Trujillo v. Beaty Elec. Co., Inc. , 91 N.M. 533 ( 1978 )

SUTIN, Judge

(specially concurring).

I concur.

A. Lawyers should read and follow Rule 9(m) on “Statement of Proceedings.”

Defendant’s Statement of Proceedings contains 13 pages of facts, evidence, and argument. Rule 9(m) of the Rules Governing Appeals [§ 21-12-9(m), N.M.S.A. 1953 (Repl. Vol. 4,1975 Supp.)] reads in pertinent part:

The statement of proceedings shall contain the following:

(1) A brief summary of such portions of the pleadings and rulings of the court thereon as are necessary to an understanding of the issues material to the review. .

(2) If the trial court has made findings of facts, a concise chronological summary of such findings .

For a commentary on this rule, see Allen v. Williams, 77 N.M. 189, 420 P.2d 774 (1966). “In his brief in chief defendant has demonstrated either a disregard for or a lack of familiarity with Supreme Court Rule [9(m)].” Macnair v. Stueber, 84 N.M. 93, 500 P.2d 178 (1972). “[W]e affirm . . [the judgment below] because of the total failure of appellant to comply with the requirements of [9(m)].” Tafoya v. Tafoya, 84 N.M. 124, 500 P.2d 409 (1972); Morris v. Dodge Country, Inc., 85 N.M. 491, 513 P.2d 1273 (Ct.App.1973), Sutin, J., dissenting. “As long as this court condones noncompliance with rules of appellate procedure, the rules will have a useless life.” Beckwith v. Cactus Drilling Corporation, 84 N.M. 565, 575, 505 P.2d 1241, 1251 (Ct.App.1972), Sutin, J. partly dissenting. I should like to repeat what I said in May v. Baklini, 85 N.M. 150, 154, 509 P.2d 1345, 1349 (Ct.App.1973):

Appellants in damage suits, angry and frustrated by loss, blindly appeal in search of reversal. Many attorneys who try and appeal cases are incompetent or lack the time to read the law or follow the rules of procedure. Competent attorneys successfully appeal. Clients have a duty to seek counsel who specialize in trial and appellate work. When attorneys fail to follow the standards of the legal profession in this state, they should be subject to claims for malpractice.

I write this, not only to assist lawyers, but to assist the public and this court. Constantly, we are called on to do research work, to make decisions based on our own labor, and cast briefs aside.

* * * # * Jje

Lawyers in appellate practice should read and follow Supreme Court Rules 5 to 22 [§§ 21-2-1(5) to (22), N.M.S.A. 1953 (Repl. Vol. 4)], each time an appeal is taken.

B. Plaintiff established medical probability causation.

Section 59-10-13.3, N.M.S.A. 1953 (2d Repl. Vol. 9, part 1) reads:

A. Claims for workmen’s compensation shall be allowed only:

(1) when the workman has sustained an accidental injury arising out of, and in the course of his employment;

(2) when the accident was reasonably incident to his employment; and

(3) when the disability is a natural and direct result of the accident.

B. in all cases where the defendants deny that an alleged disability is a natural and direct result of the accident, the workman must establish that causal connection as a medical probability by expert medical testimony. No award of compensation shall be based on speculation or on expert testimony that as a medical possibility the causal connection exists. [Emphasis added.]

Prom the time of the enactment of this section, due to poor performance in the courtroom, a chronic illness has overrun the decisions in New Mexico.

For opinions in favor of the employee, see, Yates v. Matthews, 71 N.M. 451, 379 P.2d 441 (1963); Stuckey v. Furr Food Cafeteria, 72 N.M. 15, 380 P.2d 172 (1963); Frederick v. Younger Van Lines, 74 N.M. 320, 393 P.2d 438 (1964); Sessing v. Yates Drilling Company, 74 N.M. 550, 395 P.2d 824 (1964); Ross v. Sayers Well Servicing Company, 76 N.M. 321, 414 P.2d 679 (1966); Lyon v. Catron County Commissioners, 81 N.M. 120, 464 P.2d 410 (Ct.App.1969); Brannon v. Well Units, Inc., 82 N.M. 253, 479 P.2d 533 (Ct.App.1970) (language questioned); Huerta v. New Jersey Zinc Company, 84 N.M. 713, 507 P.2d 460 (Ct.App.1973); Maes v. John C. Cornell, Inc., 86 N.M. 393, 524 P.2d 1009 (Ct.App.1974).

