Chavez v. Lectrosonics, Inc. , 93 N.M. 495 ( 1979 )

HERNANDEZ, Judge

(specially concurring).

In my opinion the defendants established a prima facie case that there was no material issue of fact as to any of the three factors necessary to bar recovery set down in Martinez. My two brethren do not agree that the defendants established “a causal connection between the false representation and the injury.” It is my opinion that the causal connection was established by the following: attached to the deposition of T. M. Keenan, which is included in the record, is a letter dated April 21, 1977, from plaintiff’s attending physician, Dr. Joseph Hollinger, to the insurance adjuster. This letter reads in part:

“I feel that it is highly unlikely that Mrs. Lydia Chavez will recover sufficiently to return to work. I feel that this is a combination of her original back injury, the surgery, the reinjury coupled with her overweight, diabetes, and emotional instability.”

Attached to the plaintiff’s demand for admissions as exhibit 11 — D is a report from Dr. Hollinger dated February 23, 1977, about the plaintiff’s condition. This report recites in part:

“I have been following the patient for several months and frankly I do not see any improvement and I doubt seriously that she will ever be able to go back to any type of work. I will continue following her, however, I feel that because of the multiple problems, emotional, overweight, and diabetes along with the laminectomy and recurrent back sprain, that there is little likelihood for any significant improvement.”

There are, in my opinion, two material issues of fact which must be resolved at the trial of this matter. The first is whether the defendant, Lectrosonics, Inc., knew about plaintiff’s prior back injury and surgery. The second is, if it is determined that they knew of plaintiff’s injury, did they waive the defense provided by Martinez?

In- an affidavit filed in the trial court in opposition to defendant’s motion for summary the plaintiff stated the following, among other things:

“5. I was employed by Lectrosonics from January of 1975 until June of 1976. Mr. Thomas P. Gilmer, Jr. was advised of my prior back injury and surgery. I do not know exactly how he knew of this but I presume that he knew of it from Dorothy Moore who had originally recommended me who was fully familiar with that injury and surgery and from Celeste McLeod who worked in the office.

6. I have been a diabetic for many years and did lose some time from work as a result of my diabetes. When I was forced to be off work because of my diabetes, Mr. Thomas P. Gilmer talked to me about my being off work and asked if it was in connection with my back injury, questioned me about the back injury and the surgery, and did definitely know all about the back injury and surgery from six months to a year prior to the injury of June, 1976.

7. When there was an opening in the final assembly area, I asked to be promoted to that area where I would work with Connie Garcia, at that time Mr. Ted Ulibarri, the supervisor and Mr. Thomas P. Gilmer, discussed my going into the final assembly area and refused to approve this because of my prior back injury because this work required lifting heavy cabinets.

8. Approximately one year prior to my injury of June, 1976, Mr. Thomas Gilmer acknowledged to me that he was fully aware of my prior back injury and surgery in conversation discussing my absence from work as a result of my diabetes and then subsequently acknowledged that he was fully aware of this condition subsequently in refusing to permit me to work in the final assembly area.”

Both Mr. Gilmer and Mr. Ulibarri denied any prior knowledge about plaintiff’s back injury and surgery.

“When an employee makes false statements in his application for employment, the application is voidable at the employer’s option and the employer may discharge the employee.” Swanson v. American Manufacturing Company, 511 S.W.2d 561 (Tex.Civ.App.1974).

If the defendant, Lectrosonics, Inc., knew of the plaintiff’s previous injury and surgery and elected not to discharge her it might be determined that the defense provided by Martinez was waived.

“[A] waiver is the intentional relinquishment or abandonment of a known right, and that the act of waiver may be evidenced by conduct as well as by express words.” Cooper v. Albuquerque City Commission, 85 N.M. 786, 518 P.2d 275 (1974).