that she suffered a psychological
injury as a direct and proximate result of the robbery, abduction, assault,
rape and sodomization which occurred within the course and scope of her
employment on March 31, 1977. As a further direct and proximate result thereof
she has been since that date and remains to the present time wholly unable to
perform the usual tasks in the work she was performing at the time of her
injury and is wholly unable to perform any work for which she is fitted by age,
education, training, general physical and mental capacity, and previous work
experience.
{4} Two issues of fact are
raised: (1) whether plaintiff established as a reasonable medical probability
that she suffered a psychological injury; and (2) whether as a proximate result
thereof she was "wholly unable to perform any work for which... [she] is
fitted." Section
52-1-24, N.M.S.A. 1978. For the latest discussion of this
issue, see
Anaya v. New Mexico Steel Erectors, Inc., 94 N.M. 370,
610
P.2d 1199 (1980). This issue is called the second prong test of total
disability.
Medina v. Wicked Wick Candle Co., 91 N.M. 522,
577 P.2d 420
(Ct. App. 1977).
A. Plaintiff established a reasonable medical probability.
{5} Dr. John R. Graham, a
physician and psychiatrist, testified that his initial contact
{*721} with plaintiff began April 6, 1977, at
the Albuquerque Center for Psychotherapy. Subsequently, she was seen on April
14, 23 and 26 when a diagnostic evaluation was completed. Dr. Graham continued
to see her on a regular basis for ongoing treatment for her problems.
{6} A detailed history was
obtained from Plaintiff. With respect to any work before employment with Circle
K, she worked for the Albuquerque school system from September, 1975 to May,
1976 in food preparation and serving for the children at school. She left that
job, and on July 4, 1976, she worked the graveyard shift for Circle K to look
after her responsibilities to her children. She had no particular major medical
problems, no accidents, no head injuries and no other gynecological history
other than four pregnancies that resulted in four children who lived with her
at home.
{7} Plaintiff worked as a
clerk in the Circle K store.
{8} Dr. Graham described
three different diagnosis: (1) depression with anxiety which was post-traumatic
in origin; (2) personality style disorder which was post-traumatic; and (3) an
adult situational reaction.
{9} On January 10, 1978,
plaintiff was admitted to the Bernalillo County Medical Center for a week,
suffering from some very severe problems which impaired her vision. These
problems were related to the unfortunate event that occurred on March 31, 1977.
Her symptoms were compatible with what is called "conversion
reaction." She had double vision. She could not focus. She had very severe
headaches and blurring in her eyes. From January 9, 1979, to the time of trial
on August 7, 1979, Dr. Graham saw plaintiff from 13 to 16 times.
{10} The doctor and plaintiff
worked toward plaintiff obtaining employment. Plaintiff made a reasonable
effort in this respect, making multiple applications at a variety of places,
taking examinations and other tests. She was frustrated because she was not
hired and became quite desperate. Finally, through the CETA program
(Comprehensive Employment Training Administration) she was able to obtain
employment as a receptionist and secretary at the North City Yard of the City
of Albuquerque in April, 1979.
{11} The physical problems
she had led to a diagnosis of endometria cancer. Surgery took place in May and
June, 1979. Plaintiff was physically unable to stay on the job. Indeed, she had
psychological problems before, during and after her employment until July of
1979 when she was cleared by another doctor. She reapplied to the CETA program
and hoped to hear from the City. Dr. Graham did not believe she would be hired
back.
{12} Dr. Graham then detailed
the psychological symptoms during her employment at the North City Yard. A
recitation of them are unnecessary. They are extensive and clearly detailed.
These symptoms were related to her work and interfered with her performance.
After a review of 13 exhibits, including four reports by Dr. Richard T. Rada,
defendants' physician and psychiatrist, Dr. Graham rendered an opinion that
plaintiff was substantially impaired in an amount of 82%. This opinion was
explained extensively based upon a psychiatric disorder. His guidelines were
taken from Evaluation of Permanent Impairment, a 1977 publication of the
American Medical Association. In his opinion, Dr. Graham stated that this
impairment will persist for an indefinite period of time. It was permanent.
{13} Dr. Graham was asked
whether plaintiff was able to perform any work for which she is suited by age,
education, training, general physical and mental capacity, and previous work
experience, the second prong test. Dr. Graham answered, "She is
disabled." She would be unable to work at the present time and so long as
this impairment continued.
{14} Dr. Graham's testimony
unequivocally established the validity of finding No. 4,
supra.
{15} Defendants respond that
plaintiff could not be totally disabled from April 3 to April 30, 1979, because
she earned $1.18 more per hour while employed by the City
{*722}
than her per hour earnings while working for Circle K. While earning
capacity may be evidence admissible on the question of disability, see
Anaya
v. New Mexico Steel Erectors, Inc., supra, the primary test of disability
is capacity to perform work.
Medina v. Zia Company, 88 N.M. 615,
544
P.2d 1180 (Ct. App. 1975). Dr. Graham explained plaintiff's intense suffering
during her April, 1979 employment with the City. There is evidence that
plaintiff was not in fact qualified for the position with the City but was
placed in that position under a government training program to help the City
avoid losing the government funding. During this employment, plaintiff worked
only 8 days out of a possible 19.
