Gonzales v. Bates Lumber Co. , 96 N.M. 422 ( 1981 )

OPINION

HERNANDEZ, Chief Judge.

In this workmen’s compensation case, defendant appeals from a judgement in favor of plaintiff which adjudged plaintiff to be temporarily totally disabled since October 27, 1977. In addition to weekly benefits, medical expenses, rehabilitation expenses and attorney’s fees, the plaintiff was awarded $1,639.82 for travelling expenses incurred in connection with medical treatments that he received.

Defendant’s first point of error is that plaintiff’s failure to lose weight constituted a refusal to receive medical treatment. Section 52-l-51(G), N.M.S.A. 1978, provides in pertinent part:

If any workman shall persist in any unsanitary or injurious practice which tends to imperil, retard or impair his recovery or increase his disability or shall refuse to submit to such medical or surgical treatment as is reasonably essential to promote his recovery the court may in its discretion reduce or suspend his compensation. [Emphasis added.]

The dictionary definition of “essential” explains: “[Fundamental, vital, and cardinal all imply maximum importance, indispensability, and necessary priority in considerations, plans, or discussions. * * * Cardinal may refer to the decisive or conclusive since it may suggest that on which an outcome hinges or pivots[.]” Webster’s Third New International Dictionary 777 (1961).

The plaintiff is approximately five feet five inches in height and at the time pertinent to this appeal weighed about 185 pounds. Dr. K. W. Harvie, an orthopedic surgeon who saw the plaintiff on several occasions, testified that on July 11, 1978, “[h]e was continuing to have pain. He had lost twenty-two pounds, his back continued to hurt.” Dr. Harvie also testified that the ideal weight for plaintiff would be between 135 pounds and 145 pounds and that it was not a dangerous procedure to lose weight. Dr. G. N. Gold, a neurological surgeon who examined plaintiff on several occasions, was asked “[i]f he lost down to 135 to 140 pounds now, do you think that would affect his physical ability to return to work?” The pertinent part of his answer was as follows: “I don’t believe that just losing weight, if he did that without any change in mental attitude — which, of course, is impossible— would necessarily make a difference. I mean, fat people don’t have backaches necessarily any more than skinny people.” Dr. M. G. Rosenbaum, an orthopedic surgeon, first saw plaintiff on September 17, 1979. He was asked if plaintiff got his weight down to 130 pounds, would this resolve his back problems. His answer was that: “It would make little difference — the lost weight would make little difference in the back condition.” Dr. Rosenbaum was also asked if plaintiff could get his weight down to 140 or 130 pounds would he be able to “perform the tasks of his former or past occupations.” His answer was: “That it would make no difference.” Dr. N. F. Moon, an orthopedic surgeon who saw the plaintiff on several occasions, was asked: “Assume Mr. Gonzales got down to the weight you would like to see him at, would that cure his radiculopath?” He answered: “If he got it down to a truly normal weight for his height, I do not think that the radiculopathy should improve.” He was also asked: “Doctor, you said that if Mr. Gonzales got his weight down to an acceptable level, he could return to work doing his regular duties. Now, would you go so far as to put that in a written guarantee?” His answer was: “No, sir, I would not.”

This evidence amply supports the trial court’s findings and conclusions that it was not “reasonably essential” for the plaintiff to lose weight in order to promote his recovery, i. e., plaintiff’s failure to lose weight was not unreasonable. See Rhodes v. Cottle Construction Co., 68 N.M. 18, 357 P.2d 672 (1960).

Defendant’s second point of error is that the trial court erred in awarding travel expenses to and from the places where medical treatment was rendered. The trial court found that plaintiff incurred travel expenses in the sum of $1,639.82. Plaintiff resides at San Ysidro, New Mexico, a distance of approximately 53 miles from Albuquerque, where medical treatment was rendered. The record shows that plaintiff made 91 trips into Albuquerque totaling 9,646 miles. However, no evidence was introduced as to the actual expenses incurred. The sum awarded by the trial court computes out to $.17 per mile.

Section 52-l-49(A), N.M.S.A. 1978, provides:

After injury, and continuing as long as medical or surgical attention is reasonably necessary, the employer shall furnish all reasonable surgical, physical rehabilitation services, medical, osteopathic, chiropractic, dental, optometry and hospital services and medicine unless the workman refuses to allow them to be so furnished.

As can be seen, this section of the Workmen’s Compensation Act does not specifically provide for travel expenses incident to medical treatment. The question then presented is whether such provision can be implied from this language. We believe that it can. The only case in which this question was considered on the appellate level was Hales v. Van Cleave, 78 N.M. 181, 429 P.2d 379 (Ct.App.1967). This opinion did not decide the question of the authority of a trial court to award such expenses. It was decided solely on the basis of the failure of proof, as this excerpt will attest:

He [workman] cites absolutely no authority for his contention that he was entitled to be reimbursed for these claimed expenses.

The trial court refused the requested finding tendered by plaintiff, and concluded that plaintiff is not entitled to reimbursement for travel expenses. Since the trial court refused the requested finding by plaintiff, upon whom rested the burden of establishing the amount of these expenses and his right to recover the same, if they were in fact properly recoverable, this amounted to a finding against plaintiff on this issue. Id. at 186, 429 P.2d at 384.

