(dissenting) .
I am compelled to dissent, for five reasons: (1)' Dr. Martinez’ report does not furnish a sufficient basis for a finding of lack of causal connection; (2) the • trial court did not make a clear-cut finding on causation; (3) the trial court’s findings were not separately numbered and stated; (4) the trial court did not mark plaintiff’s requested findings of fact and conclusions of law ‘'‘refused”, or enter an order to this effect; and (5) it is apparent that the trial court based its decision, not on lack of causation, but on an erroneous belief that the general release necessarily covered a later-discovered injury in the same body area.
Under Mayfield v. Keeth Gas Company, 81 N.M. 313, 466 P.2d 879 (Ct.App.1970), the defendants’ medical evidence on causation in a workmen’s compensation case must be substantial, even though it need not meet the plaintiff’s statutory burden, where causation is denied, to “ * * * establish that causal connection as a medical probability by expert medical testimony.” § 59-10-13.3 (B), N.M.S.A.1953. (Repl. Vol. 9, Part 1). Is the defendants’ medical evidence substantial in this case? The portion of Dr. Martinez’ report quoted in the majority opinion shows that, at best, it was sufficient to raise some questions, using such expressions as “I am at a loss” and “I would rather speculate.” It takes a lot of inference to convert this into an opinion of lack of causation. Further, the quoted portion is inconsistent within itself and is actually consistent with plaintiff’s contention where it says, “I would rather speculate that the best probability is that there is some connection between the infection and the old scarred area.”
This is not a case in which the trial judge saw and heard two medical experts give conflicting opinions. Dr. Bronitsky testified in person for the plaintiff, and as the majority opinion concedes, his testimony on causation met the statutory requirement. Dr. Martinez did not testify in person; his written report was read into evidence by stipulation, and therein lies one source of our problem. Had he been testifying in person, his opinion no doubt would have been elicited, and it might very well have been as interpolated by the majority. But it should not be the function of this court to remedy the deficiency. Since no question of “eyeballing” the witness to determine his credibility is involved, we are in as good a position as the trial court to evaluate the written evidence. Baker v. Shufflebarger & Associates, Inc., 78 N.M. 642, 436 P.2d 502 (1968).
The plaintiff requested a finding “That the draining sinus condition was caused by and directly related to the accident of July 8, 1968.” Instead of meeting this request squarely, the trial court’s Finding No. 9, as quoted in the majority opinion, states in part that “ * * * more than likely the draining sinus is completely unrelated to his injury of July 8, 1968.” The trial court, when requested, must find one way or the other on a máterial fact issue, and failure to do so constitutes error. Aguayo v. Village of Chama, 79 N.M. 729, 449 P.2d 331 (1969). While there is a line of New Plampshire cases holding that a finding of a probability that a certain fact exists is equivalent to a finding that it does exist, e. g., Pulsifer v. Walker, 85 N.H. 434, 159 A. 426, 81 A.L.R. 1052 (1932), the precise question has not been decided in. this jurisdiction. Under the majority opinion a “more than likely” finding meets the-minimum requirements of Rule. 52(B), Rules of Civil Procedure, § 21-1-1(52) (B), N.M.S.A.1953 (Repl.Vol. 4), that “ * * * the court shall find the facts. * * * pertinent to the case * * * ” The same rule goes on to require in two-places that each finding and conclusion be-separately stated, which definitely was not. done in this case. The wisdom of this requirement is well illustrated here; if each, fact and conclusion “pertinent to the case”' had been stated and numbered separately,, we would know much more precisely what was intended, and the true basis of the decision. As it was, the trial court simply adopted verbatim the defendants’ requested findings and conclusions, which leave a lot to be desired.
Subsection (B) (a) (5) of the same Rule-52 requires that the trial court mark' “Refused” all requested findings of fact and conclusions of law not included in the-court’s decision. Our Supreme Court has held this rule to be sufficiently complied with where “Refused” was written and initialled on the first page of a party’s requested findings and conclusions, Martinez v. Research Park, Inc., 75 N.M. 672, 410 P.2d 200 (1965), and where the trial court merely included in its decision an order that “All requested Findings of Fact and Conclusions of Law submitted by the parties at variance with this Decision are-hereby denied”, Edwards v. Peterson, 61 N.M. 104, 295 P.2d 858 (1956); but in each case the exception was approved on the ground that no prejudice to the appellant had been shown. Here the trial court made no attempt to comply with Rule 52(B) (a) (5) and prejudice did result to-the plaintiff because the trial court did not adopt clear-cut findings and conclusions-contrary to those requested by plaintiff on material issues, and because the basis of the decision is in doubt. For this reason. alone, the case should be remanded. Otherwise, Rule 52(B) (a) (5) will be nullified in effect, at least in this court, and Edwards v. Peterson and Martinez v. Research Park, Inc., supra, will be impliedly overruled.
Since the true basis of the decision is somewhat obscure, I think it is proper to resort to the trial judge’s oral comments at the conclusion of the trial, even though these comments are not binding and may be superseded by the written decision. Edwards v. Peterson, supra. They are, in full:
“THE COURT: I will have to dismiss this case. I think the release was a valid release and releases the claim in question.”
This comment is consistent with the decision, which included detailed findings and conclusions about the validity and binding effect of the general release. In fact, four of the conclusions of law are concerned with the release, and only one, the last, is concerned with the injury now complained of. It does say, “The claim of plaintiff does not constitute a latent injury.” However, this conclusion is not supported by any findings of fact, even though plaintiff submitted specific requested findings regarding whether the draining sinus had manifested itself or was known by either party to exist at the time of the settlement. A conclusion of law unsupported by specific findings of fact should be disregarded. Consolidated Placers, Inc. v. Grant, 48 N.M. 340, 151 P.2d 48 (1944).
It is apparent that the trial court felt itself bound by the release in view of the-fact that the claimed latent injury was in the same general body area (the low back) as the injury which was known to the parties when they settled. As acknowledged by the majority opinion, our law recognizes latent injuries in workmen’s compensation cases, and general releases can be set aside where they exist. If the trial court were fully alerted to this, and the case were remanded for further findings and conclusions, the result might well be different. Whether or not the result might be changed, the workman is entitled to that chance. He has put his settlement of $3500 (plus medical bills) on the line by asking that the release be set aside; he-might receive less for both injuries on remand.
We are supposed to construe the Workmen’s Compensation Act in favor of the-workman. Croner v. J. W. Jones Construction Company, 79 N.M. 179, 441 P.2d 219 (Ct.App., 1968). The majority opinion does not do this.
In my opinion, this court should hold the defendants’ medical evidence insufficient as a matter of law to overcome the plaintiff’s prima facie case on causation, or at least should remand for further findings, on causation and latent injury. The majority holding otherwise, I must respectfully dissent.