(concurring in part and dissenting in part).
I concur in the reversal based upon the concessions made by defendants. I dissent on the conclusion that plaintiff was entitled to a percentage of partial disability as compensation. The judgment below should be vacated and a new judgment entered which includes payment of compensation for total disability during hospitalization, the payment of doctor bills and a reasonable attorney fee for services rendered. This fee should be determined in accordance with Fryar v. Johnsen, 93 N.M. 485, 601 P.2d 718 (1979).
The trial court found that:
2. On October 21, 1977 plaintiff sustained an injury to her ear drum caused by a loud noise on the telephone during her work with Gaylord.
3. Plaintiff continued to work for Gaylord from October 21, 1977 until August 28, 1978, her termination date ....
4. Plaintiff was not terminated because of failure to satisfactorily perform her work.
5. Plaintiff told her doctor that her dizziness was almost gone. On March 2, 1978 [four months later] she told him she has no dizziness whatsoever and that she was able to move, work and function normally.
6. The evidence does not establish required causal connection between the alleged injury and accident on October 21, 1977.
9. Plaintiff was not disabled by the accident of October 21, 1977.
10. Plaintiff is not in need of any further medical treatment, rehabilitation or psychological treatment.
Contrary to court findings, defendants voluntarily conceded the following facts:
1. ... plaintiff was permanently [sic] [totally] disabled during the hospitalization period between January 19, 1978, through February 7, 1978;
2. ... the medical treatment and bills of Dr. Waslenski and Dr. Hatler were necessary and reasonable; and
3. ... plaintiffs attorneys are entitled to reasonable attorney fees for services rendered at trial and for the Appeal.
As amended by these concessions, the trial court found that on October 21, 1977, plaintiff suffered an accidental injury within the scope of her employment and was totally disabled during her hospitalization but plaintiff was not disabled before or after her hospitalization.
A. The only issue in this appeal is: Was Plaintiff disabled before and after her hospitalization ?
(1) Before hospitalization.
Between October 21, 1977, the date of injury, and January 19, 1978, the date hospitalization took place, plaintiff continued to do her work. On November 8, 1977, 18 days after her injury, she was examined by an ear, nose and throat specialist. He found that plaintiff was alert and rational; that her ear canals and ear drums appeared normal, and the middle ears were clear; that tuning fork tests were normal in both ears. There was no evidence of any nystagmus, a sign which one looks for as a result of abnormal reaction from the balancing organ. An audiogram test was made, a test of the threshold of hearing. He found that both ears had essential normal hearing at that time but he referred plaintiff to an audiologist. Based only upon the tests made by the audiologist on November 30, 1977, a diagnosis was made of a disturbance of a left balance organ of the left inner ear and a “strong possibility” of an existing fistula within the inner ear. A fistula is an opening from the inner ear into the middle ear with leakage of fluid. There was some kind of hearing impairment such as difficulty in understanding speech or in discriminating the spoken word. The audiologist did not testify. Neither was his report to the physician admitted in evidence. On January 19, 1978, surgery was performed.
The trial court disregarded the testimony of plaintiff. Absent the testimony of plaintiff, there is no evidence of any disability suffered by plaintiff up to the time of surgery.
(2) After hospitalization.
Plaintiff was discharged from the hospital on January 21, 1978. There were no post operative complications. On March 2, 1978, plaintiff had no dizziness, could function normally and had a very small amount of loss of hearing. She did excellent work and never complained of having any physical problems performing her job. She was able to work until her job terminated on August 28, 1978. Absent the testimony of plaintiff, there is no evidence of any disability suffered by plaintiff after surgery.
“Impairment of physical function is not enough to justify an award under our Workmen’s Compensation Act; there must be some disability, or inability, to perform work.” Anaya v. New Mexico Steel Erectors, Inc., 94 N.M. 370, 610 P.2d 1199, 1201 (1980). Before and after surgery, plaintiff was able to perform the work she was engaged in at the time of the injury and the work for which she was fitted.