{16} Medina v. Wicked Wick
Candle Co., supra, does not support defendants. There the evidence was
insufficient to sustain a finding that claimant was totally disabled as a
result of an accident that occurred on April 14, 1972. She was gainfully
employed as a clerk-typist, one who was a "retrainee," from February
1, 1974 to the time of trial. In the instant case, plaintiff's 8 days of work
for the City in a job she was not qualified to perform does not translate total
disability into partial disability.
{17} Defendants expended much
time and effort in seeking to establish that plaintiff failed to support a
finding of total disability by a "preponderance of the evidence."
Some contradictory testimony was set forth. Reliance was had on
Mascarenas
v. Kennedy, 74 N.M. 665, 668,
397 P.2d 312 (1964) wherein the court said:
... The rule of liberal construction does not relieve a
claimant of the burden of establishing his right to compensation by a preponderance
of the evidence, nor does it permit a court to award compensation where the
requisite proof is absent....
{18} "By a preponderance
of the evidence" is meant "substantial support in the evidence for
the findings." "That being true," the court said, "the fact
that there may have been contrary evidence which would have supported a
different finding or conclusion does not permit this court, on appeal, to weigh
the evidence, [citations omitted] or speculate as to what the trial court might
have done." [Id. 668-669.]
{19} To support their
position, defendants claim that Dr. Graham's testimony should be disregard as
inherently improbable. It was not, as that phrase has been defined, see
State
v. Boyd, 84 N.M. 290,
502 P.2d 315 (Ct. App. 1972). Plaintiff's argument is
that this testimony was not worthy of belief because inherently unreliable.
This argument surrounds the question of whether cancer was causally connected
with the tragic event. Dr. Graham said:
I cannot state with sufficient scientific base, but in my
opinion, and with the information I have available to me at this time, I would
have to suggest that it was related.
{20} The doctor stated his
opinion was based on a "high probability," explained how he came to
that opinion, see Evidence Rule 705, and testified that his opinion at trial
was consistent with his deposition testimony. The fact that he testified
contrariwise by deposition does not make his testimony at trial inherently
unreliable. Where medical testimony in a workmen's compensation case is
conflicting, the trial court's determination will be affirmed.
Renfro v. San
Juan Hospital, Inc., 75 N.M. 235,
403 P.2d 681 (1965).
{21} We have carefully noted
the strong arguments made by defendants. A recitation of the applicable rules
that reject the defendants' position would be superfluous. We note that the
excluded exhibits, of which defendants complain, were cumulative of Dr.
Graham's testimony that plaintiff sought work. Exclusion was not error because
they were cumulative. Evidence Rule 403.
B. Trial court erred in assessment of costs.
{22} Plaintiff submitted a
cost bill of $1,039.08. Defendants filed written objections. After a discussion
of costs by opposing lawyers, the court disallowed plaintiff
{*723}
costs of $150.71 expended for preparation of Exhibits 1-13. An Order was
entered that plaintiff be granted judgment for costs in the sum of $888.37.
{23} A hearing was held and
the Order entered.
Costs were assessed for:
Service of Subpoenas
December 1978 -- $10.40
January 1979 Trial -- 160.00
July 1979 Setting -- 231.77
Witness Fees
January 1979 Trial -- $72.00 (three witnesses)
July 1979 Trial -- 136.00 (five witnesses)
Transcript made of Stipulation Agreement -- $10.40
Copies of Medical Records from BCMC -- $65.00
Examination by Dr. Shirley Simms -- $202.80
{24} Section
52-1-35(B),
N.M.S.A. 1978 provides in pertinent part:
No costs shall be charged, taxes or collected by the clerk
except fees for witnesses who testify under subpoena...
{25} In workmen's
compensation cases, defendants are not liable for costs, jury fees, filing or
docket fees. "If the plaintiff paid them he did so on his own volition and
may not recover same from defendants."
Reck v. Robert E. McKee General
Contractors, 59 N.M. 492, 503,
287 P.2d 61 (1955). Neither are defendants
liable for costs of fees of witnesses who did not testify under subpoena. The
record does not show any hearing or trial in January or July, 1979, at which
witnesses testified under subpoena and for which costs of witness fees and
subpoenas could be taxed.
{26} None of the costs taxed
against defendants were valid.
{27} We do not agree that
defendants' appeal was frivolous or for the sole purpose of delay, and decline
plaintiff's request to assess penalty under §
39-3-27, N.M.S.A. 1978.
Genuine
Parts Company v. Garcia, 92 N.M. 57,
582 P.2d 1270 (1978).
{28} Plaintiff filed a motion
to dismiss the appeal and a brief in support thereof. The motion was denied.
Plaintiff then filed a motion to submit this case on briefs filed. Plaintiff's
brief in support of motion to dismiss was accepted as plaintiff's answer brief.
This motion was granted. Plaintiff is awarded an attorney fee of $1,250.00 for
services rendered in this appeal.
{29} We affirm the Judgment
of the trial court in its award of compensation benefits and attorney fees. We
reverse the Order of the court that awarded plaintiff costs. The court shall
withdraw its Order and enter an Order that the plaintiff's cost bill is denied.
Defendants shall pay the costs of this appeal.
WE CONCUR: Joe W. Wood, C.J., Leila Andrews, J.