dissenting.
I hereby adopt as my dissent the majority opinion of the court of appeals as appended herein in full.
APPENDIX
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
MARK HENSLER, Claimant-Appellant, vs. CLARKE OIL WELL SERVICE, and HOME INSURANCE COMPANY, Respondents-Appellees.
Aug. 23, 1988
No. 10,640
ADMINISTRATIVE APPEAL FROM THE NEW MEXICO DEPARTMENT OF LABOR
GREGORY D. GRIEGO, Hearing Officer WARREN F. REYNOLDS
WARREN F. REYNOLDS, P.A.
Hobbs, New Mexico, Attorneys for Claimant-Appellant
SAM LAUGHLIN, Jr.
LAW OFFICES OF R.E. RICHARDS
Hobbs, New Mexico, Attorneys for Respondents-Appellees
MEMORANDUM OPINION
ALARID, Judge.
Claimant appeals a dispositional order from the workers’ compensation administration finding him 10% permanently partially disabled. Our first calendar notice proposed summary affirmance of the order. Pursuant to an extension of time, claimant has timely filed a memorandum in opposition to the proposal. Not being persuaded, we affirm.
Claimant injured his back on May 24, 1985, while descending from an oil derrick. The hearing officer found that claimant was temporarily totally disabled from May 25, 1985 until October 30, 1986. The hearing officer found that from October 31, 1986, claimant was permanently partially disabled to the extent of 10%. The hearing officer concluded that claimant was unable to return to his former job and should receive vocational rehabilitation benefits. Claimant has two arguments regarding the finding of 10% disability.
First, he argues that the findings regarding the percentage disability and the need for vocational rehabilitation conflict with each other. He argues that if he was unable to return to his former job, he would be totally disabled. See Medina v. Zia Co., 88 N.M. 615, 544 P.2d 1180 (Ct.App.1975). However, if there is some work for which he is fitted, he cannot be totally disabled. Id.
It appears from the record that claimant was released to return to work on October 30,1986. At that time, he was given a few medical restrictions. He was not to lift more than 30 pounds on a repetitious basis and he was not to sit, stand or walk for prolonged periods without rest intervals. These restrictions did not pose a problem with claimant’s employer. There was work available to satisfy those restrictions. However, claimant never returned to work.
If a claimant is capable of performing some work for which he is fitted, but does not return to work, he does not satisfy the test for total disability. The fact that the hearing officer found that claimant was entitled to vocational rehabilitation does not conflict with the finding of a percentage disability. Entitlement for vocational rehabilitation benefits is dependent upon an inability to return to one’s former job. NMSA 1978, § 52-1-50 (Cum.Supp.1985). If the claimant cannot return to his former job because of a percentage disability, he is then entitled to vocational rehabilitation.
Secondly, claimant argues that the hearing officer based his determination of 10% disability on an impairment rating given by expert medical testimony. A percentage of impairment is not necessarily disability. Perez v. International Minerals Chemical Corp., 95 N.M. 628, 624 P.2d 1025 (Ct.App.1981). The finder of fact is not bound by a doctor’s testimony regarding percentage of disability. Anaya v. New Mexico Steel Erectors, Inc., 94 N.M. 370, 610 P.2d 1199 (1980). However, the finder of fact may take into consideration the doctor’s testimony in making its determination regarding disability.
Claimant argues that his case is similar to Quintana v. Trotz Constr. Co., 79 N.M. 109, 440 P.2d 301 (1968), where the medical testimony was that the plaintiff would not be able to do heavy manual labor, but that he could do most kinds of light or sedentary work. The trial court found plaintiff 20% disabled based on medical testimony that he would be 20% permanently disabled no matter what he did. The appellate court reversed, stating that if there was evidence that plaintiff could no longer do the work that he was doing at the time of the injury, and that he could not do any work for which he was qualified, then regardless of the medical testimony, the plaintiff would be totally disabled. However, in this case, the evidence was that claimant could do some of the work for which he was fitted. Therefore, he could not be totally disabled. The medical testimony was competent testimony on which the hearing officer could base a finding of 10% disability.
Claimant also argues that the finding that he failed to identify, with particularity, the safety device which was not provided was error. Evidence was introduced at the hearing regarding the specific safety device without objection. Therefore, the issue was tried by implied consent of the parties and the pleadings are treated as amended. White v. Wayne Lowdermilk, Inc., 85 N.M. 100, 509 P.2d 575 (1973). However, we fail to see how this advances claimant’s cause. The hearing officer found that the failure to provide a safety device was not the proximate cause of claimant’s injury.
Proximate cause is for the finder of fact. The finder of fact determines the credibility of witnesses and determines where the truth lies. Sanchez v. Homestake Mining Co., 102 N.M. 473, 697 P.2d 156 (Ct.App.1985). This court will not substitute its judgment for that of the trier of fact. Id. There is evidence in the record that claimant was acting in direct opposition to orders when he descended the derrick by way of the “geronimo line.” Therefore, we do not agree that the evidence was uncontradicted that the failure to provide a safety device was the proximate cause of claimant’s injury. There is substantial evidence to support the finding of the hearing officer.
Because claimant’s memorandum did not address the claim regarding the attorney fees, we deem the issue to be abandoned. State v. Rael, 100 N.M. 193, 668 P.2d 309 (Ct.App.1983).
For the reasons stated herein and in the calendar notice, we affirm the dispositional order of the workers’ compensation administration.
IT IS SO ORDERED.
DONNELLY, C.J., and FRUMAN, J., concur.