B. The trial court can accept or reject testimony.
Does the trial court have the right to disregard all or any portion of the testimony of plaintiff and her physician? The views taken by our courts leave me in a quandary.
It has been uniformly held that “[i]t is the function of the trier of facts to weigh the evidence and determine the credibility of witnesses and we will not do this on appeal.” McCauley v. Ray, 80 N.M. 171, 176, 453 P.2d 192 (1968). This rule is elementary. Chesher v. Shafter Lake Clay Co., 45 N.M. 419, 115 P.2d 636 (1941). When a district judge determines the credibility of a witness and gives no weight to the evidence, what is the duty of an appellate court?
Morris v. Cartwright, 57 N.M. 328, 332, 258 P.2d 719 (1953) arbitrarily said:
This evidence is undisputed and must be accepted as true.. . .
Martinez v. Archuleta, 64 N.M. 196, 199, 326 P.2d 1082 (1958) arbitrarily said:
The trial court is not required to accept the sworn testimony of a witness as true. . . .
Allsup v. Space, 69 N.M. 353, 361, 367 P.2d 531 (1961) arbitrarily said:
.. . The record discloses that the trial court evidently refused to believe much of defendant’s testimony. This the trial court had the right to do. . . .
State v. Chavez, 78 N.M. 446, 447, 432 P.2d 411 (1967) said citations omitted:
As a general proposition, unimpeached and uncontradicted sworn testimony must be accepted as true. If, in this case, the evidence is unimpeached and uncontradicted, the general rule is applicable and findings which disregard such evidence are lacking in support.
Medler v. Henry, 44 N.M. 275, 283, 101 P.2d 398 (1940) said:
[T]he testimony of a witness, whether interested or disinterested, cannot arbitrarily be disregarded by the trier of the facts; but it cannot be said that the trier of facts has acted arbitrarily in disregarding such testimony, although not directly contradicted, whenever any of the following matters appear from the record:
(a) That the witness is impeached ....
(b) That the testimony is equivocal ....
(c) That there are suspicious circumstances ....
(d) That legitimate inferences may be drawn . .. that contradict or cast reasonable doubt upon the truth or accuracy of the oral testimony.
Avoiding New Mexico authorities, Waters v. Blocksom, 57 N.M. 368, 370-1, 258 P.2d 1135 (1953) said:
. . . But the trial court was not required to accept as true the sworn testimony of the witness. [Citations omitted.] The general rule that uncontradicted testimony cannot be disregarded by the court, is subject to many qualifications and exceptions. As it is the duty of the trial court to determine what credit and weight shall be given to the testimony, an appellate court will not disturb a finding or conclusion denying credence, unless it appears that there are no facts or circumstances which at all impair the accuracy of the testimony. [Citations omitted.] ....
Hales v. Van Cleave, 78 N.M. 181, 186, 429 P.2d 379 (Ct.App.1967) said:
Even though the testimony of the plaintiff was not contradicted, the trial court could still determine his credibility from all the facts and circumstances, as well as his demeanor on the stand, his interest or bias shown by his testimony, his conduct, the inherent probability or improbability of his statements, and from all these matters determine the truthfulness of his testimony. [Citations omitted.] Even though we may have made a finding contrary to that of the trial court, an appellate court will not substitute its judgment for that of the trial court who heard all the evidence and observed the demeanor of the witness.. . .
Beacon Supply Company v. American Fiber Corp., 75 N.M. 29, 35, 399 P.2d 927 (1965) said:
. . . Whether the testimony of a witness is so impeached as to render his testimony unworthy of belief is a matter for the trial court to determine. [Citation omitted.] This court will not substitute its judgment for that of the trial court as to credibility of witnesses....
Many more examples can be shown. Critical comment will not aid in the adoption of a rule proper in all cases. A uniform rule was adopted in U.J.I. 17.5 which applies the Hales rule. It reads:
You alone are the judges of the credibility of the witnesses and the weight to be given to the testimony of each of them. In determining the credit to be given any witness you may take into account his ability and opportunity to observe, his memory, his manner while testifying, any interest, bias or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in the case.
