Corzine v. Sears, Roebuck and Company

OPINION

SPIESS, Chief Judge.

Sears, Roebuck & Company appeals from a judgment awarding workmen’s compensation benefits to the plaintiff, H. C. Corzine. Plaintiff asserts that he sustained compensable injuries as a result of engaging in a fight with a fellow employee.

The occurrence of the fight, its relation to employment, together with injuries claimed to have been sustained by plaintiff as a result of the fight, were the subject of findings by the trial court. With respect to causation the following finding was made:

“12. That in said fight, * * * inflicted injuries upon Plaintiff which caused his temporary total disability for a period of ten weeks, and since said period of temporary total disability, the Plaintiff has suffered a partial disability to his body as a whole to the extent of ten percent.”

While Sears has challenged the judgment on several grounds, its attack upon Finding 12, in our opinion, is dispositive of this appeal and upon this issue we reverse the judgment. Sears’ contention is that the quoted finding is not supported by substantial evidence for the reason that causal connection between the accident (altercation) and disability, an issue in the case, was not established by expert testimony as required by § 59-10-13.3, subd. B, N.M.S.A. 1953, which reads:

“B. 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 on speculation or on expert testimony that as a medical possibility the causal connection exists.”

Since adoption, this statute has been construed and applied by the Supreme Court in a number of cases. In Yates v. Matthews, 71 N.M. 451, 379 P.2d 441 (1963), the court, in construing the statute, said:

“The language of the statute [§ 59-10-13.3 B] is clear and unambiguous in its requirement that medical testimony be produced to establish causal connection between an accident and disability. The requirement is not that this be established by direct and uncontroverted evidence, but as a medical probability. This would seem to envisage opinion evidence of a medical expert. In other words, where causal connection is denied by an employer, in order to prevail, it is now encumbent upon a claimant to present one or more qualified medical experts to testify that in his or their opinion there is a causal connection as a medical probability as opposed to possibility, [citation omitted].”

The effect accorded the statute in Yates has since been adhered to. See Gallegos v. Kennedy, 79 N.M. 590, 446 P.2d 642 (1968); Romero v. Zia Company, 76 N.M. 686, 417 P.2d 881 (1966); Torres v. Kennecott Copper Corp., 76 N.M. 623, 417 P.2d 435 (1966).

The question involves simply whether the evidence consisting of the expert medical opinion supports the challenged finding. We are guided by the rule that the evidence and inferences that may reasonably be drawn therefrom, must be viewed in the light most favorable to support the finding. Gammon v. Ebasco Corporation, 74 N.M. 789, 399 P.2d 279 (1965); Montano v. Saavedra, 70 N.M. 332, 373 P.2d 824 (1962); Lopez v. Schultz & Lindsay Construction Company, (Ct.App.1968), cert. denied 79 N.M. 448, 444 P.2d 775 (1968).

In reference to the required medical testimony the Supreme Court, in Gammon, said:

“* * * the medical expert need not state his opinion in positive, dogmatic language or in the exact language of the statute. But he must testify in language the sense of which reasonably connotes precisely what the statute categorically requires.”

The evidence significant to this issue will be summarized.

Plaintiff’s doctor was the only medical expert whose testimony was presented in the case. He testified that he had been plaintiff’s family doctor since 1958; that on December 14, 1966, (the date on which the fight occurred) he treated plaintiff at the hospital. Plaintiff’s condition at the time was described in the following manner: “He had three wounds of his scalp, which penetrated to the skull. Two were severe. He had bruises on his left shoulder and left forearm.”

The doctor further testified that plaintiff complained of pain in his shoulder, that he had not so complained at times when the doctor had treated him prior to December 14th. With respect to this pain the doctor testified that he had diagnosed it as traumatic bursitis, which he said was painful, restricted movement and the ability to work when use of the arm is required.

Plaintiff refers us to the following testimony on both direct and cross-examination.

“Q. Did he give you a history of how these scalp wounds were inflicted?
A, Yes, he stated that he had been struck over the head with a fireplace stand, I believe, according to my recollection. Some part of a fireplace set.”
* Hi # * *
“Q. Doctor, when Mr. Corzine was giving you a history of the circumstances that caused the injury, did he tell you in detail what happened? Did he not tell you that he had gotten mad about a sale that another fellow had made, and that the other fellow got mad at him, and they had gotten into an altercation ?
A. He said the man had gotten mad ■ at him about some sale-that the other man had made.
Q. And, he got mad and got into an altercation.
A. He said the man struck him, or something, after a few words, and that he had struck the other man.
Q. ’ I see. Did he not tell you he had ’ 'gotten mad and the other fellow •had gotten mad too, both of them?
A., ,1 -don’t remember him saying that.
Qk : And, you didn’t tell me that ?
' A. T" don’t remember saying that he got very angry at the other man, ........ before' the fight started.” .

. • The only testimony in the record which purports to establish causal connection between the alleged accident and claimed disabilities and called to our attention consists of statements attributed to plaintiff himself. Causal connection as a medical probability as between the accident (altercation) and the disability was not established' by expert medical opinion either inferentially or otherwise. The expert was not- asked nor did he express any opinion upon the subject of causal connection.

From our view of the expert medical testimony, it cannot be said that the essential proof of causation as a medical probability was presented. We appreciate -'thhtCthe Workmen’s Compensation Act is to be construed liberally, Lopez v. Schultz & Lindsay Construction Company, supra; Gammon v. Ebasco Corporation, supra, still we cannot, under the guise of liberal interpretation, ignore the plain meaning of a statute, nor relax its requirements. See Kosmicki v. Aspen Drilling Company, 76 N.M. 234, 414 P.2d 214 (1966); Geeslin v. Goodno, Inc., 75 N.M. 174, 402 P.2d 156 (1965).

In view of the foregoing the judgment is reversed, the cause remanded to the district court with directions to set aside its judgment and dismiss the complaint.

It is so ordered.

WOOD, J. (specially concurring). OMAN, J. (concurring in opinion of Chief Judge SPIESS and concurring in part with specially concurring opinion of Judge WOOD.)