Chavira v. Gaylord Broadcasting Co.

OPINION

WALTERS, Judge.

In this workman’s compensation case, the trial court denied benefits and plaintiff appeals. Because the evidence of plaintiff’s injury and disability is conceded and uncontradieted, we reverse. Other inconsistencies between the evidence and the result below, and between prior decisions, also require discussion.

Anna Chavira was a disc jockey at an Albuquerque radio station. On October 21, 1977 she suffered an injury to her left ear when she routinely answered the telephone at her work and a loud, high-pitched blast was transmitted through the receiver. There was evidence that she felt immediate pain, nausea, dizziness, and she bled from the ear. After a period of testing and observation, a specialist to whom she was referred by her family doctor found a fistula of the round window membrane in her inner ear and a leakage of inner ear fluid. In his opinion, the damage to the ear was most probably caused by the loud blast she received over the telephone.

Surgery was performed on January 19, 1978 and plaintiff’s dizziness and problems with maintaining her balance cleared up considerably by May 22, 1978. In September 1978, however, she complained again of dizziness and unsteadiness which would cause her to lose her balance and almost make her fall. Her doctor diagnosed the condition as “a residual defect within the balance organ.” He felt that the recurrent and persistent dizziness was “the more usual course” after one suffered injuries to the balance organ, and he was not surprised that her symptoms recurred in September. Miss Chavira complained even at the time of trial that any head or eye movements, particularly rapid movements, brought on sensations of vertigo, disorientation, and imbalance. The undisputed medical evidence was that she had sustained a slight permanent hearing loss from the injury, and that she could not return to her usual occupation as of the time her doctor last examined her in September 1978. At the time of trial he estimated her to be 100% disabled from performing any work that required quick and repetitive movements; prolonged reading, writing or driving; or stooping, bending or lifting efforts. The doctor suggested that of all the occupations “available to women in the country” she was probably permanently disabled from performing 50% of them and, in his opinion, she would require retraining to obtain future employment.

Plaintiff was off work from January 18, 1978 through February 6th while she was hospitalized. She then returned to work doing what she described as lighter work, and was terminated on August 28, 1978.

The court found that plaintiff sustained an injury on October 21, 1977 during her employment; that she was not terminated because of unsatisfactory performance; that the “evidence does not establish required causal connection between the alleged injury and accident on October 21, 1977”; that she did not sustain a loss in earning capacity, was not disabled by the October 1977 accident, and was not entitled to compensation, medical benefits, rehabilitation, or attorney fees.

At oral argument, defendant conceded that plaintiff should have been awarded temporary total disability benefits for the period she was hospitalized from January 18th through February 7,1978, payment for hospital expenses and the bills of Drs. Wasylenki and Hattler incurred as a result of the ear injury, and payment for the services of her attorney at trial and on appeal. We not only agree with defendant’s concessions, but commend counsel for recognizing that the findings of the trial court are irreconcilable with the facts produced at trial, and internally. It is undisputed that plaintiff was- injured on the job, incurred medical expenses, lost time from work while hospitalized, and suffered a permanent hearing impairment. The medical testimony was that she was “unable to perform some of the work for which [s]he was fitted.” Anaya v. New Mexico Steel Erectors, Inc., 94 N.M. 370, 610 P.2d 1199, 1202 (1980).

Defendant argues, however, that the trial court correctly determined that plaintiff was not disabled, pointing to her doctor’s reports following the surgery regarding her progress toward recovery, her continuation as an employee at a higher salary until August of 1978, and her employer’s denial of knowledge regarding her claims that she had to work longer hours and receive assistance from others to do the work she had been doing prior to the injury.

The finding that plaintiff did not suffer a loss in earning capacity is not determinative on the issue of disability. Although Anaya v. New Mexico Steel Erectors, Inc., supra, indicated it was a factor to be considered, we believe that decision inadvertently relied on case law interpreting the earlier disability statute, and overlooked Quintana v. Trotz Constr. Co., 79 N.M. 109, 440 P.2d 301 (1968), which pointed out that the 1963 amendment to §§ 59-10-12.18 and 59-10-12.19, N.M.S.A.1953 (now §§ 52-1-24 and 52-1-25, N.M.S.A.1978), “changed the primary test of disability from wage-earning ability to capacity to perform work as delineated in the statute.”

The instant case presents some difficulty because there exist seemingly conflicting rules of appellate review. We are to consider the evidence and the inferences to be drawn therefrom in the light most favorable to support the trial court’s findings. Gearhart v. Edison Metal Prod., 92 N.M. 763, 595 P.2d 401 (Ct.App.1979). The credibility of the witnesses and the weight to be given their testimony is for the trier of the facts and not for the appellate court. Mares v. City of Clovis, 79 N.M. 759, 449 P.2d 667 (Ct.App.1968). Yet, if causal connection between the accident and the disability is established as an uncontradicted medical probability, that evidence is conclusive upon the fact-finder. Ross v. Sayers Well Serv. Co., 76 N.M. 321, 414 P.2d 679 (1966); Casaus v. Levi Strauss & Co., 90 N.M. 558, 566 P.2d 107 (Ct.App.1977); Mares v. City of Clovis, supra. However, medical evidence regarding the percentage of disability need not be accepted by the trial court if there is other competent evidence to refute it. Lucero v. Los Alamos Constructors, Inc., 79 N.M. 789, 450 P.2d 198 (Ct.App.1969). Our review of the cases applying the Lucero rule seems to indicate, however, that “other competent evidence” refers only to other medical testimony. See, e. g., Seal v. Blackburn Tank Truck Serv., 64 N.M. 282, 327 P.2d 797 (1958).

