Chaffins v. Jelco Inc. , 82 N.M. 666 ( 1971 )

OPINION

HENDLEY, Judge.

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.

We affirm.

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.

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.

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 {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. * * * ”

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. Bronitslcy 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, 19.68.”

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.”

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 workman must establish that causal connection is 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).

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.

Affirmed.

It is so ordered.

SPIESS, C. J., concurs.