“[T]here comes a point where this Court should not be ignorant as judges of what we know as men.” Watts v. Indiana, 338 U.S. 49, 52, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801 (1949). We know that the distances many injured workmen have to travel for medical treatment are considerable. This is so because of the size of this state and because certain necessary medical treatment is available at only a few places in the state. We also know that the cost of travel is not inconsequential and is rising yearly. We conclude that reasonable travel expenses necessarily incurred in receiving medical treatment do come within the language of § 52-l-49(A), supra. Of course, each case is to be decided on the basis of its peculiar facts and merits. Turning then to the instant situation, we see the following: The trial court found that “[a]s a result of receiving medical treatment and medical evaluations for his job related injuries and aggravated injuries, plaintiff incurred transportation expenses in the amount of $1,639.82.” We have previously outlined the facts which led to this conclusion and it is our opinion that they are sufficient to support it.

Defendant’s third point of error is that the trial court erred in finding that the plaintiff’s disability commenced on or about October 27, 1977. The pertinent findings of the trial court are the following:

5. Subsequent to his accidental injury of October 28, 1976, plaintiff continued to perform the regular and usual tasks of his employment with defendant, and in the interim lost approximately twenty-three weeks from work due to his injury, and for which absence plaintiff was voluntarily paid workmen’s compensation benefits by defendant in the amount of $114.61 per week.

6. Except for the aforementioned twenty-three weeks that plaintiff was absent from work, he continued to work for the defendant performing the regular and usual tasks of his employment until approximately October 27, 1977, at which time plaintiff was unable to continue working due to the injuries he sustained as a result of his October 28,1976, on-the-job accident.

“[W]e are bound to view the evidence, together with all inferences reasonably deducible therefrom, in the light most favorable to support the findings. All evidence unfavorable to the findings must be disregarded and no unfavorable inferences will be drawn.” Oberman v. Oberman, 82 N.M. 472, 473, 483 P.2d 1312, 1313 (1971).

[I]f the claimant suffers an accident in the course of his employment which does not disable but ultimately leads to a later “malfunction of the body” resulting in disability, the continuing pain and degenerating ability to function constitute the operative “accident” which brings about the compensable “accidental injury” on the date of disability.

Casias v. Zia Co., 93 N.M. 78, 79, 596 P.2d 521, 522 (Ct.App.1979). No useful purpose would be served by recounting the evidence. We have reviewed it and conclude that it fully supports the trial court’s findings. '

Defendant’s last point of error is that the trial court abused its discretion in awarding plaintiff attorney’s fees in the amount of $5,500.00. The record does not reflect that there was a hearing, or that either party requested a hearing, on the question of attorney’s fees. The only thing that appears in the record is the affidavit of plaintiff’s attorney setting forth in chronological order the time spent on this matter from initial interview through trial, totaling 131 hours and 15 minutes. The defendant’s attorney submitted a document entitled “Controversion of Affidavit of Services Rendered” which recited that the total amount of time he spent in preparing and trying the case came to 72 hours. It went on to allege that much of the time spent was unnecessary “because the complaint was filed within an unreasonable time after the first written demand was made on defendant to resume Workmen’s Compensation benefits.” Attached to this document were copies of defendant’s attorney’s billing sheets.

Our Supreme Court in Fryar v. Johnsen, 93 N.M. 485, 601 P.2d 718 (1979), ruled that there must be evidentiary support for an award of attorney’s fees and that in addition to the requirements of § 52-l-54(D), N.M.S.A. 1978, the following factors must be considered:

1. the relative success of the workman in the court proceedings: * * *.

2. the extent to which the issues were contested: * * *

3. the complexity of the issues: * * *.

4. the ability, standing, skill and experience of the attorney: * * *.

5. the rise in the cost of living: * * *.

6. the time and effort expended by the attorney in the particular case: * * *.

The trial court’s findings state:

19. Plaintiff was required to employ counsel to secure benefits under the Workmen’s Compensation Act.

20. Plaintiff’s counsel expended considerable time and effort in the handling, preparation and presentation of plaintiff’s workmen’s compensation claim and was successful in securing workmen’s compensation benefits for plaintiff.

21. Plaintiff should be awarded reasonable attorney’s fees in the amount of $5,500.00 for the successful handling, preparation and presentation of his claim.

The attorneys’ reports and the trial court’s first-hand knowledge of the attorney’s work on the issues and proceedings, and the outcome of that work, is sufficient evidentiary support for the award under Fryar. Lopez v. K. B. Kennedy Engineering Co., 20 N.M.St.B.Bull. 315 (March 12, 1981); Johnsen v. Fryar, 19 N.M.St.B.Bull. 1024 (November 6, 1980).

Plaintiff, in his cross-appeal, asserts there is not sufficient evidence to support the finding of temporary total disablement. The determination of the degree of disability is a question of fact for the fact finder; if there is substantial evidence to support the finding, this Court is bound thereby. Adams v. Loffland Bros. Drilling Co., 82 N.M. 72, 475 P.2d 466 (Ct.App.1970). The trial court had before it the testimony of plaintiff and medical testimony of several doctors to use in determining the degree of disability. The testimony of at least two doctors was that plaintiff is temporarily totally disabled. There is relevant evidence in the record such as a reasonable mind would accept to support the finding and conclusion. Because we find substantial evidence to support the finding of temporary total disablement, we need not address plaintiff’s remaining point regarding lump-sum payment of benefits.

Plaintiff is awarded the sum of $2,250.00 for the services of his attorney in this appeal. The judgment of the trial court is affirmed.

IT IS SO ORDERED.

LOPEZ, J., concurs. SUTIN, J., concurs in part, dissents in part.