We can only conclude here that the trial judge disbelieved everything the claimant testified to regarding her disability. There is some justification for that reaction, if our conclusion is correct, because one of defendant’s witnesses testified that plaintiff, some time after she had been terminated by defendant, had told the witness that she was not looking for work because she had been advised it “might have an effect” upon her workman’s compensation claim.

However, a disabling injury resulting from the October 1977 incident has been conceded. The record shows that Miss Chavira had problems of dizziness and imbalance from the date of the accident and, at her initial visit arranged by her regular doctor with the specialist, Dr. Wasylenki, he suspected she was suffering a vestibular dysfunction. It was confirmed by an audio-gram performed by another specialist to whom plaintiff was referred by Dr. Wasylenki, and plaintiff was found also to have a decrease in her speech discrimination abilities. Dr. Wasylenki at the same time observed objective evidence of her dizziness and vertigo. There is, therefore, uncontradicted medical evidence that not only was plaintiff totally disabled during the period of her hospitalization, but also that she suffered at least some partial disability prior to her hospitalization which was caused by “motion . . . reading, moving the eyes back and forth.” All of those activities were required in plaintiff’s occupation in October 1977, and she said she had received help in doing her job after October because of her inability to do the work by herself. Consequently, her testimony regarding her condition before surgery was performed, even if not believed by the trial court, was confirmed by medical evidence that was not contradicted. The resulting factual situation, therefore, is that the injuring accident was employment-related and not disputed; the causal connection of a disabling condition, that was medically seen to be present, was established; a compensable partial disability, not disputed, was claimed up to the time plaintiff’s ear was operated on. Casa us and Lucero, supra, compel this acceptance of the facts as a matter of law. As an inevitable conclusion, therefore, plaintiff should have been compensated at no less than a partial temporary disability rate for that period.

The second anomaly in the lower court’s disposition of this case is the total disregard of medical evidence regarding a slight but permanent hearing loss. So was the doctor’s opinion of plaintiff’s condition and the resulting degree of disability, and her need for rehabilitative training treated.

We recognize that the trier of fact must be free to determine the credibility of the witnesses, but the two witnesses — plaintiff and Dr. Wasylenki — corroborated each other’s evidence and they were not contradicted by other evidence. Defendants presented no witnesses to counter plaintiff’s personal and medical testimony that she was unable after August, 1978 to work at jobs requiring driving, reading, writing, bending or quick movements. Her employer only said that he was not aware of her limitations. He felt, assuming “a mild imbalance problem” that would be aggravated by the activities and movements described by her doctor, that she could program automation for taped operations, and could act as a public affairs director in the radio business. He conceded, however, that the work would require some of the movements her doctor said she was no longer able to do, and acknowledged that it would also require her to engage in considerable research, reading, and driving to gather material and prepare her programs.

The uncontradicted, competent evidence of her inability to function at occupations requiring any of those movements or efforts cannot be ignored. Lucero; Casaus, supra. It was medically shown that plaintiff was unable, at least to “some percentage-extent to perform the usual tasks in the work [s]he was performing at the time of the injury and is unable to some percentage-extent to perform any work for which [s]he is fitted by age, education, training, general physical and mental capacity and previous work experience.” Section 52-1-25, N.M.S.A.1978.

The plaintiff did not request a finding of partial disability and it does not appear from the trial court’s findings that the court considered Anaya, supra, as suggesting that partial disability should be awarded if the facts upon which the court was concluded would support such an award, whether requested by the claimant or not. There being no decision on that issue, we remand the matter for the trial court’s review of the evidence of partial disability before and after surgery, and for consideration of future rehabilitative treatment, reposing our reliance in the trial judge “to make a decision that is fundamentally fair to both parties.” Anaya, supra, at 610 P.2d 1020. The statute, of course, grants future medicals as a matter of right, if related to the compensable injury. Section 52-1-49, N.M.S.A.1978.

The case is remanded for determination by the trial court of the percentage of partial disability following the injury and prior to surgery, if any; for entry of judgment against defendants for that amount and for total disability compensation during plaintiff’s hospitalization; for allowance of medical and hospital expenses incurred in connection with the October 1977 injury; and for an award of allowance for any costs incurred by plaintiff and of a reasonable attorneys’ fee for services at trial. The trial court shall also consider the award of some percentage of temporary and permanent partial disability in connection with her permanent hearing impairment and her inability to perform some of the work for which she is otherwise fitted, and as well as future medical and rehabilitation needs; and shall enter judgment on those considerations accordingly.

Since plaintiff is entitled to recovery of some compensation she is awarded $2,000 for services of her attorneys in this appeal. Cf. Perez v. Fred Harvey, Inc., 54 N.M. 339, 224 P.2d 524 (1950).

ANDREWS, J., concurs. SUTIN, J., concurring in part, dissenting in part.