Webb v. Hamilton , 78 N.M. 647 ( 1968 )

OPINION

MOISE, Justice.

Plaintiff-appellee, while employed by appellant-employer received an injury to his right eye which arose out of and in the course of such employment. Previously, he had lost the sight in his left eye. In addition to finding these facts, the court also found as follows:

“3. That the injury to plaintiff’s right eye resulted from a piece of metal becoming lodged in the right eye, and on that date, namely February 10, 1964, plaintiff did not suffer any other physical injury to any other part of his body or any emotional or mental injury affecting his body as a whole; and that it was not until sometime after the accident when the sight in plaintiff’s right eye was materially affected and diminished, that the emotional instability and depression reaction followed because of the loss of the functional ability to get around; the worry about blindness; and the worry about financial obligations.”

“7. That as set forth in Paragraph 3 hereof, in addition to the injury incurred to plaintiff’s right eye, plaintiff, as a natural and direct result of the aforesaid accident, incurred an injury to his nervous, mental and/or emotional system, which said injuries have rendered the plaintiff totally and permanently disabled.

“8. That the aforesaid injury to plaintiff’s nervous, emotional and/or mental system consists of, but is not limited to, a continual tremor in his right arm, a depressive reaction neurosis and a marked change in his personality from a normal, reasonably happy and well adjusted individual to a depressed, withdrawn, recluse type of individual.”

“10. That the diminution of vision in his right eye caused by the accident in question varies from 20/40 to almost total blindness, depending on light conditions, plaintiff being almost totally blind in conditions of bright light, but having considerable vision in conditions of dim light.”

Based on these findings, the court concluded, as follows:

“4. That defendants should assume and pay plaintiff the sum of $38.00 a week compensation commencing from December 12, 1964, to date, and to continue such payments until further order of the Court, or until they have paid a total of 500 weekly payments.”

Appellants do not question or attack any of the findings made by the court. They are accordingly the facts of the case binding on us. Cooper v. Bank of New Mexico, 77 N.M. 398, 423 P.2d 431 (1967); J. A. Silversmith, Inc. v. Marchiondo, 75 N.M. 290, 404 P.2d 122 (1965).

They address themselves to claimed error in conclusion No. 4, quoted above. It is appellants’ position that § 59-10-18.4, N.M.S. A.1953, does not allow or permit an award on the basis of total and permanent disability and that the conclusion of the court granting benefits beyond 120 weeks is contrary to the statute. The pertinent language of § 59-10-18.4, supra (as it read at the time of the accident), relied on by appellants, is as follows:

“A. For disability resulting from an accidental injury to specific body members * * *, the workmen shall receive * * * a maximum compensation of thirty-eight dollars ($38.00) a week for the following periods:

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“(41) Total blindness of one eye.................... 120 weeks

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“D. The loss of * * * both eyes * * * constitutes total disability, permanent in character; provided, the employer shall not be liable for compensation for total disability if the loss of one * * * eye occurred before the accidental injury for which claim is made, but in that event compensation shall be paid only in accordance with the schedule set forth in Subparagraph A of this section.”

It cannot be disputed that appellants’ position is correct insofar as benefits to be awarded for injury to the right eye are concerned. However, in the instant case the metal which struck the right eye causing the injury thereto and disability therefrom also injured plaintiff’s “nervous, mental and/or emotional system” and, as a result, plaintiff is totally disabled.

In our view of § 59-10-18.4, supra, the provisions limiting awards to fixed periods for certain specified injuries or, losses was not intended to prevent a larger recovery where, as here, a part of the body, in addition to a particular member or organ, is affected as a result of the accident and injury to the scheduled member. ___ „ ,

In 1963 the definition of disability, whether partial or total was changed (Ch. 269, Sec. 1, N.M.S.L.1963), now appearing as § 59-10-12.18 and 59-10-12.19, N.M.S.A. 1953 (Ch. 295, Secs. 18 and 19, N.M.S.L. 1965), and a functional approach to determining loss of earning capacity more or less comparable to the method applied prior to 1959 was again adopted. The reduction in earning capacity has always been the primary concern of workmen’s compensation legislation, see Lozano v. Archer, 71 N.M. 175, 376 P.2d 963 (1962), and this fact remains true today. Only the method of measuring it has been changed. Thus when disability, as now measured, does not result exclusively from injuries to a scheduled member, section 59-10-18.4, supra, does not control.

