Glover v. Sherman Power Tongs , 94 N.M. 587 ( 1980 )

OPINION

WALTERS, Judge.

Defendants appeal a workmen’s compensation award entered in favor of plaintiff. We affirm.

In 1976 plaintiff was awarded “25% disability to his dextrous hand” for the statutory period as a result of a workman’s compensation suit filed by him in 1975 against defendants. In 1977 he applied for an increase in compensation and for medical benefits, alleging total and permanent disability. The trial court found, in May 1979, that the 1976 award had been paid in full; that plaintiff’s 1975 “disability” had become more aggravated and had increased to the point that he was unable to do any work, and that plaintiff had incurred medical expenses for treatment that defendants refused to furnish or authorize. It concluded that plaintiff was totally disabled, and it ordered benefits for 465 weeks plus past and future medical, drug and travel expenses necessary to treatment.

Defendants argue that the following findings in the 1976 judgment precluded reopening of plaintiff’s claim for increase in compensation:

1. That the plaintiff suffered an accident while in the course of his employment on April 5,1975, in Lubbock County, Texas. That plaintiff at the time of the accident was covered under the Workmen’s Compensation Act of the State of New Mexico.

3.That the defendants paid to the plaintiff workmen’s compensation from the date of the injury through December 6, 1975, at the rate of $75 a week. That the plaintiff returned to work as a caser on August 3, 1975. That since August 3, 1975, to the present time he has been continually employed as a caser insofar as work was available for his particular job classification.

5. That plaintiff is able and has been doing the work of a caser and has lost no working time since August 3,1975, as a result of his injuries, although plaintiff suffers some non-disabling pain.

7. That the plaintiff at this time has no disability as a result of injuries to his head, neck, and upper and lower back. That the plaintiff does suffer a 25% disability to his dextrous hand.

In its decision on the hearing for increase, the trial court, referring to its 1976 decision, made these pertinent findings and conclusions:

4. The Court further found that plaintiff was able and had been doing the work of a caser and had lost no work since August 3, 1975, to the date of that hearing as a result of his injuries and that plaintiff did suffer some non-disabling pain, but that at that time plaintiff had no disability as a result of the injuries to his head, neck, and upper and lower back.

5. Plaintiff continued to attempt to work and was gainfully employed for a period as a caser; however, he was unable to continue that work and sought lighter work as a security guard in which his employer furnished him a special cushion; and he wore a back brace prescribed by Dr. Hayes and Dr. Breck. He became unable to work on May 1, 1977, and has not been gainfully employed since May 2, 1977. Plaintiff’s disability has become more aggravated and has increased without fault of plaintiff so that plaintiff is unable to do any work as defined in the Compensation Act.

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1. Judgment should be entered in favor of plaintiff for total disability for the reason that plaintiff’s disability has prevented him from earning a livelihood; his disability has become more aggravated and has increased without fault of plaintiff; he has become totally disabled and unable to work.

2. Plaintiff should have judgment against defendants for total and permanent disability benefits, medical examination and treatment expenses, including travel, meals, etc.; such judgment should order the payment of workmen’s compensation benefits at the rate of $75.00 per week from May 2, 1977, for a period not to exceed 465 weeks thereafter, or until further order of the Court because of the injuries sustained to plaintiff’s back, neck and head, and medical fees to Dr. Breck for $260.00 and future medical expenses, drugs and trip expenses.

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4. The Court found in the original hearing the causal connection between the injuries and pain caused by the accident supported to a medical probability by expert medical testimony; therefore, plaintiff does not have to re-establish such fact in a subsequent hearing for increased compensation and medical benefits.

Defendants rely on Sena v. Gardner Bridge Co., 93 N.M. 358, 600 P.2d 304 (1979), and American Tank & Steel Corp. v. Thompson, 90 N.M. 513, 565 P.2d 1030 (1977) for their argument that Glover’s 1975 “disability” terminated with his final payment of entitlement on December 6, 1975; that as of the date of the first judgment, Glover was found to have “no disability . to his head, neck, and upper and lower back,” but only a 25% disability to his hand for which he had been fully paid at the time the motion to increase was made. They point to language of Sena, supra, stating:

We hold that a workman who is not disabled at the time judgment is entered [1975] cannot, thereafter, [in 1977] seek an increase of a non-existent disability. Neither can a non-existent disability revive itself to become partial or total disability.

600 P.2d at 306. And:

A judgment that provides for “payment to the workman, at regular intervals during the continuance of his disability" [emphasis in the original] is not a “Final Judgment.” [Citation omitted.] Where, however, the judgment does not contain an order for further payments, disability having terminated, the judgment is final.”

