(concurring in result only).
I concur in the result only.
This is a workmen’s compensation case in which the trial court increased compensation and ordered payment for medical benefits. The court found that plaintiff’s disability had become more aggravated and had increased without fault from 25 percent disability to the hand to total disability. Defendants appeal. We affirm.
In the original trial held, the trial court found that plaintiff, at that time, had no disability as a result of injuries to his head, neck and upper and lower back. In other words, plaintiff suffered injuries to his head, neck and upper and lower back but the injuries suffered were not sufficient to constitute a disability. Plaintiff did suffer a 25 percent permanent partial disability to his dextrous hand (skillful and competent with this hand). The court concluded that judgment be entered in favor of plaintiff for 25 percent disability of plaintiff’s dextrous hand for the statutory period; that pain alone, which did not interfere with or prevent adequate performance, was not compensable.
A year later, plaintiff filed an application to increase compensation and pay for medical benefits. After hearing, the court found:
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5. Plaintiff continued to attempt to work and was gainfully employed for a period as a caser [casing oil field work]; however, he was unable to continue that work and sought lighter work as a security guard in which his employer furnished him a special cushion; and he wore a back brace prescribed by Dr. Hayes and Dr. Breck. He became unable to work on May 1, 1977, and has not been gainfully employed since May 2, 1977. Plaintiff’s disability has become more aggravated and has increased without fault of plaintiff so that plaintiff is unable to do any work as defined in the Compensation Act.
Section 52 — 1-56(A), N.M.S.A.1978 allows a workman to seek an increase in compensation “if it shall appear . . . that the disability of the workman . . . has increased . . . Plaintiff’s disability was increased from 25 percent permanent partial disability of the dextrous hand to total disability of the body as a whole.
Two questions for decision arise:
(1) Can a permanent partial disability to a specific body member be increased to total disability of the body as a whole?
(2) Is the evidence sufficient to warrant a finding of such total disability?
The answer to both questions is “yes.”
A. Plaintiff’s permanent partial disability of the hand can be increased to total bodily disability.
Increase of the “disability of a workman,” as stated in § 52-l-56(A), is broad and expansive in scope. It is not limited to total or partial disability as defined in §§ 52-1-24 and 52-1-25. It includes “disability resulting from an accidental injury to specific body members including the loss or use thereof.” Section 52-l-43(A), subsection 7 of which covers “one hand, dextrous member . . . 125 weeks.” Nothing in the phrase “disability of a workman” indicates that an increase in compensation is limited to total disability of the hand alone. While disability of the hand continues, and a final judgment has not been entered, facts and circumstances which occur during the interim period may so affect the body as a whole as to leave the realm of a scheduled injury and enter the land of total and partial disability of the body as a whole. When this occurs, it naturally follows that plaintiff can seek an increase in compensation. To reach the goal of total disability, the evidence must meet the two prong test set forth in Medina v. Zia Company, 88 N.M. 615, 544 P.2d 1180 (Ct.App.1975).
Defendants contend that a disability increase cannot occur because the initial judgment established a non-existent disability and that a non-existent disability may not revive itself to become a total disability. Defendants rely on Sena v. Gardner Bridge Co., 93 N.M. 358, 600 P.2d 304 (1979) and Am. Tank & Steel Corp. v. Thompson, 90 N.M. 513, 565 P.2d 1030 (1977).
Sena involves an initial judgment wherein plaintiff was held to one week of compensation. Disability had ended one year before judgment was entered. The judgment entered was a final judgment. A year later, plaintiff sought an increase in compensation. The court said:
. We hold that a workman who is not disabled at the time judgment is entered cannot, thereafter, seek an increase of a non-existent disability. Neither can a non-existent disability revive itself to become partial or total disability. [Emphasis added.] [600 P.2d 306.]
In the instant case, at the time judgment was entered, plaintiff suffered a 25 percent permanent partial disability of a dextrous hand with continued payment of compensation benefits. The judgment entered was not a final judgment. Sena is not applicable.
American Tank created a far reaching innovation in the Workmen’s Compensation Act. The court said:
If one suffers a scheduled injury which causes a physical impairment but does not create disability, [§ 52-l-43(A)] . will apply. When the impairment amounts to a disability, [§§ 52-1-24, 52-1 — 25] . . . are properly involved. [Emphasis added.] [90 N.M. 515, 565 P.2d 1032.]
In other words, the term “disability” has been deleted from § 52-1 — 43(A), the scheduled injury statute, and “physical impairment” substituted therefor. This is to say that when the court below found plaintiff to be 25 percent permanently, partially disabled in his dextrous hand, the court should have said plaintiff was “physically impaired” to that extent.
Therefore, defendants argue that in the initial judgment “[t]he court found specifically an impairment without a disability.” If there was no “disability” under the scheduled injury statute, then, defendants say, a non-existent disability cannot revive itself to become total disability. However, to translate “25 percent disability to the hand” to mean “an impairment without disability” is a crochet that moiling judges can perceive.
We agree with plaintiff that the substitution of “physical impairment” for “disability” is unfortunate unless those terms are synonymous or interchangeable.