While there have been other changes in the workmen’s compensation act over the years, the essential relationship of § 59-10-18.4 to the other remedial sections of the act has remained unchanged. There are numerous cases, including Mathews v. New Mexico Light & Power Co., 46 N.M. 118, 122 P.2d 410 (1942); Lipe v. Bradbury, 49 N.M. 4, 154 P.2d 1000 (1945); Reck v. Robert E. McKee General Contractors, 59 N.M. 492, 287 P.2d 61 (1955); Boggs v. D & L Construction Co., 71 N.M. 502, 379 P.2d 788 (1963); Sisneros v. Breese Industries, Inc., 73 N.M. 101, 385 P.2d 960 (1963); Salome v. Eidal Manufacturing Co., 75 N.M. 354, 404 P.2d 308 (1965); Jensen v. United Perlite Corporation, 76 N.M. 384, 415 P.2d 356 (1966); Casados v. Montgomery Ward & Co., 78 N.M. 392, 432 P.2d 103 (1967), which have explained this relationship and have articulated the principle that we again apply today. Any inconsistency which might appear to be present in any of our decisions can be explained by looking at the particular facts which gave rise to them. We would here assert that none of the cases announce a rule different from that here set forth, or do they require a result different from that which we have reached.

The language of § 59-10-18.4(D), supra, as we read it, simply means that where the loss of sight in one eye results in total disability because the sight had previously been lost in the other eye, the limitation provided in the schedule (120 weeks) for the loss of one eye shall apply. It does not say, nor do we think it was intended that it say, that when total disability results, not alone because of injury to the second eye but because of injury to or effects on the nervous system or some other part of the body, the limitation shall be applicable. See Larson, Workmen’s Compensation, § 58.20.

We have long since recognized accidental injuries to the nervous system as compensable when resulting in disability. See Ross v. Sayers Well Servicing Co., 76 N.M. 321, 414 P.2d 679 (1966); Gonzales v. Gackle Drilling Company, 70 N.M. 131, 371 P.2d 605 (1962). Indeed, we find ourselves unable to distinguish the present case from Jensen v. United Perlite Corporation, supra. That case involved an injury to an arm. Although the arm healed, because of traumatic neurosis or hysteria, claimant was unable to work. We there said:

“In Boggs v. D & L Construction Company, supra, we held that the scheduled injury section of the Workmen’s Compensation Act is not exclusive when there is proof of a separate and distinct impairment to other parts of the body. See also, Salome v. Eidal Manufacturing Company, 75 N.M. 354, 404 P.2d 308. In the instant case, expert testimony indicates that claimant suffered an injury to his mind, as a result of an accident, which has resulted in total and permanent disability according to the conclusions of the trial court. This is a separate and distinct injury to a part of the body other than his left arm. It is not solely the fact that claimant is unable to use his left arm, which has prevented him from returning to some type of employment. It appears to be the loss of his self-respect which has caused much of his uselessness. It was entirely proper for the trial court to conclude that claimant was totally and permanently disabled, under the facts and testimony of this case.”

To hold as argued by appellants would have the anomalous result of permitting recovery for injury beyond the scheduled amount, if only one eye is injured and a neurosis results, but would deny it if the injury is to a second eye and the same neurosis follows. We see nothing in § 59-10-18.4(D), quoted above, that would dictate this result simply because the injury was to an eye rather than to some other part of the body. See Larson, Workmen’s Compensation, §§ 42.00, et seq., and 58.20.

From the foregoing, it follows that the judgment should be affirmed, together with an award of $750.00 attorney fees to plaintiff for representation on this appeal. It is so ordered.

CI-IAVEZ, C. J., and COMPTON and CARMODY, JJ., concur.