600 P.2d at 307.

The significance of the “final judgment” language of Sena is found in the paragraph following, where the majority said:

The parties, causes of action, subject matter capacities in the 1975 judgment and recovery sought now are identical in all respects. The first judgment is a conclusive bar upon the parties as to every issue which either was or could have been litigated in the previous case.

Sena held that one whose disability had “ended” prior to entry of the 1975 judgment could not invoke the provisions of § 52-l-56(A), N.M.S.A. 1978, to reopen the judgment and obtain an increase in the disability benefits awarded by that judgment. The majority of the members of the present panel do not agree with the reasoning or result in Sena, and are instead persuaded that the view expressed in Judge Hendley’s dissenting opinion is correct. We therefore adopt the dissenting opinion in Sena, and expressly hold that except in the rare circumstances of such cases as Durham v. Gulf Interstate Eng. Co., 74 N.M. 277, 393 P.2d 15 (1964), which Judge Hendley noted in his dissent, or others with equally preclusive facts, any judgment for compensation in a workman’s compensation case may be reopened during the remainder of the statutory period after the original judgment, for the purpose of requesting an increase or decrease in compensation benefits. This holding is consistent with our decision in Burton v. Jennings Bros., 88 N.M. 95, 537 P.2d 703, cert. den., 88 N.M. 318, 540 P.2d 248 (1975).

Defendant next suggests that American Tank, supra, disqualifies plaintiff for reconsideration of his physical condition under § 52-l-56(A). We see nothing in that case which even intimates that one who initially suffers and is compensated for impairment to a scheduled member, without further disability, is thereafter denied the opportunity of reopening his case to show a latent disability arising from the same injury, and to claim entitlement to an adjustment of the earlier award. In American Tank, there was both impairment to a specific member and total disability. In this case, the total disability simply occurred later than it did in American Tank, and we are confident that such a later development is one of the precise reasons inducing the Legislature’s enactment of § 52-l-56(A).

The Workman’s Compensation Act' was not written with the intent that it be so penuriously interpreted that a workman be bound by a “on 3-shot” chance at showing his ability or inability to perform the tasks of his usual occupation or other work he is fitted by past history to do. If that were so, and each word of the Act were to be read to find a means to deny rather than to grant relief to an injured workman, the principal purpose of workman’s compensation law would be thwarted. Workmen’s compensation acts are a highly favored and salutary type of proceeding, remedial in nature. Malone v. Swift Fresh Meats Co., 91 N.M. 359, 574 P.2d 283 (1978). The act must be construed liberally to give effect to its benevolent purpose. Casados v. Montgomery Ward & Co., 78 N.M. 392, 432 P.2d 103 (1967). Its beneficent purposes are not to be blocked or defeated by hyper-technical refinements of its meaning; rather, liberal construction of the law to effect its purpose is the rule to be applied. Mascarenas v. Kennedy, 74 N.M. 665, 397 P.2d 312 (1964). Section 52-l-56(A) was unquestionably intended to meet the effect of changes which could occur in a workman’s physical condition, as related to a compensable injury (whether the change be for better or worse), during the period for which compensation could be paid. Sena, supra, Hendley, J. dissenting, at 93 N.M. 361, 600 P.2d 307. American Tank in no way calls for a different interpretation of the Act, nor does it imply a distinction between “disability” or “impairment” as a basis for granting or denying any rights provided for in the Act. See Wichter v. Capitan Drilling Co., 84 N.M. 369, 503 P.2d 652 (Ct.App.1972).

The trial court, in its 1979 decision, concluded that a causal connection had been found in the 1976 judgment between the April 1975 injury and the pain that was non-disabling then but which became disabling in 1977; therefore, that that fact need not be reestablished at the 1979 hearing. Such a conclusion is supported by the trial court’s Findings 4 and 5. Proof of causation is not a requirement of § 52-l-28(B), that element having been satisfied at the initial hearing in 1976. If causation had not been earlier established, there would be no basis for requesting an increase or decrease of compensation allowed in the earlier hearing.

Moreover, Dr. Breck’s testimony, produced at the hearing for increase, sufficiently established that Glover’s initial disability had been aggravated; Glover’s evidence adequately fulfilled the requirements of inability to work and freedom from fault.

The award of increased disability from May 2, 1977 finding ample support in the evidence, it follows that payment of medical expenses incurred for treatment of the disability is mandated by § 52-1-49. The evidence of plaintiff’s indebtedness to Dr. Breck was received without objection, and Scott v. Transwestern Tankers, Inc., 73 N.M. 219, 387 P.2d 327 (1963), approves the rule that proof of a bill for medical services rendered is prima facie proof of reasonableness. The court did not err in ordering its payment by defendants.

The judgment below is affirmed. Plaintiff is awarded $2,000 for services of his counsel on this appeal.

IT IS SO ORDERED.

HERNANDEZ, J., concurs. SUTIN, J., concurs in result only.