The various rules adopted appear to be a convenient method used by an appellate court to arrive at what it believes to be a fair and reasonable result. Better it would be to repose our reliance in the trial judge “to make a decision that is fundamentally fair to both parties” before judgment is entered. A uniform rule should be followed absent any indication in the record of bias, prejudice, interest, illness of a district judge, or any other factor that obstructs a fair decision.
A trier of the fact is not bound to believe a fact simply because a witness has testified on the matter. The whole burden of determining the truth of a fact rests within the conscience of a district judge, who alone considers the demeanor and conduct of the witness. An appellate court that reads from a cold record cannot precisely determine the truth of a fact stated by a witness.
Until such time as a uniform rule is adopted, the solution to this perplexing problem rests with a procedural innovation. The parties shall state, within the requested findings or conclusions, the reasons for the adoption or rejection of the witness’s testimony. The district court shall, thereupon, adopt or reject the requests made and state the reasons.
It is established law that the opinion of an expert, although uncontradicted, is not conclusive of the fact in issue. The fact finder may reject expert opinion evidence in whole or in part. Lopez v. Heesen, 69 N.M. 206, 365 P.2d 448 (1961); Van Orman v. Nelson, 78 N.M. 11, 427 P.2d 896 (1967); Gaskin v. Harris, 82 N.M. 336, 481 P.2d 698 (1971); Lucero v. Los Alamos Constructors, Inc., 79 N.M. 789, 450 P.2d 198 (Ct.App. 1969); Phillips v. Smith, 87 N.M. 19, 528 P.2d 663 (Ct.App.1974); Reid v. Brown, 56 N.M. 65, 240 P.2d 213 (1952).
C. Corroboration is a valid test.
There is another method of sustaining or rejecting the findings of a trial court-corroboration of testimony with evidence that aids in the determination of the credibility of the witness. The law developed under an old statute, since repealed, which required corroborative evidence. See Bujac v. Wilson, 27 N.M. 105, 196 P. 327 (1921); National Rubber Supply Co. v. Oleson & Exter, 20 N.M. 624, 151 P. 694 (1915); Gildersleeve v. Atkinson, 6 N.M. 250, 27 P. 477 (1891); 32A C.J.S. Evidence § 1016 (1964).
Gildersleeve defined “corroborating evidence” as follows:
. .. Corroborating evidence is such evidence as tends, in some degree, of its own strength and independently, to support some essential allegation or issue raised by the pleadings testified to by the witness whose evidence is sought to be corroborated which allegation or issue, if unsupported, would be fatal to the case; and such corroborating evidence must of itself, without the aid of any other evidence, exhibit its corroborative character by pointing with reasonable certainty to the allegation or issue which it supports. And such evidence will not be material unless the evidence sought to be corroborated itself supports the allegations or point in issue. . . . [Emphasis added.] [6 N.M. 260-61, 27 P. 477.]
Bujac says:
The corroboration required is not the general corroboration of the witness as to his credibility, but it is some form of evidence which tends, in and of itself, to establish the essential fact necessary to a recovery. This may be done circumstantially in case direct evidence is not available .... [Emphasis added.] [27 N.M. 11-12, 196 P. 397.]
Based upon these rules, a careful review of the record discloses no corroboration of plaintiff’s testimony with reference to disability. The record indicates a number of witnesses who could have corroborated plaintiff’s testimony but none appeared as witnesses. The physician, the only witness who supported plaintiff’s claim, had no independent knowledge of her physical problems. None were demonstrated during his examination.
A review of the record creates a sympathetic approach to plaintiff’s constant repetitive references to her disability. But under no reasonable rule can an appellate court, absent sitting as a juror in the case, substitute its judgment for that of the district court. In arriving at this conclusion, I refrain from pointing to impeachment, and disputed testimony, of plaintiff.