For opinions in favor of the employer, see, Montano v. Saavedra, 70 N.M. 332, 373 P.2d 824 (1962); Gammon v. Ebasco Corporation, 74 N.M. 789, 399 P.2d 279 (1965); Renfro v. San Juan Hospital, Inc., 75 N.M. 235, 403 P.2d 681 (1965); Torres v. Kennecott Copper Corporation, 76 N.M. 623, 417 P.2d 435 (1966); Romero v. Zia Company, 76 N.M. 686, 417 P.2d 881 (1966); Weston v. Carper Drilling Company, 77 N.M. 220, 421 P.2d 435 (1966); Quintana v. Trotz Construction Company, 79 N.M. 109, 440 P.2d 301 (1968), Carmody, J., dissenting; Gallegos v. Kennedy, 79 N.M. 590, 446 P.2d 642 (1968); Corzine v. Sears, Roebuck and Company, 80 N.M. 418, 456 P.2d 892 (Ct.App. 1969); Bertelle v. City of Gallup, 81 N.M. 755, 473 P.2d 369 (Ct.App.1970); Mayfield v. Keeth Gas Company, 81 N.M. 313, 466 P.2d 879 (Ct.App.1970); Chaffins v. Jelco, Incorporated, 82 N.M. 666, 486 P.2d 75 (Ct.App.1971); Niederstadt v. Ancho Rico Consolidated Mines, 88 N.M. 48, 536 P.2d 1104 (Ct.App.1975).

To explain the meaning of § 59-10-13.3, we must make a fortress out of a dictionary. It needs amplification. The word “disability” is used in its ordinary sense. This section does not say “disability as defined in this Act.” The ordinary meaning of disability is inability to pursue an occupation, or disablement. In a special concurring opinion in Witcher v. Capitan Drilling Company, 84 N.M. 369, 374, 503 P.2d 652, 657 (Ct.App.1972), I said:

The word “disability” simply means “disablement” resulting from an accidental injury.

To determine the extent of disability, we turn to §§ 59-10-12.18 and 59-10-12.19. These sections define “total disability” and “partial disability.” In Witcher, I also said:

If Artur Rubinstein, the noted concert pianist, suffers the loss or total loss of use of a finger, he is totally disabled. [84 N.M. at 374, 503 P.2d at 657.]

This was true as to some of his colleagues, he wrote, but not as to himself. As to himself, he said:

As a matter of fact, a few years ago I hurt my fourth finger of the right hand so badly that I was unable to use it for a few concerts, but all I had to do was to refinger the pieces I was going to play to make it possible not to have that finger involved.

Mr. Rubinstein suffered partial disability.

In addition to use of the word “disability,” § 59-10-13.3(B) contains the phrase “as a medical probability.” This phrase means to me that an employee must establish, from a doctor’s point of view, that the accident probably caused the employee’s inability to work. The word “probably” is not a word of certainty. It takes on the shade of “very likely,” “presumably,” “apparently.” To make a prima facie case, an employee needs the assistance of a doctor. When the fact is denied, a doctor must testify that from the nature of the accident and injuries suffered, the accident very likely caused the employee’s inability to work.

In trial, to avoid the chronic quarrel on this subject, the lawyer need only ask the following question:

In your opinion, did the accident cause plaintiff’s inability to work?

If the answer is “yes,” “probably,” or “very likely,” the answer is sufficient to establish an issue of fact for the workman.

If a doctor answers “probably not,” “no,” “possibly,” “speculatively,” or “it could,” the answer is sufficient to establish an issue of fact for the employer. It has been held that if a doctor testifies that the accident “could, rather than that it did as a medical probability, cause the disability. . Such testimony does not rise above speculation and surmise.” Renfro, supra, [75 N.M. at 238, 403 P.2d at 683.]

When such medical testimony is given for the workman and the employer, the choice to accept rests with the district judge. The finding made is final.

If an attorney does not specifically question a doctor about accident-injury causation, the chronic illness in court will continue. Then, courts must try to delineate the meaning of the doctor’s testimony. To do so is difficult. Did the doctor’s testimony “signify an understandable and reasonable proximity of cause and effect as distinguished from remote and doubtful consequences resulting from a given occurrence”? Stuckey, supra, [72 N.M. at 16, 380 P.2d at 173.] This is an unmethodical way to reach a solution. The district court finding can go either way and the loser weeps on appeal, because if it is “extremely difficult to determine with any degree of certainty from the transcript whether . (the doctor) intended to testify that the disability which he found . . . was causally connected with the accident as a medical probability. . . .”, Justice Moise said we must consider the evidence “most favorable to support the findings made by the trial court.” Sessing, supra, [74 N.M. at 554, 395 P.2d at 826.]

This problem does not exist in the instant case. A doctor was asked whether plaintiff’s injuries were, within a reasonably medical probability, caused by the accident. The doctor answered that at the time he cared for plaintiff, the accident would be directly related to his injury. He reiterated this opinion on cross-examination. On the other hand, defendant did not question his doctor on medical probability.

On appeal, defendants argue that the judgment was based on speculation; that the causal relationship was based upon an incomplete or inadequate history, and that the history of plaintiff’s injury was without adequate foundation. Nevertheless, defendants argue that “No doctor in this case testified that the disability was caused by the accident of April 3 or 10, 1974”; that “no matter how positive a doctor is (on) causal connection between the injury he treats and an accident months or years before, ... he cannot establish the facts of that accident and if he discusses an accident which occurred in May even though he says it is April, he is simply wrong and although he might be of legal assistance in another claim by the litigant, his conclusion is valueless . . ..” This argument is both contradictory and unpersuasive. It is a desperate attempt to reverse the findings of the trial court.