As heretofore pointed out, “impairment” has never appeared in the Workmen’s Compensation Act and has never been defined in New Mexico. Witcher v. Capitan Drilling Company, 84 N.M. 369, 503 P.2d 652 (Ct.App.1972), Sutin, J., specially concurring. Nevertheless, in overruling many pri- or decisions, American Tank approved Witcher. In Witcher, the court said:
The internal wording of [§ 52-l-43(A)] [injury to specific body member] suggests to us that “disability” in Subparagraph A means “physical impairment.” . . . [Emphasis added.] [84 N.M. 371, 503 P.2d 654]
If “disability” means “physical impairment” then these terms are interchangeable. The Supreme Court did not mean that if the district court mistakenly used the word “disability” instead of “physical impairment,” a workman cannot seek an increase in compensation; that “physical impairment” is excluded from use of the words “disability of a workman”; that “physical impairment” cannot increase. All that the Supreme Court intended was to distinguish “disability” as it relates to a scheduled injury, and “disability” as it relates to total and partial disability.
The purpose of this distinction was to broaden the meaning of the scheduled injury statute so that a workman may seek compensation benefits for total permanent disability when disability arises from injuries to a specific body member.
Rather than attempt the arduous task of defining ' “physical impairment,” we hold that in the scheduled injury statute, “physical impairment” and “disability” are synonymous.
In Fuchs v. Old Line Life Ins. Co., 46 Wis.2d 67, 174 N.W.2d 273, 276 (1970), by use of the dictionary, the court defined “physical impairment” as follows:
Giving “physical impairment” the ordinary meaning as used in common speech, the term denotes a defect or infirmity limiting or making useless a member or limb of the body. .
This definition is an equivalent of “disability” or “disablement” or “incapacity.”
We hold that plaintiff’s “physical impairment” to his dextrous hand can be increased to total bodily disability.
B. The evidence presented shows total disability.
Defendants argue that “[t]here is nothing in the record to indicate that the plaintiff’s condition had become more aggravated or had increased without fault of the plaintiff,” as found in finding no. 5, supra.
We have carefully read the testimony of plaintiff and Dr. Louis W. Breck, an Orthopedist of renown in Texas and New Mexico.
This testimony established the two prong test set forth in Medina. Dr. Breck said plaintiff could not perform the work he was doing at the time of injury and plaintiff testified he was not fit to perform any work. Plaintiff’s own testimony can establish the extent of disability. Marez v. Kerr-McGee Nuclear Corp., 93 N.M. 9, 595 P.2d 1204 (Ct.App.1978); Garcia v. Genuine Parts Co., 90 N.M. 124, 560 P.2d 545 (Ct. App.1977). Defendants rely upon the report of their doctor that plaintiff was not disabled in either respect. However, “[t]he testimony of the injured employee with respect to the extent of his disability may be accepted over the testimony of medical experts.” Gregory Company v. Durdin, 537 S.W.2d 701, 703 (Tenn.1976). Plaintiff is now totally disabled until the further order of the court.
Defendants’ final argument revolves around § 52-l-28(B) which reads:
In all cases where the defendants deny that an alleged disability is a natural and direct result of the accident, the workman must establish that causal connection as a medical probability by expert medical testimony. No award of compensation shall be based upon speculation or on expert testimony that as a medical possibility the causal connection exists.
Defendants say “there is no evidence in the record to show that the plaintiff’s alleged increase . . . was in terms of reasonable medical probability caused by the original accident.” “Reasonable medical probability” is confined to the initial judgment of a workman seeking compensation benefits, not to a judgment arising out of an increase in the amount of compensation. Section 52-l-56(A) says the court may award “an increase in the amount of compensation allowable as the facts may warrant.” “As the facts may warrant” is directed to “an increase in the amount of compensation.” It is not directed to medical causation. Medical causation was determined in the initial trial. If not, compensation would not have been awarded by the court and paid by defendants. Section 52-1-28(B) is not applicable to claims for increased compensation.
Reference is made to the following language in Sena:
If plaintiff believes that he can show a causal connection between the accidental injury and subsequent surgery, plaintiff may, perhaps, have a remedy by seeking relief from the judgment. [600 P.2d 307.]
This reference was directed to a revival of disability not to an increase of the disability.
Interspersed in the argument is the claim that “[t]here is no testimony in the record to indicate that the alleged increase of the . disability has become more aggravated or has increased without fault of the plaintiff,” as required by § 52-1-56. This requirement is in the alternative. Dr. Breck’s testimony adequately satisfied the matter of aggravation of the disability. Whether “without fault of the plaintiff” is shown is not essential to recovery of increased compensation.
Defendants seek to deny plaintiff the right to recover $260.00 for services rendered by Dr. Breck. Without objection, plaintiff testified that he owed Dr. Breck $260.00 for treatment in connection with his injury. The court so found. Dr. Breck did not testify as to his “bill,” nor was one offered in evidence. This is the first time a workman sought to recover a medical expense by the amount he owed the doctor. In New Mexico, proof of a bill from a doctor for services rendered is sufficient as prima facie proof of reasonableness. Scott v. Transwestern Tankers, Inc., 73 N.M. 219, 387 P.2d 327 (1963). A debt owed to a doctor is equivalent to a bill received from the doctor that is due and owing. We do not commend this method of proof but we hold it sufficient where no objection is made, no request for the bill is made, and no cross-examination is undertaken to test the foundation of the statement made.